' ABDUL SHAKURUL SALAM, J.-- Relevant facts for the disposal of this appeal are that there is a Bungalow bearing No. 8-Napier Road, Lahore. Dr.Ghulam Bheek, respondent No.1 was Assistant Surgeon at Rippon Hospital, Simla (India). He migrated to Pakistan. He applied for allotment of the said bungalow showing 35 members of the family consisting of father, brothers, sisters, etc. It was allotted in his favour and the rent was paid by him to the Department. In due course of time, on the advent of the Settlement operations, the bungalow was transferred in favour of the respondent No.1 by the Settlement authorities. His two brothers and two sisters filed Writ Petition No. 1511-R/64. It was heard by a learned Single Judge and in a detailed order the learned Judge came to the conclusion that the orders of the Settlement authorities did not call for any interference. The petition was dismissed with costs vide order announced on 15-3-1971. They filed the afore-titled L.P.A.
2. During the pendency of the appeal appellant No. 1 has died and is survived by his heirs. His son Shahid Hamid appeared and was heard. Appellant No. 2 has died leaving behind a widow Mst.
Qaisara Maryam who was also heard. Appellant No. 3 appeared and was heard. So also appellant No.4 alongwith her sons Tasawar Ali, Rashid Ali and Babar Ali. Respondent No.l. Dr. Ghulam Bheek also appeared and was heard, counsel for the parties pressed the case of their clients as far as possible. Site plan Annexure 'I)' was referred to again and again.
3. A portion of the order of the learned Single Judge may be reproduced in view of the order proposed to be passed. It reads as follows:
4. "A perusal of the above allotment order shows that the competent Rehabilitation Authority was putting respondent No.1 in possession of the house and in case an order of ejectment was passed against respondent No.1, all the 35 members of the family were bound to vacate the house alongwith him and they could not claim to be joint allottees of the house with respondent No.1 because they were really his dependents living therein by its courtesy. If more than one person is made the allotment, it is specifically so stated in the allotment order and in Settlement Scheme No.l a special provision exists in the matter of transfer of property to joint allottees (See para. 5(d) of Settlement Scheme No.I). It is also evident from the facts stated by petitioner No.2 in his statement before the Deputy Settlement Commissioner that the members of the family who had originally occupied the house in question were leaving it as soon they found suitable provisions elsewhere.
Thus, a brother Major Ghulam Rashid and a sister Mst. Saeedan Begum shifted to Karachi.
Moreover, they were also trying to obtain transfer of other evacuee properties and not banking on the house in dispute to satisfy their claims. Thus for instance Major Ghulam Rashid got a house in lottery whereas the other two sisters Mst. Rafiqan Begum and Mst. Saeedan Begum utilised their claims by getting other properties. Petitioner No.2 himself obtained some other house in auction proceedings. These facts clearly show that other members of the family did not consider themselves to be in possession of the premises but were cognizant of the fact that they were living by the courtesy of their brother and, therefore, they were endeavouring to get their claims satisfied wherever possible. Unfortunately one brother Ghulam Hameed and a sister Mst. Amtur Rashid have not been successful to get any house transferred in their favour and the counsel for the petitioners submitted several times before me that if these two petitioners could also be transferred some share in the premises in dispute, he would not press the claim of the others. This concession however, can only be granted by respondent No.!, and not by this Court because as a matter of law, these petitioners too are his licensees and cannot be treated to be in possession and are, therefore, ineligible for the transfer of the premises. Thus in the facts and circumstances of the case, the finding of fact recorded by the Settlement Authorities that only respondent No.1 is in possession and other family members are dependents, appears to be quite unexceptionable and not liable to any interference."
4. From the aforequoted the following extract may be repeated as this is decisive of the matter:- "Unfortunately one brother Ghulam Hameed and a sister Mst Amtur Rashid have not been successful to get any house transferred in their favour and the counsel for the petitioners submitted several times before me that if these two petitioners could also be transferred some share in the premises in dispute, he would not press the claim of the others."
' From this it is quite clear that one brother Ghulam Hameed and a sister Amtur Rashid had not been successful to get any house transferred in their favour "and the counsel for the petitioners submitted several times before me that if these two petitioners could also be transferred some share in the premises in dispute, he would not press the claim of the others." The case of the appellants therefore, before the learned Single Judge was that Ghulam Hameed and Amtur Rashid be transferred some share in the premises in dispute and the petition would not be pressed further.
It cannot be improved further, nor any attempts was made. Learned counsel for the appellants' case from the beginning before this Court was that bungalow was spacious and separated by a passage. Left hand side building alongwith servants quarters should be separated and given to the appellants. Learned counsel for the respondent No.1 and the latter who is transferee of the entire bungalow under the impugned orders stated that in order to settle the dispute the respondent No.1 is prepared to surrender the left hand side building excluding the quarters to the appellants.
Discussion and arguments flew to and fro for demarcation. Ultimately, the learned counsel for the respondent No.1 and the latter stated that he is prepared to surrender the left-hand side of the building if a line is drawn on the site plan Annexure 'D' (signed by us) from point A to meet at B with the boundary line on the north, and from C down to D on the southern side. D may join with at E where the left hand side building starts, going on towards left upto F and, then, upwards from F to G. Wall to be drawn from G towards north at H. To this demarcated portion BACDEFGHI, the respondent No.1 gives up his claim for the appellants. As noted above, from amongst the appellants the case was pressed before the learned Singel Judge on behalf of Ghulam Hameed, appellant No.1 and Amtur Rashid, appellant No.3. Heirs of appellant No.1 are in possession of the upper portion of the left hand side demarcated building. They shall be transferred the same. The ground-floor of this can be transferred to Mst. Amtur Rashid on whose behalf the writ petition was pressed before the learned Single Judge. She is in possession of a portion on the right-hand side of the main building standing transferred in favour of the respondent No.
1. The latter states that she will be entitled to remain in possession thereof till her life and she will not be ejected by the respondent No.1. However, she is entitled to transfer of the ground-floor of the demarcated portion on the left hand side in view of her claim for a portion of the property having been pressed before the learned Single Judge. It may be noted here that Mst.Rafiqan Begum, appellant No.4 is in possession of ground-floor of this portion. It was observed by the learned Single Judge that "Mst. Rafiqan Begum and Mst. Saeeda Begum utilised their claim by getting other property." It is submitted by the learned counsel for Mst. Rafiqan Begum that she has not utilized her claim by getting other property. If that be so, the ground-floor of the left hand side building can be transferred to both the sisters Mst. Amtur Rashid and Mst. Rafiqan Begum, appellants Nos. 3 and 4 respectively. Mst. Amtur Rashid has already been allowed to live in the portion of the main bungalow on the right hand side, by its transferee, respondent No.1 for her life. She is unmarried. As far as the entitlement of transfer is concerned, she can share the portion on the ground-floor of the left hand side building alongwith Mst. Rafiqan Begum. When the order was announced later in the day, Mst. Amtur Rashid and Babar All son of Mst. Rafiqan Begum were present. They did not demur except that Mst. Amtur Rashid should have the exit as at present from her possessed portion. Of course, it would be so. Appellant No. 2 has since died and is survived by his widow without children, namely, Mst. Qaisara Maryam, who is residing in a portion of the main bungalow on the right hand side transferred to respondent No.1. The latter has stated that she can live in that portion all her life and she shall not be ejected. It is admitted that her husband had got a house in possession of a school transferred. It was later on sold. Secondly, ease by her husband was not pressed before the learned Single Judge, therefore, she is not entitled to transfer of any portion of the pre mises.
However, as noted above she will be entitled to live where she is living for her life.
5. In view of the findings of fact recorded by all the authorities on the Settlement side which have been examined and upheld by the learned Single Judge, it is difficult to interfere in the impugned orders. Moreover, the writ petition was pressed only for Ghulam Hameed, appellant No.1 and Mst.
Amtur Rashid, appellant No.3. In view of the fact that the transferee of the premises has agreed to surrender the demarcated portion on the left hand side, heirs of Ghulam Hameed will have the upper portion in their possession of the left hand side building and Mst. Amtur Rashid the ground- floor thereof alongwith Mst Rafiqan Begum. Mst. Amtur Rashid has been allowed the right of residence for her life in the portion where she is at present living in the main building on the right- hand side. She is unmarried. Both the sisters will have the ownership of the ground-floor and if they continue to live wherever they are, there should be no problem. Title is determined and not objected to by Mst Amtur Rashid as well as by Babar All son of Mst. Rafiqan Begum who heard the order. Moreover, it may be noted that the writ petition had not been pressed on behalf of Mat.
Rafiqan before the learned Single Judge. Therefore, she having been given something cannot legitimately complain. As regards the appellant No.2 who has since died and is survived by his widow Mst. Qaisara Maryam, it may be recapitulated that it was stated by the parties and their learned counsel that the claim of her husband Ghulam Saeed Khan, deceased appellant No. 1 had been utilised in getting a house in A possession of a school transferred in his favour which was subsequently sold. Therefore, the claim of Mst. Qaisara Maryam's husband Ghulam Saeed Khan, deceased appellant No.2 having been utilised and she having been given the right of residence till her life having no children, where she is at present residing, on the right hand side of the main building by its transferee Dr. Ghulam Bheek, respondent No.1, no order of transfer in her favour is called for. She will of course be entitled to enjoy the possession and right of residence where she is residing at present. Thus, all the parties are settled. If avrice does not possess any one, all should live happily hereafter. All have got enough, probably more than many many others. To conclude and clarify it is reiterated that the transferee respondent No.1 Dr. Ghulam Bheek shall have the premises excluding the demarcared portion B A C D E F G H I. He allows and Mst. Qaisara Maryam widow of his brother Ghulam Saeed Khan, appellant No.2 and Mst. Amtur Rashid, his sister appellant No.3 will be entitled to live where they are living at present till their life--we hope long.
They shall use the exit and entry as at present. The demarcated portion shall vest--upper floor in the heirs of Ghulam Hameed Khan, deceased appellant No.1 and ground floor in Mst. Amtur Rashid, appellant No.3 and Mst. Rafiqan Begum, appellant No.4 jointly in equal share. The appeal is thus allowed leaving the parties to bear their own costs.