' ABDUL SHAKURUL SALAM, J.--Appellant Noor Din a claimant allottee filed C.H. Form for House No. 485, Ward No. 3, Nai Abadi, Mandi Pattoki, District Lahore. Taj Din, respondent No. 2 a local filed L.H.
Form, which was returned to him for there being no declaration of eligibility and rent clearance certificate vide memo dated 25-11-1959. He having taken no action, his L.H. Form was rejected for the reason that rent was not cleared in spite of notice nor declaration filed. This is vide order dated 14-5-1960. The respondent did not challenge this order any further. The house was transferred to the appellant and P.T.O. was issued to him on 16-10-1960. The respondent No. 2 cleared the arrears of rent and applied for restoration of his L.H. Form. He was issued P.T.D. of the house on 23-5-1961.
The respondent surrendered 4/6th of the house through agreement of association in favour of Mst.
Sardar Begum, respondent No.
3. The appellant filed an appeal before the Additional Settlement Commissioner and the latter finding that both parties had been issued P.T.O. without judicial orders of transfer, remanded the case for fresh decision vide order, dated 9-1-1964. Respondents Nos. 2 and 3 filed a revision petition in which it was observed that since the appellant had been issued the Appendix showing the transfer price of Rs.1,583 that will be for 1/6th of the house. Remaining house having been transferred to respondent No. 2, who had subsequently associated with respondent No. 3 for 4/6th share and the latter had been issued P.T.O. there was no need of remand. Respondents revision was accepted by the S.C. This is vide order, dated 24-10-1964. The appellant filed a writ petition in which a preliminary objection was taken that Mst. Sardar Begum who had associated with Taj Din and had acquired 4/6th share in the house had not been impleaded, the defect being fatal, the writ petition was liable to be dismissed. The plea was accepted and writ petition was dismissed on 16-4-1969. Hence, this L.P.A.
2. Learned counsel for the appellant has vehemently contended that the appellant being a claimant allottee in possession having filed C.H. Form was rightly transferred the house and no portion thereof could be transferred to the respondent No. 2 Taj Din who had filed L.H. Form which too had been rejected and order never challenged. Since Mst. Sardar Begum derived her title from Taj Din, respondent No. 2, her non-impleading in the writ petition was not fatal. He lastly contended that in any case, the writ petition as against Taj Din, respondent No. 2 to the extent of 1/6th share transferred to the latter, should have been allowed in the circumstances.
3. Learned counsel for the respondents Nos. 2 and 3 has submitted that since respondent No. 3 in whom rights vested to the extent of 4/6th of the house after associating with Taj Din, respondent No. 2 and having been issued P.T.D. in her favour, had not been impleaded as a party in the writ petition, the writ petition was rightly dismissed. He placed reliance on a decision in C.P.S.L.A. No. 194 of 1974, dated 9-10-1974. It was aslo submitted that her being not impleaded in the appeal is of no consequence. As regards 1/6th share of the house left with Tej Din, respondent No. 2 when he had been transferred 5/6th of the house and had given 4/6th in association to Mst. Sardar Begum, respondent No. 3, the learned counsel submitted that this 1/6th portion cannot be separated.
4. During the course of hearing, it was admitted that the portion acquired by Mst. Sardar Begum, respondent No. 3 under the impugned order, she has enclosed by a wall.
5. There is no doubt that the appellant being claimant allottee in possession having filed C.H. Form was entitled to transfer of the house as against Taj Din, respondent No. 2 who had filed L.H. Form which had been rejected and he had taken no appeal or revision against the order of rejection of the L.H. Form. The learned Settlement Commissioner in his impugned order has assumed that the appellant was transferred 1/6th of the house because the Appendix issued to him showed the transfer price as Rs.1,583 the rent of the property being Rs.16 p.m. It may be noted that the transfer price will be 16 x 12 x 40=7680. On the appendix basis, appellant's share will be nearer to 1/5th rather than 1/6th. Moreover, transfer in favour of the appellant was not of a share of the house. He was entitled to whole and for that P.T.O. had been issued. Further, the appendix issued to the respondent No. 2 was, on parity of reasoning, too not for the whole house as the transfer price was shown as Rs.6,738 whereas the total price was Rs.7,680. Therefore, the basis of the reasoning was not correct nor accurate. However, in view of the decision of the learned Supreme Court of Pakistan quoted above by the learned counsel for respondents Nos. 2 and 3, the portion 4/6th which had been transferred to Mst. Sardar Begum under the agreement of association and she having not been A impleaded as a party in the writ petition, the writ petition as against her was rightly dismissed by the learned Chief Justice and we cannot interfere in the order to the extent of her share. But it is patent that the case of the appellant vis-a-vis Taj Din, respondent No. 2 to the extent of 1/6th of the house transferred to the latter requires adjudication and the appellant being claimant allottee having filed C.H. Form is clearly entitled to preference as against Taj Din, respondent No. 2 who had filed L.H. Form and whose L.H. Form too had been reiected and he had not challenged that order any further. The portion transferred to Mst. Sardar Begum has been separated by her by constructing a boundry wall. Therefore, the rest of the house left in possession of the appellant and Taj Din, respondent No. 2 the former having clear preference as stated above, he is entitled thereto.
In thi view of the matter, the appeal is partly allowed and it is directed that the appellant shall be transferred the house in his and respondent No. 2's possession as he has clear preference leaving the rest of the house already transferred to and separated by Mst. Sardar Begum, responden No. 3 by construction of the wall. In the circumstances, the parties are left to bear their own costs. .