KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about half portion of a residential property bearing No. S-60-R/1, situated at the juncture of the Turner Road and Mozang Road and commonly known as 2-Mozang Road, Lahore. This"' portion will hereinafter be described as "property" or "the property".
2. It is not necessary to go into the lengthy details through which the litigation regarding this property passed and it will be sufficient for the purpose of the present order to mention that the learned Deputy Settlement Commissioner had by his order dated 5-1-1960 divided this property into two residential portions. One portion was given to Sher Muhammad Khan and the other to Sh.
Muhammad Ismail. The former i.e. Sher Muhammad Khan filed an appeal pleading that the property was indivisible ; that he had preferential right for the transfer of the same in its entirety ; that Sh. Muhammad Ismail bad no right for the transfer of any portion of this property as that the whole property should be transferred to him as a house. After passing through the various stages, the case went up to the High Court in the form of Writ Petition No. 371-R of 1963 which ended in an order of remand dated 13-7-1966 whereby the learned Additional Settlement Commissioner was directed to decide the matter afresh. This revived the aforesaid appeal of Sher Muhammad Khan which was taken up by Alhaj Ahmad Masud Alam learned Additional Settlement Commissioner who inspected the spot and accepted the plea of Sher Muhammad Khan that the property was indivisible. After giving this finding he proceeded to examine the merits of the rival claimants and found that Sh. Muhammad Ismail (respondent) was in prior possession of the property with effect from 1-3-1950, whereas the date of the alleged possession of Sher Muhammad Khan was 5-6-1951 ; he further held that Sh. Muhammad Ismail was and direct claimant/applicant whereas Sher Muhammad Khan was an indirect applicant as he was claiming property on the basis of the possession of his daughter---in-law who was running a school in a portion of this property.
According to the learned Additional Settlement Commissioner Sher Muhammad Khan thus had absolutely no right for the transfer of the .Property. The learned Additional Settlement Commissioner, therefore, rejected his C. H. Form, which left only Sh. Muhammad Ismail in the field who in the circumstances was found eligible for transfer of the whole of the house in dispute which accordingly was transferred to him. The order of the learned Additional Settlement Commissioner is dated 10-1-1970.
3. The petitioners (i.e. Successors-in-interest of Sher Muhammad Khan) filed a revision but without any success as the same was dismissed by the learned Settlement Commissioner on 29-4-1970 who endorsed all the findings of the learned Additional Settlement Commissioner as above- mentioned.
4. The petitioners then filed a Writ Petition bearing No 956-R/1970 which was partly accepted by a learned Single Judge of the Lahore High Court on 28-7-1971. The learned Single Judge was of the view that Sh. Muhammad Ismail respondent had applied only for a portion of this house ; that on 5- 1-1960 the learned Deputy Settlement Commissioner had divided the house into two portions between Sher Muhammad Khan and Muhammad Ismail and whereas Sher Muhammad Khan filed an appeal but Sh. Muhammad Ismail had not filed any appeal against the aforesaid order of the learned Deputy Settlement Commissioner, with the result, that according to the learned Single Judge, Sh. Muhammad Ismail was in the circumstances estopped from challenging the aforesaid order. He further held that the remand of the case by the High Court to the learned Additional Settlement Commissioner could not be utilized for extending the entitlement -of the respondent or taking away even that much. Which had been given by the learned Deputy Settlement Commissioner to the petitioners (then appellant before the Additional Settlement Commissioner).
After giving these findings the learned Single Judge quashed the order dated 29-4-1970 and order dated 10-1-1970 passed by the Settlement Commissioner and Additional Settlement Commissioner respectively and restored the order dated 5-1-1960 of the Deputy Settlement Commissioner.
5. Sh. Muhammad Ismail filed a Letters Patent Appeal bearing No. 226 ,of 1971 which was accepted by a Division Bench of the High Court on 2-3-1977. The learned Judges were of the view that there was no estoppel on the part of Sh. Muhammad Ismail to claim the entire house after it had been declared on the appeal of Sher Muhammad Khan himself that it was indivisible. They endorsed the view of the learned Additional Settlement Commissioner and the learned Settlement Commissioner that possession of Sh. Muhammad Ismail being prior in time he was entitled for the transfer of the property as a whole and as such had a preference over Sher Muhammad Khan.
They further observed that the Settlement Authorities had held the property as indivisible and the aforesaid finding bad not been disturbed by the learned Single Judge on its own merits but despite that, his order in effect purported to upset that finding. If the property/house was indivisible, then the learned Single Judge according to the Letters Patent Bench acted illegally in maintaining such an order of the Deputy Settlement Commissioner which had the effect of dividing the property/house.
6. The petitioners have come up in a petition for special leave to appeal against the above- mentioned judgment and order of the Letters Patent Bench to this Court.
7. Straightway it may be mentioned that the learned counsel for the petitioners has not raised any argument before us regarding the indivisibility of the house/property from its structural point of view on its own merits, and nor has he advanced any argument to show that the finding on the above links as recorded by the concerned Settlement Authorities was in any way perverse or arbitrary. Probably he could not successfully make any attempt in this respect, because, it is evident that it was Sher Muhammad Khan himself who filed an appeal asserting that the property was indivisible and that it was liable to be transferred as one unit and that in that form he alone was better eligible for its transfer as a whole and as a house. Therefore, if the case is to be examined in this set background then it is clear that the respondent is a direct claimant whereas Sher Muhammad Khan (now represented by the petitioners) was an indirect claimant inasmuch as he desired the transfer on the basis of the possession of his daughter-in-law. In these circumstances he obviously could not claim preference over Sh. Muhammad Ismail who was a direct claimant, as laid down by this Court in Abdul Majid Shaida v. Mst. Noor Jehan etc. (PLD 1967 SC 221) and Agha Shaukat Ali v. The Settlement and Rehabilitation Commissioner, Lahore and another (PLD 1973 SC 124). Similarly was the position of the respondent prior to that of the petitioners therefore, from that point of view as well that respondent had a preferential right. In these circumstances any attempt on the part of the petitioners to challenge his entitlement was nothing but a sheer exercise in futility.
8. The point which was argued before us by the learned counsel for the petitioners was that Sh.
Muhammad Ismail could not be considered to be in possession because be was on 5-6-1951 directed to be evicted from this property, after providing him with some alternative accommodation. He submitted that this order was maintained by the Rehabilitation Com-- missioner on 15-3-1955. For this purpose he referred to two documents in the form of Annexurer "C" and "D" which were annexed by his client along with his writ petition in the High Court. The argument of the learned counsel was that when an order of ejectment had been passed against Sh. Muhammad Ismail he could not be considered to be in possession of any portion of this property. This point was neither raised before the learned Single Judge in the course of the writ petition nor before the learned members of the Division Bench in the course of the Letters Patent Appeal. Even before the learned Settlement Authorities this point does not appeal to have been pressed as it is conspicuous by its omission in all the aforesaid orders. In these circumstances it is not possible for us to take note o those factual averments which were not argued at any relevant stage of the case as above explained.
9. The next point argued was that Sh. Muhammad Ismail having applied for only a portion of this property, he could not be given more than what he had applied for especially when he had not filed any appeal against the order of the learned Deputy Settlement Commissioner dated 5-1-1960 whereby the property had been divided into two portions. It was argued that the learned members of the Letters Patent Bench acted wrongly in setting side the view of the learned Single Judge who had accepted this plea. The contention has no merit. See Muhammad Rafiq v. First Additional District Judge (1968 SCMR 443) where it was held that in case house/property was held indivisible then the mere fact that an applicant had asked only for a part in his possession is no bar in transferring the whole house to him. Even otherwise as we have found that Sher Muhammad Khan was an indirect claimant on the basis of the alleged possession and allotment of his daughter-in- law. Such a person could not claim division of the property as laid down in Faizul Haq Khan v. Abdul Hameed and another (1976 SCMR 429) where it was held that where a claimant applicant was neither parent, son, daughter or spouse of an allottee, such claimant applicant was not entitled to claim transfer of the basis of an allottee not so related to him and could not ask for the division of the property. No other point was argued before us.
10. The result is that this petition has no merit and is dismissed.
S.A.H. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.