ABDULATIF Versus ATTA MUHAMMAD

1. MUHAMMAD HALEEM J. -The dispute in this appeal relates to the transfer of House No. 137, Ward No. 6-7, situated in Serai Bhabran, Bahawalpur City. The contestants for the transfer of the disputed house were the appellant. Atta Muhammad in Civil Appeal No. 122/69 and Ch. Abdul Latif in Civil Appeal No. 123 of 1969. Both of them had assailed the judgment dated the 2nd March 1965, of a Division Bench of the erstwhile High Court of West Pakistan in Petition No. 37-R of 1962/BWP by which the order dated the 9th May 1961, passed by the Settlement and Rehabilitation Commissioner, Bahawalpur Division was upheld.

2. Leave was granted to consider the following questions of law :

3. "(i) Whether the deposit of some household effects of Abdul Latif, respondent, in a portion of the house gave him the status of a "claimant in possession" within the purview of paragraph 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 ; and

(ii) whether the Settlement Commissioner could under the instructions of the Chief Settlement Commissioner contained in Memorandum No. Comp. Reh ,159/5242, dated the 22nd of October 1959, make joint transfer of the house in favour of Atta Muhammad. petitioner and Abdul Latif, respondent, in the absence of an agreement between them.

4. Civil Appeal No. 122 of 1969 was dismissed for non-prosecution and the order granting leave was re-called, as the appellant Atta Muhammad failed to deposit the security amount within two months, as ordered by this Court on the 20th March 1973. It is now Civil Appeal No. 123 of 19t)1) which requires disposal.

5. It was the appellant's case that ho was allotted the disputed house on the 26th September 1947. On the 23rd November 1955, he made an application to the Deputy Rehabilitation Commissioner, Bahawalpur, stating therein that his maternal cousin with her children and her husband, Atta Muhammad, who were refugees from Jullundar were permitted by him to stay in the house as they were not able to get a house for themselves and that as he was proceeding to England on a short visit in connection with his business and domestic affairs, Atta Muhammad would continue to reside in his house during his absence, and that his name be added as co-allottee. Atta Muhammad also made an application on the 27th November 1955, that the allotment of the appellant be cancelled as he was proceeding to England and the house be allotted to him. By order dated the 23rd December 1955, the Deputy Rehabilitation Commissioner refused to cancel the allotment o1 the appellant on the ground that his visit to England was temporary and that suitable action would be taken if he failed to return within six months. It appears that the matter was again considered by the Assistant Custodian, Bahawalpur who ordered on the 9th August 1956, that the name of Atta Muhammad be also added as co-allottee of the disputed house. It may also be stated that Atta Muhammad also proceeded to England in 1957 leaving behind his family in the disputed house.

6. On the commencement of the Settlement Operations both Atta Muhammad and the appellant applied on C. H. forms for the transfer of the disputed house. The Deputy Settlement Commissioner, Bahawalpur District, transferred it to Atta Muhammad holding it to be indivisible and being in exclusive possession of Atta Muhammad's family ever since 1957. Aggrieved by this order the appellant filed an appeal before the Additional Settlement Commissioner, Bahawalpur Division, Bahawalpur who hold by order dated the 26th November 1960, that the appellant was "in regular and continuous possession of the house" which being indivisible should have been transferred to the appellant in accordance with the second proviso to pars. I of the Schedule to the As placed Persons (Compensation and Rehabilitation) Act, 1958, as being "a prior claimant in possession" and accordingly transferred the disputed house to him. Atta Muhammad preferred the first revision before the Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions, who by order dated the 9th May 1961, transferred the disputed house jointly to the parties on the ground that it was indivisible and they were its joint allottees. The appellant challenged this order in second revision filed before the Settlement Commissioner, exercising powers of the Chief Settlement and Rehabilitation Commissioner, who reversed the order dated the 9th May 1961, and transferred the house to Atta Muhammad on the basis that his family alone resided in the hours on the crucial date. This order is dated the 9th May 1962.

7. The appellant thereupon assailed this order in writ jurisdiction and a Division Bench declared it as without lawful Authority but maintained joint transfer of the house. In holding so the learned Judges of the Division Bench held that the parties were related to each other and that respondent No. 1 had become the joint allottee with the consent of the appellant in 1956 and that the appellant continued to remain in possession as his household goods were found in the promises. Therefore. the house was rightly transferred to them jointly. Against this judgment as before mentioned. leave was granted to both of them but later the appeal of Atta Muhammad was dismissed for non-prosecution and leave was re-called.

8. The learned counsel for the appellant contended that the learned Judges erred in maintaining the order of the Settlement and Rehabilitation Commissioner, Multan, Bahawalpur Divisions, dated the 9th of May 1961, transferring the disputed house jointly to the appellant and Atta Muhammad. In support of his contention he relied on the second proviso to para. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Memorandum No. Comp. Rch./5g/5242, dated the 22nd October 1959. Factually it is clear from the report of the Deputy Settlement Commissioner dated the 20th May 1960, that the name of Atta Muhammad was added as co-allottee on the 9th August 1956, much after the allotment of the disputed house to the appellant. As such ho was the senior allottee of the disputed house. It also transpire' from the record that the household goods of the appellant were found in the premises and the Settlement Authorities have also bold the disputed house to be indivisible. It is also evident from the record that it was the appellant who bad by an application dated the 23rd November 1955, moved the competent Authority to add the name of Atta Muhammad as co-allottee of the disputed house. The appellant by retaining a portion of the disputed house in which be bad kept his household goods maintained his possession and at no time prior to the crucial date, it was interrupted or discontinued. The Additional Settlement Commissioner while transferring the disputed house to the appellant held upon scrutiny of the material placed before him by the parties that it was the appellant who was in continuous possession of the house as a "prior claimant" and on that basis held that he was entitled to the benefit of the second proviso to pare. 1 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. There cannot be a manner of doubt that on the facts found by the Settlement Authorities he was entitled to its transfer on the basis of his prior possession as provided by the above proviso which reads

9. "Provided further that if a house or a part thereof is in possession of more than one claimant, then the house shall be so transferred to the claimant who obtained prior possession."

10. While transferring the disputed house jointly to the appellant and Atta' Muhammad, the Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions, failed to take into consideration that it was the appellant who obtained prior possession of the disputed house and . therefore, even if he was a joint allottee nonetheless he had a preferential right to its transfer.

11. The Settlement and Rehabilitation Commissioner exercising powers of the Chief Settlement and Rehabilitation Commissioner set aside the joint transfer on the ground that no member of the appellant's family resided in the house on the crucial date whereas it was occupied by Atta Muhammad's family. and thus he held him to be entitled to its transfer. The distinction on the basis of residence is untenable for the word possession does no B mean dwelling alone. In Beg v. St. Pancras 2 Q B D 581 a question arose as to who ass the distinction between occupation and possession. Lush, J. observed thus ;

12. "Occupation includes possession as its primary elements but it also includes something more. Legal possession does not of itself constitute occupation."

13. It was further observed that owner is the occupier of the house though he may not reside in it one day in a year. Farewell, L. J. in Rex v. Melladew (1907) 1 K B 192 held as under :

14. "Whether premises are or are not occupied is in many cases a mixed question of fact and law; there may be visible physical occupation by the person rated or his servant, or his goods and chattels, and such occupation may be of part of an undivided tenement ; the nature of the property and its mode of use must be considered in each case. The test, in the case like the present, of business premises, appears to me to be: Has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it."

15. Accordingly on the same analogy dwelling in the house is not the test o possession and therefore where a person exercises physical control over the house such as in the instant case where his goods are kept in a portion of the house, he must be regarded as being in possession of it.

16. The learned Judges were in error in maintaining the order of join transfer in violation of the above provision after having accepted the finding that the appellant wags a prior allottee and had been in continuous possession of the disputed house which was indivisible. Again the learned Judges also failed to take notice of the instruction namely, para. 5 of the Memorandum No. Comp. Reh/59/5242, dated the 22nd October 1959, which D permits joint transfer in case a claimant agrees to associate with an authority claimant in occupation of the same premises. However, there was no agreement of association between the appellant and Atta Muhammad an therefore the joint transfer had no legal validity. There is no other provision either in the Act or Pi the Schedule to give legal colour to the joint transfer t two claimants. Hence the judgment of the High Court cannot be maintained with the result that we would maintain the order dated 26-11-1960 of the Additional Settlement Commissioner and quash the order of the Settlement Commissioner dated the 9th May 1961, and the order dated the 9th May of 1962 passed by the Settlement and Rehabilitation Commissioner, exercising powers of the Chief Settlement and Rehabilitation Commissioner, The appeal is allowed but with no order as to costs.

17. S. A. H. ?????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.