Malik SIKANDAR through Legal Heirs and others vs MUHAMMAD RAFIQUE and others
This petition for leave to appeal challenges a judgment of the Lahore High Court regarding the ownership of the roof of a suit shop. The dispute arose between the petitioner, who holds the transfer of the residential unit above the shops, and respondent No. 1, who claims the roof as part of the shop transferred to him. The High Court, relying on the precedent in Nazir and others v. Syed Israr Ahmad etc. (1981 SCMR 829), held that the transfer of a shop inherently includes the roof from ground to sky. The petitioner contends that this precedent is inapplicable because the roof serves as a courtyard for the residential unit transferred to him, citing Muhammad Yaqub v. Settlement and Rehabilitation Commissioner, Lahore, etc. (PLD 1973 SC 439) as the governing authority. The Supreme Court granted leave to appeal to determine whether the High Court was legally justified in concluding that the roof was transferred along with the shop, noting the potential conflict in the application of established precedents regarding property transfer rights.
- Does the transfer of a shop under settlement laws necessarily include the transfer of the roof from ground to sky?
- Is the precedent established in Nazir and others v. Syed Israr Ahmad etc. (1981 SCMR 829) applicable to cases where the roof serves as a courtyard for an adjacent residential unit?
ORDER
' AJMAL MIAN, J.---This is a petition for leave to appeal against the judgment dated 21-12-1992 passed by a learned Single Judge of the Lahore High Court in Writ Petition No,325-R of 1981, filed by respondent No,1 claiming the roof of the suit shop on the ground that he was the transferee of the shop, allowing the same in terms of para. 6 of the judgment. The petitioners have, therefore, filed the present petition for leave to appeal.
2. The brief facts are that the suit property comprises seven shops on the ground floor, an inter floor and the upper residential floor. The petitioner is the transferee of the above residential unit, which according to him, includes the roof of the suit shop which is used by him as a courtyard alongwith the roofs of the other shops, which have been held so by respondents Nqs.2 and 3 in their orders dated 30-4-1981 and 8-3-1981. However, upon respondent No,1's above writ petition, the learned Judge in chambers on the basis of the judgment of this Court in the case of Nazir and others v.
Syed Israr Ahmad etc. (1981 SCM R 829) has held that the transfer of the shop would necessarily mean its transfer from ground to sky. The petitioner has, therefore, filed the above petition for leave to appeal.
3. In support of the above petition, Mr. S.M.Naseem learned counsel for the petitioners, has vehemently urged that the judgment in the case of Nazir and others v. Syed Israr Ahmad etc. (supra) has no applications to the facts of the present case, as the roof of the suit shop is a part of the courtyard of the residential unit transferred by the Settlement Department to the petitioner and the relevant judgment applicable to the present case is in the case of Muhammad Yaqub v.
Settlement and Rehabilitation Commissioner, Lahore, etc. (PLD 1973 SC 439).
4. We are inclined to grant leave to consider whether the learned judge in chamber was justified in the present case in holding that the roof was also transferred with the suit shop to the petitioner. Leave is, accordingly, granted. Status quo order will continue.