' FAKHRUDDIN G. EBRAHIM, J.-This Letters Patent Appeal arises out of a settlement matter and, as is not uncommon with such matters, it has a long and chequered history. The subject-matter of the dispute between the parties is a double-storeyed house known as Kamla Cottage, situate at Hyderabad. It has a shop and two residential premises on ground floor, one in the front and the other in the rear, and the third residential premises on the first floor. The deceased Ali Ahmad Ansari, whose heirs are the appellants herein was an allottee of the first floor and in possession since 8-1-1962. Dr. Alamgir, the respondent No, 2, was allotted the front residential portion on the ground floor on caretaker basis on 19-3-1959 on which date one Mr. Jafferi, the respondent No, 3 herein, was allotted the rear portion also on care-taker basis. In so far as the shop is concerned, it was auctioned on 23-2-1960 in favour of Mst. Hanifa Bai and the transfer in her favour is not under challenge. The deceased Ali Ahmad Ansari on 5-8-1975 applied on L. H. Form for transfer of the first floor in his favour which was followed by Appendix IX in his favour for Rs, 9,600.00 dated 6-11-1959 and a P. T. O. Dated 2-12-1959. In early 1960 the first floor which had already been transferred as aforesaid in favour of Ali Ahmad Ansari appeared in the auction list and one Major Kirmani sought its transfer. Mr. R auf Chaudhry, the then Settlement Commissioner on 14-5-1960 without any notice to Mr. Ansari cancelled his P. T.
0. On the ground that the property was valued more than As. 10,000 and ordered the transfer of the first floor in favour of Major Kirmani. On receipt of this information Mr. Ansari filed a revision application before the Chief Settlement Commissioner.
2. In or about December, 1959 Dr. Alamgir was transferred from Medical College, Hyderabad to Medical College, Multan and on 7-4-1960 he received a notice under section 7 (2) (b) of the Rehabilitation Act, 1956 from the Additional Rehabilitation Commissioner to show cause why he should not be evicted within seven days as he had been transferred to Multan. The Additional Rehabilitation Commissioner who was also the Additional Settlement Commissioner ordered eviction of Dr. Alamgir on 25-4-1960. Dr. Alamgir filed an appeal before the Settlement and Rehabilitation Commissioner which was dismissed by him on 21-6-1960 but in the meanwhile Dr. Alamgir had been physically evicts from the front ground floor portion in his possession on 10-5- 1960. On 8-7-1960 Dr. Alamgir filed a revision before Pir Ehsanuddin the then Chief Settlement and Rehabilitation Commissioner in which two prayers were made, one for setting aside the order dated 21-6-1960 and the other for, transfer of the house in his favour in lieu of his verified claim. The only respondent cited in this revision was the State. While this revision was pending Dr. Alamgir on 28-10-1960 made an application in which he challenged the transfers made in favour of Major Kirmani and Mst. Hanifa. In this application it was stated that the petitioner had on inspection of the file learnt that the property had been bifurcated and transferred to Major Kirmani and Mst. Hanifa that the entire house was one unit since the pre-independence days for which purpose reliance was placed on a report of the Deputy Settlement Commissioner dated 30-4-1960, and that Dr. Alamgir, who had submitted his C. H. Form dated 13-7-1959 for the entire house was entitled to its transfer. Grievance was also made that the rental of the property had been enhances by 50% to the prejudice of the petitioner. This revision was partly allowed by Pir Ehsanuddin by order dated 20-3-1961 and the transfer made in favour of Major Kirmani was cancelled, the transfer made in favour of Mst. Hanifa maintained and the remaining building, i. e. Other than the shop, transferred in favour of Dr. Alamgir at the pre-enhanced rental value. To these proceedings deceased All Ahmad Ansari was not a party, who, on 15-4-1961 filed a Petition in this Court being Petition No, 175 of 1961 challenging the order dated 14-5-1960 by which the upper portion had been transferred to Major Kirmani which Petition was later on amended to enable him to challenge the order made by Pir Ehsanuddin, dated 20-3-1961. The occupant of the rear ground portion, Mr. Jaffery also filed a Petition being Petition No, 297/1961 against this order. Both these Petitions were consolidated and disposed off by judgment dated 5-5-1964 made by Inamullah, J.
3. At this stage it is necessary to examine the various contentions raised before Inamullah, J., by the parties for a great deal of arguments was addressed before us as to the effect of this judgment, though its net result was cancelling the P. T.
0. In favour of deceased Ali Ahmed Ansari, setting aside the order of the Chief Settlement Commissioner dated 20-3-1961, and remanding the case to him for adjudication after hearing the parties interested in the house. In so far as Dr. Alamgir was concerned the learned Judge held that the action taken by the Rehabilitation Authorities ejecting Dr. Alamgir was illegal and that he would be in law to be taken in possession of the premises for the purpose of the Settlement Scheme. In so far as deceased Ali Ahmad Ansari was concerned the contention on his behalf was limited to violation of the principles of natural justice inasmuch as both the orders, one by the Settlement Commissioner cancelling the P. T.
0. In his favour and the other by the Chief Settlement Commissioner transferring the house in favour of Dr. Alamgir as an indivisible unit had been made without any notice to them. The learned Judge rejected the contention on behalf of Dr. Alamgir that no purpose would be served by remanding the case back to the Chief Settlement Commissioner as rehearing will result in the same consequence for the deceased Ali Ahmad Ansari as a local was not entitled to the transfer of a portion of the house in his possession under instructions printed at page 139 of the Settlement Manual and that both the Chief Settlement Commissioner as well as the Deputy Settlement Commissioner had after inspection of the house come to the conclusion that the house was indivisible. The learned Judge was rightly of the view that the impugns order had been made without hearing Mr. Ansari and the possibility of the Settlement Authorities to divide the house after hearing Ali Ahmed Ansari cannot be overruled. There was also difference of opinion as to who should hear the matter on remand for according to Counsel appearing for Mr. Ansari the matter should go back to the Settlement Commissioner for decision while the learned Judge was of the view that it should go back to the Chief Settlement Commissioner. The Court took the view that the Chief Settlement Commissioner had expressed certain opinion about the divisibility of the house and about the desirability of the house to be transfers to Dr. Alamgir which would embarrass a Settlement Commissioner while this embarrassment would be avoided if the matter went back to the Chief Settlement Commissioner, for Pir Ehsanuddin had been succeeded by another Chief Settlement Commissioner, Mr. B. A. Qureshi. On behalf of Mr. Jaffery, the respondent No, 2 herein the contention raised was that the Chief Settlement Commissioner had no jurisdiction to revise the order passed by the Rehabilitation and Settlement Commissioner by which Dr. Alamgir was evicted as this order was pass by the Rehabilitation Commissioner and not Settlement Commissioner in pursuance of a notice under section 7 of the Pakistan Rehabilitation Act, 1956. There were two more legal objections raised on behalf of Mr. Jaffery but it is unnecessary to refer to them. The learned Judge did not deem it necessary to consider these contentions for "the parties can be heard by the relevant authority and a decision can then be taken in accordance with law".
4. Following the disposal of the two Writ Petitions as aforesaid the matter came up before Mr. B. A.
Qureshi, the Chief Settlement Commissioner, Pakistan, who by his impugned order dated 7-4-1965 transferred the entire house to Dr. Alamgir to the exclusion of others on a finding that the house was indivisible as a claimant displaces person in preference to Mr. Jaffery who was a non-claimant displaced person and Mr. Ansari who was a local. The Chief Settlement Commissioner also considered the legal objections raised on behalf of Mr. Jaffery and deceased Ali Ahmad Ansari that the Chief Settlement Commissioner had no jurisdiction to revise an order passed by the Rehabilitation Commissioner under Pakistan Rehabilitation Act, 1956 and that in any event the revisional power of the Chief Settlement Commissioner under subsection (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, having been taken away with effect from 13-1-1962, vide Ordinance II of 1962, the Chief Settlement Commissioner was not competent to adjudicate upon the matter. The first contention appears not to have been answered at least adequately but in so far as the argument referred to Ordinance II of 1962 the Chief Settlement Commissioner observed that his revisional powers were saved under Ordinance XIII of 1962 "since the record of the lower Courts was called for in this case on 8-9-1960", much before the promulgation of Ordinance II of 1962 on 13-1-1962.
5. The deceased All Ahmad Ansari again invoks the jurisdiction of this Court under Article 98 of the then Constitution of Pakistan, 1962 challenging the aforesaid order dated 7-4-1965 which came up for hearing before Sajjad Ahmad Jan, J., who was pleased to dismiss the same in limine by his Judgment dated 8-11-1965 against which is directed the present Letters Patent Appeal. The learned Judge found that the house having been held to be one unit by the Chief Settlement Commissioner, the appellant had no locus standi to seek the transfer of a portion of the same house as a separate unit by itself. The learned Judge also considered the legal objection as to the revisional jurisdiction of the Chief Settlement Commissioner following the Ordinance II and XIII of 1962 which argument was repelled as "it is obvious that after the quashment of the order of the Chief Settlement Commissioner by the High Court on the Petitioner's Writ Petition the case had been remanded for re-decision by the Chief Settlement Commissioner and the record of the case had admittedly been called for the purposes of deciding the revision which had been revived by the order of the High Court before 8th of September, 1960." As to the other contention that the proceedings against Dr. Alamgir were for eviction under the Rehabilitation Ordinance and, therefore, could not have been entertained by the Chief Settlement Commissioner, the learned Judge found that in the revision Dr. Alarngir had not only challenged the eviction order against him but also his right to the transfer of the house.
6. Mr. Akhtar Mahmood, the learned Counsel for the appellants in the course of his able arguments raised the following contentions before us :
(i) That Dr. Alamgir was served with a notice under section 7 (2) (b) of the Pakistan Rehabilitation Act, 1956 against which he filed appeal before the Rehabilitation Commissioner under section 11 (1) of the Rehabilitation Act which was dismissed resulting in a revision under section 11 (4) of this Act in which the dispute relating to the transfer of the house did not and could arise.
(ii) That assuming without admitting that the revision disposed off by Pir Ehsanuddin by his order dated 20-3-1961 was one under sub-section (2) of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it abated on the promulgation of Ordinance II of 1962 and was not revived by Ordinance XIII of 1962 for the record that had been called for was record of proceedings against Dr. Alamgir under section 7 of the Pakistan Rehabilitation Ordinance, 1956 and not record relating to the transfer of Kamla Cottage.
(iii) That Dr. Alamgir admittedly became entitled to make an application for transfer of the house only on 3-8-1960 when the Central Government in exercise of the powers conferred by the second proviso to clause (6) of section 2 of the Displaced Persons (Compensation and Rehabilitation) (Act XXVIII. Of 1958), 1958 was pleased to direct that a claimant displaced person like Dr. Alamgir who had not obtained possession of a house in pursuance of an order referred to in the said clause but was in possession of a house in pursuance of an order passed by a competent authority after 20th day of December, 1958, but before 3-8-19t0 was deemed to be in possession under the aforesaid Act. But the deceased Ansari by virtue of Appendix IX dated 6-11-1959 and P. T.
0. Dated 2-12-1459 had acquired vested right in the house transferred in his favour which could not be taken away by retroactive application of the aforesaid order of the Central Government dated 3rd August, 1960. That even otherwise Dr. Alamgir Was not entitled to take advantage of this order for he did not comply with its two further conditions that he was in undisputed possession of the house and no other person was otherwise entitled to the transfer of the house in pursuance of a final order passed by a competent authority.
(iv) Lastly, it was contended that the finding arrived at by the Chief Settlement Commissioner that Kamla Cottage was one house was without proper application of mind and in disregard of contrary material on the record.
7. Coming to the first contention of the learned counsel we may observe that this argument was raised before Inamullah, J., not on behalf of deceased Ali Ahmad Ansari but by Mr. Jaffery, though of course the same was adopted on his behalf at the hearing of the Revision Petition on remand before Mr. B. A. Qureshi. Be that as it may, the eviction notice purporting to be under section 7 (2)
(b) of the Pakistan Rehabilitation Act, addressed to Dr. Alamgir is dated 7-4-1960, on which date the property had ceased to be an evacuee property having entered the compensation pool under notification dated 21-8-1959, under section 3 of Act XXVIII of 1958. This eviction notice, therefore, in law could only be, as was contended by Mr. Fazale Ghani, the learned counsel for Dr. Alamgir, under section 29 of this Act and not under the Rehabilitation Act. The eviction order was made by the Additional Settlement and Rehabilitation Commissioner and the appeal against it was heard by the Rehabilitation and Settlement Commissioner which appeal could only be under section 19 of Act XXVIII of 1958 and consequently the revision before Pir Ehsanuddin, the Chief Settlement commissioner was under section 20 (2) of this Act. The revision, therefore, before the Chief Settlement Commissioner was maintainable. As to the grievance that it was limited to eviction we have seen this revision Petition and find that it not only prayed for the quashment of the eviction order but also that the house in dispute be transferred to Dr. Alamgir in lieu of his verified claim. The respondent in this revision was the State only. It was followed either by an amended revision or fresh revision application dated 28-10-1960 in which a grievance made was that while the Petitioner's case was still subjudice before the Chief Settlement Commissioner spurious transfers had been made in favour of Major Kirmani and Mst. Hanifa by bifurcating one indivisible house, which transfers be cancelled and the house be transferred to the Petitioner in accordance with his C. H. Form under receipt No, HDR-I-1154-CH, dated 13-7-1959 for the entire house. It is, therefore, not correct that the revision before the Chief Settlement Commissioner Pir Ehsanuddin under sub- section (2) of section 20 was limited to the eviction order made against Dr. Alamgir for the question of transfer was also very much before the Chief Settlement Commissioner. The alternate argument in support of the second contention was that this revision was not revived by Ordinance XIII of 1962 for the record that had been called for by Order dated 8-9-1960 was limited to the record of the eviction proceedings against Dr. Alamgir. This contention which was significantly here to before never raised has also no substance. As aforesaid Dr. Alamgir filed the first revision on 8-7-1960 in which the prayer was also for transfer of the house to the Petitioner in lieu of his verified claim. On 8-9-1960, the Chief Settlement Commissioner called for the record of the case. It is not possible to go behind this order beyond this that in the revision application the prayer was two-fold, one for quashment of the eviction order and the other for the transfer of the house in favour of Dr. Alamgir and it must, therefore, follow, in the absence of anything more, that the record called for was in relation to the eviction of Dr. Alamgir as well as the transfer of Kamla Cottage. Mr. Akhtar Mahmood then went on to argue that in any event the record relating to the transfer of a portion of the house in favour of deceased All Ahmed Ansari or respondent Jaffery was not called for, for the former was not arrayed as a party to the revision proceedings and the latter had not even applied for the transfer of the house in his possession on the date on which the record was called for. To this our answer is that law contemplated not receipt of but calling for the record and since the record was called for by the Chief Settlement Commissioner on 8-9-1970, in a revision application which also related to the transfer of Kamla Cottage it was revived by Ordinance XIII of 1962. We are also doubtful if the appellants can urge this point now for if it had been so urged before Inamullah, J.
There would have been no occasion for the learned Judge to remand the case to the Chief Settlement Commissioner before whom also this subtlety was not pressed into service.
8. Now we come to the third contention of the learned counsel for the appellants. It was firstly urged that the P. T.
0. In favour of the deceased Ali Ahmad Ansari having not been challenged in any revision or appeal became final under section 22 of the Act and in any event could not be affected by retroactive application of the order of the Central Government dated 3-8-1960 which for the first time enabled Dr. Alamgir to seek any transfer. Significantly, however these contentions were not only not raised before Inamullah, J., but abandoned for the argument before the learned Judge was confined to the officer to whom the matter may go for adjudication on remand. The deceased was quite satisfies with the directions given by Inamullah, J., to the Chief Settlement Commissioner to examine the question of divisibility of the house for he participated in the subsequent proceedings before the Chief Settlement commissioner. Even otherwise if our Conclusion that the revision before Pir Ehsanuddin was maintainable in law is correct then it will follow therefrom that the question of transfer of Kamla Cottage was very much in issue and, therefore, also the provisional transfer of a part of this cottage in favour of deceased Ali Ahmad Ansari. It was next contended that since Dr. Alamgir was in undisputed possession of a part of the house and not the whole Kamla Cottage, under the aforesaid order of the Central Government he could only apply for the transfer of the part in his undisputed possession. The contention ignores the limited purport of this order for it only enlarges the definition of "possession" in subsection (6) of section 2 so as to enable a person who had come into possession of a house under an order made by a competent authority after 20-12- 1958 but not later than 3-8-1960, to make an application for transfer provided he was in undisputed occupation of such a house. The order does not limit the right of such a person to apply for the transfer of undisputed house in his possession. It enables the person covered by the order to apply for transfer which transfer application will be disposed of in accordance with the Act and the Schedule. Any other view will lead to absurd results for it will compel the Settlement Authorities to divide an indivisible house and also ignore the hierarchy of preferences for transfer created by the Schedule.
9. This brings us to the last contention of the learned Counsel that the house has been wrongly held to be indivisible by the Chief Settlement Commissioner. Before the Chief Settlement Commissioner were two separate communications from the City Survey Office, partly conflicting as to actual position of Kamla Cottage. He has chosen to accept one version as against the other and that would not even otherwise be sufficient to call for interference by this Court in its Constitutional jurisdiction. We have been referred to a number of decisions by the Supreme Court of Pakistan where their lordships have considered the question of divisibility. It will suffice to refer to the leading case of Altai Hussain v. Chief Settlement Commissioner and others (1) in which High Court's view that the first proviso to subsection (4) of section 2 of the Act makes it clear that though a building may consist of innumerable units, each of which unit has been in occupation of a different person, C the building will remain one house for the purpose of the Act unless the Settlement Authority competent to do so declares that it is more than one house, was approved by the Supreme Court in the following words :- "We may add however that the view taken by the Letters Patent Bench of the High Court that a building will be treated as one house even "though occupied by more than one person, unless the Settlement authorities, in their discre tion, order it to be divided, is in accord with the language of the first proviso to the definition of 'house' in section 2 (4) of the Act."
' It was further observed by the Supreme Court that : "The question of divisibility of the house would only fall for consideration in case none of the parties is found deserving of the transfer of the house as a whole."
' Mr. Fazle Ghani the learned counsel for Dr. Alamgir invited our attention to the instructions as to divisibility of a house at pages 69 to P D 1965 SC 7 139 of the Settlement Manual which would go to show that the Chief Settlement Commissioner was on merits also justified in not dividing the house vertically.
10. Therefore, if the Chief Settlement Commissioner was in the present case pleased not to divide a house that would be in accord with the provisions of the Act.
11. Before we part with the case of Mr. Ansari we may refer to the order of transfer made in his favour presumably by the Deputy Settlement Commissioner for we have found substance in the argument of Mr. Fazle Ghani that there was no proper application of mind before a house was carved out for its transfer in favour of deceased Ali Ahmed Ansari. It will be noticed that the deceased being a local could claim transfer of the house only if its annual rental value did not exceed Rs, 10,000. The Deputy Settlement Commissioner does not appear to have inspected the premises and accepted without question rent of the portion in possession of Mr. Ansari at Rs, 20 per month but that too on a clearly erroneous assumption that he was in occupation of only a smaller portion of Kamla Cottage of which the total D. V. L. According to him was Rs, 1,320 while the deceased was in fact in occupation of its single largest portion, namely, the whole of the first floor.
12. Mr. Syed Hassan Asghar Rizvi, learned counsel for Mr. Jaffery the respondent No, 3 had identical grievance against the impugned judgment but we are of the view that apart from want of merits he has no locus standi in the matter for he had never challenged the order dated 7th April, 1965, made by the Chief Settlement Commissioner, Mr. B. A. Qureshi.
13. The result, therefore, is that there is no merit in this appeal and it is dismissed.