1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to a shop premises situated at No. 2- 6/26, Kandhari Bazar. Quetta. It was originally allotted to Muhammad Siddiq or Sadiq and one Ghulam Ullah. They partitioned the shop' between themselves by erecting a kutcha wall Subsequently, both left the place Muhammad Siddiq or Sadiq discontinued the business which he' wasp carrying on in partnership with the present appellant. The latter, however, continued to carry on the business on his own. The divided portions of the premises were then renumbered as 2-6/26 and 2-6/26-A.
2. Although Muhammad Siddiq or Sadiq had discontinued his business and given up possession of the shop, the appellant continued to pay the rent thereof to the Custodian Department in the name of the original allottee and subsequently, applied for the formal allotment of the shop to himself.
3. This proceeding was contested before the Settlement Authorities by several persons including the present respondent, but in revision, the Rehabilitation Commissioner-own-Additional Custodian of Evacuee Pro--perty, Baluchistan, ultimately, on the 15th of May, 1954, allotted the shop to the appellant In preference to the respondent. This order was first sought to be reviewed. Then a second revision was filed before the Custodian without any 'success. One Muhammad Latif then carne to the High Court of West Pakistan, Quetta Circuit, in the writ jurisdiction. This petition was dismissed on the 23rd of April, 1959, and an application for the review of that judgment also failed on the 6th of November, 1959.
4. It may be mentioned here that the other divided portion came to be allotted subsequently to Raz Muhammad who, it is said, was a minor at the relevant time; but he was a local. In these circumstances, when settlement operations started, the appellant applied for the transfer of the entire premises on a C. S. Form No. QTA-636. This form was submitted to the Settlement Department on the 14th of July, 1959, and a receipt obtained for the same. Thereafter, on the 8th of October, 1959, the appellant filed another application requesting that the complete shop No.2- -6/26 should be treated as one unit and transferred to him, as he was a retired Ordinance Officer, and the allottee of the other portion was a local.
5. The evaluation price of the property was fixed at Rs. 30,720 and the appellant was, by a notice issued on the 13th of October, 1959, called upon to attend the office of the Deputy Settlement Commissioner with his compensation book. Thereafter a P. T. O. No. 13693 was issued in his favour on the 17th of November, 1959 for the entire shop No. 2-6/26 at the evaluation price of Rs. 30,720 plus additional payments of Rs. 742. This evaluation price was calculated on the basis of the rent of both the portions at Rs. 32 per mensem per portion. In due course, a P T. D. Also came to be issued to the appellant on the 2nd of July; 1963, for the entire shop premises.
6. The second round of litigation started after the appellant on the 30th of June 1960, served a notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, on the other allottee Raz Muhammad informing him of the transfer of the shop in his favour by the issuance of the P. T, O. On the 17th of November, 1959, and asking him to pay up the arrears of rent by the 11th of July 1960. This notice was acknowledged on behalf of Raz Muhammad by his lawyer on the 8th of July, 1960. In this Raz Muhammad expressed his readiness and willingness to pay rent at Rs. 32 per month in respect of the portion in his occupation with effect from the 1st of July 1960, as he had already deposited the rents up to 30th of June 1960, with the Settlement Authorities. He also requested the, appellant to produce the Provisional Transfer Order for inspection. The rent for July, 1960, was sent by money order on the 3rd of August, 1960, and due intimation of this was given by another registered letter written by the lawyer on the same date.
7. The appellant, however, moved from the ejectment of Raz Muhammad on the 30th of October, 1961.
8. It is not without significance that in this proceeding the present respondent filed an application on behalf of Raz Muhammad praying for time to submit a rejoinder. In this application it was not stated that Raz Muhammad was still a minor, nor was it dis--closed in what capacity the present respondent was making the application. The rejoinder was actually filed on the 16th of March, 1962, through Mr. I. H. Hanafi, a learned Advocate of Quetta. The vakalatnama of this learned Advocate was signed on behalf of Raz Muhammad and witnessed by one Abdul Munnaf and the present respondent Abdul Hamid.
9. In this application for the first time, it was disclosed that Raz Muhammad was a minor and that the application for ejectment was not competent against Raz Muhammad alone, as tire shop in dispute was in possession and occupation of a firm called the National Trading Co. Since the 22nd July 1960, and no notice bad been served on the partners of the said firm.
10. On this objection, the appellant, on the 2nd of May, 1962, withdrew they application for ejectment of Raz Muhammad, and on the 16th of October, 1963, filed a fresh application for the ejectment of Raz Muhammad and the National Trading Co. Alleging that Raz Muhammad, who was the allottee of the shop had brought in the National Trading Co. As a subtenant after the service of the notice under section 30 on the 30th June 1960.
11. Again, an objection was filed to this proceeding by the present respondent Abdul Hamid on behalf of the National Trading Co. In this the sub-letting was denied, and it was contended that no cause of action had accrued to the appellant, as the rent had been regularly deposited but it was not disputed that the appellant was the transferee of the premises.
12. It may also be pointed out At this stage that after the service of the notice under section 30 on Raz Muhammad rents were duly deposited on behalf of Raz Muhammad through firstly one Muhammad Yusuf, then the present respondent himself from May 1962 to October 1964. It is not without significance that in all these challans the tenant is described as Raz Muhammad although the payment is made either through Muhammad Yusuf or the present respondent.
13. After filing the rejoinder above-mentioned, the respondent Abdul Hamid started a third round of litigation by making an application on the 9th of June, 1965, before the Deputy Settlement Commissioner, Quetta, --to cancel the transfer documents issued in the name of the appellant on 'the ground that the respondent bad submitted N. C. S. Form in September, 1959, for the transfer of the shop in question which though duly received in the office of the Deputy Settlement Commissioner, Quetta, registered and acknowledged by receipt No. QTA/606 issued in respect thereof were still pending and had not been disposed of. In the circumstances, the transfer of the shop to the appellant on his C. S. Form was illegal and wholly without jurisdiction. In any event, the allegation that the appellant was in possession of the shop was false and therefore, a fraud had also been committed by the appellant.
14. It has to be noted that this was the first time when the respondent set up the case that he bad submitted a N. C. S. Form. All that he produced in support of this claim, however, was a receipt showing that his form bad been given registration No. QTA No. 606 and registered on the 30th of September, 1959. The Deputy Settlement Commissioner passed no order on this application, as the shop, according to the office report, had already been transferred against the C. S. Form of the appellant and a P. T. D. Had already been issued to him in 1963.
15. The respondent went up in appeal from this before the Additional Settlement Commissioner who took the view that no reliance could be placed on the receipt of the alleged N. C. S. Form in the absence of any other corroborative evidence, as the forms in question were not available in. The D.
16. S. C's office. The learned Additional Settlement Commissioner also took note of the fact that the plea of the respondent that he had actually filed a N. C. S. Form for the transfer of the shop had never been failed in any proceeding before the Rent Control Authorities In fact; in the first rejoinder filed there by the respondent No. 1 himself, it was clearly stated that the firm of National Trading Co.
17. Had come Into possession on the 20th of July, 1960, The Additional Settlement Commis--sioner also accepted the evidence produced to show that the said firm had itself come into existence only in July, 1960. The appeal was also found to be hopelessly barred by time and was, therefore, dismissed.
18. The respondent went up in revision from this order before the Settlement Commissioner who held the receipt to be genuine and took the view that, after the production of the receipt, the Settlement Authorities could not dispute the filing of the forms or that they still remained un---disposed of. The question of limitation was also disposed of on the misconceived ground that the respondent come to know of the transfer only from the order passed by the Deputy Settlement Commissioner on the 19th July 1965, ignoring totally the evidence relied upon by the Additional Settlement Commissioner regarding the knowledge of the respondent as established by the various steps he took on behalf of the alleged Raz Muhammad in the proceedings for the ejectment of the said Raz Muhammad before the Rent Controller. Even the P. T. D. Was brushed aside on the ground that it could not have been issued until, decision was taken on N. C. a. Fled by respondent No. 1.
19. From this order the appellant went up in writ jurisdiction to the High Court of West Pakistan, Lahore, but a Division Bench refused to interfere agreeing substantially with the conclusions of the Settlement Commissioner.
20. Leave was granted in this case on the 26th of December, 1967, to consider whether the High Court had ignored a mass of evidence to show that the respondent and/or the National Trading Co. Had only come into possession of the disputed shop in July 1960, from Raz Muhammad whom the appellant was seeking to evict by proper proceedings before the Rent Controller. The Court also- felt that it needed examination as to whether the case of the respondent regarding his entitlement to the transfer of the shop, based as it was only on the receipt produced by him, could also be considered to have been properly proved.
21. Learned counsel for the appellant has contended that admittedly the respondent Abdul Hamid was not an allottee at it has at no stage been disput--ed that the allottee was Raz Muhammad.
22. Hence the said respondent could only claim transfer; even assuming but not admitting that he had filed N. C. S. Forms; on the basis of the extended definition of "possession". The notification of the Central Government issued under the second proviso to subsection (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, deeming a person who is not in occupation of a house or a shop in pursuance of an order passed by a competent authority as in possession thereof for the purposes of entitlement to transfer, was issued only on the 13th of October, 1959, and was limited only to such persons who had been in undisputed occupation of a house or a shop since before the 21st day of December, 1958. No other person was entitled to the transfer of such a shop under the Notification No. F.1(27)/59-SI) dated the 13th October 1959. It is, therefore, contended that the respon--dent could not, in any event, have been entitled to the transfer of the shop in dispute before that date or could have filed any N. C. S. Form for its transfer before the said date on the 30th of September, 1959.
23. Learned counsel has also relied on the preliminary objections filed through Mr. Hanfi, a learned Advocate engaged by a vakalatnama witnessed by the respondent himself, in which, in paragraph 'B', it is stated that the National Trading Company has been in occupation of the shop room since 22-7-1960. The learned counsel has also referred to an invitation issued by the partners of National Trading Company to the opening ceremony of the firm on the 11th of July, 1960, as also on the evidence of Muhammad Salim, the Registration Clerk of the Rehabilitation Department, who, by reference to the record of rent, stated that the shop had been allotted to Raz Muhammad and Raz Muhammad had paid rents up to the 24th of June 1960.
24. It is true that only in his application: to the Deputy Settlement Commissioner which he filed on the 9th June, 1965, that the said respondent, for the first time, stated that he had been in possession of the shop since the last ten years. This vague statement cannot in view of the omission of the respondent to assert any such claim earlier be accepted.
25. The N. C. S. Forms which were not available in the file when it was examined by the Additional Settlement Commissioner or the Settlement Commissioner or the High Court have now mysteriously re-appeared before us and ore to be found in the original settlement file. They are on type-written sheets and not on the printed forms which were issued by, the Department.
26. Nevertheless, assuming for the moment that these are genuine forms, it has to be pointed out that in the column of "possession" it is clearly stated that the applicant is in possession through Raz Muhammad, the allottee. I he respondent Abdul Hamid is nut shown to be in any way related to the said Raz Muhammad and, therefore, under paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, he could not be a person who could claim through an allottee. Only a parent, son, daughter or spouse of a claimant could claim through the claimant in possession. Raz Muhammad was only a local and the respondent Abdul Hamid himself, on his own showing, is a non-claimant. Therefore, under paragraph I of the Schedule, he was not a person could claim through another he was not entitled, therefore, to the transfer of a house or a shop, unless he was himself in possession thereof within the meaning or rather the extended meaning of that word under subsection (6) off section 2 of the above-mentioned Act. There is nothing on the record to show that the respondent Abdul Hamid was himself in possession in his own right of the said shop. According to his own statement, he is in possession through Raz Muhammad and, therefore he is not a person who can either claim the advantage of the extended definition of "possession" or take advantage of the possession of Raz Muhammad.
27. The next question is as to whether the said respondent, as he now` claims, ever filed any N. C. S. Forms. The alleged forms, even though they have stow mysteriously re-appeared in the settlement file, as already pointed out, are on typed-sheets which could have been prepared at any stage and inserted into the file. Learned counsel for the respondent has pointed out that in the department file each page bears a number and the initial of some officer. This by itself is an unusual feature, for, as yet, we have not come across any settlement file in which such a procedure had been followed.
28. 'The facts and circumstances of this case, however, convince us that no such file was ever filed, as alleged on the 30th of September, 1959 or could stave been so filed at that time. To start with, the respondent Abdul Hamid was not a person who could claim the benefit of the extended definition of C "possession", as we have already pointed out. In any event he could not have filed N: C. S. Forms on the basis of undisputed possession, even before the definition of possession'' was extended by the notification of the 13 of October, 1959. Apart from this, the previous conduct of the respondent himself shows that this form is a subsequent invention.
29. As already pointed out, it was the respondent himself who applied to the Rent Controller's Court on the 27th of February, 1962, for time for filing a rejoinder. The rejoinder was filed on 16-3-62. In neither of these documents did he claim that be was in possession of the shop from before the 21st of December, 1958. Indeed, in no proceeding before the Civil Judge, Quetta, was this point ever taken, although there can be no manner of doubt that the said respondent had become fully aware of the fact that the shop had been transferred to the appellant and he was seeking to evict Raz Muhammad, the allottee, and then the National Trading Company as well which, according to the objection filed in those proceedings, had also com into possession since 22-7-1960 on the ground that the firm was inducted as a sub-tenant after the notice under section 30 had been served.
30. The contention of the learned counsel for the respondent that possession through Raz Muhammad was sufficient to give him the right to seek the transfer of the shop, is wholly untenable. The provisions of the Schedule to the Displaced Persons (Compensation and .Rehabilitation) Act confer no such right. We have also no manner of doubt in our mind that the respon--dent never filed any N. C. S. Form, as is now alleged by him. If he came into possession with Raz Muhammad as an allottee, he should have been shown in the records of the Rehabilitation Department as a joint allottee.
31. Learned counsel for the respondent has also drawn our attention to Memorandum No. 7616-Comp.
32. Reh/59, dated 30th of November. 1959 (page 92 of the Old Settlement Manual) in support of his contention that the Settlement Commissioner himself was anxious to avoid dislocation or hard-- ship to persons occupying the same house or shop and, therefore directed the transfer of the portions in their respective occupation to them, if they had independent access. This notification is of no' assistance to the respondent, because, there is nothing on the record to show that the Settlement Authori--ties ever treated this premises as two shops. In any event, the respondent has no locus standi to claim such a division, because, in our view, he is not a person who is entitled to claim the transfer of the shop. The only person who could have asked for such a division was Ritz - Muhammad, but he never did so.
33. The decision of a Division Bench of the Lahore High Court in the case of Haji Muhammad Hanif v.
34. Chief Settlement and Rehabilitation Commissioner (PLD 1964 Lah. 261) is also of no assistance, because, the building there being dealt with was a composite building consisting of residential and business units. In ally event, if it decided anything else we should not be taken to have approved of that decision because, in our view, under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, the Settlement Authorities had first to decide, in the case of a composite building, as to whether it should be treated as a house or a shop, and after that, to decide whether it should be treated as more than one house or one shop, as the case may be because, under theth provisions of the said Act, unless a shop or a house is held to be more than one, it has to be treated as one. There is no necessity for the Settlement Authorities to declare a building to be one, because, the law so declares, and unless it is declared to consist of more than one residential or business unit, it is a shop or a house. If authority is needed for this proposition, we may refer to two decisions of this Court in the cases of Choudhury Altaf Hussain v. Chief Settlement Commissioner (PLD 1965 SC68) and Muhammad Siddiq v. Chief Settle--ment and Rehabilitation Commissioner (PLD 1965 SC 123).
35. We are also unable to agree with the view of the Settlement Commis--sioner and the High Court that even after a P. T. D. Has been issued, the Settlement Authorities can deal with the property.
36. Under the P. T. D. Rules, a P. T. D. Could under rule 7 only be cancelled on the ground that it had been obtained by fraud or misrepresentation or in contravention of any of the revisions of the Act but after rule 7 was deleted by a notification issued art G the 27th of December, 1964, even this power disappeared, as held by this Court in the cases of S. Anwar Hussain Sani v. Sarfraz Ahmad (PLD 1971 SC 669) and: Aminuddin v. Settlement Commissioner (1973 SCMR 624).
37. The learned counsel for the appellant has also contended that the Settlement Commissioner was entirely wrong. In thinking that the appeal before the Additional Settlement Commissioner had been wrongly dismissed. As being barred by time. It was a complete misconception on his part to think that the respondent Abdul Hamid came to know of the disposal of the shop by transfer to the appellant only on 19-7-1965. If he had taken the trouble to read the order of the Additional Settlement Commissioner, he would have seen that a number of very cogent reasons were given by him for holding that the appeal was barred by time and the question had been discussed with great care and detail. It is regrettable that the Settlement Commissioner did not take the trouble to meet these points while reversing the decision of the Additional Settlement Commissioner, as he was bound in law to do. His finding, therefore, that the appeal was not barred by time, was wholly unwarranted.
38. In the view that we have taken earlier as to the genuineness of the claim of the respondent regarding the filing of the N. C. S. Forms and as to his eligibility to the transfer of the shop, we are of opinion that this appeal is of substance.
39. We, accordingly, allow this appeal, set aside the order of the High Court and of the Settlement Commissioner and restore that of the Additional Settlement Commissioner.
40. The appellant will be entitled to his costs throughout.