' Order dated 5-12-1984 of the learned Additional Commissioner (Revenue) Settlement Commissioner (U), Lahore Division, Lahore has been challenged through this writ petition by the petitioner whereby the learned Settlement Commissioner has ordered the transfer of disputed premises measuring 20 x 30 ft to Muhammad Asghar respondent No,2.
2. The petitioner who is a non-claimant refugee filed N.C.S. Form dated 7-8-1959 for the transfer of Shop No,B-III-S-2-25 situated in Grain Market, Sangla Hill. Disrict Sheikhupura. The shop was ordered to be transferred to him for an amount of Rs,9,072. The transferee paid the price of Rs,8524 and a balance of Rs,548 remained unpaid for which he was issued a notice to clear the balance payment. Annexure Exh.D2 to the writ petition shows that the petitioner appeared and satisfied the officer concerned that he had already paid the entire amount and that he was entitled to 6% rebate permissible under the policy. On 27-11-1971, it was recommended that the notice issued to him should be withdrawn. The petitioner thereafter was issued T.O. Dated 24-11-1976. This T.O. Shows that the petitioner was transferred the shop and "open site" adjoining to it. The dispute in this petition relates to only the "open site" measuring 20 x 30 ft.
3. It appears that Muhammd Asghar respondent No,2 had filed an application dated 9-10-1982 for the transfer of the "open site" on which some enquiry commenced and certain proceedings were taken within the department as to the extent of transfer of site to Muhammad Sadiq petitioner, the nature of construction raised by him and the possession of the "open site". A Settlement Inspector in pursuance of an order of the Deputy Settlement Commissioner dated 10-1-1983 reported that the plot and the shop are distinct and separate and the plot has not so far been transferred to any person and that Muhammad Sadiq has been transferred only the shop. According to him Muhammad Asghar was in possession of the "open site" and he was entitled to transfer of the same on payment of Rs,930 and that from the T.O. Issued to Muhammad Sadiq the word "plot" should be deleted. This report of the Settlement Inspector is dated 22-1-1983. The matter thereafter received attention of the Deputy Settlement Commissioner who was of the view that the shop and the adjacent plot were owned by different evacuees and were separate and that Muhammad Sadiq had been transferred only the shop against his N.C.S. Form. He despite observing that Muhammad Sadiq had also applied for the "open site" opined that "plot should be auctioned after making correction in the P.T.D.". This report of the Deputy Settlement Commissioner dated 31-3-1983 shows that both Muhammad Sadiq and Muhammad Asghar had appeared before him.
4. As a result of the above report of the Deputy Settlement Commissioner, Muhammad Sadiq was issued notice dated 10-6-1983 by the Additional Settlement Commissioner to prove his "possession before 1-1-1976 and the construction of godown over the disputed plot adjoining the shop cited above." Muhammad Sadiq challenged this notice before this Court in Writ Petition No,226-R-1983 in which after pre-admission notice and hearing the legal advisor of the department the petitioner was disposed in the following terms:-- ' The case of the petitioner is that the site in dispute was constructed upon and amalgamated by him alongwith a shop and the said shop so amalgamated and constructed was transferred to him.
Learned counsel for the petitioner argues that in view of the matter above there is no question of reopening the matter of transfer after repeal of the Displaced Persons (Compensation and Rehabilitation) Act. He further submits that price which was paid by the petitioner for the said amalgamated shop is the same which was fixed and paid by the other tranferees who were transferred shops of the same size in the same locality. Mr. Shahzad Jahangir, Advocate states that if the petitioner establishes the aforesaid fact, no interference in the transfer will be made. He states that there is nothing on the record to support the assertion of the learned counsel for the petitioner and this also necessitates holding of an inquiry. Learned counsel submits that the petitioner is prepared to join the inquiry provided the same is not held by Ch. Muhammad Rafique, Deputy Settlement Commissioner (R.P.) Mr. Shahzad Jahangir, Advocate states that necessary direction will be passed in this behalf and inquiry will be passed on to some other officer.
' The petition is disposed of in the above terms."
' In pursuance of the above order of this Court the impugned order has been passed which has been challenged by Muhammad Sadiq in this writ petition.
5. Sh. Hamid Mukhtar, Advocate, learned counsel for the petitioner contends that although the petitioner has been transferred the shop alongwith the "open site" to be used as godown like other transferees in the market having almost the same size of the shop and godown yet he had also applied on 6-2-1960 for the "open site" as well. He submits that possession of Muhammad Sadiq petitioner is established on record and there was overwhelming evidence in support that not only he was in possession of the same but he had also raised construction and was continuously in his use and occupation. He has made reference to a note made on the N.C.S. Form which reads as follows:- {{URDU TEXT}} ' It is contended by him that Muhammad Sadiq petitioner had at one time initiated ejectment proceedings against Amanat Ali who had been his tenant of the godown and in those proceedings Muhammad Asghar respondent applied for becoming party which application was rejected by the learned Rent Controller and Muhammad Asghar never challenged the said order of the Rent Controller. The tenant Amanat Ali later handed over the possession to Muhammad Sadiq. It is contended that Muhammad Asghar was never in possession nor had he raised any construction over the premises. It is submitted by the learned counsel for the petitioner that enquiry report dated 31-3-1983 of the learned Deputy Settlement Commissioner before whom Muhammad Asghar had appeared shows that he was not convinced as to the possession and entitlement of Muhammad Asghar and he ordered that the plot should be auctioned whereas Muhammad Sadiq petitioner challenged the culminating notice of the Additonal Settlement Commissioner in Writ Petition No,226-R 1983. Muhammad Asghar never challenged the said order and, thus, accepted and acquiesced with the situation. Finally he submitted that the order of this Court dated 20-12- 1983 in Writ Petition No,226-R 1983 had not only been misunderstood and misconstrued by the respondent but he has gone against the order of this Court also, inasmuch as having himself found that Muhammad Sadiq had applied for the adjoining site as far back as on 6-2-1960 he alone was entitled under paragraph 13 of the Schedule to the Displaced Persons (Rehabilitation) Act, 1958 and the provision of Settlement Scheme No,VI, to its transfer and none else.
' Sh. Anwar-ul-Haq, Advocate, learned counsel for respondent No,2 on the other hand contends that Muhammad Asghar had applied for the transfer of "open site" on 7-10-1982 and also sought condonation of delay by making an application considering the open site as still available for transfer under the scheme. He contends that Muhammad Sadiq had applied for shop only and the open site was never transferred to him. He has relied upon the report of the Settlement Inspector dated 22-1-1983 to support his claim of possession over the disputed premises and that shop and open site are two distinct premises owned by Esher Das and Kehr Chand.
7. The perusal of the relevant documents on record show that although the initial allotment of the shop was applied by Muhammad Sadiq petitioner and Muhammad Asghar respondent No,2 jointly in the year 1952. However, after the start of settlement operation by the Department it was Muhammad Sadiq alone who applied for transfer of the shop vide his N.C.S. Form dated 7-8-1959 and the same was transferred to him. He paid the price and T.O. Was issued to him which matter attained finality and has never been in dispute. However, so far as the adjacent piece of open site is concerned, the case of Muhammad Sadiq is that he amalgamated the site with the shop and raised construction over it. He was particular when he made a note on his N.C.S. Form that construction has been raised by him for its use as godown. He had let it out to Amanat Ali tenant against whom he had to take out ejectment proceedings in which proceedings Muhammad Asghar made an attempt to become party but failed. Muhammad Asghar did not agitate the matter any further and the tenant handed over the possession back to Muhammad Sadiq.
Muhammad Asghar had also at one time filed a suit against Muhammad Sadiq for a declaration that he was also owner in possession of half of the disputed property. This suit was filed on 16-8- 1982 and was dismissed as withdrawn on 31-7-1983. All this shows that an attempt was made by respondent No,2 in the year 1982 when he made an application for transfer of the "open site" to some how get into the property to fortify his claim of possession over the so-called "open site".
Since he had failed before the Rent Controller as well as the Civil Court, he could not succeed before respondent No,1 whose finding as to the possession of Muhammad Asghar has no valid basis. The possession of Muhammad Sadiq over the alleged "open site" is established and the Settlement Authorities acted without any valid basis in recording findings to the contrary.
8. Learned Settlement Commissioner as a matter of fact has also misconstrued the inquiry report of the Deputy Settlement Commissioner dated 31-3-1983. The learned Deputy Settlement Commissioner had opined that the plot should be disposed of through open auction, which also showed that the Deputy Settlement Commissioner was not satisfied with the claim of Muhammad Asghar as to his entitlement for transfer.
9. The case of Muhammad Asghar before the learned Settlement Commissioner was that Muhammad Sadiq had raised the structure illegally on the land under dispute. It clearly shows that Muhammad Asghar was neither in possession nor had raised any superstructure over the site rather he wanted Muhammad Sadiq to be non-suited from the premises on the ground that his structure was illegal.
10. The failure of Muhammad Asghar before the Rent Controller in becoming a party to the ejectment proceedings, the withdrawal and dismissal of his suit from the civil Court and his stand before the learned Settlement Commissioner that structure had been raised by Muhammad Sadiq clearly lead to an irresistible conclusion that Muhammad Asghar was neither in possession nor had raised any construction over the disputed premises. He had, thus, no right or eligibility in the matter of transfer. The learned Settlement Commissioner, thus acted illegally in ordering the transfer of the shop to Muhammad Asghar. The mere fact that the ownership of the premises is in the name of two persons, Eshar Das and Keher Chand does not mean that there were two separate premises.
The Jamabandi for the year 1953-54 describes it as one shop measuring 4 Marlas and 3 Sarsahis.
The area of 4 Marlas and 3 Sarsahis comprise of the shop and the open site, meant for godown.
The premises has been treated as part and parcel of shop like other adjacent shops in the market.
11. In the impugned order the learned Settlement Commissioner himself noted that Muhammad Sadiq had applied for the transfer of adjoining plot on 6-2-1960 and that he had illegally annexed the same with his shop. The learned Settlement Commissioner although recorded the aforesaid findings affirming the possession and construction of Muhammad Sadiq over the premises, however, failed to take notice of the law applicable to such a situation. It appears that he was totally oblivious of paragraph 13 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the provisions of Settlement Scheme No,VI dealing with the building sites and the transfer of the same to the persons who were in unauthorised possession and had raised permanent structure over the same. In Mst. Mahmooda Tahsin v. S. Ljaz Hussain Shah and others (PLD 1965 SC 618), While considering paragraph 13 of the schedule and provisions of the scheme it was observed by their Lordships of the Supreme Court that "in accordance with para. 13 (there being no definition of permanent building in the Act) any person who has raised a permanent building in the ordinary sense of this expression on a piece of land in his unauthorised possession is entitled to its transfer". It was further held that "there are two conditions necessary for transfer, one is un-authorised possession and the other a permanent construction over it". It is, thus, a precondition for transfer that the person concerned should be in possession and having raised a permanent construction over it.
12. In the impugned order the learned Settlement Commissioner himself has noted that Muhammad Sadiq had illegally annexed the disputed site with his shop, which means that not only he was in possession but also raised construction. In this view of the matter Muhammad Sadiq was the person entitled under the law to the transfer of the so-called "open site", even if it is treated as having not been transferred to him as part of the shop as claimed by Muhammad Sadiq originally.
13. In view of the law laid down in case of Mst. Mahmooda Tehsin (supra), as also in Abdul Rashid v.
Addl. Settlement Commissioner (PLD 1992 SC 80), it is Muhammad Sadiq petitioner who was entitled to the transfer of the adjoining/amalgamated site constructed by him.
14. As a result of the above, the order of Additional Commissioner (Revenue/Settlement Commissioner (U), Lahore dated 5-12-1984 ordering transfer in favour of respondent No,2, is declared to be illegal and without lawful authority, In Muhammad Nazir v. Abdul Hamid (1988 SCM R 1153), it was laid down that the High Court is not prohibited from noting obvious and or undeniable facts and drawing necessary inference from them, particularly in settlement cases relating to the displaced persons. The decision of the High Court instead of remanding the case to the Settlement Department, was upheld by their Lordships. In the present case since the claim of Muhammad Sadiq as to his amalgamation of the disputed site and construction is established on record, the same is liable to be transferred to him, who fulfils the conditions of relevant paragraph of the schedule i.e, para. 13 and the provisions of Settlement Scheme No,VI. He will be issued transfer documents by the Department on realising and recovering price from him in accordance with law.
The petition is accepted in the above said terms. No order as to costs.