1. ANWARUL HAQ, C. J.-The dispute in this case concerns a shop constructed on a portion of an evacuee building site bearing property No. A/ 1439-18, and situate in Grass Market, Hyderabad. The total area of the plot is stated to be about 3000 sq. Ft., whereas the built up area of the shop is 736 sq. Ft.
2. According to the facts found by the Settlement authorities, and endorsed by the learned Judges in the High Court, the shop was constructed by Anwar Hussain, and it was leased out to the father of the present appellants in 1957, on a monthly rent of Rs. 75, besides a lump sum payment of Rs.
3. 5,CC0 paid as a deposit by the lessee. On the promulgation of Martial Law Regulation No. 49 on the 29th of November, 1958, relating to the declaration of hidden evacuee property both the parties filed the necessary declarations. In a report or order recorded by an Ass1stant Custodian of Evacuee Property in January, 1959, it was stated that the shop had been constructed by respondent Anwar Hussain without the permission of the Deputy Custodian that he had made a declaration of the same to the Rehabilitation authorities, and had also deposited a sum of Rs. 6,800 as rent realised by him from the present appellant Inayat Ali. This officer concluded his order by saying that in view of this declaration no further action was necessary against Anwar Hussain. It appears that since then the present petitioners were treated as tenants under the Custodian.
4. The respondent filed an application in `P' Form applying for the transfer of the plot on the ground that he had constructed on a portion thereof, and in the concluding portion of his application he stated that in cage the constructed portion is not transferred to him then he may be granted com- -pensation for the same. The appellants' father Dindar Khan applied for the transfer of the shop on Form C. S. Without disposing of the application of the respondent Anwar Hussain, a P. T. O. Was issued in favour of the appellants' father on 14-1-1960.
5. In proceedings relating to the disposal of the open plot, the Additional Settlement Commissioner inspected the spot, and called upon the appellant Inayat Ali to submit a written statement, without formally impleading him as a party. Inayat Ali submitted his written statement, raising objections to the transfer of the shop to the respondent Anwar Hussain. However, by his order dated the 1st of December, 1961, the learned Additional Settle--ment Commissioner transferred the shop in dispute to the respondent, and the remaining portion of the open plot to the other applicants, who are not before us in the present proceedings. The present appellants filed a revision petition against this order, which was dismissed by the Settlement Commis--sioner on the 13th of June, 1963.
6. The appellants then invoked the constitutional jurisdiction of the High Court, but their petition was dismissed by a learned Single Judge by his order dated the 30th of July, 1963. The appeal filed by the appellants under the Letters Patent was also dismissed by a Division Bench of the High Court by its order dated the 3rd of October, 1970.
7. Leave to appeal was granted by this Court on the 14th of January, 1971, to examine the following contentions:-
(a) That the shop having been surrendered by the respondent as a hidden evacuee property under Martial Law Regulation No. 49, and thus washing his hands of the same, which was thereafter transferred to the appellants' father by the Settlement authorities on the basis of his recognized possession and tenancy, the respondent should not have been permitted to revive his claim by intervening in proceedings which related to a different piece of property between other persons ; and
(b) that the documentary evidence sought to be adduced in the High Court, to disprove the respondent's claim of having constructed the disputed shop on an open plot, was erroneously shut out by the; Letters Patent Bench.
8. Besides these contentions noticed in the leave granting order, the learned counsel appearing for the appellants also submitted
(a) That the respondent had not applied for the transfer of the shop and, therefore, he could not get it under any of the relevant Schemes under the Settlement law .
(b) that only the Deputy Settlement Commissioner, could decide the question of entitlement, and, therefore, the order made in this behalf by the Additional Settlement Commissioner was without jurisdiction and.
(c) that the concurrent findings of fact recorded by the Settlement authorities, and upheld by the High Court, to the effect that the shop had been constructed by respondent Anwar Hussain on an evacuee plot, were vitiated by reason of ignoring a material piece of evidence, namely, the statement of Anwar Hussain himself made in the shape of an affidavit on 15-3-1954 before the Deputy Custodian.
9. After hearing the learned counsel for the appellants at some length, we have formed the view that there is no merit in any of these submissions.
10. We have perused the provisions of Martial Law Regulation No. 49 called the Martial Law Recovery of Unauthorized Evacuee Property Regulation, published in the Government Gazette on the 29th of November, 1958 and we find that there is nothing therein to show that if a person declares hidden evacuee property held by him, then he would forfeit all his rights accruing to him under the Settlement laws. It is for this reason that all the Settlement authorities as well as the High Court have proceeded to consider the respondent's claim on merits, and have not non-suited him on the ground that he had filed the necessary declaration under the aforesaid Martial Law Regulation. We also find that no such contention was raised before any of the Courts below. It follows, therefore, that in spite of the declarations made by the appellants as well as by the respondent under Martial Law Regulation No. 49, the property remained available for disposal according to the provi--sions of the relevant Settlement Scheme.
11. Such being the case, the question is which of the two contending parties was entitled to its transfer under the law. It is an admitted position that on the relevant date, namely, the 20th December.
12. 1958, the appellants were in possession of the shop only as tenants of the respondent, with the result that the possession must be deemed to be with the respondent. He had made an application for the transfer of the open plot on the 29th November, 1959, on the ground that he had put up a construction thereon. Without examining the merits of this application, the Deputy Settlement Com--missioner issued a P. T. O. In favour of the present appellants. The order determining the entitlement of the appellants has not been made available to the Court, but it is clear that on the date this order was made, namely, the 14th of January, 1960, the respondent's application for the transfer of the open plot was pending. It is a misreading of the respondent's application to contend that he had not applied for the transfer of the shop, which he was all along claiming to have constructed at his own expense. On these facts the shop was rightly transferred to the respondent under Settlement Scheme, No. VI.
13. The contention that only the Deputy Settlement Commissioner could decide the question of entitlement and not the Additional Settlement Commis--sioner, has no merit for the reason that the Deputy Settlement Commissioner is the original authority for this purpose, but if he fails to exercise hi jurisdiction in accordance with law, then the power could certainly be exercised by the appellate or revisional authority.
14. Similarly, there is no merit in the contention that the concurrent findings of fact recorded by the Settlement authorities, and upheld by the two Benches of the High Court regarding the construction put up by the respondent, stand vitiated on account of ignoring of material evidence.
15. The learned counsel's reference is to an affidavit filed by the respondent Anwar Hussain on the 15th of March, 1954, before the Deputy Custodian of Evacuee Property. In the first place, this piece of evidence was not produced before the Settlement authorities, nor before the learned Single Judge of the High Court, who heard the writ petition in the first instance. In the circumstances, the learned Judges of the Appellate Bench rightly disallowed the production of this document. In the second place, we find that the document does not lend support to the submission that the respondent had made any contrary statement regarding the construction of the shop by him. The first paragraph of the affidavit only states that the deponent was in possession of the disputed shop and the second paragraph states that if any body objects to his leasing out the shop then he would be willing to answer in that behalf. We fail to see how this affidavit can be interpreted as meaning that the respondent was stating anything against his consistent claim that he had constructed the shop at his own expense on the evacuee plot in question.
16. It seems to us, therefore, that the Settlement authorities rightly treated the case as one falling under Settlement Scheme No. VI relating to the disposal of evacuee building sites ; and that they were similarly right in transferring the disputed shop to the respondent on the ground that he had constructed the same at his own expense, and that he was in possession thereof on the date relevant under the Settlement law for the purpose of determining entitlement to the transfer of the property. On that date the appellants were simply tenants under the respondent, a status which did not create any entitlement in their favour as against the person who was deemed to be in possession according to the definition of that term as given in the relevant clause of section 2 of the Displaced Persons (Compensation and Rehabilitation Act, 1958. The declarations made by both the parties under Martial Law Regulation, No. 49 did not in any manner, affect the question of their entitlement to the transfer ofthe property.
17. On this view of the matter, the appeal fails and is hereby dismissed, with costs.