' GUL MUHAMMAD KHAN, J.-This order shall also dispose of L. P. A. No, 16-67 and 1396-66 which concern the transfer of the same property. The appellant in this case died on 16th August, 1977, and the appeal is now being prosecuted by his legal representatives.
2. The property in dispute is the portion 3-B of S-77-R-6, Jail Road, Lahore. It had been in possession of Mr. Ghulam Ali Mandviwala since partition. The Rehabilitation authority, vide order dated 14th June, 1954, had declared Mr. Mandviwala as an old tenant. On his death in the same year, the Rehabilitation authority asked his heirs to apply for allotment but the same could not come through ultimately. Meanwhile, Mst. Mahmooda Begum, mother of Afzal Mirza, also came to live with Mandviwala family. Afzal Mirza joined her in April, 1958.
3. One Shujaat Ullah, a displaced person, made a report that the premises were in possession of locals and prayed that the same be allotted to him. Proceedings of ejectment were taken on that basis but the house was later allotted to Abdul Hamid Khan (father of Ahmad Saeed Khan who is respondent in L. P. A. 16 and 1396 of 1967) by Additional Rehabilitation Commissioner.
4. On 20th May, 1958, the Additional Rehabilitation Officer recommended that the house be allotted to Ahmad Saeed Khan. An ejectment order dated 7th June, 1958, was also passed against the local occupants On 7th July, 1958, the Additional Rehabilitation Officer directed forcible ejectment of locals. An appeal was taken by the heirs of Ghulam Ali Mandviwala, in which the present appellant was also included as an appellant. He, however, neither signed the appeal nor the power of attorney. His presence was marked in the resulting order, Annex. 'B' passed on 27th October, 1958, and his ejectment ordered. A revision petition filed on behalf of Mandviwala family and the deceased appellant failed and was dismissed on 3rd February, 1960. An application filed by Afzal Mirza for being impleaded as a party was also rejected on merit.
5. Meanwhile, the Displaced Persons (Compensation and Rehabilitation) Act, was enforced in 1958.
The heirs of Ghulam Ali submitted a form L. H. The deceased appellant filed form C.H. Dated 18th February, 1960, while Afzal Mirza, appellant in L. P. A. 1396/67, submitted form C. H. In 1960. The Deputy Settlement Commissioner considered the claims of the applicants and transferred, vide his order dated 4th November, 1969, half portion of the house to Mst. Masoodi Begum which is not in dispute. The other half portion now in dispute was transferred to respondent Ahmad Saeed Khan.
6. The deceased appellant and Afzal Mirza filed appeals but the same were dismissed by the Additional Settlement Commissioner on 17th November, 1962. The Settlement Commissioner accepted the revision petition of Afzal Mirza, vide order dated 9th April, 1963. He cancelled the transfer made in the name of Ahmad Saeed Khan and transferred the entire disputed portion to Afzal Mirza. The revision petition filed by the deceased appellant was rejected.
7. Ahmad Saeed Khan challenged that order through writ petition No, 2482-R-63. The deceased appellant also did the same in writ petition No, 1850-R-63. It came up before a learned Single Judge of this Court who vide his order dated 30th November, 1966, accepted the petition of Ahmad Saeed Khan and transferred the entire disputed portion to him. The petition of the appellant was, rejected. It is in this situation that the three Letters Patent Appeals were filed.
8. The facts as given above do go to show that
(1) Ghulam Ali Mandviwala was the old tenant of the house ; (ii)the deceased appellant was living with him as a member of his family;
(iii) Mst. Mahmooda Begum, mother of Afzal Mirza, started living in the house as a member of Mandviwala family since 1954, while Afzal Mirza joined her in April, 1958 ;
(iv) the house in dispute had been allotted to Ahmad Saeed Khan on 20th May, 1958. There were ejectment proceedings taken for his benefit but he could not get its possession.
9. It is quite clear from the above that the deceased appellant and Mst. Mahmooda Begum mother of Afzal Mirza were living in the property not in their own right but as members of the family of Mandviwala. They were, therefore, mere licensees with no right to ask for transfer of the property.
The Supreme Court in the case of Muhammad Sadiq (1), found a person, who carried on business as a partner, in a shop allotted to another, not entitled to transfer. In the case of Mirza Bashiruddin Mahmud Ahmad (2), the allottee for a fixed period who had been ordered to be ejected, was not allowed transfer of the house when it was allotted thereafter to another, despite the fact that the previous allottee continued his unauthorised occupation. It was held that their possession was not undisputed and consequently they would not be entitled to the transfer of the disputed portion under the law. Reference be also made to the case of Barkat Ali (3).
' The other question arising for determination is whether Ahmad Saeed Khan was entitled to the benefit of notification dated 11th August, 1960, as printed at page 163 of the Old Manual. This notification laid down the following three pre-conditions :-
(1) Allotment had been made by a competent authority on or before 20th December, 1958 ;
(2) The applicant could not obtain physical possession of the same through no fault or negligence of his own on or before 11th August, 1960 ;
(3) Ejectment proceedings had been ordered by a Court or Rehabilitation
(1) 1978 SCMR 214 (2) 1977SCMR 123
(3) PLD 1966 SC 817 ' authority for the benefit of the applicant and the same were pending on 11th June, 1960.
' Prior to the notification dated 11th August, 1960, referred to above, the Chief Settlement Commissioner issued a Press-note dated 5th December, 1959 (see page 96 of the Old Manual) clarifying the legal position about such persons who despite allotments could not obtain possession and stated that the applications of such persons should be kept pending as formulation of a policy in such matters was under consideration. It was further stated that such houses should neither be put in the list meant for earmaking nor disposed of otherwise. The same view was repeated in a memo. Dated 18th February, 1959 (see page 118 of the Old Manual). It is therefore, clear that the Central Government consciously and after consideration issued the above-said notification.
10. As given above all the three conditions are available in the case of Ahmad Saeed Khan and, therefore, the order of the learned Single Judge cannot be said to be suffering from any illegality. It was, however, contended on behalf of the deceased appellant and Afzal Mirza that as the second proviso read with section 2 (6) of the Act authorised the Central Government to direct in writing that a class or classes of such persons as have not obtained possession as aforesaid---shall be deemed to be in possession, the notification in question is ultra vires as it allowed benefit to such persons who were not in actual possession. The emphasis of the learned counsel is on the phrase as have not obtained possession as aforesaid. It is argued that the applicant must be in possession though the same had not been obtained in pursuance to an order passed by a competent authority so as to take advantage of the notification.
11. The interpretation put forth by the other side on this clause is that what section 2 (6) means is that the Central Government can direct by an order that if a person fulfilled certain conditions he shall be deemed to be in possession even though he had not obtained possession as aforesaid.
Reliance was placed on Barkat All v. M. S. Zaman (1). In that case a learned Single Judge of this Court rejected the claim of the petitioner for the transfer of property. The learned Judge, however, did not have to consider and decide the above question. He held that as the order of allotment was itself void, having been passed against the previous allottee, without notice to him, it was void and did not confer any right on the petitioner. That order was upheld by the Supreme Court in Sh. Barkat Ali v. Additional Settlement Commissioner (2). This case is, therefore, of no assistance.
12. Section 2 (6) and its second proviso read as under :- "2. `Possession.'-(6) 'Possession' means possession obtained in pursuance of an order passed on or before the 2th day of December, 1958, by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government ; Provided . . . .................................... 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."
13. The above provisions do make it clear that the Central Government had been authorised to direct in writing that a class or classes of persons
(1) PLD 1968 Lab. 770 (2) 1972 SCMR 293 ' who have not obtained possession as aforesaid, shall be deemed to be in possession. It, therefore, clearly means that the Central Government had been authorised to create another category of possession subject to conditions. This was done by two notifications. One was about those who were in undisputed possession though unauthorisedly. The other was about such persons who were allottees but could not obtain possession through no fault of theirs though ejectment proceedings were pending. The above notifications were held valid by a Division Bench of this Court in the case of Begum B. H. Syed (1) with the following observations ' In our view, both the notifications have to be given their full effect and there would be no warrant for keeping them in watertight compartments for their own separate effect without reacting on each other ... "
' There is yet another case of Saadat All (2) which is quite similar to the case in hand. Saadat Ali appellant there was an allottee. In 1950 his allotment was cancelled and orders for his ejectment passed. The house was ordered to be allotted to a suitable applicant on 11th May, 1957. This order was confirmed by the Additional District Rehabilitation Officer on 4th June, 1959. The appellant did not challenge that order further. He delivered possession to one Feroze Din local but the house was allotted to the respondent in that case. The learned Judges of the Supreme Court held at page 156 as follows. ... On these facts it can fairly be concluded that the ejectment proceedings were initiated against the appellant both from the house and the adjoining property encroached upon by him. The order for ejectment from the house was therefore for the benefit of the respondent who was its allottee.
The third condition of the Notification under section 2 (6) was thus fulfilled to entitle the respondent to apply for transfer of the house."
14. The question also came up before the Supreme Court in the case of Abdul Ghafoor (3). Therein the learned Judges of the Supreme Court upheld the judgment of the High Court with the following observations :- "The petitioner trespassed into House No, P/1160, Rawalpindi, which stood allotted by the Rehabilitation authorities to the respondent No, 3 before the 20th December, 1958. The house was accordingly transferred to the respondent in accordance with the notification issued by the Central Government under section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act to the effect that if an allottee could not be given possession due to no fault on his part and ejectment proceedings were initiated against the person in occupation before the 20th December, 1958, then such an allottee shall be deemed to be in possession for the purpose of transfer. The petitioner, however, laid claim to the transfer of the house on the basis of his prior possession, but his contention was ruled out.
' The High Court declined to interfere with the orders of the Settlement authorities on the view that a trespasser is neither entitled to the tranfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act nor competent to move the High Court in the exercise of its constitutional jurisdiction.
' The view adopted by the learned Judges is plainly correct and we see no reason to grant leave to appeal. The petition is dismissed."
(1) PLD 1966 Lah. 967 (2) 1974 SCMR 154
(3) Law Notes 1968-SC 71
15. The facts given above do show that the respondent Ahmad Saeed Khan did not obtain possession as such despite the fact that he had a valid allotment order and there were ejectment proceedings pending against the appellant/occupants. Consequently, the Central Government could direct by order in writing that such persons should be deemed to be in possession. I, therefore, do not find any illegality in the notification dated 11th August, 1960, what to speak of its being ultra vires the second proviso to section 2 (6) produced above.
16. Looked at from another angle, the situation leads us to the same conclusion. Undoubtedly, respondent Ahmad Saeed Khan was an allottee Proceedings to eject the appellants had also been initiated and their appeal, revision and representation rejected. Their possession, therefore, was neither valid nor undisputed. Consequently, they had no right or interest in the property as held in para. 9 above, and so no locus standi even to challenge the transfer made in favour of the respondent. Reference be made to the case of Ahmed Jamil v. Nazir Ahmad Khan (1) and Ali Muhammad v. Sirajul Hag Qureshi (2). The same view was taken in Sheikh Barkat Ali's case 1972 SCMR 293. Further, due to allotment order the respondent shall be deemed to be in constructive possession and the appellants shall be deemed to be holding the property on his behalf. See Imam Din v. Hameed Hussain (3). Thus the appellants could neither ask for the transfer of the property at the relevant time nor could they challenge the transfer made in favour of the respondent.
17. The learned counsel for the appellants then submitted that even the conditions of the notifications were not fulfilled so as to let Ahmad Khan take advantage of the same. According to them, there were no ejectment proceedings against any of the appellants. None of these contentions are correct. The last part of the very first sentence of the order dated 27th October, 1958, passed by Mr. Muhammad Yar Khan, Additional Rehabilitation Commissioner on the appeal of Seth Yusuf All Mandviwala etc., Including Ijaz Ahmad (deceased appellant) reads that "Seth Yusuf Ali . .. Were not living in the house and that Ijaz Ahmad who is living in the house is an unauthorised occupant." Later part of the order shows that the Additional Rehabilitation Commissioner heard ljaz Ahmad who could not prove that he was a refugee or held a claim. He, therefore, ordered his ejectment.
18. The position taken on behalf of Ijaz Ahmad was that he was living in the house as a member of the family of Mandviwala and so not in his own right. A revision petition filed at their instance was also rejected by the Settlement and Rehabilitation Commissioner on 3rd February, 1960. At that stage Afzal Mirza had also applied to be impleaded as a party. The Settlement and Rehabilitation Commissioner made the following observations about him :- "The application of Afzal Mirza may be dismissed straightaway. He was not party to the proceedings in the Courts below and he should not be impleaded as party in this Court. It is not known if he was living in this house (bungalow) alongwith the family of Seth Ghulam All deceased.
But even so, this possession was not by virtue of independent allotment but with consent and on the sufferance of the deceased. He is liable to be ejected if the heirs of Seth Ghulamali are found to be in unlawful occupation."
19. None of the appellants or the members of the family of Ghulam Ali Mandviwala seem to have challenged the above order further. Thus it cannot
(1) 1975 SCMR 24. (2) 1975 SCMR 33
(3) PLD 1967 Lah. 419 ' be said that the appellants were either occupying the property in their ow right or their possession was not unauthorised. In fact they knew that they were liable to be ejected and they did not challenge the orders, saying so before this Court. Both the appellants, therefore, acquiesced in the above orders and cannot challenge the factual aspects determined therein in view of Mst. Sakina v. Muhammad Ziaullah Khan (1). Thus their occupation of the property remained disputed and unauthorised. The contention raised on their behalf, therefore, to rely on the notification dated 6th September, 1960, equating the persons having undisputed possession with valid allottees in possession is neither justified nor correct. Consequently they could not apply for the transfer of the property and in any case, could not claim the transfer of the property in the presence of Ahmad Saeed Khan respondent allottee.
For the reasons given above, we do not find any illegality in the order of the learned Single Judge and dismiss these appeals. There will be, however, no order as to costs.
(1) 1979 SCMR 276