1. SALAHUDDIN AHMAD, J.-This appeal arises out of a dispute in respect of bungalow No. 22, Lawrence Road, Lahore. The only point upon which the petition for special leave to appeal has been granted, and had at one time been refused by this Court, is that although respondent No. 1, Dr. (Mrs.) A. K. Awan had not applied for the transfer of her portion in her own name, she had been treated as having applied for the same through inadvertence.
2. It appears that four persons, namely, appellant Major Fazle --Aleem Khan, and Mohamma3 Ali (since deceased), father of respondent No. 1, Murrawat Khanum, wife of the appellant, and Dr. A. H.
3. Awaa, husband of respondent, applied for transfer of the bungalow in question ; the appellant end his wire and respondent's father on C. H. Forms, and husband of respondent No. 1 on a N. C. H. Form.
4. The appellant and respondent No. 1 applied on the basis of the possession of a part of the bungalow and respondent's father and appellant's wife applied on the basis of the possession of his daughter and her husband, respectively. Respondent No.1 subsequently stated that she had been in possession of the ground floor herself and the bungalow might be transferred to her father Mohammad Ali who was a claimant. The Deputy Settlement Commissioner by his order dated the 19th December 1959, pronounced the bungalow indivisible and trans--ferred the entire bungalow to the appellant. Both respondent No. 1 and her father Mohammad Ali appealed from the said order and claimed that the entire bungalow should be transferred to them. Dr. A. H. Awan, the husband of respondent No. 1, who had in the meantime filed a C. H. Form on the basis of the possession of his wife, respondent No. 1, also filed an appeal and claimed transfer of the entire bungalow to him. The Additional Settlement Commissioner, by his order dated the 12th January 1960, dismissed all the three appeals. Thereafter a revision petition was filed against the said order before the Settlement Commissioner and the petition bore the title "Dr. A. H. . Awan and others" but the petition was dismissed on the 1st of June 1960, on the ground that Dr. A. H. Awan was a local. During the pendency of the proceedings, however, Mohammad Ali died on 16-5-1960 and his daughter respondent No. 1 filed a separate revision before the Settlement and Rehabilitation Commissioner on 1-7-1960, against the order of the Additional Settlement Commissioner dated the 12th January 1960. In the meantime the appellant and Dr. A. H. Awan filed a second revision petition each before the Chief Settlement and Rehabilita--tion Commissioner. The said revision petition of respondent No. l ultimately came up for hearing before the Chief Settlement and Rehabilitation Commissioner along with the second revision petitions of the appellant and Dr. A. H. Awan. By his order dated the 22nd of April 1961, the Chief Settlement and Rehabilita--tion Commissioner held that the bungalow was "divisible" and that as a matter of fact it had been occupied by two different families even before the Independence. It was observed however, that respondent No. 1 was a non-claimant displaced person and an allottee and she was, accordingly, allotted the ground floor of the bungalow which had been in her occupation since the year 1947 and the upper floor was allotted to the appellant. The compound of the bungalow was directed to be divided between the appellant and respondent No. 1 "according to the plinth area in their respective possession." Having been aggrieved by this order the appellant filed a writ petition disputing the legality of the order of the Chief Settlement and Rehabilitation Commis--sioner but it was dismissed. The appellant's Letters Patent Appeal from the order of the High Court was also dismissed. The appellant then applied to this Court for special leave to appeal challenging the legality of the transfer of a portion of the bungalow to respondent No. 1 on the ground that she had not filed the required form before the Settlement authorities. This point, however, was not taken before the Chief Settlement Commissioner and this Court held that the High Court was, s therefore, right in holding that the Chief Settlement Commissioner acted fully within his powers in holding that the bungalow was divisible and in transferring the ground floor to respondent No. 1. Thereupon the appellant applied for review and succeeded in obtaining leave to appeal.
5. Respondent No. 1 filed the aforesaid revision petition as heir of her father late Mohammad Ali and she stated in her petition that inasmuch as her father had bled a revision petition, she did not think it necessary to file a similar revision petition. It has been contended on behalf of the appellant that respondent No. 1 is only an indirect claimant through her father and not a direct claimant and as such the appellant has a preferential claim over her. The short answer to this is that the house having been held to be divisible and having been divided as such, there are now two houses instead of one and the parties could not claim more than one house. In such a case there is no question of comparing the respective entitlement of the parties.
6. It has next been contended that inasmuch as the legal representatives of deceased Mohammad Ali had not been formally impleaded, the respondent's revisional petition could not be said to have been properly constituted. We do not see any force in this contention inasmuch as in her revision petition dated the 1st of July 1960, respondent No. 1 claimed that she was the heir of her father Mohammad Ali who had based his claim upon the possession of respondent No. 1. Her father, Mohammad Ali, who had filed C. H. Form for the transfer of the bungalow, having died his daughter respondent No. 1, stepped into his shoes and became entitled to all the rights that he possessed.
7. On the facts and circumstances of the case two main questions arise for consideration :
(i) Whether the impugned order of the Chief Settlement and Rehabilitation Commissioner declaring that the bungalow was divisible could be declared as without lawful authority on an application under Article 98 of the Constitution ; and
(ii) What is the effect of the said order of the Chief Settle--ment and Rehabilitation Commissioner?
8. As regards the first question, section 2(4) of the Displaced Persons (Compensation and Rehabilitation Act, 1958, gives exclusive power to the Chief Settlement Commissioner to divide a "house". In the present case the Chief Settlement Commissioner has already, on the basis of relevant facts declared the bungalow in question to be divisible and in that view of the matter allotted the ground floor and the upper floor to respondent No. 1 and the appellant respectively.
9. This order, therefore, cannot be interfered with under Article 98 of the Constitution. This view finds support from the case of Mohammad Yousaf v. The Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 101). The Supreme Court has observed as follows : "The terms in which the power in question conferred by the first proviso to section 2(4) are stated do not allow interference by the Courts, in exercise of their power under Article 98 of the Constitution, with any decision by Settlement authorities as to the divisibility or otherwise of the house. Since the final order in Settlement is to the effect that the house is indivisible and must go in transfer as a single unit, and since the rights of Haji Ahmad Din as the earliest allottee and the occupant of a major portion of the house are clearly superior to any rights that can be claimed by Muhammad Yousaf or Muhammad Ismail, the final order in Settlement would appear to have been made in proper exercise of lawful authority."
10. The High Court, therefore, very rightly dismissed the writ petition on this ground.
11. As regards the second question, the house having already been declared to be divisible by the competent authority, namely the Chief Settlement and Rehabilitation Commissioner, no question of inter parties comparison arises, for instead of one house there are now two houses and neither the appellant nor the respondent No. 1 is entitled to claim and get more than one house. That being so, the question whether respondent No. 1 had applied for the transfer of a portion in her own name loses its significance. In any event as has been noticed already, her father late Muhammad Ali was a claimant and she fully succeeded to his rights on his death.
12. There is, therefore, no substance in this appeal to justify interference with the order of the Chief Settlement Commissioner. It nay, however, be added that in dividing the house between the parties the Chief Settlement and Rehabilitation Commissioner laid down that the "compound of the house be divided among them according to the plinth area of their respective possession." "Plinth area" plainly means the plinth of the main house and does not include the plinth of garages, servant quarters, kitchen, and store located in the compound on the ground floor. The plan of the departmental file shows that the plinth area of the main house in possession of the parties is equal.
13. The compound on the ground floor has, therefore, to be divided in two equal portions, but in case the parties so desire, they may have the position clarified by the Chief Settlement and Rehabilitation Commissioner.
14. Subject to the observations made above, the appeal is dismissed leaving the parties to bear their own costs.