1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal is directed against judgment dated 12th March, 1974 of the Peshawar High Court whereby a Constitutional Petition arising out of an Urban Settlement case filed by Shamroz Khan respondent No, 4 was allowed and the revisional order of Settlement Commissioner (dated 7-10-1970) was set aside with the result that the unit in dispute of a composite property was held to have been transferred to Shamroz Khan respondent as a part of a Balakhana and not to appellant No, 2 Abbas Khan as a part of the shop on the ground floor transferred to him. Abdul Qadir appellant No, 1 is a purchaser from Abbas Khan.
2. Leave to appeal was granted to consider "whether the High Court rightly reversed the order of the Settlement Commissioner on a matter which fell within his exclusive jurisdiction extending to the examination of the legality and propriety of the order passed by the subordinate authorities;" in the following circumstances.
3. ' The dispute relates to the precise identity of Shop No, CB-537/967/1688 as distinguished from Balakhana No, CB-537/966/1689 forming part of a composite building in Bazar Sarafan of Peshewar City. The Balakhana or Chowbara is for residential use while the shop is for commercial use. The case was one of disposal under subsection (12) of section 2 of Displaced Persons (Compensation and Rehabilitation) Act, 1958. It appears that the entire property stood transferred to some other person but was resumed from him ; and, thereafter the same was disposed of by two separate orders one passed on 13-8-1969 in favour of Abbas Khan appellant on his L. S. Form whereby the shop was transferred to him on the ground of his occupation while the Balakhana was transferred to Shamroz Khan respondent on 15-12-1969/15-1-1970 on account of auction wherein he was the highest bidder. Shamroz Khan made an application on 12-2-1970 before the Deputy Settlement Commissioner complaining that the room in dispute formed part of the property transferred to him through auction and that Abbas Khan had illegally opened an opening in the wall common between the shop transferred to him and the disputed room as also by closing the door between the said room and the staircase leading to the property transferred to him. He accordingly sought departmental assistance for making the demarcation. The Deputy Settlement Commissioner held inquiry and inspecting the spot and found it as a fact that the room in question did not constitute as part of the shop transferred to Abbas Khan appellant. On appeal by Abbas Khan an Additional Settlement Commis- . Sioner upheld the finding of the Deputy Settlement Commissioner. Accordingly the room in, dispute was treated as having been transferred to Shamroz Khan respondent. On a revision filed by Abbas Khan the findings of fact reached by the two lower authorities with regard to the identity of the properties transferred to each party, a Settlement Commissioner reversed the finding of fact and held that the room in dispute was a part of the shop and the same stood transferred to Abbas Khan appellant. On a Constitutional Petition filed by Shamroz Khan a learned Single Judge in the High Court held that the decision of the Settlement Commissioner in revisional jurisdiction was based on misreading of evidence and surmises. It was also held that the concurrent findings reached by the Deputy Settlement Commissioner and Additional Settlement Commissioner on factual aspects of the case "could not in law be disturbed by the Settlement and Rehabilitation Commissioner in revisional jurisdiction even if he disagreed with that finding on his own view of evidence and even though the concurrent finding of the lower Courts appeared to him as grossly erroneous".
4. ' The decision of the High Court impugned in this appeal proceeds on two distinct basis : (1) the scope of the revisional jurisdiction of the Settlement Commissioner and (2) the misreading of evidence or surmises in that behalf. Regarding the first-mentioned basis, both the learned counsel agreed that the Settlement Commissioner's revisional jurisdiction at the relevant time extended to the examination of the legality, correctness as also the propriety of the orders impugned before him. The first basis of the High Court's decision regarding scope of the revisional jurisdiction of the Settlement Commissioner, therefore, with respect, it is found as without any legal support. Thus, it is held that the Settlement Commissioner was, in exercise of his revisional jurisdiction competent to correct the errors in the findings of fact reached by the lower authorities even if they were concurrent.
5. ' The second ground regarding misreading and surmises cannot be examined without reproducing that part of the order of the Settlement Commissioner which was also quoted by the learned Judge in the High Court in this behalf in the impugned judgment.
6. "From an appreciation of the aforesaid position and from a perusal of the record of the case I am of the view that the constructional position of the suit room would not in fact matter much for a decision particularly when auction of the property to the respondent was confined to the balakhana which for all purposes would be the upper storey and secondly when possession over the said room has also been with the petitioner as a part of the shop. The fact of possession with him long before 1958, is not found contested. Transfer of the property to the petitioner having taken place on the factum of possession, the said room would be understood to be a part of the property transferred to him. Even if the position recorded on Excise and Taxation record showed the shop to be of one room, the user to which the other room was put of course as a shop would being the extent of the property transferred within legal manner on the simple ground that the State of occupation and its use before the year 1958 would be a material factor in that direction."
7. ' The reasoning of the Settlement Commissioner can be divided into three parts : one, the disposal of the residential unit in favour of Shamroz Khan respondent was as a Balakhana, therefore, the structural position of the room in question would not be of much assistance. This observation was made after the stage, that the Settlement Commissioner had appreciated "the aforesaid position" as highlighted in the factual part of the revisional order ; as also, what. Appeared to him "from a perusal of the record of the case." Therefore, it will have to be assumed that whatever record was used as evidence by the two authorities below was also perused by the revisional authority.
8. ' The second ground which influenced the Settlement Commissioner was that the transfer of the shop to Abbas Khan had taken place on account of possession and that even if the taxation record showed otherwise, the user of the room in dispute as a part of the shop by its transferee and transfer of the same, according to him was not unlawful. The third ground mentioned by the Settlement Commissioner was that Abbas Khan was in possession of the disputed room since "long before 1958 is not found contested".
9. ' After having heard the learned counsel for the parties at some length and having perused the material relied upon by them, we with respect, do not agree with the learned Single Judge in the High Court either with regard to 'misreading' or the so-called 'surmises' by the Settlement Commissioner. The ground relatable to the disposal of the first floor unit to Shamroz Khan respondent was with reference to it being a Balakhana besides the same having been described by its number. We have seen the original auction list. The unit after having been described through its number was mentioned as a Balakhana. This was the notice for the respondent No, 4, the auction-purchaser, when he offered the bid. Thus, there is no misreading of evidence in this behalf nor there is any surmise because the decision of the Settlement Commissioner followed the perusal of the record by him. The second ground, that notwithstanding the excise and taxation entries, the user of a particular part of unit would provide enough justification for the same to be included in the relevant unit in so far as the governing legal provision contained in section 2(12) is concerned. Not only this, even if there is no user of a part of the unit, while the remaining part c is established to be in possession of the transferee, the division under section 2(12) would not be unlawful and the position would not be different.
10. ' The Settlement Commissioner also, in the third ground mentioned above, found that the transfer to Abbas Khan was on the basis of his possession and further that "the fact of possession long before 1958 was not found contested" by him. The order passed by the D. S. C. No doubt mentions the number of the unit transferred to Abbas Khan appellant but the same was transferred as a "shop" to him. As already observed it was within power of D. S. C. To make the transfer under section 2(12) regardless of the original boundaries of a numbered unit particularly when as was held by the Settlement Commissioner, the "possession over the said room has also been with Abbas Khan" and further that this aspect of the case was also "not found contested"-may be from the Settlement Department side, vis-a-vis the period prior to the transfer in appellants' favour in 1969 (Shamroz Khan the respondent No, 4, came into picture later on at the time of the auction in 1970).
11. Accordingly there is neither any misreading nor any surmise in this behalf either.
12. ' In the light of the foregoing discussion, we allow this appeal set aside the judgment of the High Court and restore the revisional order passed by the Settlement Commissioner on 7-10-1970. There shall be no order as to costs.