MUHAMMAD MUNSHI Versus CHIEF SETTLEMENT AND REHABILITATION COMMISSIONER

ORDER

ZAFFAR HUSSAIN MIRZA, J.- -The dispute in this case is over a composite property consisting of a shop and a Chaubara. The petitioner claimed transfer of the property on the basis of his being allottee of the shop, whereas the rival claim set up by respondent No.2 was based on his possession of the Chaubara. It is common ground that the petitioner was a non-claimant and respondent No.2 was a claimant.

2. The contest between the parties has a chequered history but it is only necessary to mention that in the hierarchy of the Settlement Authorities the controversy between the parties ended with the order of the Settlement Commissioner dated 28th November, 1973, whereby the entire property was treated as one unit and transferred to respondent No.2. The petitioner having unsuccessfully challenged the order in a constitutional petition before the Lahore High Court, Lahore, seeks leave to appeal from the judgment of the High Court dated 29th March, 1987.

3. It is mainly contended by the learned counsel that respondent No.2 could not be transferred two units, one a commercial and the other a residential unit as it is against the policy of the law underlying the Settlement Scheme. He further submitted that as respondent No.2 was non-allottee, the principle of superiority of a claimant over a non-claimant was not properly invoked in this case.

4. After hearing the learned counsel at some length we find no force in his contentions. There can be no doubt that if a property is not held to be divisible by the competent Settlement Authorities, the' conflicting claims for transfer between a non-claimant and a claimant will be decided on the preferential right of a claimant. In this connection we called upon the learned counsel to state whether the observations made by the learned Single Judge in the impugned judgment to the following effect were disputed by him:

"On the question of divisibility, it must be observed that all the Settlement Authorities having treated the property to be indivisible at all stages, this Court is not minded to substitute itself for the Settlement Authorities in the facts and circumstances of this case. The property having been considered as one unit whether it may be called a shop or a house will go to the claimant in preference to non-claimant."

His only reply was that it was sufficient for this purpose that the two portions were separately transferred to hold that the property was divisible. We are unable to accept this proposition as it has not been shown to us that at any stage any competent authority applied its mind to the question of divisibility of the property and declared it so. In the circumstances the High Court proceeded on correct premises to disentitle the petitioner who was a non-claimant displaced person, whereas respondent No.2 was a claimant displaced person. We are also not inclined to accept the learned counsel's submission to remand this case at this stage to the designated authority for a decision as to the divisibility of the property after the long history of the litigation between the parties in which no such question seems to have been raised or attended to.

5. For the foregoing reasons we find that no exception can be taken to the judgment of the High Court and accordingly dismiss the petition.

M. I. /M-280/S Petition dismissed.