SARDAR MUHAMMAD IQBAL, J.--The dispute is in respect of property bearing No, S-IV-12-S-2.
Mahabir Street No, 3, Beadon Road, Lahore. The petitioner and Wajid Ali Khan, respondent No, 2, submitted CH Forms. The Deputy Settlement Commissioner by his order dated the 6th of January 1960 transferred the premises in favour of the petitioner on the ground that his son was the senior allottee. The Additional Settlement Commissioner in appeal filed by the respondent set aside the order of the Deputy Settlement Commissioner, and he by his order dated the 19th of January 1960, held that the respondent had a preferential right to the transfer of the ground that he was a direct applicant whereas the petitioner was claiming on the basis of the allotment of his son. The revision petition filed by the petitioner against this order was dismissed by Khan Farzand Ali Khan, learned Settlement Commissioner, by his order dated the 9th of May 1960. He also preferred the respondent to the petitioner on the ground that he was himself allottee whereas the petitioner was claiming on account of the allotment of his son. On the same ground, the Chief Settlement Commissioner dismissed the second revision petition of the petitioner filed under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). He then filed a review Petition which was dismissed on the 2nd of October 1961. This is a petition under Article 98 of the Constitution with the prayer that it should be declared that the orders passed against him are without lawful authority and of no legal effect.
2. Learned counsel for the petitioner contended that the petitioner was in actual occupation of the house and he had been residing there earlier than the respondent. He argued that he had the right to claim the transfer of the house on the basis of his own possession and that the Settlement Authorities have erred to hold that he was an indirect applicant as against the respondent. He has drawn our attention to the grounds of the revision petition which he filed before the Chief Settlement Commissioner. In paragraph 2 it is stated: "That the allotment of the said property was made on 18-1-1948, in the name of my son Bashir Ahmad along with my real brother. The said allotment was made through Railway because my son was in the Railway Department" and in paragraph 3 he further alleged : "That the said allotment was simply for the reason that my son was an employee of the Railway Department and as such rent of the said property be deducted from his pay regularly. The petitioner being aged and infirm was unable to earn anything and hence this allotment is in the name of the son." Again in paragraph 7 it was mentioned. "That the petitioner is a claimant and is in possession of a major portion of the said property meaning thereby that the petitioner has the legal right of transfer of property in his name. Learned counsel for the petitioner, on the basis of these averments, contended that it was the duty of the Settlement Authorities to have decided on the facts of this case whether the petitioner was or was not himself in possession within the meaning of the Order of the Central Government dated the 13th of October 1959 whereby the Government in the exercise of its powers under proviso to subsection (6) of section 2 of Act XXVIII of 1958 had declared that if a person was in undisputed possession of a premises before the 20th of December 1958 he should be deemed to be in possession even If he had not obtained possession under any allotment order. Learned counsel for the petitioner urged that on the admitted facts, the petitioner was in undisputed occupation of the premises before the respondent occupied the premises.
3. Learned counsel for the respondent and Major Ishaq Muhammad Khan, learned Settlement Commissioner (Legal) contended that the petitioner had applied only on the basis of the possession of his son under paragraph 1 of the Schedule to the Act. They supported the orders of the Settlement Authorities whereby the respondent had been held to have a better right than the petitioner on the ground that he was a direct applicant and relied on Altaf Hussain v. Chief Settlement Commissioner. There is no manner of doubt whatsoever that as between a claimant applying on the basis of his own possession and another claimant who claims transfer under paragraph 1 of the Schedule to the Act on the basis of the possession of some other person, the former has a preferential right to the transfer of a house or a shop. If the possession of his son (sic) then the respondent undoubtedly had a better right and the orders passed by the Settlement Authorities would be unexceptionable.
4. Major Ishaq Muhammad Khan had drawn our attention to an entry made by the petitioner in his C H Form against a query at serial No, 5 which requires : "If the house is in the possession of the applicant's parent, son, daughter or spouse, state the name of the person in possession and his, relationship with the applicant". The petitioner answer this query as : "Bashir Ahmad (son)". He, therefore, argued that the petitioner had himself claimed allotment on the basis of the possession of his son. It may be noted that the petitioner submitted the form on the 26th of June 1939. At that time a person could apply for the transfer on the basis of his possession which according to subsection (6) of section 2 of the Act had to be in pursuance of an allotment order, and if he did not have any allotment order he could apply for the transfer on the basis of the possession of another person under paragraph 1 of the Schedule. The petitioner was in the occupation of the premises, but since he was not the allottee himself, he applied on the basis of the allotment of his son under paragraph 1 of the Schedule. After he had submitted the form on the 26th of June 1959, the Central Government issued the order dated the 13th of October 1959. The petitioner, if he was in possession within the meaning of that Order, became eligible to be considered for the transfer in his own right. In these circumstances, the fact that he had against query No, 5 in the Form mentioned Bashir Ahmad his son as the person in possession cannot militate against him and on that basis he cannot be held to be indirect applicant if otherwise, on the facts it can be established1 that he was also in possession in his own right in virtue of the Order of the Central Government dated the 13th of October 1959.
5. The learned counsel for the respondent contended that the petitioner, since he was living with his son who was the allottee, was living there as the licensee of his son and was not in undisputed possession of it within the meaning of the Order of the Central Government. He relied on the decision of the Supreme Court in Syed Ehsan Ali v. The Deputy Settlement Commissioner, Lyallpur and two others (Civil Petition for Special Leave to Appeal No, 34 of 1964) decided on the 31st of March 1964. It was held in that case : "The godowns were with the Food Department an the petitioner was a caretaker of the said godowns. It will suffice to say that the petitioner was in possession of the said godowns in his own right." In Haji Fakir Muhammad v. Chief Settlement Commissioner and another (Civil Appeal No, 69 of 1963) a shop was in possession of Dr. Muhammad Yasin. A portion of this shop had been allotted to one Fakir Muhammad. Fakir Muhammad had put in one Babu Khan in possession of that portion. It was observed by the Supreme Court that Babu Khan's possession was only permissive. In Alauddin Khan and another v.
Rahim Bakhsh and another (Civil Appeal No, 26 of 1965) it was held that a possession which commenced with the execution of the partnership deed and was in pursuance thereof, was clearly "a permissive possession which gave no vested right to either of the parties of the firm to claim the transfer of the property.
Mere permissive possession is not possession within the meaning of subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 . He also placed reliance on Zafar Niazi v. Shujaatullah, where it was held that the persons occupying portions as mere licensees of allottee could not be considered to be persons in possession", In Shaukat Ali v.
Settlement and Rehabilitation Commissioner, Lahore, it was held: "Admittedly Mr. Ahmad Shafi was allotted the first floor of Bungalow No, 2 in his capacity as a Government servant. He was not competent to share his possession with anybody else. Mr. Durrani and his wife were related to him and both of them came to live with him. In the absence of any other indication on the record, the learned Additional Settlement and Rehabilitation Commissioner was fully justified in concluding that at best their stay in the premises was by the courtesy of Mr. Ahmad Shaft as his guests or as licensees' under him. Their stay in the house cannot be considered to be independent and in their own right. Notwithstanding the fact that they began to live with Mr. Shafi in a portion of the premises, its possession continued to rest in him and was never surrendered in their favour. They cannot be deemed to have dominion of the house at all. On the face of it the nature and the extent of their hold on the premises in question was defeasible and not adequate so as to place them in its occupation in their own right."
In all these cases it was held that if a person was living in certain premises with permission of the allottee, the possession of the former was only a permissive possession and he, therefore, being a licensee could not be deemed to be in possession within the meaning of subsection (6) of section
2. It is well settled that the licensee has no right to remain in the premises except with the permission and to the extent and for the time for which the licenser permits him to occupy. He cannot, on the A basis of such a possession or occupation, claim any right of possession in himself.
If, in the circumstance of a case, it can be held that a father was living in certain premises only with the permission of his son, his possession in that case undoubtedly would be that of a licensee. The learned Settlement Commissioner (Legal) contended that the possession of a wife and a father had all along been considered by the Central Government to be that of a licensee. In support of his contention, he relied on an Order of the Central Government dated the 7th of March 1960, which is printed at page 123 of the Settlement Manual (First Edition) and reads as: "The Central Government has decided that where a house is in the possession of the husband in pursuance of the order passed on or before the 20th day of December 1958 by a competent authority, his wife, if staying2 3 with him, will also be deemed to be in possession." He contended that the wife generally, though not invariably, resides with her husband and if the possession of the father with his son can be taken to be a possession in his own right there is no reason why the possession of a wife living with her husband cannot be taken to be a possession in her own right and if that had been the case why the Legislature felt the necessity of issuing the said order. The learned Settlement Commissioner (Legal), however, lost sight of one very salient feature of this order. In virtue of this order, the wife living with her husband is deemed to be in possession. What it means is that if a claimant wife resides with her husband then notwithstanding her own date of possession which may be subsequent she can be deemed to be in possession with reference to the date of possession of her husband. On the basis of this order, the wife though she might have come in possession at a later stage, could in law claim that she was in possession from the date her husband occupied the premises. She was given an extended benefit. It, therefore, cannot be said that by issuring this Order, the Central Government has in any way manifested that the possession of the wife or the father living with the husband or the son was in all such cases in the nature of the possession of a licensee.
We are of the view that it is to be seen with reference to the facts and circumstances of each case whether a father living with the son was living with his permission or he can be deemed to be in possession in his own right. If he was living as the licensee, he is not to be deemed to be in possession at all within the meaning of subsection (6) of section 2. If he was otherwise in undisputed possession, then it cannot be said on the basis of paragraph I of the Schedule to the Act that he can only claim through the allotment of his son.
Paragraph 1, moreover, 'applies to the cases where the father is out of possession and the son was in possession of the premises within the meaning of subsection (6) of section 2. In Abdul Majid Shaida v. Noor Jehan, S. A. Rahman, J., interpreted paragraph 1 of the Schedule to hold : "The main opening part of this paragraph deals with a situation where the claimant who is out of possession, desires to obtain the property in question and is not opposed by any actual occupant." If the petitioner was out of possession, he would have no right against the respondent. On the other hand, if on the facts it can be held that he was in possession within the meaning of the Order of the Central Government dated the 13th of October 1959, then the property will have to be transferred to the petitioner or the respondent who was in prior possession. The respondent in that case would not, only because he had the allotment order, have a better right if it was otherwise established that his possession was subsequent in point of time to that of the petitioner. It was held in Barkat All v. Muhammad Sharif, as : "It is true that unless the occupation of a person falls within the definition of 'possession', as extended by the notification in question, he would have no right to claim transfer of the property under the Schedule to the Act. An essential condition of entitlement under the Schedule is 'possession'. It seems to me, however, that the idea behind the extended definition of 'possession', contained in the notification, was to confer a benefit on those who were in undisputed occupation of the property before the twenty-first day of December 1958, even though they held no allotment order in their favour. It would amount to taking away with one hand what is given by the other, if the notification is interpreted to mean that, although the person concerned may be in undisputed occupation of a part of the premises since before the relevant date, he could be defeated by another person in possession albeit a local, provided he relied on an allotment order."
In Ghulam Nabi v. Settlement and Rehabilitation Commissioner and another, it was held : "The order of allotment was passed consequent upon this application, and since the name of all the residents is required to be given in the application prescribed for the purpose, it will be safe to conclude that the allotment order passed in consequence of the application authorises the occupation of the premises not only by the person in whose name the order has been issued, but also of all the persons who have been referred to under column No, 7 as belonging to the family of4 5 6 the allottee and residing therein. The result is that Ch. Ghulam Nabi petitioner is a person who is in 'possession' of the property in dispute in his own right and it cannot be said that he is claiming through his son. This is not the case of a person who is not himself in occupation of premises and is claiming through a son, who only is so in possession. The contention of the learned counsel for the respondent, which is also one of the basis of the order of the Additional Settlement Commissioner that the petitioner is an indirect claimant through his son, therefore, holds no water".
6. Learned counsel for the petitioner has shown us the original allotment order in favour of Bashir Ahmad, the son of the petitioner. In the allotment order Bashir Ahmad, allottee, is shown to have a family of five members. Learned counsel contends that the premises were allotted to Bashir Ahmad also for the reason that he had five other family members. According to him the premises were allotted to Bashir Ahmad not for his residence only but for the residence of his other family members also. He argues that the petitioner, father of Bashir Ahmad, was one of these five members of the family. He has brought to our notice certain facts on the record to substantiate his plea that the petitioner had been in possession before the respondent was allotted the premises. In the CH Form which Wajid Ali, respondent, submitted and is at page 79 of the file of the Settlement Department, it was admitted by him against item No, 5 as : "Applicant occupant in the house and other Muhammad Tufail who is not my relative also occupied the upper storey." Against query No, 10 which reads as "Whether the house or part thereof is in the occupation of any person other than the applicant and his family? If so, state the name of such person" it is stated by him: "Muhammad Tufail who is refugee occupied the upper storey". He has also drawn our attention to the statement of Wajid Ali dated the 24th of November 1959. He stated before the Deputy Rehabilitation Commissioner "that Muhammad Tufail and Bashir Ahmad were residing in the upper storey of this house before I came to occupy it. Bashir Ahmad was ordered by the Rehabilitation Officer that he should vacate the roof and the bath room". On the basis of this statement, it is contended that the respondent himself admitted that the petitioner was in occupation of the premises earlier than him and it was argued that although Bashir Ahmad was the allottee but the respondent according to his statement made by him in the CH Form did not take him to be in possession on account of his son, but he clearly stated that Muhammad Tufail was in possession of the premises. On these premises, it is asserted that Muhammad Tufail petitioner was in occupation of the premises in his own right and he was not living there by the permission of his son. He has further contended that the Rehabilitation Department has also never taken the petitioner to be in occupation of the premises through his son and with his permission, but instead they took him to be in possession in his own right. He has drawn our attention to an order of Mr. S. A. Nasir, Additional Rehabilitation Commissioner dated the 22nd of November 1954 which is at page 45 of the Rehabilitation File.
Notice of ejectment was given to Muhammad Tufail petitioner, and Bashir Ahmad, his son, and the Rehabilitation Commissioner held that Bashir Ahmad and his relatives were in possession of a part of the house. Learned counsel for the petitioner on the basis of these facts wants us to hold that Muhammad Tufail was in possession of the premises within the meaning of the Order of the Central Government dated the 13th of October 1959. He prayed that we should examine the facts to decide as to who was in prior possession. In Azmat All v. Chief Settlement and Rehabilitation Commissioner, it was held : "Where a superior Court calls for the records of judicial or quasi- judicial authorities or Tribunals, which are not subject to its appellate jurisdiction. the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decisions of the inferior C authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against." It is, therefore, proper that this case may be examined by the Settlement Authorities. The7 Deputy Settlement Commissioner preferred the petitioner over the respondent and transferred the premises to him. It was in appeal that that order was set aside by the Additional Settlement Commissioner. The Additional Settlement Commissioner accepted the appeal of the respondent on the short ground that he was a direct applicant whereas the petitioner was claiming through his son. He has not adverted to this aspect of the case whether or not Muhammad Tufail, petitioner, was in possession within the meaning of the Order of the Central Government dated the 13th of October 1959. The Settlement Commissioner and the Chief Settlement Commissioner also failed to examine this question. In these circumstances, it is proper that this case should be examined by the Additional Settlement Commissioner.
7. For the foregoing reasons, we accept this petition declare the orders of the Additional Settlement Commissioner Settlement Commissioner and the Chief Settlement Commissioner to be without lawful authority and of no legal consequence and the Additional Settlement Commissioner is directed to decide the appeal of the respondent afresh after taking into consideration the contentions of the parties which we have noted above. In the circumstances of the case, the parties are left to bear their own costs. PLD 1965 SC 68 PLD 1965 Kar. 52 PLD 1965 Lah. 445 PLD 1967 SC 221 PLD 1966 SC 817 A P R 1963 Lah. 380 PLD 1964 SC 260