1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to Mst. Memuna Begum the transferee of the eastern portion of House No. C/288 Moti Bazar, Rawalpindi, to examine whether there was a misreading of the contents of the allotment order whereby she stood deprived of her entitlement to the western portion of the same property.
2. The disputed portion of the house was claimed by the appellant and the respondent Syed Mahmood A.I. At first the entire house was transferred to the appellant on the basis of her prior possession and on account of her being in possession of the major portion of the house. However, an appeal filed by the respondent was accepted by the Additional Settlement Commis--sioner on 24-2-1960 whereby the house was divided into two portions, western and eastern, the western was transferred to the respondent No. 1 while the eastern portion to the appellant. Two revisions were filed and both were rejected on 29-4-1960. The respondent No. 1 thereafter filed a second revision which was dismissed on 24-9-1960 as also his review petition on 7-8-1961. He then invoked the 6onstitutional jurisdiction of the High Court and partially succeeded in obtaining an order of remand on 15-11-1965. Operative part of the remand order is reproduced hereunder as the controversy has been narrowed down to the extent indicated in the remand order :- "I would set aside the orders passed by the Additional Settlement Commissioner and the Settlement Commissioner and remand the case to the Settlement Commissioner for consideration of the question whether the respondent Mst. Memoona Begum is an allottee of any portion of the western side of the house or not. If it is found that she is an allottee of any portion of the western side, the portion transferred to her should be maintained. On the other hand; if she is not an allottee of any part of the house on the western side, she should be transferred the eastern side and the petitioner the weastern side. Na order as to costs."
3. The Settlement Commissioner took up the question of entitlement of the parties under the remand order and held as follows :- "In this connection a certified copy of the allotment order produced before me shows Muhammad Jamil the husband of Mamoona Begum to have been allotted the North Eastern Portion and the ground floor on 2-3-48. The said order is shown confirmed as contents in the formal allotment order in a printed shape shows the date of allotment to have been as 17-5-55, the date of possession on the upper portion since 1956 and the date of possession of the lower portion having already been with him.
4. From the aforesaid contents of the allotment order it becomes clear that Muhammad Jamil husband of the respondent Mst. Memoona Begum was allotted the North Eastern -Portion and the ground floor. No part of western portion can, therefore, be considered to have been held by way of allotment. With this conclusion, therefore, and in the light of the directive contained in the aforesaid orders of the High Court Mst. Memoona Begum the respondent will be entitled to the transfer of the eastern side of the house while western side will go to the petitioner Seed Mahmood A.I. The same is accord--ingly ordered and the orders of remand disposed of in this way."
5. The appellant was aggrieved by such a determination of the Settlement Commissioner and this time she invoked the constitutional jurisdiction of the High Court for challenging the determination by the Settlement Commissioner. Her case was that the allotment order as well as her possession was clearly over the western portion of the building and in terms of the remand order she was entitled to the transfer of the western portion while respondent No. 1 was entitled to be transferred the eastern portion.
6. The learned Judge in the High Court held that it was essentially a question of fact as to whether the appellant was an allottee of any portion of the western building and a finding of fact having been recorded by the Settlement Commissioner it was not liable to interference in the constitutional jurisdiction of the High Court. Nevertheless a reference was made and the various allotment orders placed on record or made available were examined with a view to determine whether the Settlement Commissioner had committed any patent error in construing them. The learned Judge concluded "It cannot be said that the order of the learned Settlement Commissioner is erroneous because he has based his view after referring to the attending evidence before him." It was also held by the learned Judge that it was not a fit case for interference in writ jurisdiction because both the parties have been given portions of the property and merely because one party had a liking for another portion was no ground for interference in writ jurisdiction. The order of the learned Settlement Commissioner impugned before him was held to be doing substantial justice between the parties in the light of the direction earlier issued by the High Court. The constitutional petition was, therefore, rejected.
7. The learned counsel for the appellant contended that not only was the appellant in possession of the major portion of the property but had also been found to be entitled to the transfer of whole of it at one stage. According to the allotment order, particularly the one which showed that the possession of the property in particular the ground floor had been given to the appellant in March, 1948, showed that the appellant was entitled to the western portion, for the ground floor was not qualified to be confined to the North-eastern portion which had been earlier allotted to her. It extended to the whole of the ground floor and was not restricted to any particular portion of it. It extended to the west, as well as to the east. The learned counsel for the appellant contended that the learned Settlement Commissioner had committed a patent error in construing this allotment order as one relating to ground floor of the portion in the north-east of the property which was allotted to the appellant.
8. The remand order binds the parties and limits the controversy to be resolved. It is the allotment and the allotment alone which has been made determinative of the entitlement of the parties and the allotment may not be co-extensive with the possession of the parties over the disputed property. As the allotment emanates from orders passed by competent authorities there are three such documents which are the basis of the claim of the appellant, two of them filed by the appellant himself and the third one made available by the respondent. The earliest in point of time is the order of allotment dated 21-12-47. The original order from an Allotment Order Book was produced at the hearing of the appeal before us by an official and an attested photostat copy of it is on our record and another was made available at the hearing in the High Court. This order is dated 21-12-47 on which date the possession of the allotted property was also banded over to the husband of the appellant. It is significant to note that the property allotted by this order was C/288 north-eastern portion. There was no mention of the ground floor or any portion of it as the allotted property. The next allotment order produced by the appellant is one which bears the date 3rd of March, 1948, of the Officer allotting the house and confirmation by Mr. Saghir-ul-Haq, Rehabilitation Officer, on 9-7-49. It for the first time mentions against the Column No. I C/288 north-eastern portion and ground floor. Significantly the date of allotment is mentioned as 21-12-47 and the date of grant of possession is also mentioned as 21-12-47, except for the ground floor of which possession is shown to have been obtained on 2nd of March, 1948. A comparison of these two allotment orders will reveal that the first does not allot the ground floor and the second also does not allot the ground floor but recites its allotment and possession on a particular date. The connection between the ground floor and its allotment bad to be established and it is established neither by the first allotment order nor by the second though the second document recites it as a fact that earlier ground floor was also allotted. The third allotment order is not very illuminative on the point, for it is the formal order and divides the property into upper portion and lower portion, gives the date of allotment as 17-5-55 and date of possession of upper portion as 19-9-57 and lower portion as already existing and this order is dated 9-2-57. It is, therefore, not of assistance for determining the exact portion which was allotted to the appellant by this order. It cannot be the case and has never been the case that the entire upper portion and the entire lower portion, all of it, was allotted to her.
9. Where a property is defined and described as north-eastern portion and if the expression ground floor also finds mention alongwith it then one interpretation of it could be that the entire ground floor goes with the north--eastern portion and the other that the ground floor co-extensive with the north-eastern portion alone is intended in the order. As it was not made clear whether the entire ground floor had been allotted to her or the one under the north-eastern portion the Settlement Commissioner was justified in interpreting it in the context of the allotment order and the previous history and the peculiar construction of the property. During the course of the arguments the learned counsel for the appellant at one stage suggested that on the ground floor corresponding to the north-eastern portion there was no property except the shops. The plan submitted by him and the plan submitted by the respondent do not bear this out nor this happens to be even the case of the appellant before any of the authorities. If this were the factual position then the question of interpreting the allotment order would have been resolved by an inspection of the spot by the concerned authority. The closest that the learned counsel for the appellant has been able to reach as regards this contention is the so-called admission of the respondent in para. 5 of his reply to the writ petition in which he said that the ground floor mostly consisted of shops but this admission is followed in the very next sentence by the following statement :- "Although on the eastern side , there is one small room on the ground floor which is in possession of the petitioner. The entire first floor on the eastern side is in the possession of the petitioner."
10. The admission taken as a whole would confine the allotment of the petitioner to the ground floor on the eastern side corresponding to the allotment held by her on the upper storey.
11. On a consideration of the material placed on the record and after hearing the learned counsel for the parties we have reached the conclusion that the question required to be answered in the case was one of fact and it cannot be said that the view that the Settlement Commissioner has taken in resolving this question of fact is such as to suffer from a manifest perversity, illegality or infirmity to merit interference in the constitutional jurisdiction of the High Court. We consider that in terms of the remand order the entitlement of the parties has been determined. There is no merit in the appeal which is hereby dismissed leaving parties to bear-their own costs.