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Petitioner: Syed ISRAR AHMED Through L.Rs. And Others VS Respondent: MUHAMMAD SHAFI Through JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo, Khalil-Ur-Rehman Khan Title:Syed ISRAR AHMED Through L.Rs. And Others vs MUHAMMAD SHAFI Through
JUDGMENT
Reported As: 1997 SCMR 1934 Result: Appeal accepted Judgment JUDGMENT SAIDUZZAMAN SIDDIQUI, J.---The abovementioned to civil appeals with the leave of this Court are filed to call in question the judgment of a learned Judge in Chambers of Lahore High Court passed in Writ Petitions Nos.338-R of 1982 and 339-R of 1982 on 19-10-1992. 2. The relevant facts of the case `are that Property bearing No.B-VI-S--10/283, Sheikhupura consisted of to shops on the ground floor and a residential portion on the first floor. The residential portion was in possession of one Muhammad Manzoor Alam son of Muhammad Ibrahim. The said Manzoor Alam applied for transfer of the entire property , as a residential building while in respect of to shops on the ground floor Muhammad Shafi, predecessor-in-interest of respondents in Civil Appeal No.348 of 1994 and Muhammad Siddique, predecessor'-in-interest of respondent No. l in Civil Appeal No.349 of 1994, applied for transfer on N.C.H. Form. The Deputy Settlement Commissioner concerned by his order dated 29-10-1959 transferred the whole property consisting of to shops on the ground floor and residential portion thereon to Manzoor Alam. Muhammad Shafi challenged the above order of Deputy Settlement Commissioner in appeal which was allowed by the Additional Settlement Commissioner, by order dated 8-2-1960 and the residential portion and the to shops were held to be separate units. The Additional. Settlement Commissioner, accordingly, remanded the case to the Deputy Settlement Commissioner to determine afresh the entitlement for transfer of the property to the three applicants namely; Manzoor Alam, Muhammad Shaft and Muhammad Siddique. After remand of the case by the Additional Settlement Commissioner, the Deputy Settlement Commissioner took up the case of the abovementioned three claimants and by
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order dated 12-5-1960 rejected the claim of Muhammad Shaft who claimed transfer of shops under Settlement Scheme No.VI. The Deputy Settlement Commissioner also found that the other applicant Muhammad Siddique was not entitled to the transfer of the shop claimed by him as he was not in possession of that shop. The order of Deputy Settlement Commissioner dated 12-5-1960 was challenged in appeal filed by Manzoor Alam. The Additional Settlement Commissioner on the appeal of Manzoor Alam by his order dated 15-6-1960 ordered disposal of to shops on the ground floor by public auction. Against the order of Additional Settlement Commissioner dated 15-6-1960 to revision applications were filed, one by Manzoor Alam and the other by Muhammad Shafi. However, the other claimant, Muhammad Siddique, did not challenge the above order of Additional Settlement Commissioner The Settlement Commissioner by his order dated 28-2-1961 dismissed both the revision applications. Against the order of Settlement Commissioner, no further proceedings were taken by the parties with the result the to shops on the ground floor were put to auction on 19-12-1967 and were purchased by one Mst. Kulsum. However, it appears that said Mst. Kulsum did not pay the transfer price of the shops with the result the same were cancelled and re- auction of the shops was ordered While these. Proceedings were going on, on 10-8-1971, Martial Law Regulation No.86 (hereinafter to be referred as the Regulation' only) was promulgated. Paragraph 4 of the Regulation gave right to an unauthorised occupant of evacuee property to apply to the Chief Settlement Commissioner for transfer of the property in his occupation either before the issuance of notice to him under paragraph 3 of the Regulation or within 15 days from the receipt of such notice. It appears that Muhammad Shafi and Muhammad Siddique both applied for transfer of to shops on the ground floor on the basis of their alleged possession, under paragraph 4 of the Regulation. It also appears that Irshad Ahmed and Saeed Ahmed sons of Hassan Muhammad who claimed to be in possession, of one of the to shops also applied for transfer of the shop in their possession as a building site. The Administrator of the Residual Properties by his order dated 15-3- 1972 transferred the to shops on the ground floor to Muhammad Shaft and Muhammad Siddique respectively. The appellants in the above appeals filed to Writ Petitions being Nos.574-R of 1973 and 276-R of 1972 before the Lahore High Court to challenge the order of Administrator, Residual Properties. By judgment dated 1-3-1980 both the writ petitions were allowed and the case was remanded to the Notified Officer by the High Court as follows:-- "The case is remanded to the Notified Officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, for deciding the pending applications of the parties in accordance with law and after issuing theta notices and affording reasonable opportunity of being heard." After remand of the case, the Settlement Commissioner in his capacity its Notified Officer by order dated 12-6-1982 transferred one shop on the ground floor to Israr Ahmed, predecessor-in-interest of appellants in Civil Appeal No.348 of 1994 while the other shop was transferred to the appellants in Civil Appeal No.349 of 1994. The order of Settlement Commissioner was challenged in to writ petitions filed by the legal heirs of Muhammad Shaft and Muhammad Siddique respectively before the Lahore High Court being Writ Petitions 338 and 339-R of 1992. Both these petitions were accepted by a learned Judge in Chambers of Lahore High Court through the impugned judgment dated 19-1U-1992 against which leave was granted by this Court to consider the following contentions:- "2. Two evacuee shops were transferred to Muhammad Shaft and Muhammad Siddique, the predecessors-in-interest of the respondents in Civil Petition 1057-L of 1992 and Civil Petition No.1058-L of 1992, respectively. The transfer was made under Martial Law Regulation No.86 on the basis of their possession. The order of transfer was challenged by Irshad Ahmad, petitioner No.1 in Civil Petition No. 1058-L of 1992, through Writ Petition No.276-R of 1972. The writ petition was accepted and the case was remanded to the Notified Officer for a fresh decision on the question as to whether the petitioners are occupying the shops as licensee. The Settlement Commissioner,
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Lahore Division, held that as the petitioners were occupying the shops in question, they are entitled to the transfer of the said shops and that the transfer of the shops in favour of the respondents is not valid. This order was challenged in to separate writ petitions by the respondents. The learned Judge in Chamber accepted the writ petitions on the basis that in the previous- proceedings the occupation of the respondents had been accepted as tenants. The learned counsel has referred to the admission made in the earlier writ petition, which is in- the following terms: That the petitioner being poor person accepted the tenancy of aforesaid Muhammad Rafi due to his meagure resources and started regular payment of rent to him and Muhammad Rafi was not issuing any receipt for the rent. The Martial Law Regulation No.86 had been promulgated any property was unearthed and Muhammad Raft in connivance with Additional S.C. Had managed to get the property transferred in favour of Muhammad Siddique.' 'The learned counsel for the petitioners stated that as the petitioner (in Writ Petition No.276-R of 1992) never accepted that he had been inducted as tenant by the respondents, his admission in favour of Muhammad Raft does not extend to the respondents. The learned counsel stated that the respondents were never in possession of the shops in dispute, therefore, these shops could not be transferred to them. Leave is granted in these to petitions." 3. The main thrust of the arguments of the learned counsel for the appellants in the above appeals is that the deceased respondents Muhammad Shafi and Muhammad Siddique not being in possession of the to shops on the ground floor were not entitled to the transfer of the same under paragraph 4 of the Regulation. It is contended by the learned counsel for the appellants that the appellants being in physical occupation of the to shops were entitled to their transfer under paragraph 4 of the Regulation. 4. It is conceded before us that in so far Israr Ahmed, the predecessor-in--interest of appellants in Civil Appeal No.348 of 1994 is concerned, he made no formal application for transfer of the shops under the Regulation. The learned counsel, however, contended that during proceedings of Writ Petition No.276-R of 1972 the original record was summoned from the office .Of the Settlement Commissioner and it was found by the Court that there was an entry in C.S.2 register of the application alleged to have been filed by Israr Ahmed, the predecessor-in-interest of appellants in Civil Appeal No.349 of 1994 at Serial No.544 dated 24-2-1961 for transfer of an open plot. Firstly, no, attempt was made either after the remand proceedings or before the High Court to place on record the copy of the alleged application for transfer of the open plot made by Israr Ahmed and secondly, in any case the to shops on the ground floor were ordered to be disposed of by public auction on 15-6-1960 and this order was upheld by the Settlement Commissioner on 22-8-1961 and the property was in fact put to public auction and purchased by Mst. Kalsum but Israr Ahmed who allegedly had filed application for transfer of the shop as building site did. Not call in question these proceedings. In these circumstances in so far Israr Ahmed is concerned, he could not lay claim for transfer of any of the to shops. In so far the entitlement of Irshad and Saeed Ahmed, appellants in Civil Appeal No349 of 1994 is concerned, they did apply for transfer under paragraph 4 of the Regulation. The learned counsel for the appellants has heavily relied on report of Deputy Settlement Commissioner dated 11-11-1971 wherein 'he examined the entitlement of all the applicants under the Regulation. According to the learned counsel for the appellants this report fully supported the claim of the appellants for transfer of the shops as they were found in physical possession thereof. The report relied by the learned counsel for the appellants, states that Saeed Ahmed and Irshad Ahmed (appellants in civil Appeal No.349 of 1994) are in possession of shops Nos. l-A and 2-A which is in adverse possession of Muhammad Siddique. Since Israr Ahmed never applied for transfer of shop in his occupation under para. 4 of the Regulation, he could not be transferred the said shop. In so far the shop in possession of Irshad Ahmed and Saeed Ahmed was
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concerned the same could not be transferred to them under paragraph 4 of the Regulation as they were not in possession of the shop in their own right. Similarly, Shop No. l-A which was shown in physical possession of Israr Ahmed was stated to be in adverse possession of Muhammad Shafi. In paragraph 9 of the report relied by the learned counsel for the appellants, the Deputy Settlement Commissioner made recommendation that if the shop is to be transferred on the basis of the adverse possession then it should be transferred to Muhammad Shafi and Muhammad Siddique respectively who had paid arrears of rent of these to shops. It was also suggested that if these shops are to be transferred on the basis of physical possession, the same may be transferred to the actual occupants. In the end, it was recommended that if the property is to be auctioned then all persons will have equal opportunity to compete for the transfer of said shops. The learned counsel for the appellants has not been able to explain the expression of 'adverse possession' used in the above report of Deputy Settlement Commissioner dated 11-11-1971 with reference to Muhammad Siddique and Muhammad Shafi. After going through the above report of Deputy Settlement Commissioner carefully, we are of the view that the expression of "adverse possession" has been used in the above report by the Deputy Settlement Commissioner to indicate that the constructive possession of these to shops was that of Muhammad Shafi and Muhammad Siddique respectively, while Irshad Ahmed and Saeed Ahmed and Israr Ahmed were in actual possession of these shops. The learned Judge in Chambers in the impugned judgment has referred to the admission made by the appellants in the earlier writ petition wherein they stated that being poor persons they accepted the tenancy of the shops under one Muhammad Rafi. There is nothing on record to show that the appellants were tenant of one Muhammad Rafi. On the contrary, the previous litigation in the case and the report of Deputy Settlement Commissioner relied by the learned counsel for the appellants supported the contention of the respondents that appellants were tenants of Muhammad Siddique and Muhammad Shafi in respect of the disputed shops. It is true that under the Regulation an unauthorised occupant has been given right to apply for transfer of the property either before issue of a notice under paragraph 3 of the Regulation or within 15 days of the issuance of such notice. However, the unauthorised occupation referred in paragraph 4 of the Regulation does not include a permissive occupation of a person as tenant, guest or licensee of another person. The unauthorised occupation in paragraph 4 of the Regulation refers to the occupation of a person in his own independent right and not on behalf of another person. The word 'occupation' used in Settlement Scheme No.VIII with reference to the right of an occupant to claim transfer of the property came up for interpretation in the case of Abdul Rehamn v. Deputy Settlement Commissioner (PLD 1977 Lah. 576). Nasim Hasan Shah, J. (as his Lordship then was) while considering the right of a person to claim transfer of property under Settlement Scheme No.VIII on the basis of his occupation observed that such occupation must be in the right of person claiming transfer and not on behalf of another person. The following observations made in paragraph 19 of the report at page 585 of the case may be reproduced here With advantage:-- "It is in such a situation that the question would arise as to which of the to applicants for the site is to be deemed to be its occupant. In such a situation, in my view, the person having the superior right to the use and enjoyment of the property must be considered in law to be the occupant of the property in question. A tenant holds the property on behalf of his landlord and is in occupation only under him. As observed in Ambo Jan v. Assistant Settlement Commissioner (PLD 1075 Pesh. 244) a tenant cannot be allowed to deny the title of his landlord. The reason is obvious because otherwise trespassers, guests, licensees and every other type of person who has managed to obtain occupation of a property shall be claiming preference for its transfer over the person who had constructed it and was either illegally ousted from it or had allowed its use and occupation to another on certain terms. To avoid such undesirable consequences, although the word 'occupant' used in para. i.e)(i) normally shall be the person in actual physical occupation but in case the
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landlord of such occupant himself claims transfer, the latter will be deemed to be the occupant for the purposes of transfer. Thus, it is only where the occupant does not come into competition with the person who had inducted him into the property, which the latter had himself constructed, will the actual physical occupant be ableto secure its transfer, in preference to his landlord." I am inclined to agree with the above interpretation of word 'occupant' under Settlement Scheme No.VIII which equally applied to the provisions of the Regulation and accordingly, hold that the appellants in Civil Appeals Nos:348 and 349 of 1994 being in occupation of the shops as tenants of Muhammad Shafi and Muhammad Siddique, they were not entitled to seek transfer of these premises on the basis of their possession under. The Regulation. No case for interference with the judgment of the High Court is made out. The appeals are, accordingly, dismissed but in the circumstances of the case, there will be no order as to costs. MUKHTAR AHMAD JUNEJO, J.---I have had the benefit of going through the judgment authored by my learned brother Saiduzzaman Siddiqui, J., dismissing these appeals and the dissenting judgment authored by my learned brother Khalil -ur-Rehman Khan, J., accepting these appeals. For the reason given in this note/judgment I agree with the conclusion arrived at in the latter judgment and find myself unable to agree with the conclusion and the reasons given in the former judgment. The property in litigation consists of to shops, which are part of Property No.BVI-X-S-2-83, Sheikhupura, left by evacuee Santa Singh. Entire property including the shops in question, was transferred vide an order dated 29-10-1959 by the Deputy Settlement Commissioner to M. Manzoor Alam, who was already allotted the residential part of it. Said order in respect of the shops, was set aside on 8-2-1960 by the Additional Settlement Commissioner in an appeal filed by Muhammad Shaft, who claimed being in possession of one of the to shops. The matter was remanded to the Deputy Settlement Commissioner with direction to give fresh decision separately in respect of each of the to shops. Under his order dated 12-5-1960 the Deputy Settlement Commissioner rejected C.H. Form of Muhammad Shafi but left it open for his application to be accepted, under Settlement Scheme No.VI, for transfer of both the shops to him. The Deputy Settlement Commissioner found Muhammad Shafi running his flour "Chakki" in one shop and storing his articles in half of the other shop, where other half was occupied by Mehmood Ahmad a local. Under an order dated 15-6-1960 the Additional Settlement Commissioner directed disposal of the shops in question by auction. Said order dated 15-6-1960 was assailed under to revision applications, one filed by Muhammad Shafi and another filed by M. Manzoor Alam. Under an order dated 22-8-1961 the Settlement Commissioner rejected both the revision applications and directed the shops in question to be disposed of by auction. At one stage the shops were auctioned, but later on such auction was cancelled on 19-12-1967 by the Additional Settlement Commissioner, who ordered re-auction. Disposal of said shops through reauction was yet to take place, when on 10-8-1971 Martial Law Regulation No.86 came in force. Said Regulation inter alia authorised an unauthorised occupant of any evacuee property, to apply to the Chief Settlement Commissioner for transfer of the property in his unauthorised possession to him, if no notice under section 3 of said Regulation was issued to him. If such notice was issued to him, he could move for transfer within 15 days of receiving such notice. Taking advantage of said Regulation, Muhammad Siddique (predecessor of respondent No. l in Civil Appeal No.349 of 1994 moved on 22-9-1971 for transfer of one of the to shops in question, which he claimed to be in his possession. Muhammad Shaft (predecessor of respondent No. l in Civil Appeal No.348 of 1994) moved similar application on 14-9-1971 for transfer of another shop. Irshad Ahmad filed similar application on 24-1-1972, while Saeed Ahmad filed similar application on 10-11-1971. Similar application by Talib Hussain was moved on 24-1-1972. In pursuance of the provisions contained m section 3(2) of the Regulation, the. Deputy Settlement Commissioner issued notices to Muhammad Shafi (predecessor of respondent No.1 in Civil Appeal No.348 of 1994)
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as well as to Muhammad Siddique and Talib Hussain for clearance of the arrears of rent. They moved the Settlement Commissioner for disposal of the said property and their cases were endorsed to the Deputy Settlement Commissioner for enquiry and report. The Deputy Settlement Commissioner after enquiry submitted his report before the Settlement Commissioner to the effect that Talib Hussain and Irshad Ahmad (appellant No.1 in Civil Appeal No.349 of 1994), Israr Ahmad (predecessor of appellants in Civil Appeal No.348 of 1994) and Saeed Ahmad appellant No.2 in Civil Appeal No.349 of 1994) were in occupation of the shops in question, as licensee/permissive occupants and that Talib Hussain and Irshad Ahmad etc. Were paying rent to Muhammad Siddique, while Israr Ahmad was paying rent to Muhammad Shafi. The Deputy Settlement Commissioner took note of the fact that Irshad Ahmad etc. Had not filed any application under the Regulation, while Talib Hussan had neither paid rent nor he was keen for transfer of half of a shop. Under a short order dated 15-3-1972, the Additional Settlement Commissioner after consultation with the Deputy Settlement Commissioner transferred the disputed shops to Muhammad Siddique and Muhammad Shafi. Said order dated 15-3-1972 was assailed in the Lahore High Court by Irshad Ahmad and Saeed Hassan under Writ Petition No.276-R of 1972 and by Israr Ahmad under Writ Petition No.574-R of 1973. Both the petitions were accepted by the High Court, under a judgment dated 1-3-1980 by which the order dated 15-3-1972 was set aside and the case was remanded to the "Notified Officer" for deciding the pending applications of the parties in accordance with the law, after hearing them. In para. 4 of their Writ Petition No.276-R of, 1972 appellants Irshad Ahmad and Saeed Ahmad and in para. 4 of his Writ Petition No.574-R of 1973 Israr Ahmad took stand that they being poor persons accepted tenancy of Muhammad Rafi due to their meagre resources and started regular payment of rent to Muhammad Raft, who was not issuing any receipt for the rent. At the same the the writ petitioners in the next para. Of their writ petition alleged that on coming into force of M.L.R. No.86 the disputed property was unearthed and then Muhammad Rafi in connivance with the Additional Settlement Commissioner managed transfer of the disputed property in his favour. This point was desired by the High Court to be freshly decided by the Notified Officer, although the order of transfer dated 15-3-1972 was declared to be illegal and of no legal effect. After remand, the Settlement Commissioner and Administrator (R.P.), who was Notified Officer, passed an order dated 12-6-1982 transferring to Israr Ahmad the shop in his possession and to Saeed Ahmad and Irshad Ahmad the other shop. Said order dated 12-6-1982 was assailed in Lahore High Court by heirs of Muhammad Shaft under Writ Petition No.338-R of 1982 and by heirs of Muhammad Siddique under Writ Petition No.339-R of 1982, which were accepted and the order dated 12-6-1982 was declared illegal and without lawful authority and the orders of allotment were restored. Hence these appeals with leave of this Court. Leave to appeal was granted to consider whether the appellants were occupying the shops in litigation, when the M.L.R. No.86 came in force, as licnesees or as tenants of the private respondents. During hearing of the appeals Mr. M. Maqbool Sadiq, Advocate was heard at length on behalf of the appellants in both the appeals, while Mr. S.M. Naseem, Advocate was heard for the respondents in Civil Appeal No.349 of 1994 and Mr. A.R. Shaikh, Advocate was heard for the respondent No.1 in Civil Appeal No.348 of 1994. The points at issue in these matters would be: (i) Whether the shop in possession of the appellants in Civil Appeal No.348 of 1994 was occupied by them or by their predecessor Israr Ahmad as tenants or as licensees of Muhammad Shafi? And (ii) Whether the shop in possession of appellants in Civil Appeal No.349 of 1994 was occupied by them as tenants or as licensees of Muhammad Siddique? For deciding the points at issue, the High Court has relied upon the averments made by Israr Ahmad in para. 4 of his Writ Petition No.574-R of 1973 and by Irshad Ahmad and Saeed Hassan in para.4 of their Writ Petition No.276-R of 1972 mentioned above, about the circumstances in which
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they accepted the tenancy of Muhammad Rafi due to being poor with meagre resources. These averments were termed in the impugned judgment to be "admissions" by the petitioners in said Writ Petitions No.276-R of 1972 and No.574-R of 1973 to the effect that their possession/occupation of the shops in question was as tenants/licensees. Learned Judge in Chamber appears to have overlooked the contents of para. 5 of each of the writ petitions. In para. 5 of their Writ Petition No.276-R of 1972, petitioners Irshad Ahmad and Saeed Hassan alleged that the property in dispute was unearthed in consequence of MLR No.86 and that Muhammad Rafi…
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