1. ' These are two petitions which are directed against the same order passed by the Settlement Commissioner on 23-5-1969. The dispute relates to a room and open space around the same room situated on the roofs of shop No, B-522, B-523, B-524/2 and B-524 (which are City Servery Nos,) situated at Shahi Bazar, Mandi Road, Mirpurkhas. There are 6 shops which are situated in a composite property built on the above given survey numbers bearing Custodian Nos, B-129, B-130, B-437, B-438 and B-439. The one room which is situated on the roof has been given the Custodian Mumber of B-436. There are two houses built on the first floor of these Survey Nos, bearing Custodian Nos, B-434 and B-435 but they are contiguous to the said 6 shops and not built over the shops. There is a passage from these two houses to the roof over the said 6 shops.
2. ' The petitioners in Petition No, 409/1969 claim to be the successors in interest of one Muhammad Ismail who had in his turn been transferred the rights of one Nazar Muhammad who was transferee from the Settlement Department of Shops No, B-130 and B-131. The petitioness secured rights in respect of these shops by a registered sale deed dated 30th December 1966. The petitioners claim that Nazar Muhammad had been the transferee from the Settlement Department of the right of property over the roofs of the said shops as well which were open roofs, and P. T. D. In respect of these shops had been issued on 19-2-1962 in favour of Mohomed Ismail to whom Nazar Mohomed had surrendered his rights. The petitioners in Petition No, 468/1969 are two brothers who are claiming rights in respect of three shops and their roofs bearing Nos, B-438, B-439 and B-437 and the relevant City Survey Numbers of these shops are stated to be 524, 524/2 and 523.
3. ' It is, an admitted position that in 1951 the room bearing Custodian No, B-436 had been surveyed on 1-1-1951 by the Custodian Department which showed the existence of a single room. There is no mention of any Courtyard or varanda etc , and the name of the occupant has been shown as Abdul Ghani son of Nathoo Khan and it is mentioned clearly that it is upper story and assessment of the rent is shown to be Rs, 2 per month. This premises No, B-436 was transferred in favour of Abdul Ghani on 27-11-1959. The P. T.
0. However was issued in favour of Abdul Ghani and Allah Noor on 18-11-1969. While issuing the P. T.
4. D., the corresponding City Survey numbers were shown to be 522 and 523 on 12-11-1966. However, respondent Abdul Ghani got his P. T. D. Amended on 6-5-1968 and instead of C. S. No, 522, the relevant C. S. No, 523 was inserted in his P. T. D. The word upper storey was also included in the P. T.
5. D. Muhammad Ramzan, petitioner, immediately thereafter moved the Deputy Settlement Commissioner to delete the roofs of his shops No, B-130 and B-131 corresponding to City Survey Nos, 523 and 524 from P. T. D. Of Abdul Ghani and Allah Noor, and similar petitions were also moved by petitioners Ghulam Muhammad and Zahooruddin and they were disposed of by the Deputy Settlement Commissioner on 2-10-1968 after inspection and he held that there was only one room in occupation of Abdul Ghani and he was entitled only to that room and not to the rest of the open space which is the roof of the other shops. The respondents Abdul Ghani and Allah Noor took the matter in appeal before the Additional Settlement Commissioner, Hyderabad, who rejected their appeal on 24-2-1969 after inspecting the premises and held that there was only one small room on the roof and wooden staircase just like baithak without any amenity of life. It may be mentioned here that in the contiguous two houses built on the same composit property, there are close relations of Abdul Ghani and Allah Noor.
6. ' Thereupon, Abdul Ghani and Allah Noor filed revision before the Settlement Commissioner who acceptei their revision and held that there was no justification in excluding unconstructed area from the transfer documents of Abdul Ghani when he was in its actual occupation even though unauthorisedly since before 1951. He further observed that the mere assertion that his possession was disputed and respondent was also using the same as part of their property cannot he accepted in the absence of any proof. He therefore held that the entire roof was part of the property No, B-436 which was originally transferred to Abdul Ghani. But he also directed that the transfea price paid by Abdul Ghani on the basis of rent of Rs, 2 per month be suitably enhanced under para 22(2) Settlement Schemer, I. The two petitions were argued by Malik Muhammad Saeed and Mr. K. A. Ghani, learned counsel for petitioners. Mr. Ismail Munshi learned counsel, defended both the petitions.
7. ' Mr. Ismail Munshi took up the preliminary objection that since Zahooruddin has died iu 1970 therefore the petition No, 468 should state as the L. Rs, of Zahooruddin had not been brought on record. But Mr. K. A. Ghani contends petitioners Ghulam Mohd and Zahooruddin were transferees of spearate shops and the Deputy Settlement Commissioner has noted on page 6 of his order dated 2-10-1968 that shop bearing Nos, 438 and 439 were originally transferred to Noor Muhammad brother of petitioner Ghulam and on his death they devolved upon Ghulam Muhammad, while shop bearing No, 437 had been transferred in the name of Zahooruddin and separate P. T. D. In respect of these shops had been issued to them. There is nothing brought on record to controvert this statement of fact noted by the Deputy Settlement Commissioner and therefore I have no option but to take it as a fact that separate P. T. D. Had been issued to petitioners Ghulam Muhammad A and Zahooruddin in respect of different shops and hence the death of Zahooruddin could not automatically result in the abatement of the whole petition as there is no joint ownership in the property. In any case since the roof over the entire composite property is the subject of dispute therefore mere abatement of the petition in respect of the roof of Shop No, B-437 of Zahooruddin cannot settle the whole issue therefore the objection of Mr. Ismail Munshi, the learned counsel for the respondent is rejected as petition does not abate as a whole but abates in respect of Shop No, B-437 only.
8. ' Mr. Malik Muhammad Saeed and K. A. Ghani argued that the P. T. D. Of Abdul Ghani could not be modified after it was issued on 12-11-1966. However, one fact admitted by all the parties is that City Survey No, 522 is not at all involved in respect of the roof over the six shops or room No, B-436 and since this City Survey No, 522 had been mentioned in the original P. T. D. Of Abdul Ghani and Allah Noor therefore it was an obvious mistake and could be corrected. Moreover, it is an admitted position and has also been held to be so by the Deputy Settlement Commissioner that the room bearing No, B-436 is definitely existing on a portion of City Survey No, 523 and therefore if any City Survey number was to be shown in P. T. D. Then at least a portion of City Survey No, 523 had to be shown in the P. T. D. Of Abdul Ghani and Allah Noor and the non-mention of this City Survey No, 523 was another mistake in the P. T. D. Of Abdul Ghani and the same had also therefore to be corrected.
9. Therefore, to this extent the modification! Of the P- T. D. Could be made as the same did not involve the question of granting the extra right to P. T. D. Holder. It is again an admitted position that in every one of the P. T. Ds. Which were granted to the petitioners predecessors or respondents, the relevant City Survey numbers have been shown in all the F. T. Ds. And the same is also necessary on account which of the fact that the City Survey numbers in the P. T. D. The survey authority refuse to make the relevant mutation. Therefore, there was nothing wrong in correcting City Survey numbers in the P. T. D.
10. ' However, the dispute really contres around the question whether the P. T. D. Referred to the entire space over all the 6 shops or it was simply in respect of one room which bore No, B-436.
11. ' The petitioner's counsel contends that P. T. Ds. Issued in favour of the petitioners and their predecessors in interest in respect of the shops also included roof over the said shops which were also transferred to them as roof is ordinarily a part and parcel of the ground floor tenement. The counsel relied upon 1977 SCMR 353 where the Supreme Court observed that transferee of shop is entitled to roof over the shop. He also relied upon PLD 1971 SC 669 where Supreme Court held that P. T. D. Cannot be amended if it was intended to modify the P. T. D. And provide that roof will belong exclusively to the respondent. Mr. Ismail Munshi learned counsel of the respondent on the other hand relied upon 1977 SCMR 189 where the Supreme Court construed the word 'First Floor' as meaning to include built up portion as well as the open space. The petitioner's counsel also relied upon PLD 1976 SC 309 where the Supreme Court observed that without inspection of property finding of indivisibility cannot be given. Mr. Ismail Munshi on the other hand relied upon PLD 1976 S 435 where it was held that even an illegal action of an authority would not open to scrutiny by the High Court if the action was within jurisdiction of the authority making the order.
12. ' In this case I feel that the only question is as to who was in occupation of the roof over the shop. If Abdul Ghani, respondent was in occupation E of the entire roof over the shop along with the room, admittedly in his occupation, then he is obviously entitled to the same. But if the roof was in occupation of the shop keepers then the respondents could not claim any thing beyond the structure of room No, B-436. In this case two orders made by the Deputy Settlement Commissioner and the Additional Settlement Commissioner allowing the roof of the shop to the petitioners/shop keepers are based on the legal presumption that the roof is a part of the shop, but both the learned officers have not cared to give any finding as to who was in actual possession of the roof over the shop. There is a mention in the order of the Depty Settlement Commissioner that the shop owners were in the constructive possession of the roof of the shops and that constructive possession amounts to possession in the eyes of law. But this was strange finding as the question of constructive possession was not at all involved in this case. The respondents Abdul Ghani and Allah Noor were claiming to be in possession of room B-436 and obviously they must be reaching the said room from the stair-case, they must have had to pass from certain open space of the roof and therefore it was obvious that certain open space must be in the possession of the petitioner, but there is no consideration of this aspect of the case in the order of the Deputy Settlement Commissioner or Additional Settlement Commissioner. Now the possession of the respondents could not obviously amount to constructive possession of the petitioners and therefore F the petitioners, if they wanted to base their claim on constructive possession, had to show as to who was the person on their behalf who was in actual possession of the shop and who was not holding the possession on behalf of the respondents and that the respondents were not in possession. But they have not submitted any proof of that and hence no contructive possession was proved. On the other hand there is a definite finding of Deputy Settlement Commissioner that the room No, B- 436, which existed in 1951 and is in admitted possession of the respondents was built on C. S. No, 523 which corresponds to shop No, B-433 which is the shop of Ghulam Muhammad. Therefore, even if the roof is deemed to be transferred with the G shop, a part of the roof was already having a room and hence entire roof of Shop No, 438 could not be transferred or be deemed to have been transferred to petitioner Ghulam Mohomed. I even find in the petition of Ghulam Mohomad that he had made an application on 15-13-1957 before the Assistant Custodian of Evacuee Property, Mirpurkhas, Annexure 'C' to this petition, where Ghulam Mohd. Stated that he was allottee of shop No, B-438 and that Allah Noor respondent had trespassed on the roof and had previously raised Kutcha construction thereon and the Assistant Custodian had already-ordered the removal of the encroachment. The said application further alleged that Allah Noor had again trespassed on the roof and erected a Chapper. Now we do not know what was the final fate of that appiication but at least this much is obvious from this application that one of the petitioners had already made some Katcha construction, in or before 1957 an the roof of shop No, B-438, against which Ghulam Muhammad Petitioner had protested and in respect of that protest an order had been made by the Assistant Custodian, and the respondent Allah Noor had further erected Chapper on the roof near October 1957 therefore, the respondent Allah Noor apart from having the possession of one room in 1951 with Abdul Ghani had also in his possession or powers in 1957 so much portion of the roof of the shop upon which he had made some fnrther Kutcha constructions and also errected a Chapper thereon. According to me it clearly suggests that the respondents were in possession of the roof the said shop otherwise they eould not have made the unathorised construction in 1957, before the Settlement operations started.
13. ' Hence the respondents, in 1957, were in possession of some portion of the roof over the shop apart from the admitted possession of room No, B-436. I also find that the Deputy Settlement Commissioner has come to a finding that roof of the shop of Muhammad Ramzan petitioner bearing Nos, B-130 and 131 had been trespassed upon by the respondents. There is no mention as to what was the nature of this trespass by the respondents over the roof of the shop of petitioner Muhamman Ramzan, when it took place and what steps petitioner Muhammad Ramzan took to get the said trespass abated. Thus the finding of trespass again suggests that the respondents were in actual possession of the roof of the shop of petitioner Mohomed Ran-man also and the allegation of trespass without specifying the time of trespass was a mere cover to explain and minimise the effect of the possession of the respondents over the roof of the shop of petitioner Mohomed Ramzan and others.
14. ' In the light of this background I fail to understand as to on What basis the Deputy Settlement Commissioner came to the conclusion that the shop owners were in possession of the roof of the shop in question. The allegations were in fact to the contrary. The Additional Settlement Commissioner has hardly exercised his mind to the relevant facts of the case when he made the order on 24-2-1969 as the actual possession of roof over the shop is concerned. The learned Additional Settlement Commissioner inspected the site but did not even indicate as to whom he found in possession of the roof of the shop. In fact, the learned Additional Settlement Commissioner seems to have considered that even room B-436 should not have been transferred to the petitioner, although there was no dispute in respect of that room before him and he had to confine himself to a decision on the question of possession of the area around that room.
15. ' On the other hand when I look into the impugned order of the Settlement Commissioner doted 23- 5-1969, I find that he has taken a correct view of the whole situation. He found that the open roof sorrounds room No, B-438 and formed part of this property and he has come to the conclusion that the respondents have been in actual occupation of the roof. As I have observed earlier that there is a reasonable basis for making such observation as the actual occupation of the respondents even though allegedly unauthorised is clearly established on record. The most important consideration that weighed with the Settlement Commissioner was that the petitioner shop owners had not adduced any proof that they were using roof of the shop as part of their property. This was the basic question and since the petitioners had failed to produce any positive proof of their possession over the roof, the Settlement Commissioner had no option but to hold that possession of the roof over the shops was with the respondents who were found to be in actual occupation. Whether occupation was authorised or unauthorised was really of no consecuence as the unauthorised occupation seems to have dated back from 1957. In this view of the facts and circumstances which I have taken I am of the view that the Settlement Commissioner had not committed any illegality in the order that he passed on 23-5-1969 which was in the nature of clarification as to what was the extent of premises B-436. I therefore find no force in these petitions and the same are hereby dismissed.