' The dispute in this case is about House No, P-61 Block No, 4 GO. The D. C. S. By means of his order, dated 7th December, 1959 (Annex.
'A.' transferred the whole of this property to the petitioners appeal, however, this order was set aside by the Additional S.C. On 19th April, 1960 (Annex 'C') and he divided the house into two portion; and gave one of it to the petitioners and the other to the respondents. The petitioners filed a revision petition which was rejected by the S. C. On 9th July, 1960 (Annex 'E'). They then filed a second revision which met the same fate and was dismissed by the S. C. On 27th Feburary, 1963 (Annex. 'F')
The petitioners have come up in rwrit petition against the aforesaid order of the Settlement Authorities.
2. Learned counsel for the petitioners have raised a number of contentions which t presently propose to dispose of.
3. The first point raised by the learned counsel for the petitioners was that Master Niaz Ali (the predecessor-in-interest of the petitioner) was an allottee of the whole house and the possession of the respondents was unauthorised. He relied upon Full Bench decision of this Court given in Abdul Halim v. The C. S. C. And three others (W. P. No, 834/R of 1962), and argued that in the light of that decision the possession of the respondents will be no possesion in the eye of law and the petitioners would be the only persons eligible for claiming the transfer of the house. There is no force in this contention. Firstly, because this is a question of fact as to whether Master Niaz Ali or the petitioners were allottees of the whole house or not. There is a clear recital in the order of the S. C.
(Annex. 'E') that only the portion in possession of Mst. Kaneez Fatima and others had been allotted to Niaz Ali father of Mst. Kaneez Fatima and her sisteRs, ' According to the S. C., therefore, it was only a portion of which Master Niaz Ali was the allottee and not the whole of this house. The case was argued at length yesterday and remaining part heard has been argued today as well. Today, the learned counsel for the petitioners showed me an allotment card for the purpose of establishing that Master Niaz Ali was the allottee of the whole of the house. I am afraid I cannot take this piece of evidence at this belated stage of the case. There was dear finding of the S. C. As old as 9th July, 1960, and the writ petition was filed in the year 1963, which came up for hearing in the year 1966. During all this period, the petitioners never cared to file the allotment order or as a matter of fact even a copy of any allotment order to controvert the findings of the S. C. It is significant to mention that in Otound No, 10 of their grounds of revision, as contained in Annex. 'D' it has been contended that the allottees were the petitioners (and not their predecessor-in-interest Master Niaz Ali). Now the petitioners are trying to shift this ground and want to claim on the basis of the allotment of Master Niaz Ali. In these circumstances it is not safe to accept this document, the Authority of which even otherwise is also challenged by the respondents. Be that, however, as it may, the fact remains that the point is one of fact and I cannot enter into a rowing enquiry in the course of writ jurisdiction. On the finding of the S. C.1 Niaz All was allottee of only a portion of the house and as such the contention raised by the learned counsel for the petitioners has no merit.
4. The second point raised by the learned counsel for the petitioners was that the appeal of the respondents before the Additional S. C. Was barred by time and had been filed against a dead person and the Addl. S. C. Was not justified in allowing the respondents to amend, their appeal or to condone the delay. There is no force in this contention. This point was not pressed at the time of the arguments before the S. C. In Revision as it is conspicuous by its absence from his order. Had the point been raised, the S. C. Would definitely have dealt with it when he had taken care to deal with other contentions of the petitioneRs, It is to be noted that one of the pleas taken by the respondents before the Additional S. C. Was that they could not get the copy of the order of the D. S. C. Even uptil the date when the appeal was being argued before him. In that view of the matter, the question of the appeal becoming barred by time could never have arisen because so long as the respondents were not granted a copy of that order the were quite safe and within the time Iimit prescribed for filing the appeal after taking into account the time spent in obtaining the copy. Since this aspect of the case was then not controverted. It is possible that the petitioners did not press this objection of limitation before the S. C. In Revision. In the whole of the writ petition, no averment has been made to the effect that this point was pressed before the S. C. And that in spite of that he had not cared to deal with the same, In this state of affaiRs, I am not prepared to attach any importance to the objection raised by the learned counsel for the petitioneRs, Today an affidavit has been filed by Mr. Tajamul Hussain Advocate, who came all the way from Lyallpur, to put in the said affidavit. He is a relation of the petitioners inasmuch as he has deposed that Master Niaz Ali deceased was his real uncle. In the said affidavit he has said that the legal objections were never abandoned at any time before any of the Settlement Authorities. I would not attach any importance to this affidavit because there is no averment in the writ petition to the effect that the point was argued before the S. C. And that he had not cared to deal with the same. In these circumstances no importance can be attached to the objection of limitation which is being raised during the course of arguments before me. The Additional S. C. Was quite justified in allowing the respondents, to amend the memorandum of appeal and implead the legal representatives of Master Niaz Ali. It was a formal amendment which was to be carried out on the spot inasmuch as both the parties were represented before the Additional S. C. And were advancing their arguments. The fact, however, remains that since the copy of the order of, the S. C. Had not till then been supplied to the respondents, the time factor was not running against them. In the affidavit which has been filed before me by Mr. Tajamul Hussain Advocate, he has deposed that the respondents had applied for a copy of the order of the D. S. C. On 1st April, 1960 and preferred an appeal on that very day. This is a new averment which was never raised in the writ petition and for the reasons already indicated. I will not like to attach any importance to this affidavit. Moreover, this affidavit has been filed only today and the other side has no notice of it and it is just to take them by surprise by pleading altogether new facts.
5. The third point raised by the learned counsel for the petitioners was that according to section 2
(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, conditions precedent for dividing a house are :
(a) that there must exist more than one residential premises ;
(b) which should be in possession of various persons.
' He submits that none of these conditions are fulfilled and neither there are two independent residential premises and nor is the possession of the respondent such on the basis of which a division could have been made. The attack on the possession of the respondent is the same which has been dealt with by me earlier, namely, that the petitioners are allottees, while respondents are non-allottees, and as against allottees the possession of non-allottees is no possession in the eye of law. This contention, I have already repelled in the earlier part of this judgment, and I need not recapitulate the same. As regards the existence of more than one residential unit, the finding of the Settlement Authorities is quite clear. The S. C. Had held that the petitioners have sufficient portion of the property with them and the portion which they wanted was that which never had been in their possession. He also found that the portion which was being transferred to the respondent was in their possession for very long time. These findings are quite enough for the purposes of showing that there were more than one residential unit and the Settlement Authorities were, therefore, quite within their jurisdiction to divide the house. To the same effect was the finding of the Additional S. C.
Who stated that the division which he was making, kept in view the least dislocation and the larger interest of the contesting claimants. The orders of the Settlement Authorities on the point of division, therefore cannot be successfully challenged in this Court. It is well-settled that High Court will not enter into reasonableness or otherwise of the division which may have been made by the Settlement Authorities. It is not denied that the respondents had been living in this very house for a very Ion time and to dislocate them at this late stage of Settlement Operations is not justified by any cannon of law.
6. The last point urged by the learned counsel for the petitioners was that the S. C. Had not called for the record of the case and this he wanted to show by pointing out one or two inaccurate statements in the order of 'the S. C. Dated 9th July, 1960 (Annex. `E'). He submitted that when the S. C. Observed that the D. S. C. In this case had transferred two rooms to Muhammad Bute he was not correct, inasmuch as, the D. S. C. Had not given any portion to Muhammad Buta. The other inaccuracy which he pointed out was that the Additional S. C. Had given those rooms to Muhammad Buta which were in his own possession and not any such rooms which was with one Muhammad Siddiq. The learned counsel submitted that the S. C. In observing to the contrary had made a wrong recital of facts. This is correct, but the mere fact that there are certain inaccuracies in the recital of facts does not mean that the order of the S. C. Is without lawful authority. The question ultimately is one of appreciation of evidence and if in the appreciation . Of evidence some mistake takes place it does not mean that the whole order of the said Authority is to be declared as without jurisdiction or in excess of his authority. The broad fact is that the Additional S. C. And the C.
S. C. Have maintained the division of this house and so long as, that division stands, the portion which has been given to the petitioners' constitutes a house by itself. Having obtained one house, the rest of the portion which has been declared to be another house, cannot be given them. It is well-settled that a person under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, can have only one house. Having obtained one house in the form of the portion which has been given to the petitioners they have no locus standi to Challenge the entitlement of the second house which has been given to the respondent in the form of the portion in their possession.
7. The orders of the Settlement Authorities in this case seems t be quite just, equitable and fair. Both sides are claimants and the Settlement Authorities have tried to rehabilitate as large number of persons as possible. It is not fair to give the entire house to the petitioners and to eliminate the contesting respondents altogether who are four in number. I am told that the parties are closely related inasmuch as the sister of Bagh Ali was married to Muhammad Buta. It is only fair that the whole family which has been living in this house ever since the wake of Partition should continue to remain there amicably.
8. Before parting with this case, I want to make mention of one fact. The contesting respondents in Para. 3 of their written statement have pleaded that the petitioners as matter of fact had not applied for the whole of the disputed property. This averment of the respondents has not been controverted in any substantive manner except by means of an affidavit of Mr. Tajamul Hussain, Advocate, who is the real nephew of Master Niaz Ali deceased. The relevant paragraph in affidavit reads as :- "That I filled up the C. H. Form of the petitioner for the transfer of the house No, P. 61 and it is mentioned as such in column No, 4 of the C. H. Form."
' It will be clear from this statement in the affidavit that this is not all embracing and complete. It is not merely column No, 4 of the C. H. Form which is relevant for the purpose of showing as to whether a person has applied for the whole of the property or only a part of it. There are columns in which one has to write the name of persons in possession of the property and with reference to the names of the persons so given, one can ascertain that if those person do not occupy the whole house then its obvious effect is that portions of those persons whose names are not mentioned against those columns will be considered as not having been claimed by the applicant. Similarly, there is a column in the C. H. Form in which one is to mention the rent of the property which he claims. If for instance, a person mentions only rent of his own portion, then it would obviously mean that he claims that portion of which he has given the rent. These are various factors which can be taken into consideration for the purposes of saying whether form which is filed in any particular case is about the whole of the property or only a part of it. The affidavit filed by Mr. Tajamul Hussain is very vague and does not make reference to the other details and entries against various other columns of the form. Nor has a copy of the said form been tiled in the Court. These circumstances will not place any reliance on the affidavit of Mr. Tajamul Hussain and would hold that the petitioners have not proved as was alleged by them. In Para. 3 of their writ petition that they had applied for the transfer off the whole house. As a matter of fact, the said paragraph reads as follows :- "The I petitioner's filed C. H. Form for the transfer of the whole house in their allotment : while the father of respondents Nos. 2 to 5 also filed, a Form C. H. For the house in his unauthorized possession."
' The said paragraph suggests that it was only that much of the house called as whole house which was in their allotment for which the petitioners had put in an application. Now it is a finding of the S. C. That the allotment of the petitioners (petitioner's father) extended only to the portion in their possession. Read in the light of that finding, it will be obvious that the form which was filed by the petitioners was only for a portion of the house and from that point of view, since they had not applied for the whole house they had no locus standi to file writ petition for the same. The principle is well-settled but if authority be needed reference can be made to a decision of the Supreme Court in Civil Petition for Special Leave to Appeal No, 5 of 1963, Muhammad Han if son of Abdul Aziz v. The Settlement and R. C. (with powers of the C. S. C.), where it was held as follows : - "the order of the Learned Judge of the High Court was justified on the grounds on which it rested, but we are of the opinion that even otherwise the petitioner had no case. He had applied only for the transfer of a Chaubara to him and that Chaubara had in fact been transferred to him. He had no right to the transfer of the shop for which he had not applied at all. It is urged before us that the shop and the Chaubara constitute one unit. Even if that be so, the petitioner would not be entitled to the transfer of the shop if he never applied for it. This petition is dismissed."
Respectfully following the law laid down by the Supreme Court, I hold that since the petitioners had not applied for the whole of the house, they, have no locus standi to come in writ petition against the portion which they had never applied for and which was not in their possession.
9, For the reasons mentioned above, there is no force in this writ petition which is hereby dismissed with costs.