This revision petition arises out of a suit for possession filed by Taj Din petitioner herein against the respondents with respect to a room in their possession out of property No. S-36-R-21, situate at Railway Road, Lahore. The property was evacuee in nature and according to the case of the petitioner was transferred to him by the Settlement Department. It was alleged chat defendant No.2, Muhammad Rafique was in unauthorised occupation of the said room and as such -a decree for possession be passed against him. Earlier an ejectment petition was filed by the petitioner against the respondent No.2 who took up the plea that he was in possession of the room as a tenant under respondent No.l. The ejectment petition was dismissed by the Rent Controller where after the present suit was filed in which respondent No.l was also impleaded as a defendant. This suit was contested by the respondents who claimed that the plaintiff/petitioner was the transferee of three rooms on the first floor and one Barsati on the top floor and not of the room in dispute situate on the first floor which according to the case of the defendants was in possession of the husband of respondent No.l who had been renting it out to different persons and lastly to respondent No.l. On the basis of the evidence led before him the learned Civil Judge dismissed the suit of the petitioner holding that he was not transferee of the disputed room. This finding was affirmed by the learned Additional District Judge at Lahore on 10th of May, 1988. Hence this revision petition.
2. It has been contended by the learned counsel for the petitioner that the petitioner was transferee of the entire residential portion including the room in dispute and the findings of the two Courts below to the contrary are based on misreading of the record, particularly the documents of transfer issued by the Settlement Department in favour of the petitioner. It was also contended that the learned Courts below while dismissing the suit of the petitioner have misconstrued the law on the subject and their judgments are, as such, without any lawful authority. The learned counsel for the respondents, however, contended that the concurrent findings of fact recorded by the two Courts below to the effect that the room in dispute did not form part of the property transferred to the petitioner cannot be interfered with in the revisional jurisdiction of this Court. The learned counsel also argued that the judgments of the two Courts below are even otherwise amply justified by the material on the record.
3. Admittedly, property No.S-36-R-21, Railway Road, Lahore was a composite evacuee property comprising a shop and residential portion. The question of transfer of the residential portion was taken in hand by the Settlement Authorities on a report made by the Settlement Inspector (Exh.D-1) in which he stated that the property comprised independent residential portion to occupation of Taj Din son of Babu and a shop underneath the portion m occupation of Haji Feroze Din, who had not applied for transfer and it be put to auction while the residential portion be transferred to Taj Din. On this report, an order was passed on 18-2-1960, whereby the residential portion occupied by Taj Din was transferred to him on his CH form. Subsequently the Transfer Order (Exh.W-2) was also issued to the petitioner. It was contended by the learned counsel for the petitioner that the property comprised two units, a shop and a residential portion which was ordered to be transferred to the petitioner and no part of it was left undisposed of. Learned counsel for the respondents, however, has argued that only the portion in occupation of the petitioner was transferred to him and no other part of the property.
4. There is no dispute between the parties that the disputed room is situate on the first floor, the remaining portion of which is occupied by the petitioner. This room is located above a part of the shop. From the perusal of the order (Exh. D-1), it is clear that the residential portion of the property was transferred to Taj in son of Babu. The Transfer Order (Exh. P-2) shows that the Settlement Authorities had transferred the residential portion of the property to Taj Din without any reservation or exclusion of any part thereof. A reference to the order of Deputy Settlement Commissioner and the report of Settlement Inspector would bear out that no portion of the property was left undisposed of. In these circumstances, it is idle for the respondent to contend that the portion occupied by him which was admittedly residential in nature, was not transferred to Taj Din. Even otherwise, according to section 2(4) of Displaced Persons Compensation and Rehabilitation) Act, 1958, if a building consists of more than one residential unit which are in possession of different persons, the whole building in the absence of a declaration to the contrary by the Chief Settlement Commissioner, is deemed to be a house. In the present case there is no such declaration nor a finding by any of the Settlement Authorities that the room in dispute is an independent unit. It cannot, therefore, be argued with success that the room occupied by the respondent was a separate unit, not transferred to the petitioner. The entire residential unit was to be treated as one house and the whole of it could be transferred to the petitioner, notwithstanding the fact that he had only applied for the portion in his occupation. It was so held by the Supreme Court in Noor Muhammad v. Settlement Commissioner of Karachi and others 1987 SCM R 594. The two Courts below while coming to the contrary view have omitted to consider the effect of this provision and have acted with material irregularity in the exercise of their jurisdiction. The order of Transfer (Exh.
D-1) and the Transfer Order (Exh. P-2) also appear to have been misinterpreted by them. It is not denied by the learned counsel for the respondent that the room in possession of the respondent is situate immediately above the premises which were transferred as a shop. The Transfer Order (Exh.
P-2) refers to the residential portion above the shop which would include the room in question. The judgments of the two Courts below are clearly not sustainable. In view of what has been stated above, this revision petition is accepted, the judgments and decrees of the two Courts below are set aside and the suit of the petitioner is decreed without any order as to costs.