1. ' MUHAMMAD Gut, J,-This appeal by special leave is from the judgment of a Bench of the Late High Court of West Pakistan at Lahore dated 20-5-1966 in Letters Patent Appeal No, 440 of 1963 reversing the judgment-of a learned Single Judge of that Court, dated 18-6-1963.
2. ' The dispute is over the transfer of a two-storeyed evacuee house No, SW-III-88-S-6, Krishan Nagar, Lahore. The two contestants for is transfer are :
(1) Abul Hassan, the appellant herein, a non-claimant and a prior allottee in possession of two rooms on the first floor; and
(ii) Mst. Maryam Bibi, respondent No, 1 herein, a claimant out of possession, who claims transfer on the basis of the occupation of her daughter being married to and living with her husband Abdul Qudus, who is a non-claimant and allottee of the ground floor and the northern top roof from a date earlier than 20-i 2-1958.
3. ' Each party filed its form for the transfer of the entire house to the exclusion of the other. The Assistant Settlement Commissioner exercising power of the Deputy Settlement Commissioner, divided the house into two portions transferring one portion to the appellant and the other to respondent No,
1. Both the parties went in appea1 before the Additional Settlement Commissioner, who, ride order dated 31-5-1961 allowed the appeal of the appellant and disallowed that of respondent No, 1 and transferred the entire house to the former for the reason that respondent No, 1 cannot take advantage of the possession of the house by her son-in-law: and as regards her daughter, although she was living with her husband, not being in possession of the house as its allottee she cannot transmit advantage of her occupation of the house to her mother, for the purpose of paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (Act XXVIII of 1958). The above decision was upheld in two successive revisions filed by respondent No,
1. A writ petition taken by her in the High Court also failed. A learned Single Judge following earlier decision of a Bench of that Court took the view that respondent No, 1 could have possibly taken advantage of the possession of her daughter on the satisfaction of two conditions, namely, that respondent No, 1 was a claimant and secondly, that there was none else to compete with her daughter in the matter of the transfer of the house. In the opinion of the learned Judge, though the first condition was satisfied, the second condition was wanting because the appellant was a rival contestant for the transfer of the house.
4. ' On appeal by respondent No, 1, the Letters Patent Bench reversed the decision of the learned Single Judge on the ground that the appellant herein being a non-claimant though in prior possession, cannot compete with respondent No, 1, who was a claimant even though she may be claiming transfer of the house indirectly though her daughter. For that conclusion, the learned Judges relied inter alia on the Central Government's Memorandum No, 3223-P. I-Reh. 60 dated the 7th March, 1960 according to which where the house in possession of the husband in pursuance of the order passed on or before the 20th day of December 1958 by a competent authority, his wife, if staying with him, will also be deemed to be in possession."
5. ' The learned Judges took the view, that by this deeming provision, the occupation of the house by the respondent's daughter as wife of Abdul Qudus was "possession" within the meaning of section 2
(6) of the Act, of which advantage could be taken by the respondent for the purpose of paragraph 1 of the Schedule. The learned Judges of the Letters Patent Bench sought support for this view from the earlier judgment of the High Court in Agha Shaukat All's case (I). Since Shaukat Ali's case was already under appeal in this Court, leave was also granted to examine the correctness of the view taken by the Letters Patent Bench in this case.
6. ' The question of law which arises for decision is whether a claimant displaced person, out of possession, can seek transfer of a house on the -basis of possession of his or her married daughter living with her husband, who is a non-claimant but an allottee of a part of the hduse, in preference to a non-claimant, who is a prior allottee in actual possession of another part of the house?
7. ' Shaukat All's case has since been decided and is reported as Agha Shaukat All v. The Chief Settlement Commissioner and another (2). That case concerned the contest between a claimant directly in possession of a part of a bungalow ard another claimant out of possession, claiming its transfer on the basis of occupation by his married daughter who was living with her husband, a local and an allottee of another part of the bungalow. The case however, was ultimately decided on the finding that the bungalow was divisible in two self-contained residential units and not on the basis of contest between a claimant in possession and an indirect claimant. The point in issue in this appeal, has been before this Court in two earlier cases though in a slightly modified form, in Abdul Majid Shaida v. Nur Jahan (3) and Ilam-ud- Din v. The Chief Settlement Commissioner (4). I will presently revert to these cases in some detail.
8. ' Among various conditions of eligibility for the transfer of property under the Schedule to the 1958 Act, is that the person seeking transfer should have been in possession of the property" within the meaning of that term as defined in section 2(6) of the Act. The scheme in the Schedule gives precedence to the claimants, non-claimants and locals, subject to certain limitations in that order.
9. But "possession" of the property remains an invariable condition under paragraphs 1, 2 and 3 of the Schedule, which deal with the cases of claimants, non-claimants and locals respectively.
10. ' The decision in this appeal thus turns on the proper interpretation of paragraph 1 of the Schedule, and the determination of the further question whether the respondent's daughter is, for the purpose of paragraph 1 of the Schedule, in possession of the property ? Paragraph 1 of the Schedule reads: "(1) Houses.-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 house, 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."
11. The main opening part of the paragraph deals liter alia, with the situation, where a claimant is out of possession, but seeks transfer of property on the basis of the "possession" of any of his relatives specified in the paragraph and any such relative does not himself or herself desire the transfer of the property. The two provisos deal with a situation where there are more than one person "in possession" in severalty and there is a contest between them inter se. This is not the case before us.
12. In the instant case, Abdul Qudus, an allottee of major portion of the house, though at one stage filed his NCH form, later withdrew it, leaving his mother-in-law and the appellant in the field. From the impugned judgment, it appears that the question whether Abdul Qudus had withdrawn his form was also debated, but the decision in the case proceeded on the premise that he had withdrawn his form. That being a question of fact cannot be reopened and must be accepted as correct, though appellant's learned counsel attempted to question it.
13. ' The answer to the question arising in this appeal turns on an answer to the further question whether the respondent's daughter by reason of her residence with her husband Abdul Qudus in the house in dispute and therefore, in its notional possession and able to avail of any incidental advantage that might accrue to her personally can also be treated to be in "possession" of the house for the purpose of above paragraph so as to lay a foundation for a similar incidental advantage in favour of her mother? This in my opinion is pivotal question in the case. The word "possession" has been defined in section 2 (6) of the Act. It reads: " 'Possession' means possession obtained in pursuance of an order passed on or before the 20th day of December 1958 by Rehabilitation Authority or any other officer authorised or permitted by the Central or Provincial Government: ' Provided that if a question arises whether an officer was so authorized or permitted, the decision of the Chief Settlement Commissioner in that behalf shall be final: ' Provided further 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."
14. ' The second proviso to the dednition was inserted on the 28th September 1959, by Ordinance LIII of 1950. Under the definition as it stood prior to this amendment, two essential conditions for the purpose of possession under the Act were that:
(1) it was authorized by or under the order of a competent authority ; and the order was made prior to the 20th December 1958.
15. ' If any of the above two conditions wanted the occupation of the house, did not qualify to be "possession" within the meaning of the Act. The second proviso, was inserted plainly to empower the Central Government to enlarge the definition by an order made in that behalf. Under this proviso, a, number of notifications have been issued. Memo. No, 3233-PI-60, of 7th March 1960, issued to treat by a deeming provision, the occupation of a-house by a wife living with her husband, to be in "possession" within the meaning of the Act. The memo. Is also relatable to the second proviso, though it does not say so expressly.
16. ' The daughter of respondent No, 1 is not herself an allottee and therefore, does not qualify under the main provision. However, the learned.
17. ' Judges of the Letters Patent Bench relying on the Central Government's Memorandum dated the 7th March 1960 took the view that since the -respondent's daughter is to be deemed to be in possession, there is no reason to refuse to her mother any advantage accruing from the legal fiction, for the purpose of paragraphs 1 of the Schedule. Learned counsel for the respondent supported this view by strongly relying upon the case of Illam-ud-din decided by this Court at the leave stage. ' That was a case of contest between a claimant, Zubaida Khatoon by name, who not being in possesssion of the evacuee house claimed its transfer through the possession of her son, an allottee in possession of a portion of the house, in preference to one Ilam-ud-din, a non- claimant allottee in poss-ssion of another portion of the same house. Ilam-ud-din having failed before the Settlement Authorities and in the High Court, to secure the transfer of the house, -sought leave of this Court to appeal. Leave was refused on the gronnd that a non-claimant displaced person or a local, although in actual possession cannot compete with a claimant in possession of the house whether directly or through his parent, son, daughter or spouse. The only point of distinction between the instant case and the precedent case is that in the latter case, Zubaida Khatoon's son was in actual possession of the house and therefore, her case fell to be dealt with directly under paragraph 1 of the Schedule. In the instant case, on the other hand, the person in actual possession of the house is the son-in-law of respondent No, 1 who is not among the relations specified in paragraph 1 of the Schedule. Respondent No, 1, however, seeks to rely on her daughter's residence with her husband in the house in dispute, which the learned Judges of the Division Bench have treated as effective for the purpose of paragraph 1 of the Schedule.
18. It goes without saying that the law shows definite tenderness for the claimants, in that among other things they can take advantage of the possession of any of their relatives specified in paragraph 1 of the Schedule provided that the latter "does not claim under the provisions of the Schedule' the property in his or her possession. This advantage is not available to non-claimants or local under paragraphs 2 and 3 of the Schedule. But B it is important to point out even in the case of specified relatives, "possess sion" of the property equally remains an essential condition for the transfe in favour of a claimant not in possession. In other words, if the claimant is not in "possession" of the property, the specified heir on whom he relies must be in its "possession" to sustain the preferential claim of th former for its transfer.
19. ' Learned counsel for the appellant however, strongly relied on this Court's decision in Abdul Majid Shaida v. Nur Jehan for the proposition that a claimant not directly in possession, who seeks to obtain transfer of evacuee property on the basis of the possession of any of the relations specified in paragraph 1 of the Schedule cannot take advantage of the two provisos to paragraph 1, so as to equate the notional possession under the Central Government's Memorandum of the 7th March 1960, with his own possession, for the purpose of taking precedence under the first proviso to paragraph 1. The facts of the precedent case in so far as they are relevant for the purpose of this appeal are, that one Abdul Majid Shaida a claimant, sought transfer of a house on the basis of the possession of his son Vakil Ahmad, in preference to Mst. Nur Jehan also a claimant living with her husband, who though not an allottee, was in "undisputed occupation" of another portion of the house. On behalf of Abdul Majid Shaida, it was canvassed that an indirect claimant, who seeks transfer of an evacuee house on the basis of the possession of his parent, son, daughter, or spouse under an allotment order, would take advantage of the two provisos to paragraph 1 of the Schedule, to take precedence over the other occupant. But the Court repelled that contention, because, ex facie, the two provisos to paragraph 1 were directed towards two different situations where there is a contest between actual occupants of premises. Therefore, this case cannot advance the petitioner's case before us, for the question that fell for decision in that case was wholly different. Further- The pivotal question yet remains to be seen, namely whether the notional possession of daughter of respondent No, 1 can also be treated possession for the purpose of paragraph 1 of the Schedule.
20. As pointed out already, the Central Government's Memorandum of the 7th March 1960 has been issued under the second proviso to section 2(6) of the Act, which defines possession". This proviso, empowers the Federal Government to extend the meaning of possession "for the purpose of this Act". Settlemen of claimants by transferance of property to them under the Schedule and various Schemes framed under the Act, is paramount purpose of the Act. Therefore, it v, ould be eminently consistent with the purpose of the Act to treat the daughter of respondent No 1 to be in possession of the house for the purpose of paragraph 1.
21. ' It is necessary to observe, that by equating the notional possession of the daughter of respondent No, 1 with her (daughter's) possession for the purpose of paragraph 1 of the Schedule does not entail any unwarranted extension of fiction, which was disapproved by this Court in Begum B. H.
22. Syed v. Mst. Afzal Jehan Begum (1) a case also relied upon by learned counsel for the petitioner.
23. That was a case of fusion of two fictions created by two different notifications issued for two different purposes. In the instant case, the sheet anchor of the preferential claim of respondent No, 1 is paragraph t of the Schedule, which on its plain reading per se creates a preferential right in her favour, by virtue of "possession" of her daughter, which because of the extended meaning given to it by the Memorandum of the 7th March 1960, must be understood in extended sense. Paragraph 1 of the Schedule on its analysis is designed to lay the order of precedence for the transfer of immovable property; it does not create a fiction. In East and West Dwelling Co. Ltd. v. Finshury Borosingh Council, Lord Asquith of Bishopstone observed: "If you are bidden to treat an imaginary state of affairs as real, you Must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it."
24. The putative state of affairs is the residence of daughter of respondent No, 1, with her husband in a portion of the house which indisputably is "possession" within the meaning of section 2 (6) of the Act. Under paragraph 1 of the Schedule to the Act, an inevitable consequence, from the above putative fact would be, that she can if otherwise qualified so to do, or any of her claimant relation specified in paragraph 1 of the Schedule (her mother in this case) would, in the absence of a direct claimant, b entitled to the transfer of the house, in preference to the petitioner herein, who is a non- claimant.
25. ' For the foregoing reasons, the case was rightly decided by the Letters Fatent Bench and the appeal is dismissed.
26. ' In the circumstances of the case, parties are left to bear their own costs.