' SHAMEEM HUSSAIN KADRI, J.-This appeal arises out of the judgment of a learned Judge in Chambers, who accepted Writ Petition No, 2176-R of 1963 by order dated 31st May, 1968.
2. The dispute relates to Property No, S-60-R-20, Mozang Road, Lahore. It is a double-storeyed building in occupation of several families. Out of them only three persons, namely, Muhammad Shafi, Muhammad Ramzan and Muhammad Yousuf, who are claimants, applied for the transfer on their respective C. H. Forms. The property was divided into two portions. Portion 'A' was given to Muhammad Shafi for which there is no dispute. In regard to portion 'B' there is a dispute between Muhammad Yousuf and Muhammad Ramzan, who are in occupation of upper portion and ground floor respectively. Fayyaz Hussain son of Muhammad Yousuf is an allottee while Muhammad Ramzan is an unauthorised occupant. The Inspector reported that Muhammad Yousuf was prior in possession and the property was indivisible. On his report the Deputy Settlement Commissioner transferred the property to Muhammad Yousuf vide order dated 16th April 1960. The Additional Settlement and Rehabilitation Commissioner and the Settlement Commissioner confirmed the order of transfer passed by the Deputy Settlement Commissioner by their respective orders passed on 25th October, 1961 and 28th February 1963.
3. Muhammad Ramzan challenged the orders of the Settlement Authorities by way of Writ Petition No, 2176-R of 1963, which was accepted. Muhammad Yousuf appellant has challenged the order of the learned Single Judge on the ground that despite the fact that he has been found to be in prior possession of the property, which is indivisible, he has been deprived of its transfer. According to second proviso to para. 3 of the Schedule attached to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the transfer of the property has to be made to a person who obtained prior possession. "Possession" has been defined in subsection (6) of section 2 of the Act, The definition was substituted by the Displaced Persons (Compensation and Rehabilitation)
(Amendment) Ordinance, 1959. Notification No, F. I., (27)159-SL, dated 13th October, 1959, published in Gazette, Extraordinary, 26th October, 1959, is reproduced in Mst. Noor Jehan Begum v, Settlement and Rehabilitation Commissioner, Karachi an others (1) at page 710 which reads as follows: "In exercise of the powers conferred by the second proviso to clause (6)(1) PLD 1963 Kar. 709 of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to direct that a claimant, a non-claimant displaced person or a local who has not obtained possession of a house or a shop in pursuance of an order passed by a competent authority on or before the twentieth day of December 1958, shall, for the purpose of the aforesaid Act, be deemed to be in possession thereof, if he has been in undisputed occupation of the house or the shop since before the twenty-first day of December, 1958, and no other person is otherwise entitled to the transfer of such house or shop in pursuance of a final order passed by a competent authority before that day : ' Provided that the rent and other public dues in respect of such house or shop have been paid by the occupant from the date of his occupation and, if he is a claimant, such amount is adjusted against his claim."
Muhammad Ramzan claims the property on account of this extended definition of "possession". He challenged the transfer in the name of Muhammad Yousuf on the ground of his being an indirect claimant since his son was an 4 allottee and his possession was not undisputed.
4. In this contest the respondent cannot succeed for the simple reason that he is not in prior possession of the property and is in no better position & than the appellant. This proposition has been dealt with by the Supreme Court in Syed Saeed Hussain v. Settlement and Rehabilitation Commissioner, Lahore and another (1) and Muhammad Tufail v. Chief Settlement and Rehabilitation Commissioner and another (2). Learned counsel for the respondent vehemently argued that since the appellant is not in undisputed possession of the property he cannot be preferred to his client. In support of his contention he cited Abdul Majid Shaida v. Mst. Noor Jehan and another (3) and a Single Bench judgment of this Court Allah Bakhsh v. Hassan Muhammad and others (4). In the former judgment their Lordships again laid stress on the word 'undisputed' occupation of the property while in the latter judgment it was held that applicant for transfer of the house can take advantage of possession of parent etc. If he is. Himself a claimant, On page 123 of the Old Settlement Manual definition of "possession" has been explained. The Central Government vide Memo. No, 3223-PI-Reh-60, dated 7th March, 1960, decided that where a house is 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. Conversely if the proposition is applied the father can claim the advantage of allotment of his son. Be that as it may, the latest judgment of the Supreme Court cited by learned counsel for the appellant is c in favour of the proposition, which is laid in the Act itself, namely, the priority of possession. This fact has been found in favour of the appellant by all the Settlement Authorities and has also been admitted by Muhammad Ramzan in his statement (R. 2) at page 77 of the file. The respondent could perhaps succeed had there been a contest between the father and the son as against him for transfer of the property. In that case the appellant's possession could not be said to be undisputed.
(1) 1974 SC MR 19
(2) PLD 1971 Lab. 257
(3) PLD 1967 SC 221
(4) PLD 1967 Lah. 346
5. For the foregoing reasons we accept the appeal, set aside the order of the learned Single Judge and leave the parties to bear their own costs.