1. ' NASIM HASAN SHAH, J.-The dispute in the case relates to the transfer of certain servant quarters, hutments and garrages appurtenant to the Bungalow, the Guest House and Annexe of Property No, S-51-R-36. Lawrence Road, Lahore. This dispute ultimately culminated in an appeal before this Court (C. A. No, 4 of 1973). Mr. Justice Shamim Hussain Kadri and his brothers were in possession of the main bungalow ; the guest house adjoining the main bungalow, was in possession of Khawaja Abdul Qayyum, the petitioner herein ; while the annexe in the compound of the bungalow was in occupation of one Jalal Din. The servant quarters, hutments and garages appurtenant to this building were in possession of a number of other persons. The occupants of the bungalow, the guest house, annexe and servant quarters had filed settlement forms seeking transter of various parts of the property and a long drawn litigation ensued between the main contestants, namely, Mr. Justice Shamim Hussain Qadri and his brothers on the one side and Khawaja Abdul Qayyum on the other which ultimately culminated in the passing of a consent order by this Court on 22nd March, 1973 in Civil Appeal No, 4 of 1973. It was agreed between the parties that portions marked A, B, C, D, E, F, G and H in Plan 'X' will be transferred to khawaja Abdul Qayyum and the rest will be transferred to Mr. Justice Shamim Hussain Qadri and his brothers.
2. ' It appears that the forms of two persons, namely, Bashir Ahmad and Muhammad Rafi who were occupants of two servant quarters in the compound and had also applied for their transfer had not been disposed of. As regards the disposal of these forms, leaving aside the unnecessary details their claim was ultimately accepted in the revisional order of the Settlement Commissioner dated 29th April, 1974 and disputed quarters were transferred in their favour. This revisional order was passed after hearing the petitioners who was a regular party therein. The copy of the order further shows that the revision was instituted on 13th December, 1972 before the decision of Civil Appeal No, 4 of 1973 which was decided on 22nd March, 1973.
3. ' However, in pursuance of the order passed by this Court in Civil Appeal No, 4 of 1973, referred to above, the Settlement authorities issued notices of ejectment to Bashir Ahmad and Muhammad Rafi, respondents herein. Thereupon, they filed Civil Miscellaneous Petition No, 479 of 1975 in this Court with the prayer that the order for their ejectment passed ex parte may be recalled as they were not trespassers but transferees of the quarters in their possession, in accordance with law.
4. This matter was heard by Mr. Justice Yaqub Ali, Chief Justice (as he then was), Mr. Justice Mohammad Akram (as he then was) and Mr. Justice Dorab Patel. It may be mentioned here that Mr. Justice Yaqub Ali, C. J.. Was the author of the judgment in Civil Appeal No, 4 of 1973 and is also the author of the order passed on this miscellaneous application, now sought to be reviewed. The following extract from this order may be reproduced hereunder with advantage :- "As seen in the final order passed by the Settlement Commissioner on 6th August, 1972 (sic presumably 1962) it was directed that alongwith the annexe the northern portion of Bungalow No, 36-A including the outhouses, hutments and garages be transferred to Khawaja Abdul Qayyum. The quarters in possession of Bashir Ahmad and Muhammad Rafi are not included in the northern part of Bungalow No, 36-A, but are located towards West. The quarters in the occupation of Bashir Ahmad and Muhammad Rafi were thus not included in the portion transferred to Khawaja Abdul Qayyum. The Additional Settlement Commissioner ordered that only those quarters will be transferred to Khawaja Abdul Qayyum which have not been transferred by the Deputy Settlement Commissioner and which have not been claimed by any one of the occupants or transferred to them. Khawaja Abdul Qayyum did not move against these orders which thereby acquired finality and are binding on him. This aspect of the case was not brought to the notice of the Court when the consent order, dated 22nd March, 1973 was passed in Civil Appeal No, 4 of 1973. Accordingly, we allow Civil Miscellaneous No, 479 of 1975 and exclude the quarters in possession of Bashir Ahmad and Muhammad Rafi, petitioners, from the portion marked A, B, C, D, E, F, G and H which has been transferred to Khawaja Abdul Qayyum."
5. ' The miscellaneous application (No, 479/75) was on this view of the matter accepted in the above terms on 13th April, 1976. Hence this review petition, which is directed against the aforesaid order.
6. ' Sh. Muhammad Naseem, learned Advocate for the petitioner, in support of the petition has argued that on account of a wrong assumption of fact, which is patent on the face of the record, namely, that the quarters in occupation of Bashir Ahmad and Muhammad Rafi are not situated on the northern part of the Bungalow which stood transferred to Khawaja Abdul Qayyum the quarters aforesaid have been excluded from the portion transferred to him. Even otherwise, if for some reason it was considered that these quarters were not situated in the northern part of the bungalow they were clearly included in the portion marked A, B, C, D, E, F, G and H in Plan 'X' and, therefore, stood transferred in his favour. He further pointed out that in any case the servant quarters could not be transferred to their occupants as They were to be transferred alongwith the main house and could not be transferred as independent houses.
7. We have seen the original Plan 'X' signed by Mr. Justice Hamoodur Rahman (the then Chief Justice) and we observe that the quarters in dispute are not situated in the northern part of the bungalow and as such any claim on the basis of their location in the northern portion cannot be accepted and was rightly rejected by this Court while passing order under review. It may also be mentioned that order, dated 6th August, 1962 passed by the Settlement authorities which was the basis of the claim of the petitioner is also confined to the northern part.
8. ' As regards the second plea that these quarters are included in the portion A, B, C, D, E, F, G and H and hence could not be excluded, the said plea cannot advance the case of the petitioner because qua these quarters the petitioner could have succeeded only if they had fallen in the northern part. But as pointed out by this Court that it was due to the misrepresentation of the petitioner that the quarters stood transferred to him, although the forms of the occupants of these quarters were still pending disposal and were ultimately accepted by the Settlement Commissions by his order dated 29th April 1974 despite the fact that the petitioner appeared before him and pressed his case on the basis of the order dated 6th August 1962 but it was not accepted. However, the order of the Settlement Commissioner dated 29th April 1974 was not challenged in any forum and has become final between him and Bashir Ahmad etc. This Court in these circumstances rightly passed the order dated 13th April 1976 holding, that in view of the order dated 29th April 1974 passed by the Settlement Commissioner Khawaja Abdul Qayyum was not entitled to these quarters. The learned counsel for the petitioner, no doubt, submitted that the compromise between Khawaja Abdul Qayyum on one side and Mr. Justice Shamim Hussain Qadri and his brothers on the other would be effected if the quarters in dispute were to be excluded from the transfer to the petitioner. This argument is, however, fallacious. Mr. Justice Shamim Hussain Qadri and his brothers are not questioning the compromise or urging that the quarters in question should not be given to the petitioner or desiring any change or modification in the compromise. The true situation is that unfortunately for the petitioner that in the portion voluntarily selected by him for transfer there was some litigation pending between him and the respondents and obviously his choice vis-a-vis these quarters was subject to the result of that litigation. If he lost in that litigation he had to lose the said quarters. It is remarkable that order dated 29th April 1974 passed by the Settlement Commissioner transferring the servant quarters in dispute to the respondents was not challenged either until 13th April 1976, when this Court passed the order in review nor indeed it has even been challenged upto now.
9. As for the plea that the servant quarters could not go to the respondents Bashir Ahmad and Muhammad Rafi because the "servant quarters", according to the law, must be transferred alongwith the main house we c may only observe that the orders of transfer in their favour have not been challenged before the appropriate forum and cannot now be questioned before us and their transfer obtained as if by a side wind, in the present proceeding.
10. ' As no ground for review of the order passed on 13th April 1976 has been made out, this petition, therefore, fails and is dismissed hereby.