ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave arises out of the order of the Lahore High Court dated 9-5-1974 -by which the constitutional petition of the appellant was dismissed, whereby he was claiming transfer of the entire rural building consisting of two shops on the ground floor and a residential portion at the back of these shops and on the first floor The claim of the appellant in respect of the shops was rejected by the leave granting order in this case dated 14-1- 1976 but the question "whether the High Court and the Settlement Commissioner were right to order transfer of the residential portion; on the top of the shop transferred to Muhammad Yusuf (respondent No. 2 herein), although the residential portion on the top of the shop transferred to Muhammad Yusuf, had never been in his possession and residential unit of the property has throughout been treated a separate unit and occupied separately from the two shops", was considered to require examination.
2. The facts relevant for the disposal of this appeal, as appear on the record, are that the disputed property is a rural building situate in village Dhudial, Tehsil Chakwal, District Jhelum, consisting of two shops bearing Nos. 140 and 142 occupied by Doctor Muhammad Yusuf, respondent No. 2 and Abdul Latif, respondent No. 3 respectively and a residential unit bearing No. 141 at the reap and on top of the two shops. This residential unit is in occupation of Khair Diu, appellant herein.
3. The appellant was transferred the entire residential portion by the Assistant Settlement Commissioner (Lands) by order dated 30-8-1968 and the two shops were transferred to the aforesaid two respondents, according to their respective possession. Being dissatisfied the appellant preferred an appeal claiming transfer of the two shops in addition- to the residential portion in his occupation on the basis of original Settlement Scheme No. V11. On the other hand respondent No. 2 also filed a counter appeal claiming the residential portion on the basis of his possession of shop No. 14;? Under the reconstituted Settlement Scheme l4'o. VII. The Deputy Settlement Commissioner by his order dated 12-6-1970,' however, dismissed the claim of both parties. The reason for dismissing the appeal of the present appellant was that he was not in possession of the shops and the appeal of respondent No. 2 was dismissed as time-barred.
4. The appellant then approached the Settlement Commissioner in separate revisions against the order of the Deputy Settlement Commissioner in respect of the transfer of the two shops.
Respondent Muhammad Yusuf also filed a revision claiming transfer of the residential unit. The Settlement Commis--sioner by order dated 8-4-1971, took the view that the appeal of respondent Muhammad Yusuf before the Deputy Settlement Commissioner was not time---barred and in this view of the matter proceeded to decide the respective claims of the contesting parties on merits.
He held that the transfer of the shop in favour of respondent Muhammad Yusuf was unquestionable as he bad been in occupation of it all along and further held that the question of the transfer of the entire building to the appellant would arise only in case the property was not found to be divisible, but having found that the two shops and the residential portion on the ground floor were easily divisible and the portion of the residential unit over the shop in possession of respondent Yusuf if separated would be against the interests of both parties, he held that the latter was entitled to transfer of the shop alongwith the portion- of first floor over it as commercial property, which was also in consonance with Settlement Scheme No. VII. The rest of the residential portion was allowed to remain transferred to the appellant.
5. Being aggrieved by the orders of the Settlement Commissioner the appellant challenged the same before the High Court in Constitutional Jurisdiction, rut as already stated, his petition was dismissed as per the impugned order.
6. Before the High Court the claim of the appellant was urged on the basis of clause (a) of paragraph (2) of Chapter V of the old Scheme No. VII and clause (iii) of paragraph (3) of Chapter V of the same Scheme. It was contended that since the appellant was an allottee of agricultural land ill the same estate since before 1-1-1961, he should be deemed to have been transferred the entire building in dispute. The next submission was that since the building consisted of both residential and business premises, it had to be transferred to the appellant who was the occupant of the residential portion. The relevant portions of the old Settlement Scheme read as under Chapter V (1)---------------------------------------------------------.
(2) Subject to the condition; prescribed below and the instructions and the instructions issued by the Chief Settlement Commissioner from time to time rural buildings in the second category areas shall be disposed of in the following manner :-
(a) A Pakka rural building which has been in the occupation of an allottee of agricultural lard in the same estate since before 1st January, 1961 shall lie deemed to have been transferred to such person free. Of charge with effect from that date.
(b) to (e)---------------------------------.
(3) All transfers of rural buildings under the provisions of sub-paragraphs (1) and(2) shall be subject to the following conditions: (i)Where a rural building consists of more than one storey, the complete building from the ground to the sky shall be transferred to one person and only vertical divisions shall be made in such cases.
(ii) If a rural building is in occupation of more than one person, the entitlement of the occupants inter se shall be determined in accordance with the general principles of the Act and the Schemes made there--under.
(iii) The rural building consisting of both residential and business premises shall be transferred to the occupant of the residential premises.
(iv) to (vi)------------------------------------------------..
(4)---------------------------------------------------------.
The High Court repelled these contentions and held that the present case did not fall under clause
(iii) of paragraph (3) but was governed by clause (ii) thereof, since the building was in occupation of more than one person, Consequently the entitlement of the occupants inter se was liable to be determined in accordance with the general principles of the Act and the Scheme. In the premises it was further held that the Settlement Authorities were competent under subsection (12) of section 2 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, in case buildings comprising residential as well as business units, to order different parts thereof to be a shop or a house. Since in this case - the Settlement Commissioner after applying his mind to this question had determined which parts of the building should be treated as shops or house, in the opinion of the High Court, no exception. Could be taken to the orders passed by him. Before us the learned counsel for the appellant has reiterated the contentions urged before the High Court and it has further been argued that the cancellation of the portion above respondent Muhammad Yusuf's shop from the transfer of the appellant would cause dislocation and hardship to the appellant contrary to the policy underlying the Displaced Persons (Compensation and Rehabili--tation) Act and the Scheme thereunder.
7. It appears to us that the Settlement Scheme No. VII. In its original form was issued in the year 1961.
The reconstituted Settlement Scheme No. VII replacing the original one, was brought into effect from 26-3-1966. According to paragraph 3 (3) of this Scheme, a rural property situated in a major village was to be disposed of, inter alia, as under :- "(a) A Pacca residential or business building or premises or a building sits in the occupation of a person who is the allottee of agricultural lard within the village, will be transferred to him free of charge."
But like the original Scheme, paragraph (4) of this Scheme laid down the following additional conditions for transfer of rural properties :- "(a) If a rural property is in the occupation of more than one person, the inter se entitlement of the occupants will, wherever necessary, be determined in accordance with the general principles of the Act and Settlement Schemes Nos. 1, IV and VI.
(b) A rural property, consisting of both residential and business premises, shall if found indivisible, be transferred to the occupants of the business premises.
(c) No property which is the subject-matter of litigation before a Settlement Authority or a Court, shall be transferred until such time as the matter in dispute is finally decided."
Respondent Muhammad Yousuf had pressed his claim to the transfer of the entire building on the basis of clause (b) of paragraph (4) of the reconstituted Scheme before the High Court which was found to be without substance in terms of clause (a) of the said paragraph (4) itself, which required that in case a property is in occupation of more than one person, the inter se entitlement of the occupants would be determined in accordance with the general principles of the Act and the Settlement Schemes. Although, therefore, the substituted Scheme was noticed and adverted to, the question whether the old or the new Scheme would govern the entitlement of parties in this case, was not gone into.
8. As already observed the question of the transfer of the shops stands concluded, in that, this Court has not-considered fit, at the leave granting stage to re-open that question. The only matter for determination is whether the appellant was entitled to be transferred the portion over the shop of respondent Muhammad Yusuf. The necessary consequence is, therefore, that the appellant cannot get the entire building and the same stands already divided. The present position is that the appellant stands transferred the residential portion behind the two shops and the area on top of the shop in occupation of respondent Abdul Latif as he did not agitate his claim to anything beyond the shop.
9. Now the transfer of a rural building, is regulated by the general con--ditions reproduced above, in either case, whether the old or the reconstituted Scheme is applicable. In point of fact the transfer in favour of the appellant and was made long after the reconstituted Scheme had come into operation. In considering the question of divisibility or otherwise of the building as a condition for determining the entitlement of the appellant, the Settlement Commissioner seems to have in mind the reconstituted Scheme, as that required, that in case of a composite property consisting both of residential as well as business premises, if no division is possible, the whole building was to be transferred to the occupants of the business premises. In this respect there was a radical departure from the old scheme, where such properties were required to be transferred to the occupant of the residential premises. Significantly a common feature of both schemes, was the case in which a building was in occupation of more "than one person. In such a case the entitlement of the occupants inter se was required to be determined in accordance with the general principles of the Act, and the schemes made thereunder. The logical conclusion emerging from this legal position is that the settlement authorities would be competent to resolve competing claims according to the general principles, to accommodate each occupant, if a division is possible by the exercise of powers under the Act. The High Court .Was, therefore, not wrong in holding that the Settlement Commissioner competently declared the area over the shop of respondent Muhammad Yusuf to be a part of that business unit. It has not been urged before us that the exercise of such power was in any manner unreasonable in the factual conditions prevailing on the site. Even otherwise if further division of the disputed residential portion and its separation from the shop underneath was not considered proper, in terms of the new Scheme it had to be given to the occupant ofthe shop.
10. Be that as it may, if the transfer of the shop in favour of respondent Muhammad Yusuf is to be taken as final and conclusive, then the appellant can claim the upper portion only if the same is conveniently divisible but the Settlement Commissioner has found it otherwise. From every angle, therefore, the appellant's claim is untenable. Even otherwise we feel that the transfer of the entire structure of the building vertically to the transferee of the shop on the, ground floor is just in the circumstances of this case and conducive to better and trouble free enjoyment of the property by one owner. The argument on the ground of hardship cannot prevail as that cannot be a ground for interference in view of the entitlement of the respondent to the portion transferred to him as found by the Settlement Commissioner.
11. In the light of the foregoing discussion, the order of the High Court dated 9-5-1974 is unexceptionable. This appeal, therefore, stands dismissed with costs.