M. S. H. QURAISHI, J.--The dispute in this appeal by leave of the Court relates to the residential portion of House No. 861, Block 9, Jhang Sadar. It was occupied by the respondent, R.I Ahmad Noor, a local, on 15th August, 1947. The house was, however, allotted to Khawaja Shaiq Hassan appellant on 4th April, 1949. At his instance, the District. Rehabilitation Officer issued notice of ejectment against the respondent on 24th September, 1949 but the order was cancelled by the Deputy Rehabilitation Commissioner on 1st October, 1949. On appeal, the order was, however, modified, on 19th February, 1950 by the Rehabilitation Commissioner, Multan, who allowed the respondent to continue in the house for a period of one year, during which he was to make alternative arrangement, and after the expiry of which he was to vacate the house. The respondent did not challenge the order until the next year, when he moved a revision petition which was accepted by the Additional Custodian on 26th March, 1952, and it was ordered that he should not be ejected from the building, The question of ejectment of the respondent again came up before the Rehabilitation Commissioner (Mr. A. M. K. Leghari) on 15th April, 1957, go the appellant's application, who held that .(I) the house stood allotted to the appellant and that (2) the respondent failed to prove his allotment and thus his posses--sion was unauthorised. He, therefore, ordered the respondent's ejectment. The matter appears to have rested at that until the commencement of the Settlement operations. It may be noted that the respondent had mean while built a garage some time in 1952 and a small pucca room before 1958,
2. When the Settlement operations began, the house was included in the earmarking list but at the instance of the appellant it was deleted from the list on 5th December, 1959. Both parties applied for its transfer, the appellant by filing C.H. Form and the respondent by filing L.H. Form. The respondent's form was rejected on 29th January, 1960, by the Deputy Settlement Commissioner for the reason that be being a local was not entitled to the transfer of the house which was valued at much more than Rs. 10,000. The respondent filed appeal but the same was rejected by the Additional Settlement Commissioner on 15th May, 1963, for the same reason. In regard to the appellant, who had been impleaded in this appeal at his own request, it was held that "the property was never allotted to him nor any ejectment proceedings were taken out against the appellant (present respondent). Therefore, according to the record Mr. Shaiq Hassan is in no way entitled for the transfer of the house". Three revision petitions were filed, one by the respondent, the other by the appellant and the third by the Enforcement Staff because some inquiry had been going on against the respondent under the direction of the Chief Settlement Commissioner. The Addi--tional District Judge, Jhang, exercising the powers of the Settlement Commissioner, after a spot visit, came to the view that the house could be divided into separate portions, i. e. Residential and commercial. He divided the property accordingly and holding the respondent to be entitled, transferred the residential portion to him against his L.H. Form. This became possible because after the division, the residential portion, according to the computation made by the learned Settlement Commis--sioner, came to be valued at Rs. 7,644 which was less than Rs. 10,000. The commercial portion comprising two shops and a vacant land was ordered to be put to auction. The other two revision petitions were rejected vide order dated 8th December. 1965. This led to the filing of two Writ Petitions, namely, No. 528/11 of 1966 by the appellant and No. 1435; R of 1966 by the respondent.
Both the writ petitions were dismissed by a consolidated order dated 8th February, 1974. The learned Judge came to the view that the most important aspect to be considered was the factum of possession, that in view of the order of the Additional Custodian dated 26th March, 1952, the possession of the respondent bad been regularised and that "the mere fact Oat at one stage ejectment proceedings had commenced against the respondent would not be very beneficial to the petitioner". Aggrieved, the appellant sought leave to appeal by filing Civil Petition No. 311 of 1974.
It was contended that the respondent being a local was not entitled to transfer of the building on his L.H. Form as the market value of the building was not less than Rs. 24,000, that it was by a manoeuvre that he had managed to get the house undervalued to procure 'its transfer and that the appellant having been allotted the house and having failed, despite his strenuous efforts, to procure ejectment of the respondent was deemed to be in its "possession" within the extended meaning of the term and a such entitled to its transfer on his C.H. Form. Leave was granted on 17th February, 1975 to consider the contentions.
3. The argument advanced before us on behalf of the appellant is three-fold, viz. (1) he was an allottee who though not having obtained possession, was deemed to be in possession of the property within the extended meaning of the term, (2) the respondent's appeal from the order dated. 29th January, 1960, rejecting his L.H, form had been time barred, and (3) in view of the notification dated 2nd May, 1960 (at page 139 of the old Manual) the building could not be divided in order to make the local in possession entitled to its transfer.
4. The basis of the first point is an order of the Assistant Custodian (at page 165 of the paper-book) which recites that the house in question had been allotted to the appellant by the Deputy Com-- missioner's order dated 4th April, 1949 and the order of the Rehabilita--petition Commissioner (Mr. A. M. K. Leghari) dated 15th April, 1957, in which he had held that the appellant was the allottee and that as the respondent had failed to prove his allotment, his possession was unauthorised and had accordingly ordered his ejectment. This order had not been directly challenged with the result that it had attained finality. Learned counsel for the respondent drew our attention to various documents in the paper-book in older to show that the appellant in fact was not the allottee, that the allotm.-nt had actually been' unsuccessfully sought by his father Kh. Sadiq Hassan and that the revisional order of the Additional Custodian dated 26th March, 1952, referred to by the learned Judge of the High Court, was the final order in this regard, whereby the respondent had been held to be the allottee and the order of his ejectment had been recalled. The order of Mr. A.. M. K. Leghari does not speak of the previous orders, particularly the one of the Additional Custodian dated 26th March, 1952, nor does it disclose the nature of the jurisdiction in which he as Rehabilitation Com-- missioner had passed it. All that it shows is that it had been made on an application of the appellant. Learned counsel for the respondent submits that Mr. Leghari had no jurisdiction to make the order when the matter had been finally decided by the Additional Custodian and, therefore, the same should be ignored. The respondent, who was present in person before us, went to the extent of saying that no such order had been made by Mr. Leghari and that the order dated 15th April, 1957 was in fact fake and a fabrication: Be that as it may, as we are not sitting in judg--ment over this order, it is not possible to examine its validity, particularly when it had on the face of it been passed after considering the conten--tions raised by both the parties and examining the record. All previous orders must be considered to have merged in this order and all subsequent orders if any to the contrary must be ignored having been made colaterally without the order (dated 15th April, 1957) having been itself challenged or displaced.
4. "Possession" was defined in 'section 2 (6) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, in the following words :- "Possession, means possession obtained in purchase of an order passed on or before the 20th day of December, 1958, by Rehabili--tation Authority or any other officer authorised or permitted by the Central or Provincial Governments Provided that if a question arises whether an officer was so authorised or permitted the decision of the Chief Settlement Commissioner in that behalf shall be final Provided further that the Central Government may, by order in writ--ing direct that a, class or classes of such persons have not obtained possession as aforesaid shall subject to such conditions as may be specified in the order, be deemed to be in possession for the purpose of this Act."
5. As regards the question of limitation of the respondent's appeal from the. Order of the Deputy Settlement Commissioner dated 29th January, 1960, it appears from the Settlement file that the same had been .Instituted on 5th November, 1962 and that the effect had been duly noticed but as an application for condonation had also been filed the appeal had been admitted provisionally.
The appellant after his impleadment in the appeal, had submitted written arguments in para 9. Of which it had been urged that "the appeal is time-barred and without jurisdiction". The Additional Settlement Commissioner, however, while deciding the appeal on 15th May, 1963, did not advert to the question. The appellant took the point in para. 8 of his revision petition but the, revisional order, too, is silent over it. He made a grievance ,of it in para. 5 of his writ petition in which he specifically asserted that the appeal had been filed after two years and eight months and yet the question of limitation had not been adverted to either by the Appellate or Revisional Authority. Unfortunately, the High Court's order is also silent on this question. Learned counsel for the respondent submitted that the point even though taken had not been urged during the hearing of arguments the appeal, the revision or the writ petition, and as such must be treated to have been given up. He also pointed out that the delay if any must be deemed to have been condoned by the concerned authorities, and that in any case the discretion exercised by the Settlement Authority is not amenable to interference try this Court. That may be so if the matter had been decided by a conscious application of the mind. Since the question of limitation goes to tree root of jurisdiction, it was the duty of the Settlement Tribunals to; have adverted to that question and to have given a decision on it irrespective of the fact whether any of the parties before it had' raised the point or not in the course of the arguments. In Azam A.I v. Chief Settlement and Rehabilitation Commissioner (PLD 1964 SC 260) this Court had held that the decision of a revision on Merits without considering the question of limitation of the appeal was liable to be quashed in writ jurisdiction. If the appeal had been filed beyond time and it is not shown that it had been so filed, the Settlement authorities were under a legal duty to have examined that question before adverting to the merits of the case.
On the question of delay and laches --filing a writ petition, this Court had held in Settlement Authority v. Akhtar Sultana (PLD 1976 SC 410) : "The delay and laches were so palpable that they should have attracted the notice of the High Court, and the mere fact that no objection was taken at the time was no ground to omit to consider the consequence of delay and ]aches. It was the duty of the respondent to explain the obvious delay in moving the writ petition. Nevertheless, this Court is entitled to con--sider the laches on the part of the respondent and to pass such order as the High Court could or should have passed on a true consideration of the palpable delay in making the constitution petition."
There thus, having been no competent appeal, the order dated 29th January, 1960. Whereby the respondent's L. H. Form had been rejected must be held to have held the field and thereby ousting him from the contest.
6. The bifurcation of a house for the purpose of bringing down the valuation of the portion in possession of a local in order to enabled him to seek its transfer is in contravention of the Memo.
No. 7355-P 1Reh./60, dated 2nd May, 1960 (at page 139 of the old Manual). By this notification, the Chief Settlement Commissioner had desired that the houses, the value of which was more than Rs.
10,000 should not be divided in order to make a local in possession entitled to the transfer of a portion thereof, unless such division existed before the partition and the sub-divided unit was an independent residential premises in every respect. It is not the case of the respondent that the commercial portion had existed at the time of the partition. In fact he had constructed the same after coming into possession of the property. The value of the house was Rs. 24,000 and as much the respondent being a local was not entitled to its transfer in his favour. The decision of the learned Settlement Commissioner dated 8th December, 1965, to divide the house into two separate portions was, therefore, not warranted. The arguments that the division of the property could not be challenged in writ jurisdiction is misconceived because the division has to be competently ordered in order to clothe it with such immunity.
7. A point raised on behalf of the respondent was that the appellant, who had himself participated in the auction held of the commercial units, and had even succeeded, being the highest bidder, in respect of one of the shops, was stopped by his conduct from questioning the transfer of the disputed property. The contention has no force because the appellant had all the time been litigating for vindi--cation of his entitlement. A feeble effort was also made on behalf of the respondent to invoke Scheme No. VIII. Such a claim is not only being put forward for the first time but it has also no force because the property having been subject-matter of litigation could not be said to be an "available property" for the purpose of that Scheme.
8. These above are the reasons for which we made arid announced the following order after hearing of the case on 13th April, 1983 :- "For the reasons recorded separately, this appeal is allowed and the judgment of the High Court dated 8th February, 1974 is set aside. The orders passed by the Settlement authorities reject--ing appellant's claim to the transfer of the disputed property are also set aside and it is declared that appellant is entitled to the transfer of the disputed property on C. H. Form filed by him.
It is, however, clarified that the disputed property is only the residential portion of the property, and does not include the three portions treated as commercial portions by the learned Settlement Commissioner in his order dated 8th December, 1965."