GHAZANFAR ALI GONDAL, J.-This is a Letters Patent Appeal' from the order dated 6-I1-1965, passed by Mr. Justice S. A. Mahmood (as he then was) in Writ Petition No. 665-R of 1960, whereby the learned Single Judge had dismissed the .Petition and maintained the order of transfer of the inter- floor situate over the shop known as 'Standard Medical Hall' in favour of respon--dent Zahoor Hussain. Originally the Letters Patent Appeal was directed also against that portion of order of Single Judge whereby he had remanded the case to Settlement Authorities for reconsideration of the question of transfer of shop known as Wonderland and for this respondents 2 and 3 had been impleaded as a party but later on that portion of the appeal as against the said respondents was not pressed and accordingly that part of the appeal was disposed of as not pressed. As against respondent No. 1, namely, Zahoor Hussain, originally there was another plea raised in this Letters, Patent Appeal and that was that appellant Mahmood Hussain was the only claimant in the field and that respondent Zahoor Hussain was not entitled to the transfer of the shop known as Standard Medical Hall. This plea was rejected by a Division Bench of this Court by order dated 31- 10-1966, and the Letters Patent Appeal was admitted only to consider the question of validity of order of transfer of the inter-floor to respondent Zahoor Hussain on the ground that be had not applied for it on his N. C. S. Form. Now, therefore, in this appeal, the only question involved is the validity of maintenance by learned Single Judge of the order of transfer of inter-floor made by the Settlement Authori--ties in favour of Zahoor Hussain respondent.
2. The facts giving rise to this appeal are that the premises known as S-19-R/32 is a composite building situate in Commercial Building, The Mall, Lahore. It consists of three shops on the ground floor generally known as Standard Medical Hall, Hussain House and Wonderland and a residential portion in the form of a flat on the top of these three shops. In between the said upper residential portion and the shop known as Standard Medical Hall, there is an inter-floor situated just over the said shop. It is clear from facts in this case that the roof of the inter-floor is in line with the roofs of other two shops and the three roofs together constitute the floor of the upper residential portion of this property. Situation of the property may be stated here. Towards East is the shop known as Standard Medical Hall referred to above which has above it the said inter-floor, to the West of it and adjacent to it, the shop known as Hussain House and to the further West of Hussain House is the shop known as Wonderland. However, in the present appeal we are concerned only with inter- floor situate over the shop known as Standard Medical Hall, as well as the shop known as Standard Medical Hall so far as facts relating to the said shop are relevant for deciding the question relating to the inter-floor raised in this appeal. With portion of the property namely the other two shops and the first floor situate over all the three shops we are not concerned except for the description of the general line of division between the three said shops on one hand and upper residential portion on the other.
3. History of the case relevant for the purpose of this appeal is that Zahoor Hussain had filed N. C. S. Form dated 6-8-1959, for the shop in his possession in the said property while Mahmood Hussain, occupant of the adjoining shop as well as of said inter-floor had filed N. C. S. Form allegedly for the whole property. In the proceedings, on this form, Zahoor Hussain made a statement before the Assistant Settlement Commissioner that he wanted the transfer in his favour of said inter-floor too.
The Deputy Settle--ment Commissioner by his order dated 13-1-1960, transferred to Zahoor Hussain on his N. C. S. Form, the shop known as Standard Medical Hall and transferred the other two shops with the entire upper portion to Mahmood Hussain. The transfer of the inter-floor to anyone was not specifically mentioned in the order of the Deputy Settlement Commissioner. Zahoor Hussain filed an appeal before the Additional Settlement Commissioner for the transfer of inter-floor to him. Lt.- Col. J. D. Malik, Additional Settle--ment Commissioner accepted the appeal of Zahoor Hussain respondent and direeted.Xhe transfer of inter-floor to him. Relevant para. Of his judgment is quoted below in extenso :- "6. Coming on to the appeal of Zaboor Hussain, which is to claim a portion of the .Inter-floor on top of shop No. 1 on the grounds that occupants of the inter-floor disturbs his possession by throwing water on the wooden floor which is on top of his shop or being a nuisance in any other way that he might like to choose. In my opinion the property can only be divided along the general line of division between the shops and the residential portion. If I take the line of division between the shop
(1) and the inter-floor, it seems that I am bringing this general line of division considerably lower in the frontage of this property. It will be very reasonable to accept the general line of division all along the length of the property and, therefore, I accept the claim of the appellant Zahur Hussain to the inter-floor.
On 5-3-1960, Mahmood Hussain filed a revision. Khan Farzand Ali, Settle--ment Commissioner by his order dated 6-5-1960, maintained the transfer of the inter-floor in favour of the respondent and dismissed revision petition filed by Mahmood Hussain on the ground that the inter-floor is on the shop transferred to Zahoor Hussain and should remain with him and that Mahmood Hussain had no case for transfer of this inter-floor to him. Second revision filed by Mahmood Hussain before the Chief Settlement Commissioner was dismissed on 18-9-1960.
Mahmood Hussain then filed Writ Petition No. 665-R-1960, challenging, inter alia, the transfer of this inter-floor to the respondent. The plea of the appellant in regard to the transfer of the inter-floor to him was rejected by Mr. Justice S. A. Mahmood by his order dated 6-10-1960, with the observa--tion that the inter-floor being the integral part of the shop had to go to Zahoor Hussain and that this decision was arrived at by .Mr. J. D. Malik on spot inspection and there was nothing in the instructions or the relevant provisions of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958 (hereinafter referred to as the Act) which made the transfer illegal.
4. Mian Mahmood Ali Kasuri, learned counsel appearing on behalf of the appellant in support of the L. P. A. Has raised the following questions :-
(i) That integral part means a constituent component or a part of the whole according to Oxford Dictionary and the inter-floor was not a cons--tituent component of the shop in question and could not have been transferred to Zahoor Hussain respondent ;
(ii) That the inter-floor in question is in possession of appellant Mahmood Hussain and had never been in possession of the respondent Zahoor Hussajn and paras. I to 3 and 8 and 9 of the Schedule to the Act proceed on the basis of possession and direct that transfer be made only to persons in possession of premises and, therefore, persons not in possession of premises cannot be transferred said premises and on this principle inter-floor in question should have been transferred to the appellant Mahmood Hussain and could not have been transferred to respondent Zahoor Hussain ;
(iii) That respondent Zahoor Hussain never applied for the inter-floor whereas appellant had applied for everything in his possession. "There--fore, inter-floor could not have been transferred to Zahoor Hussain who never applied for the same, even though inter-floor and the shop below constituted one unit. It could have been transferred to appellant Mahmood Hussain who had applied for the same.
5. Taking the first point first, the dictionary meaning of the integral part as used by learned Single Judge in his judgment would not furnish any aid in the matter as the question of validity of transfer of inter-floor to a person in possession of .The shop below it would have to be tested for its correctness in the light of the law under which the transfer had been made. As already stated the building in which said inter-floor is situated is a composite building. The relevant provision of law which deals with transfers of such building is 2nd proviso to section 2 (12) of the Act as amended in 1959, which reads as below :- "Provided further where any such building or premises consists of both residential and business units, the Chief Settlement Commissioner may order that the whole or such building or premises or such part or parts thereof as may be specified in the order shall be deemed to be a shop or a house."
It is clear from this provision that it is the exclusive jurisdiction of the Settlement authorities to declare whether a particular part of the composite building is a shop or a house. Both the Additional Settlement Commissioner and the Settlement Commissioner had in exercise of their jurisdiction under' the said provision of law held the inter-floor to be part of the shop transferred in favour of Zahoor Hussain. It has been held times and again that this Court cannot interfere with such orders of Settlement authorities unless the said orders are arbitrary, whimsical or in excess of jurisdiction. The reasons given by the Additional Settlement Commissioner for holding that inter--- floor is a part of the shop below is that general line of division between the three shops and the first floor situate on them shows that this inter-floor is built inside and within the upper portion of the shop in question and is a part of the shop. The Additional Settlement Commissioner inspected the spot and himself found level of roofs of ail the three shops was same and the inter-floor was situated under the said level and on the basis of general tine of division between shops and first floor (upper residential portion) came to the conclusion that inter-floor was a part and parcel of the shop. The Settlement Commissioner also gave the same reason for maintaining the said order of the Additional Settlement Commissioner. The reason given was by no means arbitrary and capricious. We may rather say that this reason was consistent with the interpretation of the word 'unit' transferable to a person) by the highest Court of the realm. The word 'unit' used in the proviso has been authoritatively interpreted by the Supreme Court in case of Abdul Majid Khan v. Chief Settlement Commissioner (1) which laid down that 'unit' as used in subsection (12) of section 2 of the Act was co-related to the structural characteristics of the building itself and in this sense the said word was clearly intended to mean a division of the who building least necessary to form an integrated portion capable of having separate entity and being used as a self-contained portion and in the ordinary or popular sense would mean an integrated portion of a building structurally capable of being used as a self-contained portion. Again in the case of Shaukat Ali v. Settlement Commissioner (2) it was held that if units are not structurally so compact or integrated as to be able to have a separate entity or be capable of being used as a self-contained portions, their division cannot be ordered. When the Additional Settlement Commissioner said that by taking general line of division between shops and residential portion it was clear to him that the inter-floor in question was a part of the shop, the Additional Settlement Commissioner meant to declare that the inter-floor and the shop were structurally so compact or integrated that they together had a separate entity or were capable of being used as a self-contained shop. The decision of the learned Single Judge that inter-floe was an integral part of the shop and was to go with the shop was, therefore, unexceptionable.
(1)PLD1968SC154,(2)PLD 1973SC124
6. We now turn to the second point raised by the learned counsel for the appellant. As held by Supreme Court in case Abdul Majid Khan v. Chief Settlement Commissioner originally when the Act was promulgated, according to proviso to section 2 (12) business premises transferable to a person was a portion in possession on a particular displaced person and division could only be made on the basis of possession, but after the amendment of this proviso in 1959 and substitution of word premises by the word unit, a departure was made from the previous rule and the word unit in the amended proviso was necessarily disassociated from possession and became more co- related to structural characteristics of the building itself. From now onwards, a unit which is partly in possession of another could be transferred to the applicant in its entirety if it constituted an integrated portion of a building structurally capable of being used as a self---contained unit.
There is no doubt that paras. I to 3 and 8 and 9 of Schedule to the Act (which governs the manner of disposal of property) proceed to direct transfer on the basis of possession but they never lay down that a person must be in possession of the whole of the house or shop to entitle him to transfer of house or a shop, Possession over a part -of the house or shop is sufficient. We are fortified in this view of ours by the view expressed by Nazir Ahmad Ma.'dmood, J (as he then was) in case of Jamalu v. Chief Settlement Commissioner (1), wherein a claimant in possession of a part of the house was held entitled td transfer of entire house including one room which was not in his possession but was otherwise part of the said indivisible house. . In case of Sh. Khurshid Muhammad v. Settlement Commissioner (2) it was held (relying on observation made in case of Altaf Hussain and others v. Chief Settlement Commissioner and others (3), that person in posses-- sion of one room alone in the property was entitled to transfer of other portions of property of which he was not in possession. In case of Khawaja Riffat Ali v. Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and 2 others (4), it was authoritatively laid down by the Supreme Court that Settlement authorities had to make necessary modification while making division of the property and merely because some adjustments had been made to make the units separate and independent of each other, the validity of division cannot be challenged on the ground that something not actually in occupation of a panty had been given to him. This point too is, therefore, unsustainable.
(1) PLD 1966 Lah. 1045 (2) PLD 1971 SC 498
(3) PLD 1965 SC 69(4) PLD 1975 SC 366
7. In support of the third point convassed by the learned counsel for the appellant, he has cited unreported decision of Supreme Court dated 3-6-1965, in Civil Appeal No. 7 of 1964, titled Abdur Rahman v. Muhammad Rafique, but that decision is distinguishable. In the present case, the inter-- floor and shop below were held to be a single unit after hearing the parties and after inspection of the spot. But in that case without an opportunity of hearing having been given to Abdur Rehman petitioner therein (who had filed N. C. H. Form for portion in his possession) to show that house was divisible, the said house had been transferred to Muhammad Rafique assuming it to be a single indivisible house although Muhammad Rafique had filed a C. H. Form for the transfer of portion in his possession only. The transfer in favour of Muhammad Rafique was set aside and the case was remanded to Settlement authorities for fresh decision to determine as to whether the house consisted of two independent self-contained units and could be transferred to parties in parts. It was not held in that case that even though a unit is indivisible, a person who has applied for only a part of that unit cannot be transferred anything more than what he had asked for. The other case cited by the learned counsel for the appellant, namely, C. P. S. L. A. No. 5 of 1962 decided on 6-2- 1966, Muhammad Hanif v. Chief Settlement Commissioner (1) however, no doubt, lays down the proposition convassed by the learned counsel for the appellant. That was a ' case in which Chobara and shop were treated by Settlement authorities as two different units and therefore it was held that transferee of Chobara who had applied only for transfer of Chobara had no right to the transfer of the shop (which was a separate unit) for which he had not applied at all. However to the end of the judgment an observation was made that even if shop and Chobara constituted one unit, transferee of the Chobara was not entitled to the transfer of the shop because he never applied for it. It is on the basis of this later observation of the Supreme Court in the said judgment that certain decisions were made by the High Court to the same effect for instance the case of Amir Din v. Muhammad Siddiq (2) and case of Mst. Fazal Bibi v. Mehr Ibrahim etc. (3). However it is pertinent to note that said observation was made by the Supreme Court in a case wherein applicant before it had been transferred by Settlement authorities only a portion of the disputed premises on the ground that he had filed transfer form for portion in his possession only and that applicant had come to the High Court/Supreme Court with a prayer for transfer of the remaining portion of the premises to him. But different considerations arise in a case in which the Settlement authorities themselves have transferred to a person whole of an indivisible unit, although said person had filed a transfer form for portion in his own possession only. In such a case the same dictum would not apply for, an indivisible unit must necessarily go to one person and Settl3ment authorities are authorised to transfer the single indivisible unit to a person even though he had filed his transfer form for the portion of the unit in his own possession. That is why an observation was made in the decision of this Court in case of Mst. Fazal Bibi v. Mehr Ibrahim and two others that a person who has filed form for premises in his possession only may be transferred by the Settlement authorities the portion not in his possession which is indivisible portion of the premises in his possession but is not entitled as a matter of right to the transfer of the same. Respondent Zahoor Hussain who had been transferred the shop in his possession along with the inter-floor as a single indivisible unit had not himself come to the High Court. He was brought here by being cited as a respondent in the writ petition. Dictum that he cannot claim inter----floor as a matter of right does not apply to him in the present state of things as he is not an applicant before High Court. The Settlement authorities had the jurisdiction and they had transferred to him the said inter-floor along with the shop below it, as a single indivisible unit and the inter-floor could not be taken away from him now in proceedings in writ jurisdiction. Be that as it may, the Supreme Court itself later modified its view which sustains the orders of Settlement authorities transferring to Zahoor Hussain the inter-floor in question along with the shop. In case of Muhammad Rafiq v. First Additional District Judge (4) it was held that in case house/ property was held indivisible, then the mere fact that an applicant had" asked only for a part in his possession was no bar in transferring whole house to him. Again in case of Muhammad Yousuf v. Chief Settlement Commissioner and another PLD 1968SC 101transfer by the Settlement Commissioner of whole of an indivisible house to Haji Ahmad, who according to the revisional order of Settlement Commissioner had applied only for the portion in his possession was held to have been made by Settlement authorities in proper exercise of lawful authority. Again in case of Abdul Ghafoor v. Settlement Commissioner 1968SCMR591it was held that premises consisting of house and shop which had been considered as indivisible could be transferred to a person though he had filed transfer form only for shop portion of the premises in his possession in the belief that premises may be treated as divisible. Finally in case of A. K. Niazi etc. v. Sh. Muhammad Ismail etc. PLD 1979 SC 826the view held in case of Muhammad Rafiq v.
First Additional District Judge was reiterated and transfer of whole indivisible house to Sh.
Muhammad Ismail respondent, even though he had filed transfer form for the portion in his possession, was upheld. The order of Settlement authorities in transferring the inter---floor to respondent Zahoor Hussain are, therefore clearly sustainable on the basis of this later view of the Supreme Court.
(1) Law Note 1966 SC 11 (2) PLD 1966 Lah. 416
(3) PLD 1966 Lah. 1065 (4) 1968 SCMR 443
8. In view of the above, there is no merit in this Letters Patent Appeal and the same is dismissed with costs.