1. SHAH NAWAZ KHAN, J.-This appeal, by special leave, is directed, against the dismissal of a constitution petition moved by Habib Ullah appellant, in the Lahore High Court, in respect of the transfer of the roof of the evacuee shop comprised in Property No. SW-104-R-88, Hota Singh Road, Lahore.
2. The premises bearing No SW-104-R-88, Sant Nagar, Lahore, was a single storey composite property consisting of two shops in front, and a residential portion behind them. One of the shops is in possession of Habib Ullah, appellant, and the other, with some other person, with whom we are presently not concerned in this appeal as he is not a party. The residential portion is admittedly in possession of Mahmood Ahmad Khan respondent No. 3.
3. All the three occupants were transferred the portions in their respective possessions vide order of the Deputy Settlement Commissioner dated 28-12-1962. That order was unsuccessfully challenged by Mahmood Ahmad Khan, respondent No. 3. Before the Settlement authorities and then in the High Court on the ground that there were, in fact, four shops and not two. The position taken by the present respondent No. 3 was found to be factually incorrect, and the appeal and then the revision petition and ultimately the writ petition filed by the respondent No. 3 were dismissed. Staircase leading from inside the Deori between the two shops is in possession of the respondent No. 3. The appellant claims that there is a door in-between his shop and the Deori through which he goes upstairs to the roof of his shop. The dispute between the parties is about the roof of the shop, which is in possession of the appellant. It is claimed by the appellant that the roof of the shop was transferred to him. Respondent No. 3 sought the ejectment of the appellant on the ground that the roof of the shop of the appellant was the courtyard of the rooms of respondent No. 3, apart from the fact that the deori in which the staircase is situated admittedly belongs to him and the appellant has no access or right to use the same with the result that the upper portion of the roof cannot be used by him.
4. A learned Judge of the Lahore High Court accepted the S. A. O. Of the present respondent No. 3 and by order dated 20-2-1973 remanded the case for decision on merits. Respondent No. 3, however, succeeded in obtaining the amendment of the P. T. O. And P. T. D., which had been issued in favour of the appellant so as to exclude the upper portion of the roof of the shop earlier transferred in his favour. The appellant having failed before the Settlement authorities in this round of litigation ultimately moved a writ petition in the High Court, but it was dismissed vide order dated, 4-6-1976.
5. The contention of the appellant is that a Permanent Transfer Deed having been issued, the Settlement authorities have become functus officio, because the property had already gone out of the compensation pool. Therefore, the orders Annexure `U' and `V' are without lawful authority and nullity in the eye of law. Further that the final order of transfer upholds expressly the nature and description of the property originally transferred, as reflected from order dated 4-2-1960 Annexure `G' and P. T. O. Dated 14-2-1960 Annexure `O'. Therefore the orders of the Settlement authorities Annexures `U' and `V' are in excess of the jurisdiction conferred on them. It is also submitted that the shop of the appellant was a complete independent unit transferred to him and no different interpretation could be placed, nor different conclusions prejudicial to the rights of the appellant could lawfully be arrived at. It was further contended that the shop in question is a single storey building. There exists no Chaubara over the same. However, the photograph of the disputed property, which was produced in Court and was placed on the file does show that there is a boundary wall containing windows and ventilations and it goes up to the top on which a roof can be placed. That photo has already been placed on the file and its correctness has not been disputed. This wall is in existence since partition, which means that the previous evacuee owners had a mind to make a roof and convert this portion as a building, but they left Pakistan and this building remained incomplete. In the final order Annexure `H', transfer of residential portion is sanctioned in favour of respondent No. 3, and if the roof of the shop of the appellant adjoins the kothas of respondent No. 3 then the situation changes and anything constructed on the roof of the shop in question cannot be claimed by the appellant. It is conceded that only shop was transferred to the appellant and nothing above it. A question would, therefore, arise whether the roof of the shop of the appellant is used by the respondent No 3 as a courtyard for his house situated at the back of the shop. It is conceded that the deori falling in-- between the shop of the appellant and the other shop, which opens towards the main Bazar has been transferred to respondent No. 3 and so the stair--case through which he has to approach his residential portion.
6. It appears that all these three portions of the building were formerly one unit, but later the main block was sanctioned in favour of respondent No. 3, while the two shops falling in front in the main Bazar were transferred to two different persons including the appellant as transferee of one shop.
7. The contention of respondent No. 3 is that so far as the shop is concerned, the appellant is its transferee, but nothing beyond that. The residential portion, which has been allotted to respondent No. 3 has two main gates; one of which opens in Street No. 52 at the back and the other main gate opens on the main Hota Singh Road on which the two shops are also situated. Now the Deori in- between has been transferred to respondent No. 3, and it is through this Deori that he has access to his original portion. According to the respondent No. 3, the gate opening towards Street No. 52, there is also a staircase running to the upper storey of the respondent No. 3. It shows that while approaching the upper storey of his residential portion, the respondent No. 3 has to use the staircase on either side. He insists that the upper portions of the roofs of the two shops i.e. One of the appellant and the other of the different person serve as a courtyard for the upper storey building of his residential portion, which has been allotted to him. It is an admitted fact that Habib Ullah appellant has been allotted one shop only and the doubt about the upper portion of the shop has since been removed when the P. T. O. And P. T. D. Were amended. It will be appreciated that at one stage before the Assistant Settlement Commissioner, Habib Ullah appellant had made a statement that he had no objection to the transfer of the property in favour of Mahmood Ahmad Khan respondent No. 3, and that he was surrendering his right to pursue his N. C. H. Form. Any way ultimately one shop was transferred to the appellant. The Additional Settlement Commissioner on accepting the appeal of the appellant transferred one shop to Habib Ullah along with whatever was constructed on the shop. But on appeal the Settlement Commissioner set aside that order and remanded the case to the Deputy Settlement Commissioner for fresh decision observing that if there were four shops then Mahmood Ahmad Khan and Habib Ullah were entitled to one shop each, and the remaining two shops be then put to auction. However, if there were only two shops then each party could be given one shop only. Accordingly, one shop was transferred to Habib Ullah and the other was put to auction, but this order was later amended and the second shop was transferred to Mahmood Ahmad Khan, respondent No. 3.
8. The litigation between the parties went on for a fairly long time and ultimately Deputy Settlement Commissioner If, transferred the residential portion to its occupant i.e. Respondent No. 3, while the two shops were transferred, one each, to Habib Ullah and Bashir Ahmad according to their possession.
9. Later in his notice served on respondent No. 3 Habib Ullah appellant through his counsel wrote to him admitting that the respondent No. 3 was in possession of the upper portion of his shop and the staircase, which leads to the upper portion. He claimed that respondent No. 3 had become tenant under the appellant according to law. But as indicated above the possession of respondent No. 3 over the same was admitted and it was also admitted that respondent No. 3 was in possession of the same since the time when these portions were transferred to the appellant. In fact, these portions were never transferred to the appellant. This is besides the fact that he has admitted that he was not in possession of the property before the scheduled date. According to section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a person in possession of the property before the target date could only be treated to be the tenant of the transferee. It means that the assertion of the appellant that the possession was illegally and un---authorisedly taken by the respondent No. 3 was not correct.
10. Now the stand of the Deputy Settlement Commissioner as disclosed from his order dated 26-4- 1973 was that the property in question had been transferred according to their respective possession which was confirmed in appeal and revision in favour of present respondent No. 3, who was in possession of the upper portion of the shop, the P. T. O. And P. T. D. Were accordingly amended and corrected. Now it has to be accepted that the upper portion belongs to the respondent No. 3 and he approaches that upper portion through the Deori in which the staircase is situated, which lies in. Between the two shops ;one belonging to the appellant and the other to the other person. It was, therefore, rightly observed by the High Court that there was no amendment in the P. T. O. Or P. T. D. And only correction was required in P. T. O. Dated 14-2-1960. It did not reflect the correct position as regards the matter of transfer. It was contended on behalf of the respondent No. 3 that the P. T. O. In question had been issued on the basis of the previous order passed by the concerned Settlement authority and it did not reflect the true and correct position in terms of the order dated 28-12-1962 passed by the Deputy Settlement Commissioner whereby the property was ordered to be transferred to the respective occupants. The P. T. O. Issued to the parties as clarified did not require any amendment. The property bad been transferred according to the respective possession of the parties and as indicated above the appellant had himself admitted the possession of respondent No. 3 on the upper portion of the shop.
11. In Muhammad Yaqoob v. Settlement and Rehabilitation Commissioner, Lahore (PLD 1973 SC 439), it has been observed by the Supreme Court that :- "The second proviso to clause (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act read with the instructions issued by the Chief Settlement Commissioner in this behalf, leaves no doubt that in the case of a composite building, the Chief Settlement Commissioner, or his delegate, has the power to specify as to which part or parts of the building shall be deemed to be a shop and a house. The instructions appear to indicate the vertical division from the ground to the sky would be preferable, but there is no bar in the way of a horizontal division so that different floors of the willing could be deemed to be a shop or a house and transferred as such to different persons. What is important and necessary in such cases is that the competent authority must clearly specify the parts of the building, which are to be separately treated as residential or business units. 1n other words, the rights of holder of the lower tenement as to user of the property would not extend beyond the line or level of division specified by the competent authority. Converse would be the case with the transfer of a higher tenement. In such case, however, the rule would apply according to the division or demarcation specified by the Settlement authorities. In the matter of easements the transferees would be governed by the ordinary law. The transferees of the shops situated on the ground floor would have no rights beyond the line of division between the two floors of the building, with the result that their rights would extend from the ground to the ceiling of the shops, but not to the roofs of the shops as those roofs would constitute the first floor of the building."
12. In the instant case, the appellant is only entitled to retain the transfer of the property in possession, which has been transferred to him according to possession and not beyond that limit. The upper portion of the shop forms part of the residential portion which has been transferred to respondent No. 3. Similarly in the case of the correction of the P. T. O. To bring it in conformity with the order passed by the Settlement Authorities, such correction can be made and it would not amount to amendment of P. T. O. Or P. T. D.
13. As no injustice had been done to any party, the discretion to refuse relief in writ petition could be exercised by the High Court, and it would not require any interference. This appeal is, therefore, dismissed.