MUHAMMAD RAMZAN Versus ABDUL GHANI , Yousaf Rafi, Advocate-on-Record

AJMAL MIAN, J.‑‑ ‑The above two appeals are with the leave of this Court and are directed against the common judgment dated 18‑4‑1979 passed by a learned single Judge of the High Court of Sindh in Constitutional petitions Nos.409 and 468 of 1969 filed by the appellants against the order of the Settlement Commissioner dated 23‑5‑1969; dismissing the same and maintaining the latter order. Leave was granted to consider, whether on the facts of the present case, the respondents who were transferees of single room on one of the shops in question, could be entitled to the transfer of the roofs of all the adjoining shops and secondly, whether in the circumstances of the case, the P.T.D. could have been amended.

2. The facts to be noted are that a building situated at Shahi Bazar, Mandi Road, Mirpurkhas, had six shops bearing Custodian numbers B‑129, 13 130, B‑437, B‑438, and B‑439. It seems that one room was constructed on a portion of the roofs of the shops which was assigned Custodian No.B‑436. It further seems that there are two houses on the first floor bearing Custodian Nos. B‑434 and B‑435 but they are contiguous to the aforesaid six shops and are not built over the shops. There is a passage from these two houses to the roof over the said six shops. It appears that the shops were transferred to the respective occupants including the predecessor‑in‑interest of appellants in the above first appeal and the appellant in the second appeal. The above room 13 436 was transferred in favour of respondent No.l on 27‑11‑1959. However, the P.T.O. was issued in favour of respondents Nos.l and 2 on 18‑11‑1960. In the P.T.D. of above Survey No.B‑436, corresponding City Survey number was shown to be B‑522 in P.T.D. which was issued on 12‑11‑1966. However, respondents Nos.l and 2 got their P.T.D. amended on 6‑5‑1968 through an administrative order of an Accounts Officer and instead of City Survey No.B 522, relevant City Survey Nos.B‑524, B‑523 and B‑524/2 were inserted and the words "upper storey" were also included. The appellants, after discovering the above amendment in the P.T.D., moved an application which was taken up by the Deputy. Settlement Commissioner who, after visiting the site, by a detailed order held that the above additions were not warranted by law. Against the above order, respondents Nos.l and 2 filed an appeal which was dismissed by the learned Additional Settlement Commissioner by his order dated 24‑2‑1969, who after visiting the site, maintained the order of the Deputy Settlement Commissioner. Thereupon, respondents Nos.l and 2 filed a revision which was allowed by the learned Settlement Commissioner by his order dated 23‑5‑1969 for the following reasons:‑‑

"A reference to the plan Exh.l will show that the disputed roof has one room, chappra and temporary tin‑shed, the latter according to the finding of the Deputy Settlement Commissioner were put up by the petitioners recently. This, if constructed by the evacuee himself, is evacuee property and if constructed by petitioner, Abdul Ghani as alleged by the respondents, must prior to the 21st January 1951 became an accretion to the evacuee property. In either case, it is transferable under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Actually the Courts below have found petitioner Abdul Ghani, entitled for its transfer. Now the question is whether the open roof, which surrounds this room should form Dart of this property, or should go to the transferees of the ground floor, as their un-constructed roofs. In my opinion, there is no justification in excluding this un-constructed roof from the transfer documents of Abdul Ghani, when he has been in its actual occupation even though unauthorisedly since before 1951. The mere assertion that his possession was disputed and respondents were also using the same as part of their transferred property, cannot be accepted in the absence of any proof. It is part of the property No.B‑436, which was originally transferred to him. 1, therefore, accept this revision petition, set aside the impugned orders and direct that the aforesaid constructions, alongwith the entire open roof, over these shops be transferred to Abdul Ghani on his NCH form. That the transfer price, which he has paid on the basis of rent assessed by the Custodian Deptt. be suitably enhanced, according to law by the Deputy Settlement Commissioner concerned, after hearing the petitioner and the amount thus payable by Abdul Ghani be charged from him within a reasonable time."

Against the above order of the Settlement Commissioner, the appellants had filed the above two petitions, which were dismissed by a learned single Judge of the High Court through the judgment under appeal. Thereupon, the appellants filed two petitions for leave, which were granted to consider the above questions.

3. We have heard M/s. K.A. Ghani and Ali Akbar, learned A.O.Rs for the appellants, and Mr. Yousaf Rafi, learned A.O.R. for the respondents in the above two appeals.

4. From the record it is evident that the room on the first floor, which was assigned property No.B‑436, was not in existence at the time of partition of India. It was constructed as per finding of the Settlement Commissioner prior to 21‑1‑1951 on a portion of the roof. It is also an admitted position that when the above room was transferred to respondents Nos.l and 2, the P.T.D. did not include the roofs of the shops which were lying vacant, nor any price for the same was charged by the Settlement Department as is evident from the above quoted portion of the order of the Settlement Commissioner. The question which requires consideration is, as to whether the Accounts Officer could have allowed the addition in the P.T.D. as to include the roofs of the shops which were transferred to different persons including the appellants and their predecessor‑in‑interest. The Displaced Persons (Compensation & Rehabilitation) Act, 1958, or the Schemes framed there under, do not confer any such power on the administrative side upon an Accounts Officer. Be that as it may, the above action of the Accounts Officer was upheld by the Settlement Commissioner. Further question which needs examination is, whether the order of the Settlement Commissioner which has been upheld by the High Court can be sustained. The reasoning found favour with the Settlement Commissioner, namely, that the respondent No.l must have been using the roofs of all the shops though unauthorisedly since before 1951, in our view, is not a sufficient reason warranting transfer of the roofs of the shops to respondent No.l, though the shops were already transferred inter alia to the appellants and thereby depriving the transferees of the shops the roofs of their shops. In this regard, reference may be made to the judgment of this Court in the case of Abdul Majid and another v. Settlement Commissioner, Sargodha Division, Lyallpur, and 4 others (1977 SCMR 353), in which the facts were that a double‑storeyed building bearing No.129/1 situated in Ward No.7 of Montogomery Bazar, Lyallpur, was an evacuee property, of which various portions were in possession of various persons. Upon the application of the occupants, the various portions of the building were transferred as follows:‑‑

"(A) One room on ground to Muhammad Yaqub floor

(B) One room on the first to Muhammad Hanif and floor with kitchen on Muhammad Latif the ground floor

(C) A garage on ground to Muhammad Sharif floor

(D) One room with a to Abdul Majid and bath room, a store Abdul Hamid room and passage on the ground floor

(E) Shop one room on to Master ground floor Muhammad Hanif

(F) Shop one room to Eida son of adjacent to stair‑ Natha." case on ground floor

It was ordered that the easement rights and the use of the stair‑case would be common for all the occupants concerned. It seems that on 24‑7‑1963, Muhammad Latif and Muhammad Hanif submitted an application against heirs of Eida, the transferee mentioned in above sub‑para (F) (who in the meantime had died), to the Deputy Settlement Commissioner praying for clarification of his order dated 24‑1‑1960 on the ground that the room of the first floor had been transferred to them, whereas in the P.T.O. of Eida, a room had also been shown transferred to him alongwith the shop on the ground floor adjacent to the stair‑case, which was not mentioned in the original order. The matter was litigated up to the level of this Court and one of the questions which was agitated was, whether the transferee of one room on the first floor was entitled to the roof of the whole building. On this aspect, this Court made the following observations:‑‑

"After hearing the learned counsel for the parties and carefully perusing the plan placed on the file we have come to the conclusion that there is no force in the contention of the learned counsel for respondents Nos.4 and 5 the heirs of Eida that the whole of the roof over portion `D' has been transferred to them. It is evident from the order of the Settlement Commissioner dated the 27th of June 1964 that the open roof in the property has been transferred to the transferees of the corresponding portions on the ground floor and that was reasonable too because the transferees of the only room on the first floor could not have been given the open roof of the whole building. There is also no force in the contention of the learned counsel for the appellants that respondents Nos.4 and 5 should have no right of access to the room on the first floor over any portion of the roof of portion `D' transferred to them, for in that case it would not at all be possible for respondents Nos.4 and 5 to approach the room on the first floor transferred to them. The order of the Settlement Commissioner that respondents Nos.4 and 5 the heirs of Eida would have the right to pass over the open roof for approaching the room on the first floor was. therefore reasonable and justified. However, to obviate the recurrence of any dispute between the parties in future we amend the order of the Settlement Commissioner to the extent that the Settlement Authorities concerned should demarcate the passage over the roof of portion `D' transferred to the appellants which respondents Nos.4 and 5 the heirs of Eida transferees of portion `B' on the first floor could find access to it. The passage should be demarcated in such a way as to cause least inconvenience to the appellate is."

The above case is applicable .on all fours to the present case.

Reference may also be made to the case of Nazir and others v. Syed Israr Ahmad etc. (1981 SCMR 829). In the above case this Court, while declining leave to appeal, observed as follows:‑‑

"2. Learned counsel for the petitioner has argued that the finding of the Courts below that the property in dispute belonged to the plaintiff -respondent by virtue of P.T.D. issued to him was not correct. This is a question of fact and has been thrashed out by all the Courts below and cannot be reopened specially when the learned counsel has not been able to point out any omission or misreading of evidence. It may be mentioned that the precise portion in dispute is the roof of the barsati over the shop which stands transferred to the plaintiff Tufail Ahmad. It is obvious, that unless otherwise mentioned the transfer of the shop would mean the transfer from bottom to the sky, as is the position in this case."

6. We are inclined to hold that unless and until the Settlement Commissioner would have recorded a finding of fact that one room bearing No.B‑436 and the roofs of all the shops constituted one unit under the Evacuee Laws, the unauthorised use of the roofs of the shops by the occupant of above Room No.B‑436 would not entitle him to claim the transfer of the roof of the entire building. In the instant case, as pointed out hereinabove, the original P.T.D did not include the roofs of the shops nor respondent No.l had paid the price for the roofs. The amendment of the P.T.D., the effect of which was to transfer the roofs even without charging the price, was not warranted by law and, therefore, the orders .of the Deputy Settlement Commissioner and the Additional Settlement Commissioner were in consonance with law. We, therefore, allow the above appeals and set aside the orders of the Settlement Commissioner and the High Court, and restore the orders of the Deputy Settlement Commissioner and the Additional Settlement Commissioner. However, there will be no order as to costs.

A.A./M‑1910/S Appeals allowed.