1. HAMOODUR RAHMAN, C. J.-This appeal by special leave is directed against an order of a Division Bench of the former High Court of West Pakistan, Lahore Seat, dismissing a Letters Patent Appeal.
2. The said appeal arose out of an order of a learned Single Judge of the said High Court dismissing a Writ Petition (No. 1204/R of 1961) in limine.
3. The dispute in this case related to the possession of an evacuee house No. 17, Street No. 24, Dev Samaj Road, Ram Nagar, Lahore. It was originally jointly allotted to Kifayat Ullah and Inayat Ullah, two sons of respondent No. 2 herein, who also occupied the premises along with her sons. In 1951, Kifayat UIlah was transferred to Karachi. Thereupon, the ground floor vacated by Kifayat Ullah was occupied by the appellant, who subsequently managed to get it allotted to himself.
4. Later, Inayat Ullah constructed his own house in Chauburji on a plot of land obtained under the Improvement Trust Scheme. He was then directed to shift to his own house and to accommodate his mother, respondent No. 2 herein, with him. The upper floor in occupation of Inayat Ullah and his mother was, by the same order, allotted to one Niaz Muhammad.
5. The appellant and respondent No. 2 both went up in appeal against this order of allotment in favour of Niaz Muhammad. The Additional Rehabilit--ation Commissioner, by his order of the 2nd of May 1952, allowed the appeal of respondent No. 2 and directed that her possession should not be disturbed. The appeal filed by the appellant was, however, dismissed with the observation that if his family is too large to be accommodated on the ground floor then some other accommodation may be found for him, "but he cannot displace Mst. Rehmat Bibi". The appellant went up in revision from this order without any success.
6. On the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the appellant and respondent No. 2 both applied for the transfer of the house as claimant displaced persons in occupation of portions thereof. Both claimed the entire house-respondent No. 2 on the ground that she was a prior occupant and the appellant on the ground that he was an allottee in possession. The Deputy Settlement Commissioner, by his order of the 5th of November 1959, allotted the whole house to the appellant treating respondent No. 2 as an "unauthorised occupant".
7. She went in appeal against this order to the Additional Settlement Commissioner, who accepted her contention that since she had been in possession of the upper portion from the 15th of September 1947, she had a preferential right to the transfer of the house, which was indivisible. The order of the Deputy Settlement Commissioner was, accordingly, set aside and the entire house was transferred to respondent No. 2.
8. The appellant sought to challenge this order in revision and second revision but failed. He then went to the High Court in writ jurisdiction but his petition was dismissed in limine. The Letters Patent Appeal has also failed.
9. Leave was granted to the appellant on the 6th of May 1965 to consider whether the possession of respondent No. 2 prior to the 2nd of May 1952 (the date of the order of the Additional Settlement and Rehabilitation Commissioner) could be taken into account under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, to give her a preferential right to the transfer of the property.
10. Before we enter into the merits of the appeal, we have to dispose of a preliminary objection which has been taken by the learned Advocate appearing for respondent No. 2. His objection is that the appeal has since abated by reason of the death of respondent No. 2, Mst. Rahmat Bibi, during the pendency of the appeal, on the 25th of September 1971, since no application was moved for bringing her heirs on record until the 29th of December 1971, which was four days after the expiry of the period of limitation. The office-- note, however, indicates that the application for substitution was within time as the 25th of December 1971 was a closed holiday and the 26th of December 1971 was a Sunday, and, thereafter, the Court was closed for the winter vacation during which period the office also remained closed for filing. In the circumstances, there was no delay at all. The objection as to the abatement of the appeal is, therefore, overruled.
11. So far as the merits of the appeal are concerned, the learned counsel, appearing for the appellant, has contended that the order of allotment in favour of Niaz Muhammad, which was passed on the 25th of April 1951, impliedly cancelled the previous orders of allotment in favour of the sons of respondent No. 2. In any event, the respondent No. 2 could not have any higher status than an indirect claimant seeking transfer on the basis of the allotment in favour of her sons. As against a direct allottee claimant she `t cannot, therefore, be given any preference.
12. The learned counsel has also placed strong reliance on the order of the Deputy Rehabilitation Commissioner passed on the 2nd of August 1951 directing the ejectment of the occupants of the upper floor of the premises including respondent No. 2 and giving its possession to the appellant.
13. This order of the Deputy Rehabilitation Commissioner cannot prevail over the subsequent order of the Additional Settlement Commissioner, who in no certain terms, found that respondent No. 2, "Mst. Rehmat Bibi, who is a refugee from Ludhiana has also been living with him (her son Inayatullah) from the very start along with her other children and grand-children." Apart from this clear finding to the effect that she had been in continuous possession in her own right of the premises in dispute there is also a finding that she had actually cleared off the entire arrears of rent in respect of the premises occupied by her. Her possession is, therefore, prior to that of the appellant who, on his own showing, came in only in 1951 after Kifayat Ullah vacated the ground floor.
14. Under the extended definition of possession, as pointed out by this Court in the case of Barkat A.I v.
15. Muhammad Sharif (PLD 1966 SC 817), respondent No. 2; by reason of her undisputed occupation of the property before the 21st day' of December 1958, acquired a valid entitlement to the transfer of the premises even though she held no allotment order in her favour. Her right could not be defeated merely on the ground that some one else had subse--quently managed to get an allotment order in his favour of another portion of the property.
16. This view has been confirmed by this Court in the case of Abdul Majid Shalda v. Noor Jehan (PLD1967 SC 221) where it has again been pointed out that a party in undisputed occupation of an evacuee house, within the meaning of the Notification dated the 13th of October 1959 by which the definition of Possession was extended, stands on the same footing as an allottee.
17. This appeal is for the reasons given above without any merits and is accordingly dismissed, but in view of the special facts of this case we will leave the parties to bear their own costs.