' ZAFFAR HUSSAIN MIRZA, J.-This Letters Patent Appeal arises out of the judgment dated 25-5-1971 of the then Chief Justice Mr. Justice Qadeeruddin Ahmed whereby he dismissed the Constitutional Petition of the appellant underArticle 99 of the Constitution of 1962.
2. The dispute in this case relates to a part of a complex of buildings known as the Pohukhiani Mansion situated at Hyderabad. The part of the building which is directly concerned in the present controversy was separately known as Chatur Mahal. It is the case of the appellant that he was in possession of two rooms on the first floor and six rooms on the ground floor of the last-mentioned building for which he had obtained allotment on 23-8-1949. On 13-9-1952 the appellant submitted an application to the Rehabilitation Commissioner, Sind disclosing that he was proceeding abroad for advanced training and, therefore, he may be authorised to retain the possession of the house during his absence. Pursuant to this application a direction was issued by the Rehabilitation Commissioner, Sind on 18-9-1952 to the Collector of Hyderabad not to allot the house during the appellant's absence abroad. On the introduction of Settlement Scheme No. 1 the appellant filed a N. C. H. Form and was issued Appendix dated 8-10-1959 followed by a P. T.
0. Dated 30-10-59 in respect of House No, 8/99-1835/3 (G.
1.)/5, Tilak Chari, Hyderabad. Respondent No, 4 is then alleged to have addressed a letter dated 16- 7-1960 to the Deputy Settlement Commissioner, Centre No, I, Hyderabad informing him that the appellant was proceeding abroad and had authorised him to look after his interests in the property, requesting him that all future correspondence may, therefore, be addressed to him and attested copy of the appellant's letter of authority has also enclosed with the aforesaid letter.
3. In the meantime, however, on 30-10-1959 respondent No, 4 also submitted a C. H. Form for transfer of six rooms on the ground floor, but it seems no orders were passed disposing of the application form of the said respondent.
4. In the events that happened on 9-12-1959 Pohukhiani Mansion was declared to be a big mansion by the Deputy Settlement Commissioner and the P. T. O. Of the appellant was cancelled. The transferees of various portions of the building including the appellant and respondent No, 4 then submitted a joint representation dated 10-7-1960 to the Chief Settlement Commissioner but to no avail. The appellant, therefore, challenged the order by filing Constitutional Petition No, 23 of 1950 before the erstwhile High Court of West Pakistan (Karachi Bench), Karachi which was disposed of by a short order dated 4-11-1960 in the following terms :- "ORDER ' 4-11-1960 Mr. Hamid Hussain for the Petitioner.
' Mr. Wahid Faruqi for A. A.-G. For respondents Nos. 1, 2 and 3.
' Admittedly the order of Deputy Settlement Commissioner, dated 8-12-1959 at p. 61 of the record was passed without notice to the petitioner. By consent it is quashed.
' Mr. Wahid Faruqi intimated that Chief Settlement Commissioner desires the whole question namely, whether the property is a big mansion or not himself after the notice to the petitioner and prays that the question may not be decided in this writ petition. The request appears to be reasonable. Accordingly I will only set aside the order of the Deputy Settlement Commissioner dated 20-12-1959 and direct that no further action will be taken by the Department until the other question referred to me above is decided by the Chief Settlement Commissioner.
' As a result the petition is partly allowed but the parties are ordered to bear their own costs.
' Waheeduddin ' Judge." _5- Pursuant to the aforesaid direction by the High Court the Chief Settlement Commissioner took up the matter on the administrative side without hearing the parties and by his order dated 24-4- 1963 held that the property was not a big mansion and directed the Deputy Settlement Commissioner to dispose of the tenements of the building in question according to law under Settlement Scheme No. 1. Following the aforesaid order the Deputy Settlement Commissioner took up the matter and dividing the Pohukhiani Mansion into seven units transferred it to seven persons including the appellant who was given only two rooms on the first floor and the respondent No, 4 was given the six rooms on the ground floor. The aforesaid order of the Deputy Settlement Commissioner datr -1 31-7-1963 was challenged by the appellant in appeal before the Addittional Settlement Commissioner, but his appeal was dismissed on 3-6-1964 The revision filed by the appellant was also dismissed by the Settlement Commissioner on 13-10-1965. He, therefore, challenged the last-mentioned three orders by means of Writ Petition No, 484 of 1965 which was dismissed by the learned Single Judge as already stated. The appellant now seeks to challenge the judgment of the learned Single Judge in this Letters Patent Appeal.
6. Before us a two-fold contention was pressed on behalf of the appellant, firstly that the order transferring the rooms on the first and ground floors to the appellant on his application form by means of P. T.
0. Dated 30-10-1959, the matter could not be reopened by the Deputy Settlement Commissioner subsequently and secondly the order of the Chief Settlement Commissioner dated 24-4-1963 reopening the case for reconsideration of the entitlement of all the applicants was not binding on the appellant as it was passed without notice to him. It was argued that no appeal having been filed by respondent No, 4 against the original transfer of the property in question in favour of the applicant, the order of transfer had attained finality and was not liable to be ignored in the manner done in this case. In reply it is submitted that since respondent No, 4's form was ignored at the time of transfer orders in favour of the appellant, the transfer was a nullity in law and could, therefore, be legitimately ignored to consider the entitlement of respondent No, 4.
7. We find considerable force in the submission made on behalf of respondent No,
4. In the first place as held in Dr. Munawar All Khan v. Chief Settlement Commissioner (1) the decision of the Settlement Authoritie dividing a building into several separate and independent units is a matte entirely within the jurisdiction of such Authorities and is not liable to be questioned before the superior Courts unless the decision to divide the building is either perverse or arbitrary or fanciful. It has been found as a fact by the learned Additional Settlement Commissioner in his lengthy and exhaustive order dated 3-6-1964 after site inspection that the accommodations on the two floors separate independent residential units, with separate entrance an separate amenities of life. It is further clearly mentioned in this order that the question of divisibility of the two portions as separate units was not challenged by the appellant. It, therefore, follows that the two portion respectively transferred by the appellant and respondent No, 4 constitute two separate houses and as such the appellant under the Settlement Law cannot press his claim for the separate houses.
8. Be that as it may, it is now well settled that all application forms respect of a particular property must be considered together for the purpose of determining entitlement for transfer among the various applicants, Thu {{FOOT NOTE}} (1)1976 SCMR 54 {{FOOT NOTE}} in Fateh Muhammad v. Maula Bakhsh (1) it was held that an order in such circumstances passed in favour of one applicant is an ex parte order and cannot be regarded as final order qua the other applicants' applications. The reason for the rule laid down is that the contest inter partes having been brought to the notice of the Deputy Settlement Commissioner subsequently, he was entitled to apply his mind to the claims of the various applicants for transfer of the house. Similar view taken in Muhammad Saqlain v. Muhammad Amir (2). It was observed :- "If, however, the applicant suppresses this information and succeeds in getting an order of transfer in his favour and subsequently it is found out, on the application of any other person, that he was in possession of the premises, the Deputy Settlement Commissioner will have no difficulty in ignoring the order already passed because such an order will be a nullity for the reason that the transferee in that case is guilty of fraudulent misrepresentation, inasmuch as, he by his conduct made the Deputy Settlement Commissioner to believe that he alone was in possession. He also will be guilty of fraud for having wilfully suppressed the names of the other persons in possession."
In a recent case the Supreme Court followed the view held in Fateh Muhammad's case vide Abdul Hamid v. Sardar Begum (3) in which it was held that under para. 8 of the Settlement Scheme No, I the Assistant Settlement Commissioner was bound to have served a notice to all those who may have applied for the transfer and that an order of transfer on a single application without following the procedure as stated before cannot be regarded as final order qua the applications for transfer by other applicants. It was also held that there will be no question of limitation for an appeal against such ex parte order. It is, therefore, clear to us that the transfer made in favour of the appellant without con sidering the claim of respondent No, 4 was an ex parte order and did not attain finality qua the application of the said respondent. There was, therefore, no question of setting aside the transfer in favour of the appellant and final orders could be passed, as indeed has been done in the present case. We, therefore, find no substance in the first contention advanced on behalf of the appellant. This indeed disposes of the second contention raised before us. As already pointed out, the order of the Chief Settlement Commissioner declaring the property as not being a big mansion and directing that th matter of transfer be disposed of according to law under Settlement Schein No. 1 was an administrative order and did not affect any of the rights of the appellant. Consequently be can make no grievance that the order is without notice to him.
Even otherwise in the view that we have taken that the Deputy Settlement Commissioner could consider the claim of respondent No, 4 even after the initial ex parte order of transfer in favour of the appeal lant that the order of Chief Settlement Commissioner was without notice the appellant is immaterial.
9. It was then feebly contended that the High Court in Writ Petition No, 23 of 1960 had received the transfer in favour of the appellant and as such it was not liable to be set aside by the impugned order. In the first place respondent No, 4 was not a party to the said Writ Petition and as such any order passed therein will not be binding on respondent No, 4 (see PLD 1961 SC 119). In any case the inter partes dispute between the present parties was not a matter in question in the aforesaid writ petition filed by the appellant. We cannot, therefore, attribute to the order passed {{FOOT NOTE}}
(1) PLD 1963 SC 311 (2) PLD 1968 Lah. 157
(3) 1977 SCMR 227 {{FOOT NOTE}} ' in that writ petition the effect contended for so as to deprive respondent No, 4-of his right to the transfer of the premises in dispute after consideration of his application form.
10. For the foregoing reasons, we find no merit in this appeal which is accordingly dismissed, but in the circumstances of this case the parties are left to bear their own costs.