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Writ Petition No.1787-R of 1976, decided on 12th October, 1986.
---S.10--Transfer of evacuee. shop--Dispute relating to roof of shop- Proprietary right of transferee--Where evacuee shop without any kind of construction thereon was validly transferred by Settlement Authority, transferee of that shop, held, would be entitled to enjoy proprietary right over that shop right from the ground to the sky.
Muhammad Arif for Petitioner.
Nemo for Respondent No.1.
A.R.Shaukat for Respondent No.2.
Date of hearing: 12th October, 1986.
Dispute relates to the roof of a shop in property No.P-190, Ward No.5 Amirpur Bazar, Faisalabad. The shop underneath was in possession of one Rehman Gul but the petitioner's predecessor-in interest Rana Wazir Ali filed a C.S. form which was rejected on 2-1-1960 (sic). Hiis appeal was however accepted by the Additional Settlement Commissioner vide order dated 5-4-1960. No revision or any proceeding was taken in respect thereof. The transferee was issued P.T.D. on 27-11-1961. The occupant of the shop filed a writ petition No.2283-R of 1962 which was allowed with respect to the Chaubara but as regards the transfer of the shop in favour of Rana Wazir Ali, the order was upheld. This is vide order of remand dated 8-11-1967. It may be noted that in these proceedings, Muhammad Younis, respondent No.2 had appeared and he was questioned "as to interest in the shop and Chaubara" . He stated that he is not interested in them. Consequently, his leaned counsel did not press his application for being impleaded as a party in the writ petition. It was accordingly dismissed. In pursuance of the aforesaid order of remand, the matter was taken up by the Settlement Commissioner regarding transfer of the Chaubara to Rehman Gul which was allowed on 2-9-1972. Muhammad Younis, respondent No.2 filed a writ petition No.351-R/65, in which two questions were raised, firstly regarding the shop and secondly, regarding the upper portion of the shop. The petition was dismissed on the first point; regarding the second it was observed that the matter could be re-agitated in review. Consequently, a review application was filed before the Settlement Commissioner who recommended to the Chief Settlement Commissioner for consideration. The Chief Settlement Commissioner referred the case back to the Settlement Commissioner to decide himself the matter of review. The Settlement Commissioner held that the power of review had since been repealed. This is vide order dated 7-8-1968. Respondent No.2 filed a writ petition No.125/R-69 which was allowed and the case was remanded on 15-11-1974. In pursuance thereof the learned Settlement Commissioner has held that the roof of the shop transferred to Rana Wazir Ali, -since deceased, represented by the heirs, the petitioner::, is a part of the residential portion on the upper floor of the shops and same should stand transferred to Muhammad Younis alongwith the residential portion behind the shops on the ground-floor This is vide order dated 10-9-1976. This is challenged by the heirs of the transferee of the shops through the aforetitled Constitutional petition.
2. It is a case of making a mountain out of a mole hill and of getting an order for observing facts while asking for Namaz. the shop was transferred to the predecessor-in-interest of the petitioners some 26 years ago. There is no construction thereon. It meets the sky. It is obvious that the transferee is entitled to it right from the ground to the sky. Therefore, the order to the contrary is clearly without lawful authority. As far as Muhammad Younis is concerned, the roof of the shop of somebody else he cannot have because of the fact that he had got the residential portion on another shop in the form of Chaubara. A perusal of the order seriatim would also show that the Deputy Settlement Commissioner vide order dated 22-12-1959 had found that Muhammad Younis is entitled to the residential portion behind shop of Muhammad Amin. He has not been transferred the upper portion over the shop of another by the Deputy Settlement Commissioner. He went in appeal for the Chaubara and the shop and his appeal was rejected. Nevertheless, order for transfer of Chaubara is assumed by everybody. Nobody has claimed it nor the Settlement Authority has been of the view that the Chaubara over the shop had not been transferred to Muhammad Younis. In this view of the matter, it is obvious that Muhammad Younis has got the transfer of the residential portion over the shop for which, of course, there was no conscious or express order He should thank his stars. This petition is allowed to the extent of the transfer of the roof of the shop of the predecessor-in-interest of the petitioners in their favour. They shall enjoy and may fly right into space. As regards the transfer of the residential portion and upper floor in possession of Muhammad Younis, that transfer shall also stand finalised. The petition is allowed with costs.
H.B.T./R-37/L
Petition allowed.
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