1. ' MUHAMMAD AFZAL ZULLAH, C.J.--- This appeal through leave of the Court is directed; against the dismissal by the High Court, of appellants' Constitutional petition arising out of an urban Settlement case. The appellant No,1, it is stated by the learned counsel, was an old tenant in the premises in dispute which after partition was declared as evacuee property. The appellant had installed machinery therein making it an industrial concern. It was rented out to one Muhammad Ashraf by the said appellant. Disputes arose. Matter went before the Rehabilitation Authorities as well as the Custodian Authorities and later on it came before the Settlement Authorities. During the years before 1960 the property was formally allotted to New United Metal Works/Abdul Ghaffar respondent. A further controversy arose as to the validity of the said allotment and its comparative worth and strength, vis-a-vis, the old tenancy of the appellant. The allottee/respondent having succeeded before the lower departmental authorities the appellants' writ petition also failed in the High Court. Leave to appeal was granted to examine the following limited question:-- "Whether in facts and circumstances of this case the petitioner could legally be considered in possession of the property in dispute so as to be eligible to claim its transfer on that basis under the settlement laws, particularly that in view of the Additional Custodian, Muhammad Ashraf was only their licensee. "
2. ' After hearing the learned counsel at length and also after perusing all the relevant record and orders, the factual position which emerges therefrom, is as follows:-- ' While the respondents side has a valid allotment which was made on the ground that the appellants had illegally given the property on rent to Muhammad Ashraf, but, at the same time the declaration that the appellant was an old tenant in this very property, has remained in field.
3. Secondly, while both the appellants and the allottee/respondent were not in physical possession, Muhammad Ashraf (whether as a tenant or a licensee) accepted the respondent/allottee as his source of occupation. An Additional Custodian declared that in these circumstances unless the Rehabilitation Authorities are able to deliver the physical possession to the allottee/respondent the appellant would be deemed to be in physical possession. And lastly, that although Muhammad Ashraf had flouted the right and interest claimed by the appellant in the property in question, the Rehabilitation Authorities, it is noted in the order of the Additional Custodian were also thus trying physically to evict Muhammad Ashraf the person in possession for the benefit of the allottee. It may also be mentioned that a revision having been filed before the Custodian against the order of the Additional Custodian the possession of the allottee/respondent was upheld though without disturbing the declaration that the appellant was an old tenant. It needs to be further observed that while the respondent/allottee is a displaced person the appellant is local.
4. ' Learned counsel for the appellant has tried to show that on account of the appellant's old tenancy the property could not be treated as having formed part of the compensation pool. He also contended that the allotment in favour of the respondents side was illegal. Leave to appeal was not granted on these points and it being a very old case we did not consider it proper to grant leave to appeal now on these additional questions.
5. ' Learned counsel then argued that the appellant on account of the declaration that he was an old tenant and also on account of the reason that Muhammad Ashraf the person in possession was his licensee, has a preferential right to the transfer of the property. We do not agree with him. The mere declaration of old tenancy in favour of the appellant in the circumstances of this case will not make his case better than that of the respondent/allottee-particularly when the allotment was made on account of a default committed by the appellant. The other fact that Muhammad Ashraf was originally a licensee of the appellant also will not make difference. When the controversy arose that relationship had been disowned by Muhammad Ashraf. He was a mere occupant and had by then sided with the respondent/allottee, therefore, this relationship-between the allottee, and the person in occupation gives a further aid to the allottee; namely, that he was more capable of obtaining physical possession from a person who had attorned to him than the appellant whose alleged right to recover the possession had been flouted by the so-called licensee. Thus, the allottee in these circumstances shall be deemed to be in possession. The view expressed by an Additional Custodian to the contrary in reality does not go against the above supposition. If the order passed by him is properly analysed, there are inherent contradictions in that order. Its analysis also leads one to the supposition that if according to the learned Additional Custodian the Rehabilitation Authorities had performed their duty properly the respondent/allottee was more entitled to the possession than the appellant. Not only these definite remarks were made indicating that the Rehabilitation Authorities should have secured physical possession for the allottee. That being so, in the aforenoted circumstances, even according to Additional Custodian, notwithstanding the technical process through a deeming mechanism that the appellant could still be treated as in possession, in reality the allottee/respondent as explained above, under the principles of law and jurisprudence, would be deemed to be in possession. Somewhat similar approach though in different circumstances was approved in Managing Committee Masjid Muhajrin v. Mst. Zainab Bibi and others 1974 SCMR 230.
6. ' We find no force in this appeal. The same, accordingly, is dismissed. As the respondent side is unrepresented we have deliberately not made any comment with regard to the machinery. More so because this aspect was not the subject-matter of leave to appeal. Accordingly this judgment shall not influence any proceedings/order preceding thereto. There shall be no order as to costs.