1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to Mehboob Elahi, now represented through his legal representatives, to examine whether he was not, as the son of Asloob Elahi, the allottee of they house in dispute entitled alongwith the respondent No. 4 the widow of Asloob Elahi to claim its transfer and whether he had been wrongfully deprived of his right in the property in dispute.
2. House No. C.241/9, situated at Mission Road, Sukkur, was allotted to Asloob Elahi the predecessor- in-interest of the contesting parties in the year 1949. He died in 1955. Mehboob Elahi, the predecessor-in---interest of the appellants thereafter got the allotment of the house in his own name. He applied for its transfer on a C.H. Form and obtained it. So did his step-mother respondent No. 4. In this background of conflicting allotments, entitlements and P.T.Os. Respondent No. 4 appealed to the Deputy Settlement Commissioner who transferred the house to her jointly with Mehboob Elahi. On revision, the Additional Settlement Commissioner transferred the entitre house to Mst. Iqbal Begum. The Settlement Commissioner set aside this order and restored the joint transfer of the house. Both the contestants filed constitutional petitions against such a disposal.
3. The constitutional petition of Mehboob Elahi was dismissed but that of respondent No. 4 was allowed and the case remanded to the Settlement authorities. The Settlement Commissioner thereafter transferred the entire house to respondent No. 4. Mehboob Elahi filed a constitutional petition which was dismissed by the Sind High Court on 30-1-1974 and leave was granted to examine the claim of Mehboob Elahi in the background of the allotment of Asloob Elahi his father and the possession over the house of the family of Asloob Elahi which apparently included the appellant Mehboob Elahi as well.
4. It appears that Asloob Elahi the allottee had to wives. From the first he had four sons the eldest being Mehboob Elahi. From the other i.e. Iqbal Begum he had a son and four daughters. Asloob Elahi had also a commercial premises allotted to himself. It is known as 'Delhi Malik Hotel' which had commercial premises on the ground floor and residential above it--the whole being treated as shop.
5. Mehboob Elahi's case as set out in C.H. Form and subsequent proceedings before the Settlement authorities was that Asloob Elahi was not the allottee of the property; that he alone was its regular allottee; was in possession of it and that Mst. Iqbal Begum was a mere licensee who was being looked after by him as an at of good grace. Even in the concise statement-filed in September, 1984 it was asserted in para. 8 that "No allotment order in favour of late Asloob Elahi was ever produced to prove this assertion" (the assertion that he was the original allottee). In para. 4 it was stated;- "Mst. Iqbal Begum (respondent No. 4 since deceased) was the step-mother of the deceased petitioner and after the death of Asloob Elahi who was her husband and the father of the deceased petitioner from his first wife was accommodated in portion of the aforesaid house and had been looked after and maintained by the deceased petitioner and as such she was merely a licensee of the deceased petitioner".
6. In the C.H. Form, Mehboob Elahi did not make a mention of the fact of the earlier allotment of Asloob Elahi, his father or of his possession over the property as an heir of Asloob Elahi alongwith the other heirs. Nevertheless, he claimed his possession from 1949 which was the the when the house was allotted to Asloob Elahi. The case of the respondent No. 4 was that there was an agreement between the to families, i.e., one comprising herself and her son and daughters and the other of children from the first wife that they would not be disturbed in the matter of transfer of the house while the commercial property which had also residential portions was left for the sons from the first wife of Asloob Elahi. Such an agreement was acted upon not only with regard to possession but also with regard to the transfer. The sons from first wife of Asloob Elahi got the commercial premises and none of the children of Mst. Iqbal Begum laid any claim to it or got any portion of it. According to respondent No. 4, it was Mehboob Elahi who clandestinely laid claim to this house as well, deliberately suppressing material facts from his C.H. Form and obtained the transfer behind her back.
7. The Deputy Settlement Commissioner who dealt first with the conflicting claims of the parties on 11- 8-1960 held as a fact that Asloob Elahi was the allottee of the house and as successors both the contestants were entitled. However, with regard to possession and entitlement, the Deputy Settlement Commissioner held as follows:- "In fact the appellant has produced certified copies from the Register of the Ration Shop at Karachi which clearly establishes that the respondent alongwith his family were living at Karachi in the year 1953--57 (Exh. A-1). Another document Exh. A-2 which is a certified copy also shows that the respondent---s wife was a registered voter in Karachi in the year 1958-59. In this case one thing is very important to note and that is that the respondent in his C.H. Form has nowhere mentioned and shown that the appellant was also living in the same house alongwith as admitted by the respondent it was a fact. Appellant's deceased husband was in possession of an hotel also at Sukkur. That building is reported to have been transferred to the step-son of the appellant. This means that appellant and his own daughters and sons have been left with no property which the late Asloob Elahi possessed. Late Asloob Elahi left one widow, three daughters and four sons. I am of the opinion that appellant and her three daughters and one son being claimant and living in the house in question from the very beginning the appellant is entitled for the transfer of the house jointly with the respondent No. 2."
8. The Additional Settlement Commissioner who directed the transfer the entire property to Mst. Iqbal Begum held as follows:- "It was proved by the respondent's Advocate that the applicant had left this house for nearly about to years. I accordingly give preference to the respondent who has all along remained in the said house continuous. I direct that the whole house should be transferred to the respondent Mst. Iqbal Begum widow of Asloob Elahi."
9. The Settlement Commissioner by his order, dated 22-4-1968 recorded the following findings of fact: "It is proved from the records, that Mehboob Elshi and his brother have been transferred the shops and the residential rooms over them, which were originally in possession of their deceased father, that in this property admittedly no share has been given to Mst. Iqbal Begum and her children.
10. I find that the learned Deputy Settlement Commissioner in his order, dated the 11th August, 1960 and the Additional Settlement Commissioner in his order, dated the 29th September, 1960 have come to the finding that Mst. Iqbal Begum with her children have been living continuously in this house, that Mehboob Elahi's possession of the disputed house is not established by the evidence on the record. I have no reason to disagree with this finding of the learned Additional Settlement Commissioner."
11. The High Court in the constitutional jurisdiction by the impugned order declined to interfere with such findings of fact.
12. It will be clear from the recital of facts and the orders passed that at no earlier stage and, as a matter of fact even after leave to appeal was granted, the appellants did not base their claim as successors-in-interest of Asloob Elahi. All the the the allotment of Asloob Elahi was being repudiated and effectiveness of allotment made to Mehboob Elahi in 1957 was advanced. Mst.
13. Iqbal Begum was given out to be a mere licensee. This claim stands rejected as a fact. The finding of the Deputy Settlement Commissioner that the family of Mehboob Elahi also had been residing at Karachi throughout was not disputed by the appellant but was explained in following words:- "wife being a registered voter at Karachi where she has been residing with her parents for a long the on account of medical treatment is not sufficient to establish that petitioner was not residing in this house for to years mentioned in the order."
14. It is unlikely that in view of such a relationship the to families would have been living together in harmony and the finding of fact recorded by the Settlement authorities is not liable to interference.
15. The plea of a prior family arrangement duly acted upon gets support from the fact that commercial premises were claimed and obtained exclusively by the sons from the first wife of Asloob Elahi. Mehboob Elahi tried to explain it away by saying that he was not the transferee of the residential portion located on first and second floor of the shop. These were, according to him, transferred to another brother. The entries of the P. T. D. And the agreement of association belie this for he was the transferee of both and by an agreement of association inducted his brother on the first and second floor of the shops.
16. It is, therefore, clear that the finding of fact recorded by the Settlement authorities with regard to the actual possession and the circumstances in which such possession came to be adjusted was not liable to interference in the constitutional jurisdiction. It was also not permissible for the appellant Mehboob Elahi to set out an entirely new case on facts repudiating his earlier stand before the Settlement authorities. We do not find any merit in this appeal and it is dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.