MUHAMMAD SHAUKAT HAYAT and 4 others vs Hakeem MUHAMMAD ASHRAF
This matter arises from consolidated civil petitions challenging the Lahore High Court's judgment concerning the transfer of an evacuee residential unit. The core legal question revolves around competing claims between a claimant in possession and a non-claimant allottee in possession regarding an indivisible evacuee property, and whether the claimant enjoys a superior right of transfer under settlement laws. The Supreme Court held that the High Court rightly preferred the claimant in possession over the non-claimant, affirming that the property was indivisible and that claims regarding multiple property allotments could not be raised for the first time before the apex court. The Court laid down the principle that a claimant in possession holds a superior right of transfer compared to a non-claimant or local in possession of an indivisible evacuee property under the relevant settlement statutes.
- Does a claimant in possession have a superior right of transfer over a non-claimant in possession of an indivisible evacuee property?
- Can a party raise an objection regarding multiple property allotments for the first time before the Supreme Court?
- Whether the High Court's decision to transfer an entire indivisible evacuee unit to a claimant in possession is sustainable under the Displaced Persons (Compensation and Rehabilitation) Act 1958?
- First Proviso, Paragraph 1, Schedule, Displaced Persons (Compensation and Rehabilitation) Act 1958
' KARAMAT NAZIR BHANDARI, J.---By this consolidated judgment, we intend to dispose of Civil Petitions Nos.1119-L to 1200-L of 2003, as these arise from the same impugned judgment dated 18- 4-2003 of the Lahore High Court, Multan Bench, Multan disposing of Writ Petitions Nos.25-R and 36- R of 1999 and involve common question of fact and law. In the petitions, petitioners and the respondents are the same.
2. Khair Din, predecessor of the petitioners and Hakeem Muhammad Ashraf, respondent No,1 have been laying claim to an evacuee residential unit bearing No,72-F, situated in 'F' Block, Qaboola Bazar, Arifwala. Khair Din was in possession of one room and he pressed his claim on the ground that he was an allottee in possession since 1947. He was non-claimant. Respondent No,1 averred that he was claimant in possession of major portion of the property. Earlier the parties had completed one round of litigation culminating in this Court. In judgment by this Court dated 25-8- 1998 passed in Civil Petition No,606-L of the 1995, this Court noted the history of the case and after making relevant observations, maintained the judgment passed by learned Division Bench of the High Court in letters patent appeal. The judgment further directed:-- "The Member, Board of Revenue (Settlement) will entrust therevision petition to the Competent Authority for decision of revision petition within two months of the receipt of the copy of this order by the learned Member, Board of Revenue (Settlement) Punjab, Lahore.
5. Leave to appeal is refused and the petition is dismissed."
' In pursuance to the above remand order, the. Settlement Commissioner/notified officer vide his order dated 7-7-1999 directed that the portion in possession of respondent No,1 be transferred to him while one room of Khair Din, petitioner be transferred to him/them. Both the parties challenged the above decision by filing separate writ petitions. The respondent No,1 claimed the whole house while the petitioner also claimed the entire house on the ground, that Khair Din was allottee and even though a non-claimant enjoyed superior right to transfer against respondent No,1 who may be claimant but was not allottee. The High Court has set aside the order of notified officer and has directed the transfer of entire unit to respondent No,l.
3. In support of these petitions, learned counsel for the petitioners has strenuously urged that under the erstwhile settlement law, a claimant can only be transferred one property. It is asserted that since respondent No,1 was transferee of another property as well, therefore, was not entitled to claim the present property. He has also read the extracts from the judgment of the Single Bench of the High Court in the earlier round of litigation. Learned counsel has also urged that after the repeal of settlements laws in the year 1974 the requirement is that the persons in possession of evacuee properties be not disturbed. He has relied on the case of Mst. Shah Jahan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614.
4. Learned counsel for respondent No, 1 icaveator has stressed that the claimant has superior right of transfer against a non-claimant and for this purpose, he has relied on the case of Barkat Ali v.
Muhammad Sharif and another PLD 1966 SC 817 amongst other. He has also referred to the earlier judgment of this Court to argue that this Court practically decided the fate of the property in favour of respondent No,1 and remanding the case to the Settlement Commissioner/notified officer was a mere formality. He has asserted that the property was indivisible and that this has been the case of the petitioner in the earlier round.
5. The High Court by relying on the provision of first proviso of para.]. Of Schedule of erstwhile Displaced Persons (Compensation &Rehabilitation) Act, 1958 has held that the claimant in possession is to be preferred over a non-claimant or a local in possession. This view of the High Court is correct and -finds support from the judgments cited bylearned counsel for the respondent-caveator. The property being indivisible and so has been the case of the petitioner, it has been rightly directed to be transferred to the claimant viz. Respondent No,l. The submission that as respondent No,1 is the transferee of some other property as well and, therefore, was not entitled to claim this property cannot be considered as the same seems to have been raised for the first time. It does not seem to have been raised even in the first round of litigation.
6. We are satisfied that the judgment of the High Court does not suffer from any infirmity or illegality. These petitions are hereby dismissed and leave is refused.