Mst. NAZIRAN BEGUM AND Others vs GHULAM NABI AND Other
This appeal by leave of the Court arises from a dispute over the transfer of a residential house in Lahore under settlement laws, previously occupied by two brothers, Ghulam Hussain (predecessor-in-interest of the appellants) and Ghulam Nabi (respondent No. 1), where the property was originally allotted solely to Ghulam Nabi. The core legal questions involved whether the Settlement authorities consciously examined the divisibility of the house and whether the appellants' predecessor possessed a better entitlement based on earlier possession. The Supreme Court held that the question of divisibility and the plea of better entitlement based on earlier possession had never been raised or pleaded before the Settlement authorities throughout the prolonged litigation, and the house had consistently been held to be an indivisible compact unit transferred rightly to the sole allottee in occupation. The appeal was accordingly dismissed with no order as to costs.
- Whether the question of divisibility of a property can be raised for the first time before the superior courts when it was not pleaded before the settlement authorities?
- Does possession dating back earlier confer a better entitlement if it was never pleaded during the settlement proceedings?
M. S. H. QURAISHI J.-This appeal, by leave of the Court, relates to the transfer of House No. SI-115-S- 8, Nurbada Street, Kacha Nisbet Road, Lahore. It was occupied by Muhammad Din and his sons Ghulam Hussain (predecessor-in-interest of the present appellants) and Ghulam Nabi (present respondent No. 1). The allotment was, however, only in the name of Ghulam Nabi. On the commencement of the Settlement operations, both the brothers filed C. H. Forms but the whole house, which comprised three rooms on the ground floor and three on the top and which was held to be "a compact residential unit" and "indivisible", was transferred in the name of Ghulam Nabi as he was the allottee in occupation, and the form of Ghulam Hussain was rejected by order of the Deputy Settlement-Commissioner dated 19-5-1961. The appellants agitated the matter but having failed in appeal and revision, filed Writ Petition No. 237-R of 1969 in the Lahore High Court, in which it was asserted that an application appended to the C, H: form of the respondent showed that the form had been filed by him on behalf of all the brothers but that the same had not received attention of the Settlement authorities. At any stage. The learned Judge, thereupon, by order dated 27-11-1973 remand the matter to the Settlement Commissioner to examine the existence of such application, its genuineness and its effect and to determine afresh the-entitle--ment accordingly.
The learned Additional Settlement Commissioner, to whom the matter was entrusted in the remand proceedings, came to the view that there had been no joint application pending on the file nor had the appellants taken any plea based on such application in time up to the level of the Settlement Commissioner. He further held that the house having been found t9 be indivisible by the Courts below had been rightly transferred in favour of the respondent. He, therefore, by his order dated 12-4-1976 rejected the appellants' claim. The appellants once again came to the High Court but their writ petition was dismissed, on 10-5-1976. Leave to appeal to them was granted by this Court to consider the question whether the Settlement authorities had consciously examined the question of divisibility. Of the house and whether the appellants predecessor-in---interest Ghulam Hussain had a better entitlement, his possession dating back to August 1947 as against 1-4-1948 of the respondent.
2. We find that the question of divisibility of the house had not been pleaded at any stage throughout the prolonged litigation. The view taken by the Deputy Settlement Commissioner that the house was indivi--sible had been noted and acted upon by all the subsequent Settlement authorities. All we find is that in their revision before the Settlement Commissioner, the appellants had urged for transfer in their favour of the portion of the property in their possession but had not specifically pleaded that the house itself was divisible. They had not made a grievance B of it in their earlier writ petition, where their sole contention had been that an application for joint transfer of the property had been filed and it was only on this question that the matter had been remanded by the High Court. That being so, it is too late in the day to raise the question of divisibility of the house.
3. As regards the possession of the parties, it has been pointed out by learned counsel for the respondent by reference to page 12 of the paper---book, that the respondent's possession dates back to 26-8-1947 even though he had erroneously entered in his C. H. Form the date of possession ask 1-4-1948. Even this claim on the basis of better entitlement on account of earlier possession had not been pleaded before the Settlement authorities.
4. We, therefore, find no merit in the appeal which we accordingly dismiss though we make no order as to costs.
M. Z. M.