1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against a JUDGMENT of a Division Bench of the former High Court of West Pakistan, Lahore Seat, whereby three writ petitions, which had been heard together, were dismissed.
2. The dispute in this case relates to an evacuee property situated at 7, Egerton Road, Lahore, on about 57 kanals of land. It consists of three Independent self-contained bungalows with three independent gates and separate lawns. The entire bungalow No. 1 was allotted to one Mr. Hamid Ghani and the entire bungalow No. 3 was allotted to Mrs. A.I Muhammad but bungalow No. 2 was allotted to three person, namely, the appellant herein, Qazi Ahmad Shafi and Mr. S. Z. Ahmad, the son-in-law of original respondent No. 2.
3. When settlement operations started, bungalow No. 1 was claimed by Mr. Hamid Ghani as a claimant having a verified claim of Rs. 1,92,166 bungalow No. 2 was claimed by the appellant who was an allottee of a portion from the 21st of November 1955, and had a verified claim of Rs. 1,79,700.
4. Qazi Ahmad Shafi, who was a local, did not file any claim form. Mr. S. Z. Ahmad, who was allotted a portion of the ground floor on the 26th of November 1955, also did not file any claim as he was himself a local, but his father-in-law, Sh. Abdul Hayee, who was a claimant displaced person, submitted a claim form for the transfer of the entire bungalow No. 2 on the basis of the possession of his daughter, the wife of Nor., S. Z. Ahmad, as the latter was staying with her husband and was, therefore, also to be deemed to be in possession under Memo. No- 3223-Pt-Reh-60, dated 7th March 1960.
5. It appears that he only wanted to claim this bungalow on behalf of his daughter to whom he proposed to make a gift of his verified claim of about Rs. 85,00) but the Settlement Authorities treated this as an application for transfer to himself.
6. Bungalow No. 3 was claimed by Mrs. All Muhammad, a claimant allottee in possession.
7. The Deputy Settlement Commissioner, by his order of the 2nd of January 1960, transferred bungalow No. 1 with seven servants' quarters and one garage to Mr. Hamid Ghani; bungalow No. 2 to the appellant along with eight servants' quarters and four garages; and bungalow No. 3 with six servants' quarters and two garages to Mrs. A.I Muhammad. A swim--ming pool, the common tube- well and two quarters adjacent to the tube-well were, however, placed under the joint control of the transferees.
8. Against this order, four appeals were filed, one by Mr. Hamid Ghani, another by Mrs. A.I Muhammad, the third by the appellant Agha Shaukat A.I and the fourth by the respondent Abdul Hayee. The appeal of Mr. Hamid Ghani came up for hearing first and was disposed of on the 26th of February 1960. The remaining three appeals came up for hearing together before Lt.-Col. J. D. Malik (Retd.) who, on the 16th of March 1960, rejected the claim of respondent Abdul Hayee and dismissed his appeal. The other two appeals were, however, adjourned with--out any final decision, for production of the Corporation records and the preparation of a plan according to scale. Against the orders of the Deputy Settlement Commissioner Mr. Hamid Ghani and the respondent went in revision. The former because he was aggrieved by the non-transfer of a drive along his outer boundary and the latter, because, the Additional Settlement Commissioner had in his order of 16th March 1960 expressed the view that the said respondent was not entitled to claim through his daughter, Mrs. S. Z. Ahmad and had dismissed his appeal.
9. The Settlement Commissioner, by his order of the Ist of July 1960 remanded both the cases back with a direction that all the four appeals should be heard and disposed of together. These appeals then came up for hearing before Ch. Nasrullah Khan. He took the view that since the "entitlement of all the four claimants appears to be somewhat equal therefore . . . . The best course would be to put it (the property) to restricted auction amongst the four appellants". The order of the Deputy Settlement Commissioner was, therefore, set aside on the 7th July 1960 and the matter was referred to the Chief Settlement and Rehabilitation Commissioner for obtaining necessary orders under section 10 (b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
10. The Settlement Commissioner refused to adopt this course and again on the 24th August 1960 remanded the cases back to the Additional Settlement Commissioner for fresh decision on merits, after setting aside all the orders passed by the Additional Settlement Commissioner.
11. On this occasion, the appeals were heard by Mr. S. Muhammad Azhar who, by his order of the 19th of March 1962, divided the premises into four portions. Bungalow No. 1 and Bungalow No. 3 were kept intact but Bungalow No. 2 was divided into two portions vertically and was transferred; one portion to the appellant and the other to the respondent Sh. Abdul Hayee.
12. From this order, all the parties again went up in revision to the Settlement Commissioner, but the latter rejected all the revisions by his order of the 5th of September 1962.
13. The present appellant, Mrs. A.I Mohammad and one Mahmood Khan Durrani came up to the High Court by three separate writ petitions. All these petitions were consolidated, heard together and dismissed by the same order.
14. It appears that sometime In November 1960, after the order of remand passed on the 24th August 1960, the wife of Mr. Durrani had tiled a K. C. H. Form on behalf of her husband. Who was actually out of the country at that time on the basis of her own possession. She claimed that she was living in the premises with Qazi Ahmad Shall who was related to her. The Additional Settlement Commissioner had, however, rejected his claim as Mr. Durrani himself had not been in possession after 10th August 1958 and his wife being at best a guest or licensee of Qazi Md. Shall could not be treated as being in possession.
15. From the order of the High Court, only the appellant came up for special leave to this Court and leave was granted to him to consider only one point, namely, as to whether the father of Mrs. S. Z.
16. Ahmad could compete with the appellant, a claimant in possession, even though his daughter, on the basis of whose possession under the Notification of the 7th of March 1970 he had preferred his claim, was herself not a claimant and could not have competed against a claimant in possession.
17. Before we take up this appeal on merits, we have to dispose of a preliminary objection which has been taken on behalf of the respondents on the ground of the death of sh. Abdul Hayee during the pendency of this appeal.
18. The said Sh. Abdul Hayee, it appears, died on the 3rd of June 1966. After his death, the appellant applied on the 15th of November 1966, for the substitution of the heirs after condoning the delay in the filing of the application on the ground that since the deceased was living at Karachi he had been able to gather the information of his death and the particulars of his heirs after frantic efforts and visiting the graveyard where he was buried. The date was actually obtained from the inscription on the head--stone of the grave. He had also averred in this petition that he had tried first to ascertain the particulars from the relatives of the deceased residing in the said premises, but they had refused not only to give the particulars but also to confirm the news of the respondent's death.
19. This application was moved on notice to the heirs sought to be brought on the record. No one appeared to oppose this application or filed any affidavit controverting the facts mentioned in the petition for condonation of delay. In these circumstances, on the 21st of November 1966, the then learned Chief Justice of this Court passed an order that the heirs named in the petition "be substituted as L. Rs. Of the deceased Abdul Hayee". Intima--petition of this order was again given to the heirs by the Attorneys for the appellant on the 24th of November 1966. After this, it appears that the widow of the deceased respondent, on the 30th of November 1966, informed the Attorneys for the appellant that some of the legal representatives of the late Sh. Abdul Hayee had been left out. They replied to her on the 15th of December 1966, asking for the full particulars and addresses of such lega1 representatives. She replied on the 9th of February 1967, giving these particulars but protesting that the appellant had not im--pleaded them even though the particulars were available to him, merely to cover up the delay.
20. The appellant then, on the 1st of March 1967, made another application for bringing on the record the legal representatives who had not already been substituted. This application was also made, according to the rules of this Court, on notice to the legal representatives so sought to be impleaded. Again, no one appear--ed nor filed any objection. But on this application the order passed by the then learned Chief Justice, on the 10th of March 1967, was to the following effect: "The application is sanctioned, both as to addition as well as substitution of names of L. Rs. Of the deceased Abdul Hayee, subject to just exceptions."
21. Notice of such impleadment was duly given to the legal representatives on the 29th of March 1967.
22. Thereafter, the respondents filed a concise statement on the 15th of July 1968, with an application for the con--donation of the delay in the filing of the concise statement. No objection on the ground of abatement of the appeal was taken even in the concise statement, but this objection has been raised for the first time at the hearing on the basis of the order of the 10th of March 1967, which, it is said, was "subject to just exceptions".
23. Learned counsel appearing on behalf of the appellant con--tends, firstly that this objection should not be allowed to be raised at this stage, because, under rule 4 of Order XX of the Rules of this Court, no one is to be permitted to raise any ground at the hearing of the appeal which is not specified in his petition of appeal or the concise statement.
24. The learned counsel next contends that there is no question of automatic abatement under the rules of this Court, because, rule 7 of Order XXI of the Rules of this Court imposes a duty on the appellant to make an application whenever it is found that the record has become defective, by reason of death or change of status of a party, for a certificate shoving who, in the opinion of the Court, is the proper person to be substituted or entered on the records, in place of, or in addition to, the party on the record, and the person of such name shall thereupon be deemed to be substituted or entered on the record as aforesaid. There is no provision in these Rules for any application for setting aside an abatement as is rule 9 of Order XXII of the Code of Civil Procedure.
25. Under rule 9 of Order XVI of the Rules of this Court all that is required is that such an application must be made within ninety days of the occurrence provided that "the Court may for sufficient cause extend the time".
26. Coming now to the merits of this case, the learned counsel for the appellant has, firstly, contended that even if the wife of Mr. S. Z. Ahmad is to be deemed under the Notification of the 7th of March 1950, to be in possession of the house allotted to her husband before the 20th of December 1958, by a competent Authority, her father cannot, under the first paragraph of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act of 1958, take the advantage of such fictional possession of his daughter, because, it is necessary under this Schedule that the parent, son, daughter or spouse on the basis of whose posses--sion the claim is preferred must himself or herself be entitled under the provisions of the Schedule to the transfer of the house con--cerned.
27. Unless he or she is so entitled, no indirect claimant can succeed where there is a competition between the persons on the basis of whose possession the claim for transfer is being preferred and other persons claiming directly.
28. The Schedule reads as follows :- "Manner of Disposal of Urban Evacuee Property.
1. Houses.-A house in possession of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, sort, daughter or spouse does not claim under the provisions of tie Schedule, and if there is more than one such houses, then any one of the houses which the claimant desires to retain, shall be transferred to him at a price deter--mined on evaluation basis: Provided that if a house or a part thereof is in possession of more than one person and one of them is a claimant, then the house shall be so transferred to the claimant: Provided further that if a house or a part thereof is in posses--sion of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."
29. The learned counsel for the appellant lays emphasis on the words "which such parent, son, daughter or spouse does not claim under the provisions of the Schedule". According to him, these words necessarily imply that they should be in a position to claim the transfer of such a house under the provisions of the Schedule. In the present case, Mrs. S. Z. Ahmad, not being a claimant in her own right, was not entitled under the provisions of the Schedule to the transfer of the house.
30. Furthermore, in the present case, the appellant, who was himself a claimant and directly in posses- -sion of a portion of the house, had a preferential right, both by virtue of being a claimant as well as a prior allottee. He was allotted the portion in his possession five days before the allot--ment in favour of Mr. S. Z. Ahmad.
31. PLD 1967 SC 221) where the contention that a claimant displaced person, not in actual possession, whose parent, son, daughter or spouse was in possession under an allot--ment order, could also take advantage of the two provisos to paragraph 1 of the Schedule to the Act, was repelled. In this connection, the Court opined as follows :- "If Mr. Lari's argument is to succeed, it would mean that a person, who can claim under the main paragraph, on the strength of constructive possession through one of the relatives mentioned therein, must be deemed to be in actual possession for the purposes of the two provisos. He would in such a case defeat a claimant, in actual occupation, if his own relative in possession had occupied the premises earlier than that clai--mant. This would mean enlarging the definition of "posses--sion", as given in section 2 of the Act, to persons who can claim only on the basis of constructive possession. There are no words in the main paragraph, suggesting that such a person is deemed, in law, to be is actual possession. Such a deeming provision could have been made by a notification of the Central Government, under the second proviso to the definition of "'possession" in section 2(6) of the Act. That in fact has been done by the Central Government, to give the benefit of "posses--sion" to persons, not holding an allotment order, but who are in undisputed possession from a certain date, subject to certain conditions. But for this extension of the definition, the word possession" would have to be construed merely, as meaning occupation under an allotment order or some other order issued by a competent authority as laid down in the statutory definition. At page 563 of the New Manual of Settlement appears a Memorandum, dated the 7th of March 1960, declar--ing that the Central Government has decided that where a house is in the possession of the husband, in pursuance of an order passed on or before the 2001 day of December 1958, by a com--petent authority, his wife, if staying with him, will also be deemed to be in possession. The Memorandum would appear to be redundant if the position adopted by Mr. Lari is accepted as correct. We are not, therefore, convinced that a claimant, who is himself out of possession, can, on the strength of posses--sion of his relative son, defeat the claim of an actual occupant who is also a claimant, under the two provisos to paragraph 1 of the Schedule."
32. We have no cavil with the proposition enunciated above; but where there is no competition and the relative is alone in possession of a house under a valid order, then we can see no objection to a claimant displaced person not In actual possession claiming the transfer of the property on the basis of the possession of his or her relative, if the latter falls within the) categories specified in the said paragraph and is not interested in claiming the property.
33. The words "does not claim" occurring in this paragraph de not necessarily refer to an entitlement to claim but extend also to the non-preferment, in fact, of any claim for transfer. This is a general provision which applies to all kinds of houses and we see no reason to read these words in a restricted sense.
34. Even otherwise a local in possession was originally entitled to claim a house of which the value did not exceed Rs. 10,000 but now, the policy having since undergone a change, a local in possession can claim the transfer of a house of any value. Therefore, even in the limited sense preferment of claim must be there along with entitlement to operate as an ouster.
35. The situation under the provisos, however, is different. Where there is competition the ouster of the indirect claimant becomes operative not because of the interpretation sought to be given to these words by the learned counsel but because of the preferential right of a claimant in direct possession. The latter succeeds because he has a better right and not because the indirect claimant has no right.
36. This brings us to the nest question relating to the division of bungalow No. 2. Learned counsel for the appellant has argued that the division in this case was not made because the building was structurally divisible into two independent residential units but in order to accommodate a person who would not otherwise have been entitled to the transfer of any portion of the said building. This, it is said, was wholly illegal. In support of this contention, reliance has been placed on a decision of this Court in the case of Altaf Hussain v. Chief Settlement Commissioner (PLD 1961 SC 68) where it vas held that "the question of divisibility of the house would only fall for consideration in case none of the parties is found deserving of transfer of the house as a whole." On this principle, it is maintained, that, in the present case, since the appellant was admittedly entitled as a claimant in direct possession to the transfer of the house as a whole in preference to all other persons, the question of division should not at all have arisen.
37. As to the manner in which and the circumstances In which a division should be made reliance is sought to be placed on the JUDGMENT of this Court in the case of Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 154), where it was pointed oat that for the purpose of division the word "unit" used in subsections (4) and (12) of section 2 of the Act of 1958 has a special signification "which is more co-related to the structural characteristics of the building itself" and in this sense the word "unit" is clearly "intended to mean a division of the whole building which can be regarded as the least necessary to form an integrated portion capable of having a separate entity and being used as a self-contained portion."
38. Learned counsel for the heirs of Sh. Abdul Hayee, on the other hand, contends that the division has been made on correct principles, because, the Additional Settlement Commissioner had in his order of the 19th of March 1962, which is in fact the impugned order in the present case, clearly pointed out that "this bungalow is essentially built in two independent flats and can accommodate two families" and that it is "easily and conveniently divisible into two independent units". The structural characteristics of the building were, therefore, kept in view in making the division. In the circumstances it was not for the Courts either under Article 98 of the Constitution of 1962 or under Article 201 of the Interim Constitution of 1972 to interfere with the decision of the Settlement Authorities in regard to the divisibility of a house, as pointed out by this Court in the case of Muhammad Yousuf v. Chief Settlement and Rehabilitation Commissioner (PLD 1969 SC 101). If the order of division has been made in the proper exercise of lawful authority and is neither capricious nor whimsical it ought not to be interfered with.
39. This Court has consistently taken this view: vide the cases of Muhammad Hanif v. Abdul Haque (199 SCMR 135) and Mehraj Din v. Settlement Commissioner (1969 SCMR 913).
40. The definition of a "House" given in subsection (4) of section 2 of the Act of 1958 is as follows:- "House.--'House means evacuee residential presmises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out-houses, if any, attached to or appur--tenant to such premises, notwithstanding that any such garden, ground, garage or out-house is in the possession of a person other than the person or persons in possession of such residential premises, but does not include any residential building situated within the premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: (Provided that where any building or premises not so declared consist of more than one residential unit, and such units are in the possession of several persons, then unless the Chief Settlement Commissioner orders otherwise, the whole of said building or premises shall be deemed to be a house: Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including out-houses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house.)"
41. It will be noticed from the above that the question of divisibility of a house not declared to be a big mansion or hotel will arise under the first proviso only if it consists of more than one residential unit and such units are in the possession of several persons. Therefore, the first question that should receive the attention of the authorities is as to whether the premises consist of more than one residential unit in occupation of more than one person. Both these conditions must exist to justify a division. If it is in occupation of only one person then no division is called for. Again if the units are not structurally so compact or integrated as to be able to have a separate entity or be capable of being used as a self-contained portion then too division should not be made.
42. 1969 SCMR 932).
43. For the reasons given above this appeal must fail and is, accordingly dismissed; but having regard to the facts and circumstances of this case, we leave the parties to bear their own respective costs.