The dispute relates to the roof of Shop No.5 situated in property No.G-402, Inside Delhi Gate, Chowk Wazir Khan, Lahore. This shop forms part of a composite property consisting of 7 shops on the ground floor. It is claimed that there is a Deory on the ground floor contiguous to Shop N6.1 wherefrom a staircase leads to the inter and first floor of the property. There is a room in the inter floor end above it, there is another room in the first floor. The seven shops are in possession of seven persons and the room in the inter floor is in possession of one Abdul Hamid while the room in the first floor is in possession of respondent No. 1. Allegedly the Deory and the 'staircase are in the common use of all the occupants of the property. The construction on the inter floor and the first floor is above Shop No. l only and these rooms, it is claimed, have no connection with the other six shops.
2. The petitioner, being in occupation of Shop No.5 filed a transfer form under Settlement Scheme No. VIII. D.S.C. vide order dated 30-11-1973 transferred the shop to him. PTO was issued in his favour on 27-6-1974. It is claimed that the roof on the shop of the petitioner is vacant and had been in possession of the petitioner throughout and respondent No. l had no connection, whatsoever, with the roof of the shop transferred to him.
3. The remaining shops were transferred to the occupants by the Settlement Authorities in due course. The occupants of the rooms in the inter floor and first floor also applied for transfer of the rooms in their favour under the Scheme for --Management and Disposal of Available Urban Properties and these rooms were transferred to them by order dated 30-4-1980. A perusal of this order shows that respondent No. l was transferred the room in his occupation alongwith the roofs of 7 shops, inclusive of the shop of the petitioner, situated on the ground floor.
4. On learning about this development, the petitioner filed a revision petition which was dismissed by respondent No.3 on 8-3-1981. Hence this writ petition.
5. It is contended by the learned counsel for the petitioner that shop No.5, was transferred to the petitioner on 27-6-1974 alongwith its roof. This order had attained finality end could not be disturbed and the impugned orders amounted to depriving the petitioner of his ownership qua roof of Shop No.5, which was illegal. It was also submitted that according to law unless specified otherwise in the transfer order itself, the transfer of a part of a composite building would mean transfer from ground to sky and in the instant case the petitioner by virtue of order dated 27-6-1974 had become the owner of the roof on the top of Shop No.5. It is claimed that, in this view of the matter, the impugned orders merited to be struck down.
6. On the other hand, it is urged that the petitioner had been, no doubt, transferred Shop No.5 but it was not specifically mentioned in the transfer order that the roof of the shop was also being transferred to him. It was submitted that the petitioner had never been in occupation of the roof of the shop which throughout had been in the use and occupation of the contesting respondents.
With reference to the site plan placed on record (page 33), it is pointed out that the petitioner had no access to the roof of his shop and this fact by itself proves that the roof of the shop had not been transferred to him.
7. It is well settled that unless specifically mentioned otherwise; transfer of a shop would necessarily mean its transfer from ground to slay. The entire shop had been transferred to the petitioner and he is, therefore, fully entitled to --claim that the roof of the shop also stood transferred to him. Refer Nazir and others v. Syed Israr Ahmad, etc. (1981 SCMR 829).
8. In this view of the matter, the impugned orders passed by respondents Nos.2 and 3 dated 30-4- 1981 and 8-3-1981 respectively, to the extent of transferring roof of the shop of the petitioner, bearing No. 5 to Malik Sikandar-- respondent No. l are declared to be without lawful authority and of no legal effect. Learned counsel for the petitioner, under instruction, has given an undertaking that the petitioner would make his own arrangement through his shop, for reaching its roof and would not be entitled to claim of the ownership or right of use of the staircase situated on the side of Shop No. 1. He also undertakes to erect ' Parda wall' over his shop so as to segregate the same from the roof of the rest of the property. No costs.