GHAZANFAR ALI GJNDAL, J.--This L.P.A. Is directed against the order dated 14th November, 1968 of a learned Single Judge of this Court whereby W.P. No. 601-R-64 filed by Mst. Aisha Bibi appellant was dismissed.
2. The facts of the case are that the property in question is house No. 1(75, situate in Nihal Chand Street, Sialkot City. The dispute is between Ust. Aisha Bibi (hereinafter called the appellant) and Khuda Bakhsh (hereinafter called the respondent) who are both displaced persons from Jammu and Kashmir State, The appellant is in possession of the entire ground floor while the respondent is in possession of the entire first floor consisting of two rooms and a kitchen. Both of them are clai-- ments. They filed K.C.H. Forms for the transfer of this house. Initially the D.S.C., Sialkot by his order dated 16th February, 1960, transferred the entire house to the respondent, but this order was set aside by appellate order dated 2nd August, 1960 of the Additional Settlement Commissioner who remanded the case to the D.S.C. For fresh decision in accordance with law.
3. The matter was taken up by the then D.S.C. Who inspected the spot and found that the house had already been divided vertically into three portions out of which two portions had already been transferred while the third one which was the middle portion (hereinafter called the `house') was the subject-matte: of contest between the parties. He by his order dated 28th November, 1963 directed the transfer of the entire house to the respondent on the ground that he was its allottee with possession since 14th March, 1948. The appellant filed an appeal in which over and above the question of divisibility of the house she raised the alternative ground that even assuming the, house was indivisible, she was entitled to its transfer as she came in possession of the said house prior to respondent who occupied it later. The appeal came up for hearing before Mr. Saeed-uz- Zaman, Additional Settlement Com--missioner, Lahore. So far as the question of divisibility was concerned, the Additional Settlement Commissioner held that the property had already been divided into three portions and if it is sub-divided further it will become an uninhabitable unit. On the question of entitlement of the parties, he observed that the respondent had been found to be prior allottee of the house and, therefore, he had rightly been transferred the house. In the result the said Additional Settlement Commissioner dismissed the appeal of appellant by his order dated 15th March, 1962. The appellant filed a revision in the Court of Settlement Commissioner, Lahore Division, Lahore. Besides agitating the question of divisibility of the house she raised the specific ground that her possession was prior in point of time and even if it was found that the house was indivisible she had a superior right to the transfer of the same. The said revision came up, for hearing before Mr. S. M. Azhar, Settlement Commissioner who by his order dated 21st March, 1964 dismissed the. Revision on the ground that the appellant is a non-allottee, while the res--pondent is an allottee which finding had been consistently given by all 44a authorities below. The appellant then filed W.('. No. 6Ol-R-64. A Single Judge of this Court held that the said writ petition had been admitted only on the point that under subsection (5) of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act), the appellant a refugee from J & K could not be disturbed and the portion of the property in her possession could not be transferred to anybody else and that on acccunt of omission from Displaced Persons (Compensation and Rehabilitation) Act, 1958 of subsection (5) of section 30 by Ordinance XIII of 1964, the point on which the writ petition had been admitted was no longer available, as the bar, if any, had been taken away with retrospective effect. The counsel for the appellant was not allowed to urge other points at the hearing and the writ petition was dismissed by order dated 14th November, 1968. The appellant then filed this L.P.A.
4. Learned counsel for the appellant has vehemently argued that the house having been found to be indivisible, the appellant who had come into prior possession of the same was entitled to its transfer in preference to and to the exclusion of the respondent. In this connec--tion he points out that certified copy of the Survey Register, produced by the appellant in the writ petition, clearly showed that the respondent came into possession on 21st February, 1948 while Abdul Karim son of Muhammad Din (who is admittedly the son of the appellant from her previous husband and had been residing along with the appellant in the said house since the beginning) is shown to have come into possession on 24th December, 1937. He further submits that appellant had all along been agitating before the Settlement Courts that had come into posses--sion of said house prior to respondent but her claim had been rejected by Settlement authorities on the erroneous ground that respondent was an allottee and had preferential right to the transfer of said indivisible house as against appellant who was a non-allottee.
5. Learned counsel for the respondent has, however, submitted that the possession of the appellant has not been recorded to the said Survey Register and it was only the possession of Abdul Karim which was mentioned in the said certified copy of the Survey Register and appellant Mst. Aisha Bibi cannot take benefit of possession of said Abdul Karim.
6. In reply to the above objection of the learned counsel for the respondent, learned counsel for the appellant has submitted that posses--sion of Abdul Karim son of Muhammad Din was actually that of the appellant Mst. Aisha Bibi, as Abdul Karim is no other person than the son of the appellant Mst. Aisha Bibi from her previous husband who had been held in the order dated 16th February, 1960 of the Deputy Settlement Commissioner to be dependant of the appellant Mst. Aisha Bibi and though this order of Deputy Settlement Commissioner had been set aside by the Additional Settlement Commissioner by his order dated 2nd August 1960, the said reversal was on other points as shown by the recital of the said order of the Additional Settlement Commissioner in order dated 28th November, 1960 of the Deputy Settlement Commissioner and, therefore, the finding of Abdul Karim being dependant of the appellant Mst. Aisha Bibi had remained unreversed.
7. We have given our anxious thought to the point raised. We find from the grounds of appeal and revision filed by the appellant in the writ petition that at both the stages she had raised the point that even if the house was indivisible, she had a preferential right to the transfer of the same on the ground that she had come into possession of the same prior to respondent. This plea had been rejected on the ground that the respondent was an allottee and had preferential right to the transfer of the said house as compared with appellant who was a non-allottee in possession of the said house. These decisions of the Settlement authorities proceeded on the assumption that possession obtained in pursuance of an allotment order as provided for in the definition of word `possession' in section 2 (6) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, was superior to posses--sion obtained without allotment order even though the latter was covered by Notification No. P. 1 (27)/59-St, dated 13th October, 1959, issued under second proviso to subsection (61 of section 2 of said Act and the allottee in possession excluded non-allottee in possession in the matter of transfer of property. This view proceeded on interpretation of words `final order' in the provision made in the said notification that posses--sion obtained without an allotment order would be deemed to be possession provided no other person is otherwise entitled to transfer of such house in pursuance of a final order passed by a competent authority before that day (20th December, 1958). The interpretation of words 'final order' then made was that it meant an allotment order.
8. It was, however, held in case of Noor Jehan v. Settlement Commissioner, Karachi (PLD 1963 Kar.
709), that for the purpose of transfer of a house, there is no difference between possession obtained in pursuance of an allotment order and possession under the notification as the Schedule to the Act does not make any such distinction. But the question of correct interpretation of words 'Final order' in the said notifica--tion fell for direct determination in case of Borkat Ali v. Muhammad Sharif (PLD 1966 SC 617) wherein it was authoritatively held that final order as used, in said notification meant an order which should per se create entitlement to transfer or under which the right to transfer property may have been recognized and not an allotment order. The net result of this interpretation also was that the possession as an allottee and possession without an allotment order, provided the latter was covered by the conditions of the said notification were to be considered to be at par.
9. It is obvious that impugned orders of Settlement authorities transferring house to respondent on the sole ground that his pos--session was as an allottee as against appellant whose possession was without any allotment order were wholly inconsistent with the above law declared by the Supreme Court according to which possession under allotment order and possession under the notification were to be considered at par. Further they are in flagrant disregard of para. 1 of Schedule according to which out of the two claimants in possession of one indivisible. House, one prior in possession was to be transferred the said house. It is significant that the point was persistently raised by the appellant that she came in prior possession of .The house in question and as such was entitled to transfer of said indivisible house, but no finding was given by any of the Settlement authorities on the said point raised before them. Additional Settlement Commissioner only said that Khuda Bakhsh had been found (by the D.S.C.) to be a prior allottee but did not come to any decision of his own. It is pertinent to note that D SC himself had not come to the said finding but had only observed that Khuda Bakhsh is an allottee with possession since 14th March, 1948. The I Settlement Commissioner had totally disregarded the plea and given no decision thereon. In view of the above interpretation of law which was operative with retrospective effect and provision made in para. 1 of the Schedule to the Act, the question raised was crucial and it was bounden duty of the Settlement authorities to advert to and decide, the said question which had been repeatedly raised by the appellant before them. In omitting to decide the said point, the Settlement authorities had failed to exercise jurisdiction vesting in them. The impugned orders of Settlement authorities are, therefore clearly of no legal effect as having been passed without lawful authority and we declare them to be so.
10. Since there is no adjudication in the impugned orders of the Settlement authorities as to whether the appellant or the respondent came into prior possession of the house in question and point ha been left undecided and this Court cannot, in exercise of its extra ordinary jurisdiction under Article 9 of Provisional Constitution Order, 1981, itself undertake that exercise, it is essential that this case be remitted to the Settlement authorities to enable them to find out as to which out of the two contestants came in prior possession of the house in question and was entitled to the transfer of this indivi--sible house.
11. In view of the above, the appeal is accepted and order dated 14th November, 1968 of the Single Judge is set aside and case is remanded to the officer notified under the Evacuee Property and Displaced Persons (Repeal) Act, 1974, with the direction that he shall after giving the parties an opportunity to adduce evidence in this behalf and after taking into consideration survey register referred to above, determine the dates on which Mst. Aisha Bibi appellant and Khuda Bukhah respondent came into possession of the house in question and then decide the question of its transfer in accordance with law. The parties shall; however, bear their own costs.