SHAMSLUD-DIN Versus KHUDA BAKHSH

ORDER

1. ANWARUL HAQ, J.‑ The petitioners are aggrieved by an order made by a learned Single Judge of the Lahore High Court on 28‑9‑1973, whereby a Constitution Petition Filed by the respondent Haji Khuda Bakshah, in respect of shop No. 48 situate in Nadir Shah Bazar, Bahawalnagar, was accepted and at was directed, that the same be on his L. S. form,

2. The shop' in dispute was mortgaged with possession in favour of the respondent by its non‑Muslim owner, Tara Chand, on the 27th of January 1944 for a sum of Rs. 8,500. On the 2nd of April 1951, the mortgage was approved by the learned Custodian of Evacuee Property, and it was ordered that the respondent could retain possession of the shop till the Payment of the mortgage money. In the year 1951 for 1953, the respondent rented the shop to the present petitioners. It is stated that in 1961, the petitioners filed an N. C. H. Form for he transfer the property in their favour, and the Form was later on converted into C. H. Form, but it was rejected on 25‑7‑1966 on the ground of being barred by time.

3. On the promulgation of the Settlement Scheme No. 8 both the parties applied for the transfer of the shop on L. S. Forms as both were locals the petitioners claim of being a displaced person having been rejected earlier by the authorities. By an order made on 3‑5‑1967, the Deputy Settlement Commissioner transferred the shop to the petitioners on the ground that they were in possession thereof and the respondent. The appeal and revision filed by the respondent were rejected by the Additional Settlement Commissioner and the Settlement Commissioner respectively by their orders dated 2‑8‑1967 and 21‑1‑1968.

4. The respondent challenged these orders in the High Court, which has taken the view that the possession of a tenant was really the possession of the landlord, as held in Zafar Niazi v. Qazi Syed Shuja Ataullah and others (P L D 1965 Kar. 52) Syed Muhammad Munir Shah v. Mst. Akbar Jan and others (P L D 1963 Lah. 59) and Nazar Din alias Nazar Muhammad v. Mian Ghulam Shabbir and others (P L D 196 Lah 116). The High Court has further expressed the opinion that even if it was a case of undisputed occupation under the amplified definition of the term "posses sion" according to the Central Government Notification dated the 13th of October 1959, the same principle would apply and constructive occupation would be of the landlord and not of the tenant. On this view of the matter, the High Court has concluded that the Settlement authorities were in error in holding that the respondent was not in possession.

5. Leave to appeal is sought on the ground that the High Court has omitted to take note of the important fact that the possession of the respondent was merely as a charge holder, entitled to the payment of the mortgage money, but not entitled to the transfer of the property as he was not in actual physical possession thereof. It is next submitted that the respondent failed to declare the property under paragraph 3 of the Martial Law Regulation No. 49, and also to apply for the creation of a charge under the relevant Rules and accordingly no entitlement accrued in his favour.

6. There is no merit in these submissions. Reference to Martial Law Regulation No. 49 and to the Rules framed by the Chief Settlement Commis sioner and the Custodian for the creation of a evacuee properties is completely irrelevant to the question of transfer of such properties under the Settlement laws. The only question arising in this case was which of the contending parties was to be treated as being in possession of the dispute shop so as to be entitled to its transfer under paragraph 6 of the amended Settlement Scheme No. VIII as promulgated on 12‑9‑1966. It being admitted that the respondent was the mortgagee of the shop from its non-Muslim evacuee owner, and that he had inducted the present petitioners as his tenants, after his own mortgage had been accepted by the Custodian of Evacuee Property, it is clear that the respondent was to be deemed to be in possession in accordance with the definition of that term as contained in clause 6 of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act. 1958. The petitioners derived their possession or occupation from the respondent and did not, therefore, have an independent locus standi for the transfer of the property as against the respondent. We have no hesitation in endorsing the view taken by the High Court in this behalf.

7. The petition accordingly fails and is hereby dismissed.

8. Petition dismissed.