1. ANWARUL HAQ, J.-This petition for special leave to appeal is directed against an order made by a Division Bench of the Lahore High Court on 12-5-72, whereby an appeal, filed by the petitioner Mohammad Bakhsh under Clause 10 of the Letters Patent, against the judgment of a learned Single Judge in Writ Petition No. 7()9-R of 1967 was dismissed.
2. The dispute concerns the premises of an unregistered evacuee industrial concern known as the Premier Safe Co., situate at Gujranwala. The petitioner Mohammad Bakhsh and respondent No- 1, Nizam Din, are closely related to each other, and were jointly allotted this building on 5-4-48. On 11- 4-48 they entered into a partnership for carrying on the business of making iron safes 'etc. On the 26th of February 1954, the premises were re-allotted to both by the Deputy Rehabilitation Commissioner. However, in the meantime, certain disputes arose between them regarding the management and accounts of the partnership business, with the result that respondent Nizam Din filed a civil suit on 31-1-55 for dissolution of the partnership and rendition of accounts. A preliminary decree was made in his favour on 6-4-57 It is stated at the Bar that the matter has been taken to the High Court by both the parties in appeal.
3. When Settlement operations started, both the parties applied separately for the transfer of the building, to the exclusion of each other. However, the learned Additional Settlement Commissioner treated both the allottees as being in possession, and accordingly transferred the building to them jointly. The parties filed appeals which were rejected by the learned Settlement Commissioner, by being treated as revision petitions, by his order dated the 7th of September 1961. The second revision petition filed by both the parties were rejected by the Chief Settlement Commissioner by his order dated the 20th of March 1967.
4. Both the parties, being dissatisfied with the orders made by the Settlement authorities at various levels, invoked the writ jurisdiction of the High Court. The petitioners filed Writ Petition No. 709-R of 1967 and the respondent filed Writ Petition No. 267-R of 1968, which were both dismissed by a learned Single Judge of the High Court on the 11th of November 1971. It appears that the respondent accepted this order, but the petitioner filed an appeal under Clause 10 of the Letters Patent, with the result already mentioned.
5. It is contended by the learned counsel for the petitioner that under paragraph 15(3) of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, an industrial premises could be transferred only to that allottee who was in possession there f on the relevant date, namely, the 20th of December 1958, but in this case respondent had already been either driven out of the premises or had voluntarily abandoned the same in 1955. In support of this submission, the learned counsel has drawn our attention to the averments made by respondent Nizam Din in the plaint which he had presented in the civil Court. He has also referred us to an unreported judgment of a Division Bench of this Court- in C. P. S. L. A. No. 176 of 1966 (Mohammad Abdullah v. Settlement Commissioner, Sargodha) decided on the 2nd of June 1966, in which it was observed that "possession under section 2(6) of the Displaced Persons (Compensation and Rehabilitation) Act cannot include merely constructive possession through a tenant".
6. After hearing the learned counsel at some length, we are of the view that no justification is made out for our interference in the matter.
7. It has already been seen that the premises in dispute were allotted .Twice on a joint basis to the petitioner and respondent Nizam Din, first in 1948 and again in 1954. The partnership entered into between the parties did not contain any stipulation whatsoever with regard to the building in question, and, therefore, it was rightly conceded by the learned counsel that it had no bearing on the question of the transfer of the building. However, the contention is that in the plaint the respondent himself admitted that he had abandoned the building. We have perused the plaint, and we do not find any such averments. The relevant paragraph, namely, paragraph 10(4) of the plaint speaks of the partnership business and states that "the-defendant has turned out the plaintiff; without rendition of accounts, from the business and has also prevented him from having any connection with the business b y threatening him with death." The paragraph then goes on to state that having thus been intimidated by the defendant, the plaintiff has gone away out of fear. It is clear to us that these averments have relation only to the partnership business started by the parties in the building in dispute, and the abandonment was with regard to the business itself. The joint allotment in the name of the parties remained intact, and, therefore, the possession of the premises must be deemed to remain with both the parties, irrespective of the fact that the respondent was prevented from interfering with the partnership business itself.
8. The interpretation sought to be placed by the learned counsel on the situation created by his client would amount to placing a premium on illegal acts of certain parties who would then claim benefit from their own misdeeds. The joint allotment having remained intact, and the premises having been allowed to be used for the partnership business by the consent of both the allottees, the business must be deemed to be a licensee under both the allottees. On this view of the matter, it appears to us that the Settlement authorities as well as the learned Judges in the High Court were right in holding that the respondent Nizam din continued to be in possession of the disputed premises within the meaning of paragraph 15(3) of the Schedule to the Act. The view taken by the High Court finds support from Fatehyab Khan v. Amtul Hafeez (PLD 1963 Kar. 953) and Imam Din v.
9. Hameed Hussain (PLD 1967 Lah. 419), in which the term `possession', as used in the Act, was held to include constructive possession.
10. As already stated, the learned counsel has referred us to an unreported judgment of this Court in C. P. S. L. A. No. 176 of 1956 in which it was observed that `possession' under the Act cannot include merely constructive possession through a tenant. This observation is followed by a statement that "the Settlement Commissioner in his revisional order has come to a definite finding that neither the petitioner nor his son were in possession of the property immediately before the 20th of December 1958." It will be seen that the judgment of this Court rested not merely on the question whether possession through a tenant would satisfy the requirements of law, but also on the finding recorded by the Settlement Commissioner that the petitioner and his son were not in possession of the property on the relevant date. These facts are clearly distinguishable from those of the instant case. Where a co---allottee is trying to oust another simply on the assertion that the other person was driven out of the partnership business.
11. In the circumstances of the present case, we have no hesitation in holding that the partner ousted from the business itself was not necessarily ousted from the allotment and possession of the building in which the partnership business was started.
12. For the foregoing reasons, we see no merit in this petition which is accordingly dismissed.