M. S. H. QURAISHI, J.-The dispute relates to transfer of a shop forming part of a building known as 63, The Mall, Lahore. It had been auctioned on 5-12-1960 in favour of Kh. Jalal-ud-Din, the predecessor-in-interest of respondents Nos. 1 to 8, and the auction had been confirmed on 14-2- 1.961 followed by issue of P. T. D. In his favour on 7-3-1961. The transfer was, however, challenged by Hafiz-ud-Din, predecessor-in-interest of the petitioners, on the ground that his C. S. Form already filed on the basis of his exclusive possession had not yet been decided when the auction was held.
Failing before the Settlement authorities, he brought the dispute before the High Court by Writ Petition No. 402/11/1963 which was accepted on 21-2-1966 and in the result the orders passed by the Settlement Authorities were quashed and the case was remanded with the following direction "The Settlement Commissioner shall himself ascertain the entitlement of the petitioner to the property in dispute in accordance with the law. In case the result of Settlement Commissioner's labour is in favour of the petitioner, the auction sale of the property in dispute to the respondent and any transfer documents issued in consequence of it shall be likewise deemed to be without lawful authority and of no legal effect, but in case the learned Settlement Commissioner finds that the petitioner was not entitled to the transfer of the property, the auction sale and the consequential transfer documents shall remain valid."
2. It appears that the property had been initially allotted to Messrs Refrigerators (Punjab) Ltd. In his C. S. Form against column No. 1.0 which requires "Whether the shop or part thereof is in the occupation of any person other than the applicant". Hafiz-ud-Din had stated "No. The applicant is in undisputed physical possession of the shop. It stands originally allotted to Messrs Refrigerators (Punjab) Ltd. The applicant is agent of the said firm." His case was that he had obtained the possession of the property from Messrs Refrigerators (Punjab) Ltd. First by an agreement and then by a sale agreement executed by them on 1-1-1958 and 20-4-1960, respectively, in his favour. The contention raised before the learned Settlement Commissioner that Haft-ud-Din's possession was in fact as an agent of Messrs Refrigerators (Punjab) Ltd. And not in his own right was repelled in view of the said agreements and it was held :- "The property in dispute was taken into possession by Hafizuddin in his own right, though in that shop he was apart from doing his own work, also required to sell certain goods of Messrs.
Refrigerator (Punjab) Company on agency basis."
The learned Single Judge of the High Court, however, came to the view that the entry made by Hafiz-ud-Din against column No. 10 in his C. S. Form made it "crystal clear that the applicant was an agent of the allottee". He also held that the document dated 1-1-1958 appointed Hafiz-ud-Din "as sole distributor" of the goods of the allottee and that it was for this purpose that the possession was delivered to him which made him an agent for the allottee.
Referring to Hafiz-ud-Din's statement made before the Settlement Commis--sioner that he bad obtained the shop on 1-1-1958 on payment of Rs. 10,000 as pagri, the learned Judge held that neither the allottee bad any right to pass on the possession to a third party, nor could a third party by becoming an accomplice of a wrongful act derive any benefit there from or raise a claim in law for the transfer .Of the property. Noticing that Hafiz-ud-Din had before the Settlement Commissioner also stated that he was a salesman and not an agent of Messrs Refrigerators (Punjab) Ltd. As had been described by him in his C. S. Form, the learned Judge observed that whether as an agent or a salesman of the allottee, Hafiz-ud-Din could not claim possession in his own right and as such was not entitled to the transfer.
3. Learned counsel for the petitioners contended that Hafiz-ud-Din's possession, not having been disputed by the previous allottee or by any one before 21-12-1958, was possession within the meaning of the extended definition of the term. In this connection lie referred to the notification dated 13-10-1959. By this notification "a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passes' by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the louse or the shop since before the twenty-first day of December 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that. Day". In this connection, learned counsel explained that Hafiz-ud- Din's admission that he was an agent/salesman of Messrs Refrigerators Punjab Ltd. Was only in regard of the business of that firm and not the possession of the shop which he had clearly asserted to be his own. He further contended that the question of possession being one of fact, the finding, recorded thereon by tie Settlement Authority after a local inspection and for reasons given, was not open to interference by the High Court in its constitutional jurisdiction,
4. It is an established principle, and the proposition had not bee disputed by the petitioners' counsel before the High Court, that the possession asserted for the purpose of transfer must be in one's own right and not on behalf of another see Atta Muhammad v. Taj Muhammad (1974 SCMR 346), Faiz-ul-Haq Khan -v. Abdul Hamid (1976 SCMR 429) and Shams-ud-Din v. Khuda Bakhsh in the same Report at page 478. If the inference drawn by the Settlement Authority in this regard was perverse to the material before it, then the High Court would have jurisdiction to interfere.
5. The agreement dated 1-1-1958 records that Messrs Refrigerators Punjab Company, allottee of the premises, had due to expansion of the business taken Hafiz-ud-Din as sole distributor and "has sold its rights of possession in the premises" to him for conducting his own business of refrigerators, air-conditioners and electrical appliances, etc. And in considera--petition hd3 received a sum of Rs. 10,000 in cash. In his application made on 24-1-1962 (at page 92 of the paper-book) Hafiz-ud- Din had even stated that "the allottee of the premises had already tendered affidavit dated 24-4- 1960, wherein he had surrendered his possession and entitlement in favour of the petitioner (Hafiz- ud-Din)". It is, however, interesting to note that in reply to Kh. Jalal-ud-Din's notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, Muhammad Sharif, Proprietor of Messrs Refrigerators (Punjab) Ltd., had not disowned his own possession but bad, on the other hand, held out that he was ready to pay rent and that he bad not sublet any portion of the building to anybody. In his written statement in the ejectment proceeding instituted by Kh.
Jalal-ud-Din, Muhammad Sharif had stated that as Kh. Jalal-ud-Din's transfer was disputed by some others, "it shall be unjust and against the principles of equity and natural justice to call upon the respondents to surrender the possession of the shop in dispute more particularly when the answering respondent holds a valid transfer (perhaps allotment) order in his favour", that "the answering respondent is in occupation of the premises in question since before the 20th of December, 1958" and "that the rent is being paid regularly and it has already been deposited till the 31st of December, 1962 in Court". In the written statement he had further pleaded that "in view of the protection afforded by section 30(b) of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958, the premises in question, for the initial period of three years' should remain in occupation of the respondents, even if the applicant (Kh. Jalal-ud-Din) holds a valid transfer". It is, thus clear that as late as 16-6-1962 when the written statement had been filed, Messrs Refrigerators (Punjab)
Ltd. Had been asserting their own possession and had been paying rent, though surprisingly in the same written statement they had also feebly stated that Hafiz-ud-Din and another had moved the Settlement authorities for transfer of the property on the basis of their "undisputed possession". The other respondent in the ejectment proceeding, that is, Messrs Ally Brothers & Company, had in their written statement stated "The answering respondent is in occupation of the premises in question along with respondent No. 1 (Muhammad Sharif, Proprietor of Messrs Refri--gerators (Punjab) Ltd.) who is in occupation of the shop in dispute since before the 20th of December, 1958 and was a regular allottee of the same". It is to be noted that Hafiz-ud-Din had connections both with Messrs Ally Brothers and Messrs Refrigerators (Punjab) Ltd. As he had himself stated in his application dated 28-7-1961 (at page 90 of the paper-book) that he "is one of the Directors, Messrs Ally Brothers Ltd., Lahore, and is working as Agent to Messrs Refrigerator (Punjab) Limited in partnership". Seen in this context, we have the statement of Hafiz-ud-Din made in the memorandum of his appeal before the Settlement Commissioner (at page 95 of the paper--book) to the effect : "That the property in question stand allotted in favour of Messrs Refrigerators (Punjab) Limited since partition and it was in January 1958 that the appellant assumed possession thereof along with the said allottee on Agency basis and practically doing the entire business of the said allottee firm". The same position had been reiterated by him in his Review Petition before the Chief Settlement Commissioner (at page 98 of the paper-book). The ambivalence and contradiction in the stand taken by the allottee, that is, Messrs Refrigerator (Punjab) Ltd., and Hafiz- ud-Din are not without significance.
6. It is also to be noted that according to - the statement made by Hafiz-ud-Din before the Settlement Commissioner, he has paid Rs. 10,000 to the allottee as pagri for taking the shop under the agreement dated 1-1-1958: As to the effect of such transaction, it was held by the Custodian in Zamir Ahmed Khan v. R. A. Nabi Bakhsh & Sons (PLD 1955 Cust. (Pb.) 5) that Pagri "can be described as a consideration paid by a person to an allottee for- giving the allotted property, wholly or partially, to the person making the payment. The payment of such consideration is recognized as a ground for allotment by the Rehabilitation Authority and claim to possession based on such payment is not accepted. The allottees of evacuee property do not acquire any right to allot that property to others and as soon as the allotment relating to a property comes to an end, either by efflux of time or abandonment, the property becomes subject to a fresh allotment by the Rehabilitation Authority."
The transaction between the allottee and Hafiz-ud-Din was apparently in violation of the terms of the allotment.
7. There is, thus reason to believe that the allottee of the premises, conscious that they themselves were not entitled to the transfer of the same, collusively and in contravention of the conditions of the allotment prepared the documents showing delivery of possession in favour of Hafiz-ud-Din, in order to enable him to press his case for transfer. There is otherwise no reason why the allottee should have kept on asserting their own continued possession till as late as 16-6-1962. In these circumstances, the finding reached by the High Court that Hafiz-ud-Din's possession was not in his own right is not open to exception and on such finding, the High Court could interfere with that recorded by the Settlement Commissioner. The petition is accordingly dismissed and leave to appeal refused.