1. MUHAMMAD AFZAL ZULLAH, J.-- This appeal is directed against judgment, dated 28-11-1975 of the erstwhile Sind and Baluchistan High Court, whereby a Constitution petition arising out of an urban settlement case, filed by the respondents, was allowed.
2. Leave to appeal was granted to examine whether the High Court interfered with the order of the Settlement Commissioner, dated 17-5-1975 by misreading the evidence.
3. The property in question was described by the D.S.C. (who decided the final round of litigation in favour of the appellants by order, dated 29-10-1969) as "a composite building" consisting of "4 shops on the ground floor" and "remaining building on the ground floor as well as the whole of the first floor being used as Taj Hotel". All the five units are described as Shops Nos. 96, 99, 100, 101 and
102. Taj Hotel is No.96 while the others are mere Shops. No. 96 as Taj Hotel was transferred through auction to predecessor-in-interest of the respondents in 1960 for over Rs. 1,14,000 while Shops Nos.
4. 101 and 102 were transferred to the appellants: one of them for Rs.9,000 in 1962, as stated by their learned counsel on basis of possession of C.S. Forms. There is no dispute about Shops Nos. 99 and 100 and their first floor. The shops on ground floor were transferred separately while some structures on their first floor stand transferred to respondents as 1st floor part of Taj Hotel (No.96).
5. The transferees of the shops did not challenge the auction of Taj Hotel as such. Nor did they try to get excluded the 1st floor (roof) of shops which the transferee of Hotel, had in his possession and use. However, one Nargis Khatoon who had lost a house transferred to her applied to the D.S.C. In 1963 for obtaining the 1st floor of Taj Hotel inclusive of the roofs of all the said shops as an independent unit. This application was dismissed by the D.S.C. On 2-8-1963 on a finding that the roofs upon Shops 101 and 102 were transferred to the appellants. Nargis Khatoon's appeal failed in 1964 before an Additional Settlement Commis--sioner. In these to proceedings the respondents were not impleaded as parties and are admittedly ineffective qua them. However they were subsequently used against them by a civil Court on 26-9-1964 while dismissing the respondents' suit filed for preventing the appellants from removing the roofs under the use of Taj Hotel above the Shops Nos. 101 and 102. Qazi Iqbal-ud-Din appellant thus pulled down the roof and reconstructed it in 1964 under the assumption on the basis of civil Court decree that the shops stood transferred with Shops 101 and 102.
6. The proceedings before the civil Court revealed to the respondents -the orders of D.S.C. And Additional Settlement Commissioner passed in 2nd round in 1963/1964 behind their back. They did not pursue the civil Court remedy beyond appeal and instead launched the third round of clarification proceedings in the Settlement hierarchy, by challenging the said orders before a learned Additional District Judge with powers of Settlement Commissioner in revision. It was allowed on 23-1-1965. Those orders were set aside with the findings that "the Settlement Authorities had no right to divide the premises at the stage of Miscellaneous Applications made by Nargis Khatoon". The case was referred to D.S.C. For limited purpose of clarification "whether the upper portion over shops 9v to 102 have been given in auction to the predecessor-in-interest of petitioners (respondents herein) as forming part of premises No.96 or each of the opponents is to be given all that is over the roof of his shop". This order was not challenged by the appellants who then lost all advantage of findings by D.S.C. And Additional Settlement Commissioner in 1963/1964 and the super-structure built thereon in the civil Court which as would be seen had no jurisdiction to decide the settlement cases like the present one.
7. The Deputy Settlement Commissioner who took 4 years in the fresh decision after hearing all concerned, followed the civil Court judgment and by his order of 24-10-1969 held roof of shops 99 and 100 as part of the Hotel and those of shops 101 and 102 as transferred with the shops. Apart from the civil Court judgment the Deputy Settlement Commissioner also observed that the level of the latter roof was different from the other (sic) that it was constructed between 1964 and 1969. This order was set-aside on respondents' appeal by an Additional Settlement Commissioner on 17-6- 1972 by ignoring the influence of civil Court judgment treating it as not binding, and after taking note of independent facts and circumstances since 1947. The appellants' revision in this final round before the Settlement Commissioner was allowed and the order of D.S.C., dated 24-10-1969 by placing reliance again on the civil Court judgment, the to levels of the roofs and by interpreting a Custodian's Order passed in 1957 against the respondents, though according to them it was on account of mere misreading. On respondents' Constitutional Writ Petition, a learned Judge in the High Court after discussion of all relevant facts restored the order of the Additional Settlement Commissioner, dated 16-6-1972.
8. It is as noted earlier a composite property with 4 shops used as shops with fifth unit used as a residential unit for hotel purposes. The Hotel as traced in order, dated 16-6-1972 was allotted as Taj Hotel by the Rehabilitation Authority to one Yaqoob. The occupants of the shops made an attempt in 1954 to overthrow the burden of the hotel from above their roofs--which was being used for various facilities for the hotel--water lavatory room, shed etc. Also for spreading the cots on the 'terrace' (roof) as described in one of the orders passed before the target date of 1958. The Rehabilitation Authorities up to 1956 held the roof of all the shops as part of the hotel and in possession of its allottees as integral part thereof. Occupants of the shops admittedly lost the case then. Learned counsel failed to bring any change in so confirmed position till 1958. On the contrary there is confirmatory material in the orders of the Custodian Authorities who took up suo motu the reassessm ent of rent of Taj Hotel from Rs.25 p.m. To Rs.300, in 1957/1958 on the finding that the disputed 1st floor was being used as a part of the Hotel. Furthermore it was observed by the Additional Settlement Commissioner in his order restored by the High Court that in the C.S. Form submitted by the appellant side in Column Note thereof it is mentioned that the possession of the roofs of the shops was with the respondents' predecessor-in-interest as a part of the Taj Hotel. In this background of use of property and its possession--the transfer of the Taj Hotel took place in favour of the respondents' predecessor-in---interest in 1960--made before the transfer of shops to the appellants. They got only what was not a Taj Hotel. And as it existed then the 1st floor on the shops was an integral part of the hotel. Had it been otherwise no one would have offered over one lac Rupees for simple Shop No.96 in 1960. This position was accepted by the transferees of shops till 1964 when one of them wanted to change the roof which lead to the civil Court judgment.
9. Two questions need further to be resolved: One what is the effect of the civil Court judgment: and Two, if it had no legal effects, what is the effect of its use in the order of Settlement Commissioner' impugned in the High Court.
10. The first question need not detain us large. If the civil Court had while giving effect to final transfers made in 1960 and 1962/1963 of all the units of the- composite property--both residential and shops, passed a decree in favour of one or the other party it would have been with jurisdiction.
11. Instead it embarked upon the field which was within exclusive jurisdiction of the Settlement Authorities and in effect passed new orders of transfer on the basis of to intervening orders of Deputy Settlement Commissioner/ Additional Settlement Commissioner on Miscellaneous proceedings which were neither final nor inter-parties. The civil Court judgment thus delivered was rightly ignored by the Additional District Judge (Settlement Commissioner) in his order, dated 23-1- 1965 and the Additional Settlement Commissioner, dated 17-6-1972 as without jurisdiction. The Settlement Commissioner's order, dated 17-5-1975 which was based on the said judgment to a determinative effect was thus without lawful authority. Moreover, any party did not challenge the remand order of 1965 passed after the civil Court judgment. The intervening orders of 1963/1964 were set aside. They were the basis of the civil Court judgment. The basis having been taken away, no strength was left in the civil Court judgment. The Additional Settlement Commissioner in his order, dated 17-6-1972, thereafter rightly ignored it. It has rightly been restored by the High Court as the order of Settlement Commissioner was not only based on an ineffective civil Court judgment as also ignoring of well-established and admitted facts. This appeal accordingly fails and is dismissed. There will be no order as to costs.