1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the order of the High Court of West Pakistan, Lahore, in Letters Patent Appeal No, 47 of 1967, dated the 16th March 1967. By this order, the appeal was dismissed in limine.
2. The property in dispute is No, SW-104-R-38, Hotu Singh Road, Santnagar, Lahore. It was occupied by Muhammad Ashraf, Fateh Muhammad, Mouj Din and his wife Mst. Ghulam Fatima, Sh. Khursheed Muhammad, Nawazish Ali and Muhammad Alam separately. Out of the above-mentioned persons, Muhammad Ashraf, Fateh Muhammad, Mouj Din and his wife Mst. Ghulam Fatima and Khursheed Muhammad are claimants. Except Muhammad Alam all of them applied for the transfer of the property in dispute. The Deputy Settlement Commissioner, divided the property into three portions by order dated the 13th January 1960. The ground-floor was divided into two portions. Portion 'A' was transferred to Ch. Mouj Din and Mst. Ghulam Fatima, his wife. Portion 'B' was transferred to Fateh Muhammad respondent No,
2. Muhammad Ashraf was transferred portion 'C', the upper portion of the house. This order was challenged in appeal by Sh. Khursheed Muhammad, the appellant, Mouj Din and his wife, Muhammad Ashraf and Fateh Muhammad, respondent. The Additional Settlement Commissioner, by order dated the 20th February 1960, dismissed the appeal and cancelled the transfer in favour of the above-mentioned persons and put the property in ear- marking scheme four revision petitions were filed against the order of the Additional Settlement Commissioner before Mr. Farzand All Khan, the Settlement Commissioner, Lahore. The learned Officer accepted the revision of Fateh Muhammad and Muhammad Ashraf he came to the conclusion that the house was not capable of division due to so many portions and it should be transferred to the persons best entitled to it. He eliminated Sh. Khursheed Muhammad and Mouj Din as they were non-atlottees and transferred the entire house to fateh Muhammad respondent and Muhammad Ashraf jointly. The matter was then taken before the Chief Settlement Commissioner by Mouj Din and Sh. Khursheed Muhammad. On the 22nd January 1961, Peer Ahsan- ud-Din, the then Chief Settlement Commissioner, after inspection of the site, transferred the property to three persons. He held the portion occupied by Mouj Din and his wife Mst. Ghulam Fatima to be a separate portion having a separate access and transferred the portion in their possession to them. The upper portion of the property was transferred to Muhammad Ashraf who was in possession thereof. Sh. Khursheed Muhammad, who was in possession of a garage and one room, was not transferred the portion in his possession. It was held that the garage is a part of the house according to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and was not transferable as it cannot be deemed to be an independent house, even if a room is added to it.
3. Fateh Muhammad respondent was transferred the portion in his possession and the portion in occupation of Sh. Khursheed Muhammad appellant. The appellant challenged this order in Writ Petition No, 317/R of 1961, which was dismissed in limine on the 30th May 1961. Masud Ahmad J., while dismissing the petition observed as under:-- "Normally, in excercise of writ jurisdiction, this Court does not go into disputed questions of fact and as the Settlement and Rehabilitation Commissioner, Lahore Division has held that the petitioner Sh.
4. Khursheed Muhammad, is not an allottee of the property in dispute, he could not, as of right, claim that the property be transferred in his favour. It is contended by the learned counsel for the petitioner that the finding of the Settlement and Rehabilitation Commissioner is based on misreading of evidence and that, therefore, this Court should issue a writ of certiorari to quash his order. In my opinion, at the most, it can be held that the Settlement and Rehabilitation Commissioner has given an erroneous finding on a question of fact and not that there is some error apparent on the face of the record, which would entitle the petitioner to a writ of certiorari."
5. After some time, Fateh Muhammad respondent, on the 7th June 1961, moved a Misc. application to seek the clarification of the order dated the 22nd January 1961. In this petition he alleged that the order dated the 22nd January 1961, does not show anything about the rooms occupied by M/s. Nawazish Ali and Muhammad Alam. He prayed that the order dated the 22nd January 1961, be modified in respect of the said rooms. The appellant also moved a Misc. application on the 17th July 1961 alleging that an independent portion of the property in dispute consisting of five rooms still remain undisposed of and prayed that after modifying the order dated the 22nd January 1961, the above stated portion be transferred to him as a claimant displaced person being in possession of a part of the property in dispute. On these applications the Chief Settlement Commissioner sent the case to Raja Muhammad Ziaullah Khan, Settlement Commissioner, Lahore, under section 32-A of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for hearing the parties visiting the spot and to submit a detailed report in the matter. The case could not be taken up by Raja Muhammad Ziaullah Khan. It came on the file of Syed Ijaz Hussain Shah, Settlement and Rehabilitation Commissioner. He came to the conclusion that rooms Nos, 4, 7, 8 and 9 are in possession of uneligible non-claimants and are available for disposal. He observed that Sh.
6. Khursheed Muhammad who is in possession of rooms Nos, 1 and 2 has been ousted as a result of the decision in a writ petition and he has no locus standi to come up in revision or review.
7. According to him, the contest was between Muhammad Ashraf and Fateh Muhammad. In this connection he reported as under on the 18th February 1963:-- "The contest between Muhammad Ashraf and Fateh Muhammad needs consideration on merits. In my opinion, the right of Fateh Muhammad is superior because he is allottee and has major portion of the property in possession. No doubt it should be a matter of determination as to how to divide the courtyard surrounding the residential rooms on the ground floor and to give the right of passage to Muhammad Ashraf who has to ascend the stairs that are constructed in room No, 8 for access to the portion that has been transferred to him, i,e,, first floor. In my opinion, whole of this western half portion of the bungalow should be transferred to one person as it is indivisible." The Chief Settlement Commissioner, sent the papers for consents to the Settlement Commissioner (Policy). On the 31st May 1963, the Settlement Commissioner (Policy), submitted his report which is as under.:-- The petitioner Sh. Khursheed Muhammad has not produced a copy which is placed below at Flag 'X'. According to the orders of the High Court, Sh. Khursheed Muhammad is out of the picture in so far as the room and the garage in his possession are concerned. He now wants that certain other rooms (about five in number) which have not been in his possession but which are to be put to auction according to the previous decision may be transferred to him instead of being put to auction. The main argument advanced by him is that his possession of a portion of the building (one room) may be treated to be the possession of the whole building and the room to be put to auction, may be transferred to him on that basis. I do not think we can accept the proposal which may be rejected.
8. As regards demarcation of the property transferred to Muhammad Ashraf and Fateh Muhammad referred to in paras. 6, 7 of the preceding note, S. C. Lahore may like his own decision on merit.
9. S. C. Lahore may see."
10. The Chief Settlement Commissioner concurred with the said report. He endorsed it on the 19th January 1963, and forwarded the case to Mr. S. M. Azhar, Settlement Commissioner, Lahore.
11. The case ultimately came up before Mr. Saeed-uz-Zaman Settlement Commissioner, Lahore. The learned Officer, by his order dated the 17th March 1964, directed that rooms Nos, 10, 9, 8, 6, 5, 1 and 2, along with the courtyard shown by a partition line, A, B, C, D, E, F and G, be transferred to Fateh Muhammad respondent. He also directed that Muhammad Ashraf will get as his passage and courtyard, portion marked A, B, C and H and permitted him to construct a new staircase from the passage and directed that the existing stairs may be dismentled. In respect of Sh. Khursheed Muhammad's claim he held as under:- "Khursheed Muhammad is the only person who has been paying rent through his monthly pay and is such deemed to be allottee. He is transferred rooms Nos, 7, 4 and 3 and two verandahs on either side and courtyard falling on the right of red line (G, F, E, D, C & H). He is not transferred the portion of the house for which his petitions have been rejected by the High Court."
12. Fateh Muhammad respondent challenged this order in Writ Petition No, 751-R of 1964. S. A.
13. Mahmood, J., by his judgment dated the 15th June 1966, set aside the order of Mr. Said-uz-Zaman, Settlement Commissioner, Lahore, in favour of the appellant Sh. Khursheed Muhammad. He held that there was no valid basis for the transfer of the portion of the house given to Sh. Khursheed Muhammad by Mr. Said-uz-Zaman, because his claim has been completely rejected by the Settlement authorities and the High Court in previous round of litigation and it was not at all competent for Mr. Said-uz-Zaman to re-open the matter. He further held that Mr. Said-uz-Zaman could not review the order of the Chief Settlement Commissioner dated the 4th June 1963, by which he had concurred with the report of the Settlement Commissioner (Policy), that Sh. Khursheed Muhammad was not entitled to any portion of the house as Mr. Said-uz-Zaman could not be considered to be the successor-in-office of the Chief Settlement Commissioner. The learned Single Judge further observed that the case had come before Mr. Said-uz-Zaman for the limited purpose of demarcating the portion of the house between Fateh Muhammad and Muhammad Ashraf and that he went out of his way in passing the order with regard to the other portion of the house. He further observed that the remaining rooms which were in possession of Sh. Khursheed Muhammad and Nawazish Ali and Muhammad Alam will have to be disposed of by the Settlement Commissioner as suggested by Syed Ijaz Hussain Shah, Settlement Commissioner. Whatever was in possession of Mouj Din and his wife will remain with them. The learned Single Judge upheld the order of the Settlement Commissioner by which he provided passage for Muhammad Ashraf. The appellant challenged this order in L. P. A. No, 47 of 1967, which was dismissed in limine by a Division Bench of the High Court of West Pakistan, Lahore, on the 16th March 1967. In this connection, the learned Judges of the High Court observed as under:-- "On behalf of the appellant Khursheed Mohammad, it was urged before us that the result of the previous litigation by which his claim was rejected should remain strictly confined to the rooms for which he had laid a claim and not extended to the rooms given to him by Mr. Saeed-uz-Zaman, as they had not been disposed of by the Settlement Authorities in the previous proceedings. It would appear from the account of the events given above that this contention is wholly without force. It had been repeatedly observed by the Settlement authorities, as affirmed by the High Court that Khursheed Muhammad, in spite of being a claimant, could not be given any part of the house as the garage and one room in his possession did not constitute a complete residential unit. In any case, Khursheed Muhammad can have no claim to the rooms transferred to him by Mr. Saeed-uz- Zaman on the simple ground that according to his own case he had never been in possession of any one of these rooms."
14. The appellant has challenged this order in this appeal before US.
15. Special leave was granted in this case to consider the question whether the High Court was justified in setting aside the order of the Settlement Commissioner on a technical ground when it had the effect of granting rights which were founded by law.
16. Most of the time of this Court was taken by Mr. Mahmood Ali Qasuri, learned ,counsel for the respondent No, 2, to show that the portions of the property in dispute in possession of Nawazish Ali and Mohammad Alam have been transferred to Fateh Mohammad respondent No,
2. The contention of the learned counsel has no force. The Chief Settlement Commissioner's order dated the 22nd January 1961, is quite clear on this point. In para. 6 of his order, he observed as under :-- "6. Fateh Muhammad is occupying portion of ground-floor. He is an allottee of the portion occupied by him. It has a separate access. He is, therefore, entitled to the transfer of the portion occupied by him as well as Sh. Khursheed Muhammad.
7. The order of the lower Court is modified and this revision petition is accordingly accepted to the extent indicated above."
17. It is thus quite clear that Fateh Muhammad was transferred the portion in his possession and the portion which was in possession of the appellant. It was for this reason that he moved the Miscellaneous application on the 7th June 1961, in which he alleged as under :-- " That the above said order does not show anything about the rooms occupied by Messrs Nawazish Ali and Muhammad Alam who neither filed any LH, CH or NCH Forms nor had contested at any stage and the rooms occupied by them admittedly fall within the portion as transferred to the petitioner."
18. It was in this context that he prayed that the order dated the 22nd January 1961, be modified to the extent mentioned above. The decision of S. A. Mahmood, J. in Writ Petition No, 751-R of 1964, decided on the 15th June 1966, also shows that the portions in possession of Nawazish Ali and Mohammad Alam are still undisposed of. The learned Single Judge, in this connection, observed as under :- "The remaining rooms which were in possession of Sh. Khursheed Mohammad, Nawazish Ali and Mohammad Alam will have to be disosed of by the Settlement Commissioner as suggested by Syed Ijaz Hussain Shah."
19. The decision in respect of these rooms was not challenged by Fateh Mohammad respondent No, 2 in any appeal before the Letters Patent Bench or before this Court. In these circumstances, the decision of the learned Single Judge on this point has become final and cannot be reagitated in these proceedings. The result of this discussion is that rooms Nos, 7, 4 and 3 and two verandahs on either side and courtyard falling on the right of red-line (G, E, F, D, C & H), mentioned in the order of Mr. Saeed-uz-Zaman dated the 17th March 1964, remain still undisposed of.
20. Mr. Abdul Mannan, learned counsel for the appellant has contended that the petition moved by the appellant before the Chief Settlement Commissioner was a Miscellaneous application under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, and was not a review petition as has been mentioned in some of the orders of the Settlement authorities. According to the learned counsel, there was no question of limitation and, therefore, the High Court was not justified in holding that the order of the Settlement Commissioner was liable to be set aside as he has not applied his mind to this aspect of the case. On the other hand, Mr. Mahmood Ali Qasuri, learned counsel for respondent No, 2, has contended that it was a review petition and it was barred by limitation and was liable to be dismissed on this ground.
21. After hearing the learned counsel for the parties, I am of the opinion that the contention of Mr. Abdul Mannan, learned counsel for the appellant, appears to be correct. As has been pointed out earlier, Peer Ahsan-ud-Din did not pass any order in respect of the portion occupied by Nawazish Ali and Mohammad Alam. The appellant, therefore, was perfectly justified in drawing the attention of the learned Chief Settlement Commissioner to this omission and asking him to transfer the undisposed of portion to him as he was in occupation of a part of the property in dispute. Such an application cannot be described as review application. It was for this reason that it was not treated as review application. It was a Miscellaneous applications and the learned Chief Settlement Commissioner was quite competent in entertaining it. Similarly, the application filed by Fateh Mohammad was also not a review petition. It was also a Miscellaneous application by which he prayed the Chief Settlement Commissioner to transfer the portion in possession of Nawazish All and Mohammad Alam, to him.
22. Mr. Abdul Mannan, learned counsel for the appellant, next contended that the learned Chief Settlement Commissioner has not applied his mind to the submission made by the appellant and has concurred with the view of the Settlement Commissioner (Policy), without expressing his own opinion. According to the learned counsel, in such circumstances, the learned Chief Settlement Commissioner cannot be said to have exercised the jurisdiction vested in him in accordance with law and there was no proper disposal of the Miscellaneous application filed before him. In support of his contention, he has relied on a decision of this Court in the case of Ghularn Mohi-ud-Din v.
23. Chief Settlement Commissioner (Pakistan), Lahore and others . At page 840, this Court observed as under :-- "All the connected applications concerning the transfer of this house were also put up and attention of the Chief Settlement Commissioner was drawn to the fact that respondent No, 3's entitlement appeared to have somehow undergone an improvement at the review stage, although in the previous order the same Settlement Commissioner had himself doubted the validity of the said respondent's claim and transferred a portion of the house to him purely on humanitarian grounds. A second inspection of the premises was, in the circumstances, suggested. This was done by the Settlement Commissioner (Policy), but the latter in his note only dealt with the question of the divisibility of the house and proposed that all the petitions should be rejected. In these circumstances, we are of the opinion, that it behoved the Chief Settlement Commissioner to apply his own independent mind to the questions raised before him and to deal with the three revision petitions put up before him in accordance with law. By merely countersigning on the note of the Settlement Commissioner (Policy), we are clearly of the view, the Chief Settlement Commissioner had not exercised the jurisdiction vested in him in accordance with law and that there was no proper disposal of the revision petitions filed before him."
24. The contention of the learned counsel appears to be well founded. As the Chief Settlement Commissioner, in the present case also merely countersigned the note of the Settlement1 Commissioner (Policy), it cannot be said that he exercised the jurisdiction vested in him properly.
25. Under the circumstances, the order of the Chief Settlement Commissioner dated the 4th June 1963, is illegal and void and has no validity in the eye of law.
26. On this view of the matter, the contention of the learned counsel for the appellant that Mr. Saeed- uz-Zaman had jurisdiction to transfer the portions in possession of Nawazish Ali and Mohammad Alam, to the appellant has no force. Mr. Saeed-uz-Zaman's source of authority, was an order which is without jurisdiction and, therefore, any order passed by him cannot be treated as valid order.
27. Apart from this, it is doubtful if the Chief Settlement Commissioner had directed the Settlement Commissioner to dispose of the portion in possession of Nawazish Ali and Mohammad Alam. No such direction was given in the order dated the 4th June 1963. In view of this, the High Court was perfectly justified in setting aside the order of Mr. Said-uz-Zaman.
28. Mr. Mahmood Ali Qasuri, learned counsel for the respondent No, 2, has urged that the appellant has no locus standi as he is a non-allottee and his claim has been rejected by the Settlement authorities and the High Court. In my opinion, this contention has no force. The order of Masud Ahmad, J., produced in the earlier part of the judgment, clearly shows that the claim of the appellant was rejected by him on the ground that he was held to be a non-allottee by the Settlement Commissioner. The distinction between an allottee and nonallottee is no longer of any importance. This question was considered by this Court in the cases of Barkat Ali v.
29. Muhammad Sharif and another and Abdul Majid Shaida v. Mst. Noor Jehan and another . It was held in these cases that a person holding an allotment order and the person in undisputed occupation of a portion of property stands on the same footing and that a person having an allotment order cannot have preference on a person who is a non-allottee. In the last mentioned case, it was observed at page 230, as under :- "The alternative stand, adopted by Mr. Lad, on behalf of the appellant, that as his client's son was an allottee, whereas the respondent was merely in possession without an allotment order, the former was to be preferred to the latter, has no legal basis, in the face of the decision of this Court in Barkat Ali v. Mohammad Shartf. If the respondent was in undisputed occupation of the house, within the meaning of the notification, dated the 13th of October 1959, by which the definition of 'possession' was extended so as to include within it, persons in undisputed occupation, subject to certain conditions, then she could not be defeated by the appellant, merely on the ground that his son, who was an occupant of the house, held an allotment order in his favour."
30. Thus it is quite clear that the claim of the appellant was wrongly rejected on the ground that he was a non-allottee. Mr. Mahmood Ali Qasuri, learned counsel for respondent No, 2, has further urged that the portion in possession of the appellant has been transferred to respondent No, 2 and, therefore, he has no locus standi to the transfer of the portions of the property which are still undisposed of. This contention has not impressed me. It cannot be denied that the appellant is in physical possession of one room and one garage. His possession in respect of garage may be disregarded but his possession in respect of one room of the property in dispute cannot be ignored. On the basis of his possession to a part of the property, he is entitled to get transfer of other portions of the property. This aspect of the question was considered in the case of Altaf Hussain and others v. Chief Settlement Commis-sioner, Pakistan and other . It was held in that case that a person in possession of one room is entitled to get his claim determined in respect of the rest of the house. In this connection, this Court observed as under :- "Initially, it appears, he had based his claim in the first form on the possession of his son under an allotment. Later, he seems to have realized that he might fail on that ground in competition with an actual allottee in possession, unless he could show an equally good title in himself. He then by means of this second C. H. Form merely tried to comply with a formality in order to be able to draw attention to the fact that not only his son was in possession as an allottee but that he himself2 3 4 occupied a similar position in respect of a room in the same house. If that fact was in existence at all relevant times, it had to be taken notice of before the contentions of the parties could be placed in their proper perspective."
31. In my view, the appellant can still claim the undisposed of portion of the property in dispute on the basis of his possession of one room in the property in dispute.
32. Mr. Mahmood Ali Qasuri, learned counsel for respondent No, 2, also contended that according to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a person cannot claim more than what he has claimed in the C. H. Form. He referred to the C. H. Form filed by the appellant and contended that he had only claimed the portion in his possession. I have referred to the C. H. Form submitted by the appellant and in the note appended to the C. H. Form--it is stated as under :- "Portion occupied is quite incommodious for a big family of 9 members, some members of which do reside with the relatives and I would therefore request to provide chances for other commodious house."
33. It is quite clear from this note that the appellant wanted to have a more commodious portion than the one which was in his possession. It cannot, therefore, be said that he is estopped from claiming any other portion of the property in dispute.
34. After hearing the arguments of the learned counsel for the parties, I am satisfied that the Chief Settlement Commissioner has not exercised the discretion vested in him properly. He had merely countersigned the suggestion made by the Settlement Commissioner (Policy). I would, therefore, remand the case back to him to consider the claim of the appellant in respect of the portion of the property which is still undisposed of.
35. In the result, the appeal is allowed to the above extent. In the special circumstances of the case, the parties will bear their own costs.
36. M. R. KHAN, J.--I agree.
37. SALAHUDDIN AHMED, J.--I agree. PLD 1964 SC 829 PLD 1966 SC 817 PLD 1967 SC 221 PLD 1965 SC 68