' This Regular Second Appeal is directed against the judgments and decrees, dated 12th December, 1966 and 31st July, 1968 passed respectively by a learned Civil Judge, Lahore and a learned Additional District Judge, Lahore.
2. Evacuee property bearing No, N.E. 131-R./84 situate on Haq Nawaz Road, Baghbanpura, Lahore, comprising of two shops was trans ferried to Haji Faqir Ali, the appellant and one Haji Barkat Ali, a shop each in their respective possession, against their respective N.C.S. Forms. P.T.O. In favour of the appellant was issued on 27th November, 1959. The adjacent property beating No, N.E.-131-R/82 which consists of a shop and a residential portion was transferred to Muhammad Bakhsh, the father of respondents Nos. 1 to 6, against his N.C,H, form.
3. Siraj Din, respondent No, 1, applied on 14th July, 1960 for transfer in his favour of the upper portion of shops transferred to Haji Faqir Ali and Haji Barkat All viz. Property No, N.E.-131-R/84 claiming that the said upper portion was a residential portion and was in his possession. His claim was, however, rejected. An appeal filed by him also failed. Subsequently, his review application was allowed and the case was remanded to the Deputy Settlement Commissioner. Haji Faqir Ali, however, filed a revision before the Settlement Commissioner which was accepted and the order whereby review was allowed, was set aside. The learned Settlement Commissioner held that there was no residential portion in case of Property No, N.E.-131-R-84. Ultimately, on 21st May, 1962 P.T.D. Was issued in favour of the appellant. In the P.T.D., the description of property was given as "shop in his possession and the roof". This transfer in favour of the appellant has never been challenged.
4. After the issuance of the P.T.Ds. In their favour, Haji Faqir All and Haji Barkat Ali, jointly filed ejectment petition against the respondents before a Rent Controller but unsuccessfully.
Subsequently, in February, 1963 both of them filed a civil suit against respondents Nos. 1 to 6 and also against Muhammad Bakhsh, their father. Barkat Ali, however, withdrew from the suit on 21st December, 1965 and his name as plaintiff was thus struck off. Thereafter, the litigation continued between the appellant Haji Faqir All and the respondents.
5. In the civil suit, three reliefs were sought by the appellant as under :-
(a) Declaration to the effect that the common entrance situate between property Nos. N.E.-131- R/84 and N.E.131-R/82 being common to both the properties and the appellant being owner of property No, N.E. 131-R/84, was entitled to use the said common entrance and the stair-case leading to the roof of his shop. As a consequential relief, he also sought for a decree for perpetual injunction to the effect that the respondents be restrained from interfering with his right to use the common entrance and the stair-case ;
(b) Possession of the roof on the top of shop transferred to him ; and
(c) Possession of the vacant site behind Property No, N.E. 131-R/84 which was claimed to be the part of the shop transferred to him.
6. The suit was resisted by the respondents who pleaded inter alia that the civil Court had no jurisdiction in the matter and that the plaintiff was transferred only shop which was already in his possession he had no right or interest with regard to the so-called common entrance ; staircase, the roof on the shop in question and the open space behind the said shop. It was pleaded that Siraj Din, respondent No, 1 was in possession of the upper portion on the shops transferred to the plaintiff and Haji Barkat All while the rest of the property in dispute stood duly transferred and was in possession of the respondents.
7. Necessary issues arising out of the parties pleadings were framed by the learned trial Judge who after recording parties' evidence concluded that the civil Court had no jurisdiction in the matter. He further found that the plaintiff-appellant was transferred only a shop which was already in his possession and he, therefore, could not claim any other property. Consequently, the suit of the plaintiff-appellant was dismissed. An appeal was preferred by the appellant. The learned Additional District Judge reversed the finding of the learned Civil Judge so far as he held that the civil Court had no jurisdiction. However, on merits, he affirmed the trial Court's findings and thus dismissed the appeal. Hence the present regular second appeal.
8. The plaintiff-appellant obviously has to succeed on the strength of his own title. He cannot be allowed to avail of the weakness in the title of the respondents with regard to the disputed property, if any. According to the P.T.D. Exh. P. 10, which in fact is title deed within the meaning of para. 41 of Settlement Scheme No,
1. "Shop in his possession and the roof" has been transferred to Haji Faqir Ali, the plaintiff-appellant. In the P.T.D. There is no mention of the common entrance, the stair-case or the space behind the shops. The appellant cannot, therefore, prefer any claim on the basis of his title deed in respect of the common entrance, the stair-case and the open space behind his " shop even if the said properties have not been duly transferred to the respondents.
9. So far as the roof on the top of the shop transferred to Haji Faqir Ali appellant is concerned, as already observed, according to the contents of the P.T.D., Exh. P. 10, the roof stands transferred to Haji Faqir Ali, appellant. It is further manifest from the contents of Exh. P. 9, a certified copy of the judgment passed by the learned Settlement Commissioner, dated 16th August, 1961 that Siraj Din, respondent No, 1 preferred a claim in respect of the roof on the shop of the plaintiff-appellant on the basis of his alleged possession but the learned Settlement Commissioner found that Property No, N.E. 131-R/84 consisted of two shops which have been transferred to Faqir Ali and Barkat Ali while the adjacent property No, N.E. 131-R/82 consisting of the residential portion and shop was transferred to Muhammad Bakhsh, the father of Siraj Din. It was further held that Siraj Din, in the circumstances, had no right to use the roof of the shops transferred to Faqir Ali and Barkat Ali.
There is also on the record a report, dated 2nd August, 1960 made by Mr. Mahmood Shah, the then Assistant Settlement Commissioner with the powers of Deputy Settlement Commissioner. The concluding para. Of the report reads "The upper portion of the shops is a part of the shops and as such Faqir Ali and Barkat All have every right to use it. S.1. May please warn the occupants of property No, N.E.-131-R/82 not to be over the roof of the shop of Faqir Ali and Barkat Ali in order to avoid any trouble".
10. The learned lower Courts, however, appear to have been much impressed by the entries in the Provisional Transfer Order issued in favour of the appellant in which there is no mention of the roof and the shop simplicity is recorded. They have concluded that Faqir All appellant was in possession of the shop in question. He applied for the transfer of this shop alone. The upper portion was not in his occupation and, therefore, he had no right to claim possession of that portion. The learned Additional Distric Judge has further observed that mere mention of the roof in the P.T.D. Did not improve the case of the appellant as he was transferred the shop simplicity. These findings recorded by the learned lower Courts are erroneous per se. By virtue of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, finality is attached to the orders of transfers passed by the Settlement Authorities. B The civil Court cannot call in question such orders. As held in Syed Ali Moazzam v. M. A. Effandi and others (1) the jurisdiction of the civil Courts to hear and determine the suit cannot be questioned where none of the parties challenges the correctness or validity of an order passed by the Settlement Authorities. In the circumstances of the under- consideration case also, the parties have not challenged the finality and correctness of the orders passed by the Settlement Authorities. The learned lower Courts were, therefore, required to determine simply as to whether the property in respect of which the plaintiff had preferred claim stood C transferred to him or not. These Courts could not go behind the validity of the order of transfer. The learned Additional District Judge, in the circumstances, had no jurisdiction to question the validity of the contents of the P.T.D.
11. It is also surprising that the learned lower Courts have given preference to the Provisional Transfer Order as against the Permanent here had Deed which has the status of a title deed. Even if in the P.T.D.1 here had been no mention with regard to the transfer of roof alongwith the shop to the plaintiff, the presumption would have been that the shop alongwith the roof stood transferred to him. In Nazir and others v. Israr Ahmad etc. (2) it has been held by the Supreme Court of Pakistan that : "It is obvious, that unless otherwise mention, the transfer of the shop would mean the transfer from bottom to sky, as the position in this case".
12. Needless to say that no reliance can be placed on the verbal evidence led before the learned trial Court by the parties as the witnesses produced respectively by both the parties appear to be of a partisan character. They have deposed in favour of the party which produced them and their testimonies do not inspire confidence. The oral statements of such witnesses certainly cannot be given preference as against the contents of the official documents.
13. In the light of what has gone above, it is concluded that the roof on the top of the shop of the appellant stands transferred to him and he has every right to the restoration of its possession to him. The respondents have no right or interest in regard to the said roof. The appellant, however, has failed to establish his title with regard to common entrance, the stair-case and the open space behind his shop.
14. The learned counsel for the respondents, during the course of arguments, raised a half- heartedly plea with regard to the abatement of the proceedings giving rise to the present appeal at the behest of the appellant on the ground that Muhammad Bakhsh, respondent No, 7 had died long ago i,e, even prior to the coming into force of the Law Reforms Ordinance, 1972 but his legal representatives were not brought on the record within the prescribed period of limitation.
Respondents Nos. 1 to 6 are admittedly the sons of the said Muhammad Bakhsh. They are
(1) PLD 1965 (W. P.) Lah. 193 (2) 1981 SCMR 829 ' already on records. Moreover, in the light of the above conclusions, the appellant's appeal is going to be allowed to the extent of his claim regarding the roof on his shop. With regard to the said roof, only Siraj Din, respondent No, 1 contested the title of the appellant and had alleged that he was in possession of the said roof since before its transfer to the appellant. Muhammad Bakhsh and his other sons did not claim any right or interest with regard to the said roof. In the circumstances, the cause can be decided finally and effectively even if the legal representatives of the said Muhammad Bakhsh other than the respondents Nos. 1 to 6, if any are not brought on the record.
The name of Muhammad Bakhsh deceased is directed to be deleted from the list of respondents.
Such deletion, as observed above, will not adversely affect the appellant's rights and cannot in any manner resulting the abatement of the proceedings. The objection of the learned counsel for the respondents is, therefore, disallowed.
15. The upshot of the above discussion is that the appeal is allowed to the extent of the roof on the shop of the appellant and to that extent his suit is decreed.
' The parties are, however, left to bear their own costs.