1. ANWARUL HAQ, J.-This appeal, by leave of the Court, is directed against the judgment of a Division Bench of the former High Court of West Pakistan at Lahore, dated the 24th of May 1966, whereby the Letters Patent Appeal preferred by the present appellants against the dismissal of their Constitution petition by a learned Single Judge of that Court, was dismissed, and the transfer of the evacuee house in dispute, bearing No. B-XIX-6-S-1, situate on College Road, Gujranwala, in favour of late Sardar Abdul Waheed Khan (respondent No. 1) was maintained.
2. During the pendency of this appeal, Sardar Abdul Waheed Khan died on 18-10-1968. On 9-8-1971, his legal representatives made an application praying that the appeal be dismissed as having abated. On the 6th of January 1972 the appellants made an application for bringing on record the legal representatives of Sardar Abdul Waheed Khan. This application was allowed by a learned Judge of this Court on the 23rd of February 1972, subject to the b ar of limitation which was to be considered at the hearing of the appeal.
3. It is submitted by Mr. Akhlaque Hussain, the learned counsel for the legal representatives of Sardar Abdul Waheed Khan, that the appellants being related to the deceased respondent, had full knowledge of his death, even though he died at Rawalpindi and not at Gujranwala; and that in any case they acquired knowledge of his death through the application made by the legal representatives on 9-8-1971 regarding the abatement of the appeal, and it would, therefore, appear that sufficient cause has not been shown for the delay that has occurred on their part in making the necessary application.
4. We consider that Sardar Abdul Waheed Khan having died at Rawalpindil and not at Guiranwala, where the appellants reside and the property in dispute is situated, and it not having been shown that the appellants had acquired knowledge of the death soon after the event, or even through the A respondent's application of the 9th of August 1971, sufficient justification has been made out for the delay that has occurred on the part of the appellants in impleading the legal representatives of the late Sardar Abdul Waheed Khan. We would accordingly condone delay and permit the substi-- tution of the legal representatives as respondents to the appeal.
5. The relevant facts may now be stated.
6. On 26-5-1953, Abdul Karim Khan, the grand-father of appellants Nos. 1 to 5, and has sister Begum G. A. Khan, predecessor-in-interest of appellant No. 6 Manzur Ahmad Khan, made an application to the Deputy Rehabilita--petition Commissioner, Gujranwala, stating that they had been allotted house No. B-V-125-39 situate in Hafizabad, District Gujranwala, while Deputy Baqir Hussain had been allotted house No. BXIX-6S-1. In Gujranwaia Town, and that both wanted to exchange their houses. They further stated that Abdul Muqit Khan son of Sardar Abdul Waheed Khan had also filed an application for the allotment of this house, and that they would have no objection if his name was also included in the allotment order, as he was known to them and could live with them. They ended the application by stating that "Deputy Baqir Hussain is al o ready for the exchange of houses as prayed for".
7. This application was allowed by the Deputy Rehabilitation Commissioner by his order dated the 21st of March 1953 in terms of a note put up to him by one of his subordinate Officers stating that the proposed exchange was in the interest of refugee families, and also because "another consideration is that Begum G. A. Khan and Abdul Karim Khan have expressed their readiness to share house No. BXIX-6S-1 with Abdul Muqit Khan son of Abdul Waheed Khan who had applied for the allotment of the house independently in December last. Allotment can, therefore, be made in their names jointly." The Officer who submitted this report to the Deputy Rehabilitation Commissioner added' a condition to the effect that "the exchange is recommended for approval subject to the payment of rent dues and submission of applications on the prescribed forms for the allotment of the respective houses by both the parties".
8. Formal allotment orders were issued in favour of Sardar Abdul Waheed Khan, father of Abdul Muqit Khan, on 3-9-1953. Similar orders in favour of Abdul Karim Khan and Begum G. A. Khan were issued on 9-12-1953. Attached to these allotment orders are endorsements by their respective allottees regarding the taking over of possession of the portions allotted to them. On the relevant page of Sardar Abdul Waheed Khan's allotment order, there is a note that "possession of the cattle-shed on the ground floor will be delivered to him when accommodation for cattle is provided to Begum G. A.
9. Khan and Abdul Karim Khan allottees of the remaining portion of the house.'." From these allotment orders it appears that Sardar Abdul Waheed Khan was allotted a cattle-shed on the ground floor as well as living accommodation on the second and the third floors, whereas the remaining house was allotted to Begum G. A. Khan and Abdul Karim Khan.
10. When the settlement operation started, both parties applied for the transfer of the entire house on C. H. Forms. By an order made on the 14th of December 1959, the Deputy Settlement Commissioner transferred the whole house to Sardar Abdul Waheed Khan on the ground that he was a prior allottee and the house was indivisible.
11. Two separate appeals were filed against this order, one by Mst. Ghafuri Begum as the sister of Begum G. A. Khan who had died in the meantime; and the other by the legal representatives of Abdul Karim Khan. Both the appeals were dismissed by the learned Additional Settlement Commissioner by his order dated the 7th of March 1960. It was contended before this Officer that the date of the appellant's possession of the house in dispute should be counted from the date of the allotment of their Hafizabad house, for the reason that the Gujranwala house had been obtained in exchange for that house after approval by the Rehabilitation Department. The learned Additional Settlement Commissioner rejected this contention, observing that if the exchange had been ordered by the Department in the public interest, the period of the previous allotment could have been counted, but in this. Case the exchange was for the convenience of the parties, and, therefore, they could not get the benefit of the previous allotment of another evacuee pro--perty.
12. As a result, he decided the question of priority between the contending parties on the basis of the respective dates of their allotments. He also held the house to be indivisible, and observed that this was common ground between both the parties. As a result, he dismissed both the appeals.
13. The appellants thereupon filed a revision petition which was dismissed by the learned Settlement and Rehabilitation Commissioner, Lahore Division,. By his order dated the 4th of May 1960. He also refused to accept the appellants' contention that they should be given the benefit of the Hafizabad allotment for the purpose of establishing their prior possession of the house in dispute.
14. The appellants thereafter filed a second revision petition before the: learned Chief Settlement Commissioner, which was also dismissed on the 28th of February 1962. The learned Chief Settlement Commissioner observed that he had personally inspected the premises and found that they did consist of a single indivisible unit. He took note of the fact that Sardar Abdul Waheed Khan was the prior allottee of the house in dispute, and held that it was not possible for the Department to consider the date of allotment of a house at Hafizabad while transferring the house at Gujranwala.
15. Aggrieved by the consistent refusal of the Settlement authorities to transfer the house to them, the appellants invoked the writ jurisdiction of the High Court, but their writ petition was dismissed by a learned Single Judge by his order dated the 19th of June 1963. Their appeal under clause 10 of the Letters Patent was also, as already stated, dismissed by a Division Bench of the same Court on the 24th of May 1966.
16. Leave to appeal was granted in this case to consider the following two points : .
(a) Whether the exchange effected at the instance of the appellants' predecessors-in-interest should be deemed to carry with it the benefit of the earlier allotment order, so that to the possession of the Gujran--wala house there should be tacked on the period of possession of the Hafizabad house; and
(b) Whether the Settlement authorities were right in being guided by the mere dates of formal allotment orders to determine the comparative entitlement of the parties, as there was no question of possession of the Gujranwala house having been taken otherwise than under proper authority.
17. Before we discuss the questions on which leave to appeal has been granted in this case, it would be appropriate to take note of certain facts pointed out by the learned counsel for the respondents, and having a direct bearing on the dispute before us. It is submitted that the predecessors of the appellants had never held any allotment for house No. BIV-12S-39, Hafizabad, and that for that reason the application made by them on the 26th of February 1953 asking for the exchange of the house in dispute for the Hafiz--abad house just mentioned, was based on a misrepresentation of facts. The learned counsel contends that the approval to the exchange having been obtained by a misrepresentation of facts, should be regarded as being a nullity in the eye of law, and accordingly no question should arise of tacking on the previous allotment of the Hafizabad house .To the possession of the disputed house.
18. On behalf of the appellants, it is stated that in fact the predecessors of the appellants were the allottees, with effect from 10-2-1951, of house No. B1I-2S-1095 in Hafizabad Town, and that it must have been by mistake that in their application of the 26th of February 1953, as well as in the order of the Deputy Rehabilitation Commissioner dated the 21st of March 1953,. Approving the exchange, the number of Hafizabad house was stated to be BIV-12S-39. It is asserted that Deputy Baqir Hussain did move to the appellants' house bearing No. BII-2S-1095, but later on he exchanged it with. House bearing No. BIV-125.39, Hafizabad, and, therefore, no advantage can accrue to the respondents on the basis of this technicality.
19. We find that the only order produced by the appellants in respect of their previous allotment relates to house No. BII-2S-1095, Hafizabad, and there is no explanation whatsoever why an altogether different house of Hafizabad was mentioned by the two predecessors of the appellants in their exchange application dated the 26th of February 1953. In the order passed by the Deputy Rehabilitation Commissioner on the 21st of March 1953, approving the exchange, the house number of Hafizabad was exactly the same as stated in their application. At no stage did the appellants or their pre--decessors-in-interest point out to the Settlement authorities that the number of Hafizabad house had been wrongly recorded in the application and the approval order. It was only in the writ petition filed in the High Court, that the appellants, for the first time, mentioned the number of Hafizabad house as BII-2S-1095. This conduct of the appellants and there predecessors- -in-interest does cast a reflection on the bona fides of the request embodied in their exchange application of the 26th of February 1953. In these circums--tances, the learned counsel for the respondents appears to us to be right in contending that the question of considering whether the period of the'$ previous allotment could be tacked on to the possession of the disputed house should not arise, as the exchange order does not relate to the house for which an allotment order has now been produced by the appellants. In other words the factual basis for considering this question does not exist.
20. However, even on the legal plane there does not appear to be much substance in the contentions raised on behalf of the appellants. The question of entitlement to the transfer of evacuee houses, as between claimants, has to be decided in terms of Paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act). This paragraph lays. Down as follows "1. House.-A house in possession .Of a claimant or a parent, son, daughter or spouse of the claimant, being a house which such parent, son, daughter or spouse does not' claim under the provisions of the 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 determined 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 possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."
21. It will be seen that an essential requirement for the purpose of creating entitlement to the transfer of an evacuee house is possession of the said house by the claimant or his .Parent, son, daughter or spouse etc. The Para--graph contemplates that in case of a contest, preference has to be given to a. Claimant in prior possession of the house, and this condition has no reference to the claimant's possession of any other evacuee house.
22. The same result appears to follow from a consideration of the definition ,of the term "possession" in clause (6) of section 2 of the Act, according to which, "possession" means possession obtained in pursyance of an order passed on or before the 20th day of December 1958 by Rehabilitation autho--rity or any other Officer authorised or permitted by the Central or Provincial Governments.
23. The second proviso to this clause contemplates that "the Central Government may, by order in writing direct that a class or classes of such persons as have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession) for the purpose of this Act" If the intention of the Central Government had been to allow benefit of possession of properties other than those which .Are sought to be transferred, it would have issued a notification in this behalf on the lines of the notification already issued by it relating to the cases of allottees who failed to take possession due to no fault of their own, of wives residing with their husbands, and of persons who entered evacuee properties without any authorisation. In the absence of such a notification ,enlarging the definition of "possession," as given in the parent clause, in relation to persons obtaining properties by exchange with those already allotted to them, we must interpret the provisions of Paragraph 1 of the Schedule to the Act as clearly relating to the possession of the property in dispute without any reference to the previous allotment or possession of any .Other property.
24. If the benefit of previous allotments of other properties is allowed in the manner suggested by the appellants, there is a possibility of serious prejudice being caused to the rights of persons who have all along been in possession .Of the property in dispute, have thus become entitled to its transfer on account of their length of possession as compared to other contestants occupying the same property. A person from a sma ll mofussil town can, in the guise of this benefit, be planted on a valuable property in a big town like Lahore, Rawalpindi or Multan, etc., and claim precedence over the actual occupants on the basis of his prior allotment outside these towns. Such a result is obviously not permitted or contemplated by the law as it stands at present. It is, therefore, not at all permissible to take into account the Hafizabad -allotment while determining the comparative merits of the parties in regard to the transfer of the Gujranwala house. It is possible that this view may cause hardship in a case where a person is dislodged, in the public interest, from evacuee property earlier allotted to him, but such a result cannot be avoided in the face of the clear provisions of law having a bearing on the matter. However, the present is not a case of this kind as here the exchange was merely for the mutual convenience of the parties and not in the public interest.
25. The learned counsel for the appellants referred us to Madina Begum v. Deputy Settlement Commissioner (PLD 1968 Lah. 945), in which a Division Bench of the High Court took the view that the benefit of the previous allotment of another property could be given to an applicant for the transfer of a property in his present possession which had been given to him in exchange in the public interest for the property originally occupied by him. We find that the learned Judges have not discussed the question with reference to the relevant provisions of law having a bearing on the meaning of the term "possession", and the conditions laid down in Paragraph 1 of the Schedule to the Act for the purpose of determining preferential entitlement in the case of a contest between two claimants. Nor did they take into account an earlier judgment delivered by Mushtaq Hussain J , in Karamat A.I Khan v. Settlement Commissioner (PLD 1966 Lah. 626) in which the learned Judge had expressed the view that the word "possession" in Paragraph 1 of the Schedule to the Act referred to house, transfer of which was being made to a particular person, and it was incorrect to say that while computing the date of possession of a house which was to be transferred, the date when the claimant got into possession of any other house which he had to leave because it was needed by the Government or the Rehabilitation Department could be taken into consideration. We have no hesitation in endorsing the view taken by Mushtaq Hussain, J., and holding that the point has not been correctly decided by the Division Bench in the case of Mst. Madina Begum.
26. The benefit of the previous allotment of the Hafizabad house thus not being available to the appellants, the matter was to be decided with reference to the facts pertaining to the house in dispute. Before the Deputy Settlement Commissioner, the Additional Settlement Commissioner and the Settlement Commissioner, the appellants had been asserting their better entitlement on the basis of their previous allotment of the Hafizabad house. It was only in their grounds of second revision before the Chief Settlement Commissioner that they asserted prior possession of the house in dispute, contending that the determining factor should be the date of the approval of the exchange, namely, the 21st of March 1953, and not of the actual allotment in their favour, namely the 9th of December 1953. In paragraph 11 of their grounds of second revision, they stated that "it is proved from the documentary evidence that the possession of the petitioners is prior as compared to the respondent." It was submitted by Mr. Mahmood A.I Qasuri that the learned Chief Settlement Commissioner had failed to decide this question, thereby rendering his order liable to be set aside in the exercise of the extraordinary jurisdiction of the High Court. In support of this submission, the learned counsel referred us to British Westinghouse Electric & Manufacturing Company Limited v.
27. Underground Electric Railways Company (1912 A C 672), Lee v. Moore ((1955) 1 All E R 65), Re : Gilmore's Application ((1957) 1 All E R 79) and Rahim Shah v. Chief Election Commis--sioner (PLD 1973SC24).
28. It is not necessary to dilate on these cases, for the reason that the principle is well established that if a statutory Tribunal fails to exercise jurisdiction vested in it by law, such a failure would be open to correction in the exercise of the power of judicial review vesting in the superior Courts under the Constitution. The Court may, in appropriate circumstances, remit the case to the Tribunal concerned for deciding the question left undecided, or it may itself proceed to determine the matter if the relevant material is already present on the record and such determination does not entail an enquiry into disputed questions of fact.
29. The learned counsel for the respondent submitted that this was not at all a fit base for being remitted to the Settlement authorities for a fresh decision on the question of prior possession, as the evidence now relied upon by the appellants was not produced before any of the Settlement authorities; nor was it a case which could be decided by the Supreme Court itself, as several disputed questions of fact were involved in the matter.
30. We consider that there is substance in the submissions made by Mr. Akhlaque Hussain. It is indeed correct that the evidence on which reliance is now sought to be placed on behalf of the appellants was not produced before the Settlement authorities. The order according approval to the exchange does not itself recite the possession had been delivered to the parties; on the contrary, it stipulated that the exchange was subject "to the payment of rent due and the submission of applications on the prescribed forms for the allotment of the respective houses by both the parties". The order of allotment issued to the appellants on the 9th of December 1953, like the one issued to respondents on the 3rd of September 1953, purported to show that possession was delivered on the date of the allotment. A copy of the survey register was placed before the Court to show that the appellants had taken possession on the 21st of March 1953, but in an affidavit filed by the late Sardar Abdul Waheed Khan, in the High Court, serious objections were taken to the genuineness of this copy, including the objection that the date of possession of the appellants was mentioned in pencil which was rather unusual for entries appearing in a formal document like the survey register prepared by the Rehabilitation Department. The survey register was never pressed into service before any Settlement authority, including the Chief Settlement Commissioner. In these circumstances, the appellants do not appear to us to be entitled to rely on this document at this stage, especially when its genuineness is being strongly disputed by the respondents.
31. Another document relied upon by the learned counsel for the appellants is a notice issued by the Rehabilitation Department on the 27th of May, 1953, calling upon the appellants to show cause why they should not b-- ejected from the house in dispute, as they had occupied the same without complying with the conditions mentioned in the order by which the exchange was approved. It is submitted that this document, at any rate, shows that on this date the appellants were in possession, whereas respondents entered on the property on the date of allotment, namely, 3-9- 1953.
32. It is indeed true that this notice does evidence the fact that at least on the 27th of May 1953 the appellants were in possession of the property, but this notice also shows that the Department did not treat them as being in authorised possession, for they had not complied with the conditions laid down in the exchange order dated the 21st of March 1953. In any case, this notice does not prove possession earlier than the 27th of May 1953. Further, it also needs to be mentioned that the appellants did not at any stage refer to this notice, nor relied upon its effect as to possession, during the proceedings before the Settlement authorities.
33. On the other hand, the learned counsel for the respondents has pointed out that both in the application submitted by the appellants on the 26th of Febru--ary 1953 for the exchange of the Hafizabad house with the house in dispute, as well as in. The order passed by the Deputy Rehabilitation Commissioner on the 21st of March 1953, it is clearly recited that the respondent Abdul Muqit Khan son of Sardar Abdul Waheed Khan had already applied for the allotment of this house, and there is no explanation why this application was not allowed, and instead Abdul Muqit Khan was forced to accept the predecessors of the appellants as joint allottees. The learned counsel submitted that these facts disprove the claim now put forward that the appellants obtained prior possession as this was not possible in view of the earlier application of Abdul Muqit Khan.
34. Mr. Akhlaque Hussain then referred us to an application which Sardar Abdul Waheed Khan had made on 2-5-1953 for the formal allotment of the house in dispute in his name, in substitution of his son Abdul Muqit Khan. Against question No: 9 of this application, Sardar Abdul Waheed Khan stated that he was at that time residing in this house which stood allotted in the name of his son Abdul Muqit Khan. This application having been made at a time when there was no dispute between the parties as to the date of possession, it would tend to show that on the 2nd of May, 1953, Sardar Abdul Waheed Khan and his son were residing in this house. Learned counsel for the respondents also referred us to still another application made by Abdul Muqit Khan on 13-5-53 to the Deputy Rehabilitation Commissioner praying that the allotment of the house may be transferred to the name of his father Sardar Abdul Waheed Khan. In this application Abdul Muqit Khan has shown his residence in the disputed house.
35. It would thus appear that this is indeed a case where the question of prior possession, as distinguished from the effect of the prior allotment in Hafizabad was not raised as such before the Settlement authorities up to and including the Settlement Commissioner, even in second revision, the evidence now sought to be relied upon by the appellants was not produced. For this reason no justification is made out for remitting the question to the Settlement authorities for a fresh decision on the point.
36. Nor is it possible for this Court to decide the question on the basis of the material available on the record. There being no authentic evidence, apart from the allotment orders with the endorsements thereon of delivery of possession, already mentioned by us, it would need an enquiry into disputed questions of fact to determine the genuineness of the entries in the survey register, the effect of the two applications made by Sardar Abdul Waheed Khan and his son Abdul Muqit Khan on the 2nd of May 1953 and the 13th of May 1953 respectively, as well as of the notice of ejectment served by the Rehabilitation Department on the appellants on the 27th of May, 1953. These are clearly questions on which we should not embark at this late stage of the litigation between the parties. In arriving at this conclusion we have also been influenced by the fact that Abdul Muqit Khan had already applied for the allotment of the house in dispute in December 1952 and there v-as apparently no reason why his request was not allowed and instead he was compelled to accept the two predecessors-in-interest of the appellants as joint allottees on the basis of an application made by Begum G. A. Khan and Abdul Karim Khan on the 26th of February 1953. In the face of the earlier application of Abdul Muqit Khan there does not appear to be any valid reason why he should not have taken possession of the property until the 3rd of September 1953 whereas the appellants' predecessors should have assumed possession on or about the date when approval was accorded to their proposal for exchange. All these circumstances disincline us to have the matter re-opened at this stage.
37. Apart from these considerations, we find that the legal position is also against the appellants. It is correct that Paragraph 1 of the Schedule to the Act, which prescribes the basis for determining the comparative merits of claimants contending for the transfer of the same property, speaks of the date of possession, and not of allotment, and to that extent it can be said that the correct terminology has not been used by the Courts below for deciding the dispute between the parties.
38. But the term "possession" as used in this Para--graph has reference to its definition as given in clause (6) of section 2 of the Act. It will be useful to reiterate that definition here, namely, "possession means possession obtained in pursuance of an order passed on or before the E 20th day of December 1958 by a Rehabilitation Authority or any other Officer authorised or permitted by the Central Government or Provincial Governments." We have seen that the Rehabilitation Department did not regard the order of the 21st of March 1953 as authorising the appellants to take possession of the house in dispute. The reply, if any, which the appellants may have sent to the notice of the 27th May 1953 has not been placed on the record, nor have they supplied copies of any subsequent orders which may have been passed in this behalf by the Rehabilitation authorities. The only subsequent orders shown to us are the two allotment orders given to the parties, along with endorsements to the effect that they had taken possession of their portions on the dates on which these orders were issued. It would thus follow, on these fact, that the parties before us obtained possession, as defined in the Act, on the dates mentioned in the allotment orders. To this extent, therefore, the Settlement authorities, as well as the High Court, were right in regulating their respective entitlements in accordance with these dates as they were not merely the dates of allotment but also the dates of possession as defined by law.
39. It was, however, contended on behalf of the appellants that this view overlooks the effect of the notification issued by the Central Government on the 13th of October 1959. Under the second proviso to clause (6) of section 2 of the Act, according to which undisputed occupation, without any authorisation, also stands on the same footing as possession obtained under an order mentioned in the definition. In support of this proposition Mr. Mahmood A.I Qasuri referred us to Barkat A.I v. Mohammad Sharif (PLD 1966SC817), Abdul Majid Shaida v. Noor Jahan (PLD1967SC221), Khurshid Mohammad v. Settlement & Rehabilitation Commissioner (PLD 1971 SC 498), Syed Mohammad Zaki v. Maqsood A.I Khan (Civil Appeal No. 3 of 1968, decided on the 30th of May 1974).
40. The proposition stated by Mr. Mahmood A.I Qasuri has indeed been reiterated by this Court in the cases referred to by him, but we do not see how it is relevant in the present context. The notification of the 13th of October 1959, which has been interpreted in all these decided cases, recites that "in exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the 21st day of December, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day." Now, it will be seen that the notification seeks to regularize the undisputed occupation of those persons who had not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the 20th day of December 1958 and, who would, therefore, have been deprived of any entitlement to the transfer of these properties for the reason that their occupation did not amount to possession within the meaning of the law. This could not, however, be the case with persons who had already obtained appropriate orders before the prescribed F date, namely, the 20th of December 1958, as their occupation would fall squarely within the definition of the term "possession" without the aid of any deeming clause or enlargement of the definition of the term possession by the Central Government by means of a notification issued subsequent to the enactment of the statute. It seems to us to be beyond doubt that the notification would apply only to those cases where the occupants of evacuee properties did not hold any allotment orders of a date prior to the 20th December 1958.
41. The parties before us being in possession of valid allotment orders issued in the year 1953, would not be covered by the terms of the notification of the 13th of October 1959, with the result that in their case no question could arise of treating their occupation, if any, prior to the issuance of the allotment orders in their favor, as qualifying possession within the meaning of clause (6) of section 2 of the Act. As a necessary consequence, possession in the present case must have reference to possession obtained in pursuance of valid orders passed within the meaning of clause (6) aforesaid. Any unauthorized occupation before the issuance of these orders would be completely irrelevant and not covered by any law, unless the subsequent allotment order itself regularised the same. But this was not done in the case of the appellants, no the respondent.
42. Another significant aspect which cannot be lost sight of, is that even if the notification of the 13th of October 1959, were to apply to cases of the present kind, namely, where proper allotment orders have already been issued much before the 20th of December 1958, the fact remains that on the 27th of May 1953, the Rehabilitation Department had disputed the occupation of the appellants by serving upon them a notice to show cause why they should not be ejected for having entered into the possession of the property without complying with the conditions of exchange mentioned in the order of the Deputy Rehabilitation Commissioner dated the 21st of March 1953. The appellants occupation could not, therefore, be described as undisputed occupation prior to the issuance of the allotment order in their favour on the 9th of December 1953.
43. For the foregoing reasons, we are of the view that the matter has been correctly decided by the Settlement authorities as well as the learned Judges in the High Court, and no justification has been made out for our interference. Accordingly the appeal fails and is hereby dismissed with costs.