' HAMID ALI MIRZA, J.--- These two civil appeals with leave of this Court, dated 1-4-1996 are directed against the common judgment, dated 11-7-1995 passed by learned Judge in Chambers of the Lahore High Court, Lahore passed in W.P. Nos.197/R, 198/R of 1990 whereby both writ petitions along with others were dismissed, hence these appeals.
2. Brief facts of the case are that the Property No,S-64-R-141, New Anarkali, Lahore, consists of residential and commercial unit when the dispute in these appeals relates to the transfer of commercial portion only. The above said property was treated as an evacuee which was owned by Messrs Narain Das and Bhagwan Das. Initially as per order dated 26-1-1950, the said shop (Narain Das Bhagwan Das) was allotted to Dr. Jan Muhammad Alvi by the Officer on Special Duty, Rehabilitation West Punjab, thereafter half portion of said shop was allotted as per order, dated 24- 11-1950 to (i) Messrs Minhas Brothers of Jullundur, (ii) Dr. Muhammad Hussain of Amballa, (iii) Dr. Anwarul Haq of Hoshiarpur, and (iv) Fazal-ur-Rehman of Sahranpur, and thereafter as per order, dated 7-4-1951 Deputy Secretary to Government of Punjab Rehabilitation Department allotted the said shop to the extent of 50% to Dr. Jan Muhammad Alvi, (ii) 25% to Messrs Minhas Brothers, and
(iii) 25% to Dr. S.S. Hussain Bukhari and share of Dr. Anwarul Haq was cancelled because he expressed his inability to avail the said allotment. Thereafter as per letter dated 1-9-1959 of Custodian of Evacuee Property West Pakistan, it was ordered that Jan Muhammad was occupying whole of the said shop and was not sharing its income with other allottees, therefore, the matter required to be looked into and if the allegations made against him were true it would be advisable to have the said property partitioned so that 50% portion of it be occupied by Jan Muhammad and other 50% portion by the appellants Dr. S.S. Hussain Bukhari and Habib Ahmad. It appears from the record that matter came up before the Deputy Settlement Commissioner, Lahore for the transfer of the shop in question when as per his order dated 12-10-1960 he held that neither Dr. S.S. Hussain nor Ch. Habib Ahmad have submitted their forms and they have never been in physical possession of the shop and were only allottees therefore, in view of the latest notification of 11th August, 1960 were not entitled to transfer of property in question whereas Dr. Jan Muhammad Alvi was held to be entitled for the transfer of said shop and residential portion in his occupation. Against the said order, dated 12-10-1960 appeals were preferred before the Additional Settlement Commissioner, Lahore who as per order, dated 1-2-1961 remanded the case to the Deputy Settlement Commissioner for fresh decision when the latter as per order, dated 6-9-1963 observed that Dr. S.S. Hussain and Messrs Minhas Brothers could not be given preference. Over Dr. Jan Muhammad Alvi who was prior allottee when the former cannot be termed to be in possession for the purpose of settlement operation and their applications for transfer of the shop were rightly rejected. So far Dr. Jan Muhammad Alvi he was also held to be not entitled to the transfer of the property as his form registered at serial No,4220 being on C.S. Form for the same property but was not entered in Register CSC-2, therefore, would not be entitled for the transfer of shop, consequently shop in question in possession of Dr. Jan Muhammad Alvi was ordered to be disposed of by unrestricted public auction. All the three aggrieved persons preferred appeals before the Additional Settlement Commissioner, Lahore which appeals were rejected as per order dated 16-10-1964. Then all the three filed revisions before the Settlement Commissioner, Lahore who as per order, dated 17-1-1977 observed that Dr. Jan Muhammad Alvi had to pay some loan to Cooperative Society, therefore, shop in question was auctioned by the Assistant Registrar, Cooperative Society under provisions of para.6 of Martial Law Regulation No,241 Zone-C in favor of Muhammad Arif and etc. Which action cannot be interfered with by him, and the said act of Assistant Registrar could be challenged through Constitution petition before the competent Court with regard to legality and propriety of the auction proceedings of the property in possession of Dr. Jan Muhammad Alvi who had passed on possession to the auction purchasers. It was further held that no relief could be given to the occupants of Khokhas or the auction purchasers Muhammad Arif, etc. Who had applied to be impleaded as party in the case. Against the order dated 17-1-1977 (page 95 of the P.B.) of the Settlement Commissioner, Writ Petition No,502 of 1977 was filed by Dr. Jan Muhammad Alvi through his L.Rs, which writ petition along with other two writ petitions was heard by the then Mr. Muhammad Afzal Loan, J. Of the Lahore High Court, Lahore, which writ petitions were accepted vide order dated 19-4-1983, (Page 36 of the P.B.) thereby the attachment of the property and its transfer by Industrial Assistant Registrar were declared to be without lawful authority and Settlement Commissioner's order, dated 17-1-1977 was held to be of no legal effect and the three revision petitions were treated to be pending and to be disposed of in accordance with law by the officer authorized under section 2(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Then the matter came up before the Additional Commissioner (Revenue)/Notified Officer with powers of Settlement Commissioner, Lahore who vide order dated 5-5-1990 held that C.S. Form of Dr. S.S. Hussain and Habib Ahmad were rightly rejected and the remaining part of the building including the small shops should be sold, to the highest bidder in an unrestricted public auction under para.11 of the schedule attached to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, thereby order, dated 6-9-1963 of Deputy Settlement Commissioner and order dated 16-10-1964 of Additional Settlement Commissioner were upheld to that extent.
Meanwhile Muhammad Arif and two others who were put into possession of the shop were transferred shop in question under Scheme No, VIII who thereafter gifted the said property in favor of Muhammad Zafar, Muhammad Suleman and Muhammad Noman. The order, dated 5-5-1990 of Notified Officer/Additional Settlement Commissioner was challenged in Writ Petitions Nos.224-R, 198-R and 197-R of 1990 before the Lahore High Court, Lahore. Learned Judge in Chambers vide his judgment dated 11-7-1995 held that the appellants were rightly held to be not entitled to transfer of property under Scheme No,I and the transfer order issued in favor of Muhammad Arif, etc. The auction purchasers, who were ' put into possession of the shop in question by Dr. Jan Muhammad Alvi who had also paid the transfer price under Scheme No, VIII were rightly so transferred, therefore, question of putting the property into auction as held by Additional Settlement Commissioner/ Notified. Officer was not legal and that appellants had no locus standi to challenge the transfer in favor of Muhammad Arif, etc. Against the said order, dated 11-7-1995 of the learned Judge in Chambers the appellants preferred petitions for leave to appeal which petitions were allowed and leave to appeal was granted. The relevant portion of leave granting order reads:- "4. Advancing his arguments on C.P.S.L.A. No,1017-L of 1995, it was contended by learned counsel for the petitioners therein that Dr. Jan Muhammad Alvi did file C.S. Form and that the finding to the contrary is not correct. This is a finding on a question of fact which was recorded by the Settlement Commissioner. It is supported by reasons and is not perverse, ridiculous or shocking. It has not been taken exception to by the learned Judge in Chamber. We are, therefore, not inclined to interfere with the aforesaid finding. As Dr. Jan Muhammad Alvi had not filed C.S. Form, he was not entitled to the transfer of the property in question. In this view of the matter, we decline to grant leave to Ahmad Jan Alvi and others, who are petitioners in C.P.S.L.A. No,1017-L of 1995, to appeal against the impugned judgment of the learned Single Judge.
5. C.P.S.L.A. No,1201-L of 1995 is time-barred. The petitioners have filed application for condonation of delay wherein cause of delay have been specified. On merits, it was submitted that Dr. Jan Muhammad Alvi was holding possession of the disputed premises on behalf of Ch. Habib Ahmad also who was allottee of 25% thereof and had filed C.S. Form for the transfer of the disputed property. It was, therefore, maintained by the learned counsel that the petitioners in C.P.S.L.A.
No,1201-L of 1995, were entitled to transfer of the disputed property to the extent of the share allotted to Ch. Habib Ahmad. This plea of the learned counsel needs consideration. In the circumstances, we grant leave to the petitioners in C.P.S.L.A. No,1201-L of 1.995 to appeal against the judgment under challenge subject to decision on the question of limitation. This C.P.S.L.A. Is disposed of accordingly.
6. As for C.P.S.L.A. No,1102-L of 1995 filed by Dr. Syed Saeed Hussain Bokhari, his position is similar to that of Ch. Habib Ahmad referred to above. Arguments raised by his learned counsel are also the same as those advanced by learned counsel for the petitioners in C.P.S.L.A. No,1201-L of 1995 disposed of just above. C.P.S.L.A. No,1102-L of 1995 is, therefore, accepted and leave is granted to the petitioner therein to appeal against the judgment under challenge."
3. We have heard learned counsel for the parties at length and perused the record.
4. The contentions of learned counsel for the appellants Rana M. Sarwar, Advocate Supreme Court, in Civil Appeal No,1226 of 1996 are that the appellants' predecessor-in-interest Ch. Habib Ahmad being joint allotee, would be deemed to be in possession of the shop in dispute, therefore, entitled to transfer of the shop in question to the extent of his allotted share though he was not put in physical possession of it. He further submitted that in view of the order, dated 5-5-1990 of the Additional Settlement Commissioner/Notified Officer, unrestricted public auction was not held by the Deputy Settlement Commissioner but vide order dated 9-8-1990 he transferred the shop in question in favor of Muhammad Arif, etc. Which could not have been transferred under the law to them as their possession as auction purchaser was not legal. He further submitted that L.Rs, of Muhammad Yousaf to whom the property was transferred by virtue of order, dated 9-8-1990 were not brought on record to whom interest was passed on by the transferee. He submitted that an application for impleadment of said L.Rs, as party was filed in the appeal which was allowed as per order dated 27-5-2003 passed by this Court and appeal would not abate in view of law laid down by this Court in Allah Ditta v. Barak Ali and 3 others 1992 SCMR 1974. He submitted that Civil Appeal No,1226 of 1996 was not time-barred, in case the said appellants who are legal heirs of Ch. Habib Ahmad the respondent No,4 in Appeal No,1227 of 1996 who have already been arrayed as respondents Nos.4 (i) to 4(v) are transposed as appellants Nos.2 to 13 along with Dr. Syed Saeed Hussain Bokhari in C.A. 1227 of 1996 as the former have also entered into compromise with the latter. He submitted that, be that as it may, there was delay of only sixteen days which could be condoned in view of the law laid down in Province of Punjab v. Muhammad Tayyab and others 1989 SCMR 1621. He has placed reliance upon (i) Imam Din and another v. Mir Hameed Hussain, Deputy Settlement Commissioner, Montgomery and others PLD 1967 Lah. 419, (ii) Hamidullah and another v. Rai Kaurshid Ahmad Khan and others PLD 1958 SC 516 (iii) Fatehyab Khan and others v. Mst. Amtul Hafeez and others PLD 1963 Kar. 953 in support of first contention. He also urged that the impugned order of the leaned Judge in Chambers is not legal and cannot be sustained in law. Mr. Amir Alam Khan, learned counsel appearing on behalf of the appellant in Civil Appeal No,1227 of 1996 has adopted the arguments of learned counsel Rana Muhammad Sarwar, and has further submitted that Notified Officer having held that the shop in question be disposed of through unrestricted public auction, Deputy Settlement Commissioner was not competent to transfer the same under Scheme No, VIII considering the possession of auction purchaser to be illegal, as the case was pending for disposal in respect of the property in question. Learned, counsel has referred to page 17 of his concise statement referring the orders dated 11-7-1990, 17-7-1990 and 18-7-1990 of the Deputy Settlement Commissioner whereby the property was transferred to Messrs Muhammad Arif, Muhammad Yousaf, etc. As per assessment.
5. Mr. Gulzarin Kiani, learned counsel appearing for respondent No,8 in Civil Appeal No,1226 of 1996 and for respondents Nos.16 and 17 in Civil Appeal No,1227 of 1996 submitted that except the allottee Dr. Jan Muhammad none of the co-allottee was in physical possession of shop in question. Dr. Jan Muhammad original allottee had obtained loan from the Cooperative Society, therefore, on 5-10- 1972 in lieu of the loan the shop was auctioned and possession of the same was delivered to Muhammad Arif, Muhammad Yousaf and Gul Zaman who discharged loan amount and they continued to remain in possession of shops and further the appellants did not take any step to get the order of auction set aside or to get the physical possession of their respective shares of allotment at least till 5-10-1972. He submitted that in view of subsection (6) of section 2 of the Displaced Persons Act, 1958 the appellants were to obtain possession in pursuance of the order of allotment but having failed to get the possession they could not be considered to be even in constructive possession of the shop consequently, not entitled to transfer of the same under the Settlement Scheme. He further submitted that all the forums have consistently held from 1972 to 1999 that the appellants have not been in physical possession of the shop in question. He in support of his contention has placed reliance upon (i) Ghulam Fatima v. Abdul Ghani and another PLD 1967 Lah. 607 and (ii) Muhammad Abdullah v. Settlement Commissioner, Sargodha 1973 SCMR
402. He also submitted that section 52 of the Transfer of Property Act would not be attracted as it would apply to voluntary transactions. He further submitted that all the forums have arrived at concurrent finding of fact that the appellants had not submitted any form for the, transfer of shop and further they were not in possession, therefore, not entitled to its transfer consequently, no interference is called for by this Court and further that in the writ petitions, the order of transfer in favor of the auction purchaser Muhammad Arif and others was not challenged, therefore, they could not now before this Court challenge the said order and further that leave was not granted by this Court on the point that the property was to be disposed of through unrestricted public auction but on the limited question as to whether petitioners Zahid Umer and others (now appellants in C.A.
1226 of 1996) were entitled to transfer to the extent of 25% share allotted to their predecessor Ch. Habib Ahmad so also in C.P.L.A. No,1102 of 1995 (C.A. 1227 of 1996) the position of petitioner Dr. Syed Saeed Hussain Bokhari, being similar, having raised same arguments was granted leave to appeal by this Court. Learned counsel Malik Muhammad Nawaz, appearing on behalf of respondent No,17 in C.A. No,1227 of 1996 and for respondent No,9(a) in C.A. 1226 of 1996 has referred to allotment order, dated 7-4-1951 at page 112 of the paper book in Appeal No,1227 of 1996 and para. 2 of the order of Custodian dated 1-9-1959 at page 114 of the same appeal. He contended that according to proviso (ii) of subsection (6) of section 2 of Displaced Persons Act, 1958 "such persons as, have not obtained possession, as aforesaid shall subject to such conditions as may be specified in the order be deemed to be in possession for the purpose of this Act". He submitted that in view of the order dated 1-9-1959 passed by the Custodian no steps were taken by the appellants to get the inquiry made or possession obtained through partition of the shop in question, therefore, they could not be deemed to be in possession for the purpose of the Act. He has also referred to schedule attached to the Displaced Persons Act at page 280 with regard to shops whereunder "a shop in possession of a claimant or a parent, son, daughter, or spouse of a claimant, being a shop which such parent, son, daughter or spouse does not claim under the provisions of this Schedule, and if, there is more than one such shop, then, any one of the shops which the claimant desires to retain, shall be transferred to him at a price determined on evaluation basis". He has also referred to notification, dated 9-9-1960 at page 389 of Settlement Manual whereunder shop could be transferred to an allottee without possession though no fault or negligence of their own, have been unable to obtain physical possession when ejectment proceedings had been ordered by a Court or Rehabilitation Authority for the benefit of allottee and such proceedings were pending on the eleventh August, 1960 would be deemed to be possession for the transfer of shop. He has also referred to orders, dated 26-1-1950 and 26-2-1951 with regard to the allotment at pages 116 and 115, so also order dated 7-4-1951 at page 112 of the paper book with regard to allotment of the shop to the allottees.
He has placed reliance upon (i) Afzal Mirza and others v. Ahmad Saeed Khan and others 1985 SCMR 1138 at pages 1148 and 1150 and (ii) Muhammad Moosa and others v. Shabbir Ahmad and another 1984 CLC 3227 at page 3238. He has also referred to Writ Petition No,198-R of 1990 (Niaz Ahmad and 4 others) at page 35 of the paper book in C.A. 1226 of 1996 referring to the relief prayed at page 53 of the same wherein prayer was made by the appellant with regard to setting aside of orders, dated 6-9-1963, 10-10-1964 and 5-5-1990 to be declared to be illegal and ultra vires with regard to putting of shop through unrestricted public auction whereas now they have been pleading for disposal of the said shop through public auction consequently, the appellants could not be said to have locus standi now to ask for disposal through unrestricted public auction. He further submitted that there are concurrent finding of fact of three forums. He submitted that at the time of disposal of property under Scheme No, VIII no litigation was pending and the property viz. Shop was available for transfer, therefore, the same was rightly transferred by the Deputy Settlement Commissioner to the auction purchaser Muhammad Arif, etc. He has also referred to Concise Statement filed by respondents Nos.16 and 17 through separate paper book pages 17 and 19 with regard to order dated 11-7-1990 to 18-7-1990 of Deputy Settlement Commissioner. He submitted that T.O. Was issued on 9-8-1990 while petition was filed on 8-8-1990 whereas the decision of the writ petition was made on 11-7-1995 and the appellants did not implead the auction purchaser/transferee in the writ petitions though the respondents had applied for, which was declined. He also has referred to page 97 of C.A. 1226 of 1996 an application for condonation of delay filed by Niaz Ahmad through Zahid Umar and others wherein in para. 3 it has been stated that he happened to go out of Lahore and could not return for a couple of weeks due to certain unavoidable circumstances as such delay occurred in briefing and contacting the counsel well in time and filing the instant petition for leave to appeal, which was beyond his control to do so, under the compelling circumstances. He submitted that no details of unavoidable circumstance has been shown which could be sufficient cause for condonation of delay and thus, appeal being time-barred was liable to be dismissed. Ch. Khurshid Ahmad, learned counsel for respondents Nos.10-12 in C.A. 1226 of 1996 has adopted the arguments of learned counsel for the respondent. Mr. Qamar Zaman, learned counsel for respondents Nos.5 to 13 in C.A. 1227 of 1996 has referred to page 22 of paper book wherefrom he has read out para. 10 of the impugned judgment wherein order of the Settlement Commissioner has been reproduced stating that the Khokhas or small shops holders had neither applied under Scheme No,I to the Settlement Authorities for transfer nor produced any documents showing them to be in the record of the Settlement or Excise Department and further that heirs of Dr. Alvi produced some documents to show that these small shops were initially Tharas/Junglas attached with the main shop and latter converted into Khokhas/small shops. He has also referred to page 58 of paper Book of C.A. 1227 of 1996 and the order, dated 5-5-1990 of the Additional Commissioner/Notified Officer whereby small shops holders were also to be sold to highest bidder in an unrestricted public auction under para.11 of the schedule attached to the Displaced Persons Act, 1958.
6. Learned counsel for the appellants further in the end submitted that respondents Nos.5 to 13 for whom taught counsel Mr. Qamar Zaman has appeared did not file an appeal challenging the impugned order of the High Court, therefore, they would have no locus standi now being the respondents, to claim transfer of the shop. Learned counsel Mr. Amir Alam Khan in reply has referred to page 111 of C.A. 1227 of 1996 in respect of the order dated 24-11-1950 with regard to allotment of the shop and page 87 of order, dated 6-9-1963 of Deputy Settlement Commissioner, Lahore. He in the end submitted that question involved in the appeal is covered by principle of lis pendence, therefore, this Court being Court of ultimate jurisdiction, can grant relief to do the complete justice.
7. Leave to appeal was granted by this Court on 1-4-1996 in C.P.L.A. No,1201-L of 1995 (whereas in C.P.L.A. No,1017-L of 1995 it was declined), to consider 'whether Niaz Ahmad, deceased represented by Zahid Umar and others in C.P.L.A. No,1201-L of 1995 were entitled to the transfer of the property to the extent of 25 % share allotted to their predecessor Ch. Habib Ahmad so also leave to the said extent was granted in C.P.L.A. No,1102-L of 1995 in view of identical contention having been raised by the learned counsel for the petitioner Dr. Syed Saeed Hussain Bukhari. In the circumstances in both appeals we have to consider only whether Ch. Habib Ahmad and Dr. Syed Saeed Hussain Bukhari being allottees to the extent of 25% share each of the disputed property were entitled to the transfer of the same under the Settlement laws.
8. Admittedly neither Ch. Habib Ahmad, nor Dr. Syed Saeed Hussain Bukhari, though being joint allottees to the extent of 25% share each, never came into possession of the shop in dispute. In the said respect learned counsel for the appellants have referred to subsection (6) of section 2 of Displaced Persons (Compensation and Rehabilitation) Act, XXXVIII of 1958, wherein "possession" has been defined as under:-- "(6) "Possession" means possession obtained in pursuance of an order passed on or before 20th day of December, 1958 by Rehabilitation Authority or any other officer authorized or permitted by the Central or Provincial Governments: ' Provided that if a question arises whether an officer was so authorized or permitted, the decision of the Chief Settlement Commissioner in that behalf shall be final: ' Provided further that the Central Government may, by order in writing, direct that a class or classes of such persons, as have not obtained possession, as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."
' They have also placed reliance upon (i) Imam Din and another v. Mir Hameed Hussain, Deputy Settlement Commissioner, Montgomery and others PLD 1967 Lah. 419, (ii) Hamidullah and another v. Rai Khurshid Ahmad Khan and others PLD 1958 SC 516, (iii) Fatehyab Khan and others v. Mst.
Amtul Hafeez and others PLD 1963 Kar.
953. However, Central Board of Revenue in exercise of powers conferred by second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, issued notification on 11-8-1960 which is reproduced as under:-- "No,F.3(3)/60-SI.--- In exercise of the powers conferred by the second proviso to clause (b) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXXVIII of 1958) the Central Government is pleased to order that the allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, through no fault or negligence of their own, have so far been unable to obtain physical possession of the shop or the shop in question shall be deemed to be in possession thereof for the purpose of the said Act."
' The Chief Settlement Commissioner has also issued the following Gazette Notification on 6th September, 1960, which reads as under:-- "No, 2099-CSC.--- In exercise of the powers conferred on me by paragraph 2 of Settlement Scheme No,I prepared under section 16(1)(b) and (e) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and paragraph 20 of Settlement Scheme No,IV prepared under section 16- B of the aforesaid Act, I, Ahsanuddin, Chief Settlement Commissioner, Pakistan invite with immediate effect application from claimants, non-claimant displaced persons and locals who are entitled to the transfer of houses and shops under dated the 1 1 th August, 1960, issued by the Ministry of Rehabilitation and Works, Government of Pakistan, subject to the following conditions:-
(i) the house or the shop applied for was allotted to the applicant on or before the twentieth December, 1958, by a Rehabilitation Authority or a Custodian or any other officer authorized or permitted by the Central or Provincial Government;
(ii) the applicant has not been able to obtain physical possession of the house or the shop in question through no fault or negligence of his own on or before the eleventh August, 1960; and
(iii) ejectment proceedings had been ordered by a Court or a Rehabilitation Authority for the benefit of the applicant and such proceedings were pending on the eleventh August, 1960."
' The allottees of a house or a shop for whose benefit ejectment proceedings have been ordered by a Court or a Rehabilitation Authority and who, though no fault or negligence of their own, have so far been unable to obtain physical possession of the shop or house shall be deemed to be in possession thereof for the purpose of the said Act was subject to three conditions mentioned above when in the instant cases, condition No,(iii) viz. "ejectment proceedings had been ordered by a Court or a Rehabilitation Authority for the benefit of the applicant and such proceedings were pending on the eleventh August, 1960", have not been shown to have been initiated or steps taken in respect of the same or same remained pending on the relevant date. Record would show that in fact no ejectment proceedings were initiated either by the appellants or by the Rehabilitation Authorities for evicting Dr. Jan Muhammad Alvi who was also co-allottee and not manager to the extent of 50% share or any other person, namely, the auction purchasers, for getting the appellants in possession to the extent of their allotted shares, therefore, in terms of the proviso (2) of subsection (6) of section 2 of said Act read with notifications dated 11th August, 1960 and 6-9-1960, the appellants cannot be deemed to be in possession for the purpose of the said Act, consequently, were not entitled to transfer of the shop in dispute. Learned counsel for the appellants has submitted that in view of Imam Din's case (supra) the appellants be considered to be in possession as word "possession" would include constructive possession or possession in law and its scope cannot be limited to physical possession. I have gone through the said cited case.
The cited case is different and distinguishable on two points viz. (i) that condition prescribed in view of notifications dated 11-8-1960 and 6-9-1960 in respect of ejectment proceedings for the benefit of allottees/appellants were neither ordered by the Court nor Rehabilitation Authority and no such ejectment proceedings were pending on 1 1 th August, 1960, therefore, the appellants could not be considered to be in physical possession or in constructive possession of disputed shop; and
(ii) in the cited case above said two notifications were not considered or taken notice of it which were issued under second proviso of subsection (6) of section 2 of the said Act. In the circumstances, the above cited case is of no assistance to the appellants' case. Next case Fatehyab Khan ( supra) on which reliance has been placed by the learned counsel for the appellants is also different and distinguishable to the facts of the instant case as in the said case the petitioner, who was then staying in England, his mother and children were in possession of a flat when the petitioner had applied for transfer under the Settlement Scheme who was then held to be in possession on account of his children being in physical possession, whereas in the instant case, the admitted position was that the appellants were not at all in possession even in terms of above cited provision of law and notifications of the shop allotted to the extent of their shares as observed above that they were not to be deemed to be in possession of shop in dispute, consequently, not entitled for its transfer. So far Hamidullah's case (supra) facts of which are also quite different and distinguishable to the facts of instant case as it was not the case of constructive possession at all but plea of locus standi was raised that the petitioner whom leave was granted under Article 160 of the then Constitution of Pakistan and this Court held that this Court being Court of ultimate jurisdiction in view of powers provided under the said Article is made ex debito justitiate, therefore, was not hedged about with any consideration of a technical nature and further Dr. Jan Muhammad Alvi was not appointed by Rehabilitation Authority to be a manager as Rai Khurshid Ahmad was appointed through auction proceedings being highest bidder. I may further refer to the case of Afzal Mirza and others v. Ahmad Saeed Khan and others 1985 SCMR 1138 wherein subsection (6) of section 2 of the said Act, read with notification dated 11-8-1960 was dealt with and in the said cited case, the unauthorized occupant was ordered to be evicted and that order of ejectment was also challenged, therefore, claimant holding valid allotment or for whose benefit ejectment proceedings were initiated was held to be in possession, therefore, entitled transfer of property wherein at page 1145 this Court has observed:-- "Dealing with the submission that only the second condition mentioned above was satisfied by Ahmad Saeed Khan and not the other two conditions, the learned Judge observed that the orders passed by the Rehabilitation Authorities showed that the ejectment of Ejaz Ahmad Siddiqui and Afzal Mirza was being undertaken for the benefit of the allottee. Hence the conditions mentioned in the order of the Central Government dated 11-8-1960 were, indeed, fulfilled by the allottee without possession, namely Ahmad Saeed Khan. The learned Judge, therefore, came to the conclusion that the Deputy Settlement Commissioner as well as the Additional Settlement Commissioner had acted rightly in transferring the property in dispute to Ahmad Saeed Khan on the basis of his being a claimant, who was to be deemed to be in possession and held that the learned Settlement Commissioner was not justified in cancelling the order of transfer made in his favor simply because he has failed to attend the revisional proceedings before him."
' The above observation made by this Court in the above' cited case confirmed that in order to avail the benefit of the above provision of law it was essential for the appellants to have initiated or got initiated the ejectment proceedings against Dr. Jan Muhammad Alvi or thereafter against the auction purchasers for their (allottees) benefit. Having not done so the appellants cannot be deemed to be in possession of the shop in question.
9. It would not be out of place to state here that L.Rs, of Ch. Habib Ahmad through Writ Petition No,198-R of 1990 and appellant Dr. Syed Saeed Hussain Bukhari through Writ Petition No,197-R of 1990 challenged the order, dated 5-5-1990 passed by the Additional Commissioner when both writ petitions were filed on 8-8-1990 and the said petitions were disposed of by dismissing both on 11-7- 1995, whereas the respondents Muhammad Arif and others got the shop in dispute transferred through P.T.O. Dated 9-8-1990 but the appellants did not challenge the said transfer order in the said writ petitions filed by them when they could have got the said writ petitions amended by adding further relief challenging the transfer order of the shop in dispute, therefore, the appellants having not challenged the transfer order in respect of shop in dispute which attained finality.
Therefore, the appellant could not be said to have locus standi. It is true that the impugned judgment did mention that the said property was transferred to Muhammad Arif and two others under Settlement Scheme No,VIII but subsequently, the said property was gifted away in favor of Muhammad Zafar and two others when one of the transferees, namely, Muhammad Yousaf also expired on 26-2-1991 much before the filing of C.P.L.A. Therefore, they ceased to be owners of the shop in dispute. In the result the appellants having been found to be not in possession by all the Settlement authorities cannot be held to be entitled to the transfer of the property in dispute considering that there being neither misreading nor non-reading of said finding of fact.
10. As the appellants have been held that they cannot be deemed to be in possession of the shop in question, therefore, not entitled to the transfer of the property in dispute, therefore, in my view rest of the submissions would not be relevant to be addressed to for the disposal of these appeals.
Besides the above consideration, so far the rest of submissions made by the learned counsel for the appellants, I find that while hearing civil petitions for leave to appeal, the pleas raised by the appellants' counsel were considered and the pleas which were found to have no substance, leave was not granted on ihe said points while the only plea which impressed this Court was as said above with regard to entitlement of the appellants for the transfer of shop in question and leave was granted to that extent only. It has also not been pleaded before us either orally or through written application by the learned counsel for the appellants to extend the scope of leave so that the rest of the submissions could have been considered. Relying upon the case of Messrs Brady & Co. (Pakistan) Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 we at this stage do not consider it just and proper in the circumstances of case that extension in the scope of leave granting order would advance a cause of justice considering that some of transferees have expired and during their lifetime they passed on the title of the shop in dispute through gift on 11-8- 1990 to Messrs Muhammad Zafar, Muhammad Nauman and Muhammad Salman and that litigation in respect of property in question has continued for about half a century and that all the Courts below have also held that the appellants could not be termed to be in possession of the shop in dispute and had also not filled in relevant forms on time for the transfer of shop, resultantly not entitled to transfer of the same under the law. So far respondents Nos.5 to 13 in C.A. No,1227 of 1996, they are said to be Khokha holders of the property in dispute. They were found to have no locus standi and their requests for transfer of the Khokhas was rightly rejected vide order dated 5- 5-1990 by the Additional Commissioner, Lahore. They also did not challenge the said order, dated 11-7-1995 of the High Court having not preferred any petition for leave to appeal before this Court which order attained finality so far their alleged rights, therefore, have no locus standi to challenge the impugned order of the High Court. Accordingly, finding no merit -in these appeals same are dismissed with no order as to costs.