1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted in three connected matters arising out of a consolidated judgment of the Lahore High Court, dated 11-2-1980 disposing of three constitutional petitions. The question of law requiring determination in these appeals is whether the High Court in accepting the constitutional petitions, in setting aside the order of the Settlement Commissioner, dated 18-8-1979 and remanding the case to him for a decision afresh had not kept in view and given due effect to the orders passed in the settlement hierarchy on the 19th of May, 1960, 30th of May, 1960 and 1st of October, 1960.
2. Property known as S-41-R-8, Queens Road, Lahore, is the subject-matter of dispute. It is an extensive valuable property measuring, according to one estimate about 14 Kanals, and according to the other over 18 Kanals. In its entirety, it was transferred by the Deputy Settlement Commissioner on 20-1i 1959 to the appellant. Another occupant (Dr. A.A. Khan) of a portion of the main bungalow applied to the Chief Settlement Commissioner against such a disposal of the property seeking the revision of the order under section 20(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 hereinafter referred to as the Act its division. The Chief Settlement Commissioner inspected the property after notice to the parties and noted the question requiring determination in the following words:-- "The point for my consideration is whether the building is divisible or not. The petitioner A . A .Khan is in occupation of the following accommodation: -- One big hall 28' x 19' used as a drawing-cum-dining room.
3. One room 28' x 22' used as an office. four bedrooms.
4. Four attached bath rooms.
5. Three box rooms.
6. Two verandahs.
7. One kitchen.
8. One garage and a couple of servant quarters.
9. W.Z. Ahmad has in his occupation similar accommodation. There are to staircases--one wooden staircase and another a brick staircase, both leading upto an open roof. There are to gates and to pieces of lawn. The only unit which is used at present by both the parties is the portico."
10. He decided the dispute on 9-5-1960 in the following terms:-- "I hold that this building is divisible and that the portion in occupation of A.A. Khan comes within the definition of a house as given in the Displaced Persons (Compensation and Rehabilita--tion) Act, 1958. I am not passing any orders of transfer at this stage because Saadat Begum's claim has not yet been verified. She should produce a copy of her verified claim order before me when I shall pass further orders in this case. The portion occupied by A.A. Khan should be excluded from the P . T .O . Issued to Mr. W.Z. Ahmad."
11. A formal order, dated 30-5-1960 issued in the following terms:-- "The house in occupation of Dr. A.A. Khan and Hakim Saadat Begum should be transferred in the name of Hakim Saadat Begum. The A.S.C. Lahore should be asked to do the needful."
12. A Provisional Transfer Order was issued by the Deputy Settlement Commissioner on 20-6-1960 to Mst. Hakeem Saadat Begum and her daughter Mst. Arifa Khatoon wife of Dr.A.A. Khan. The property specified in the schedule and shown to have been transferred to them was described as "Portion in occupation" to which was added "including 4 servant quarters and one lawn on Queens Road and a brickstairs" of S-41-R-8 Queens Road, Lahore. Incidentally this P.T.O. Was issued by Mr. Muqarrab Khan then a D. S. C. Whose order as Settlement Commissioner passed on 18-8-1979 was impugned before the High Court.
13. The appellant submitted an application to the Additional Settlement and Rehabilitation Commissioner which was entrusted on 13-9-1960 to another Deputy Settlement Commissioner who submitted a report in the following terms on 21-9-1960.
14. "After the study of the file I have found that P.T.O. Has already been issued by Khan Muqarrab Khan, the then D.S.C. Centre-I, Lahore at flag A. He has demarcated the boundaries which are against the provisions of the judgment of the worthy Chief Settlement Commissioner, with the result that Dr. Aziz Ahmad has started the use of the lawn in front of the portion transferred in the name of W.Z.
15. Ahmad and thereby he has started causing intrusion in the privacy of W . Z . Ahmad. Moreover the implementation of the orders as a matter of fact, as directed by the Chief Settlement Commissioner were to be made by the learned A.S. & R.C. And not by the D.S.C. Suo motu. The P.T.O., therefore, issued by Khan Muqarrab Khan is ultra vires and ex-parte, who did not give chance to the other party to plead his case, which is against the justice. Since Dr. Aziz Ahmad and Mst. Saadat Begum are not present no demarcation can be made, but the justice demands that the P.T.Os.
16. Already issued by Khan Muqarrab Khan be cancelled so that the other party may not use the portion which is not in his possession.
17. It is, therefore, proposed that the P.T.O. Already issued be cancelled and the status quo maintained till the fresh P.T.O. Is ordered to be issued by the A.S & R.C. After hearing the parties."
18. On 26-9-1960 the Additional Settlement and Rehabilitation Commissioner disposed of the report with the following order:-- "The action of the D.S.C. At A above is quite irregular.
19. In accordance with the instructions at B, I should have demarcated the land and issued the necessary P.T.O., etc. The P.T.O.'s already issued are hereby cancelled. Status quo should be maintained until implement the orders of the learned C.S.C. In the presence of both the parties.
20. Both the parties be informed of this decision."
21. On 1-10-1960 the Deputy Settlement Commissioner addressed the following letter to Dr. A.A. Khan and Mst. Saadat Begum:-- "The P.T.O., issued in your name in respect of 8-Queens Road, has been cancelled by the A.S. & R. C., Lahore, as it was not strictly in compliance with the orders of the learned Chief Settlement Commissioner. The status quo should be maintained until the implementation of the orders of the Chief Settlement Commissioner, is carried out, in the presence of both the parties."
22. Further action on the lines indicated by the Additional Settlement Commissioner in his order, dated 26-9-1960 could not be taken as the appellant challenged the order of the Chief Settlement Commissioner, at first by a review petition which was dismissed on 5-8-1960, and then by constitutional petition and Letters Patent Appeal. While the Letters Patent Appeal was still pending the appellant addressed the Chief Settlement Commissioner on his letter head on 16-3-1967 complaining of the expanding claim of the respondent. It is reproduced in extenso as it has a direct bearing on the question under examination--- "Lahore: March 16, 1967 The Chief Settlement Commissioner, 11 Egerton Road, Lahore.
23. Dear Sir, Bungalow No.8 on Queens Road, Lahore was transferred to me on 20th November, 1959. Later, Syed Hashim Raza, on an application of Dr. A.A. Khan who occupies a portion of the house, transferred his portion to his mother-in-law Hakim Saadat Begum saying "The portion occupied by Dr. A.A. Khan should be excluded from the P.T.O. Issued to Mr. W.Z. Ahmad.
24. I have filed a Letters Patent Appeal questioning the legality of the transfer to Dr. A.A. Khan's mother- in-law. The case is still pending in the High Court. In the meantime, Dr. A.A. Khan is trying to establish claim over the lawn in front of my portion of the house. He has made false complaints to the Chief Settlement Commissioner and to the Police alleging my interference in order to establish his claim although the fact is that the lawn in front of my portion of the bungalow is in my possession and the lawn in front of his portion is in his possession.
25. I shall be grateful if you kindly get the front lawn sub-divided and demarcated so that there is no dispute in the matter.
26. Thanking you, I have the honour to remain Sir, Your most obedient servant, (Sd.)
27. (W.Z. Ahmed)"
28. Even after the dismissal of the Letters Patent Appeal the demarcation could not take place as another controversy, not between these parties, regarding the transfer of annexe arose which ultimately ended on 14-4-1979 (Civil Petition 431 of 1979). By an application, dated 30-4-1979 the appellant sought revival of the demarcation proceedings. The proceedings were revived at the level of Settlement Commissioner. At that stage to groups of occupants intervened Yamin and 19 others on the one hand claimed that they were occupying the property different from 41-R-8, that in the garb of transfer of property No. 41-R-8 the to transferees were laying their claim to their property which was in fact another identifiable property bearing No. 41-R-6 sandwiched between this property and the Plaza Cinema. As it had remained indisposed of, they laid claim to it as residual property being its occupant. They claimed that at all the relevant stages they had been making applications for its transfer.
29. Another group comprised Khalid Hussain and 13 others who claimed to be the occupants of the quarters of property No. 41-R-8 and wanted that it should be further divided so as to exclude the portions in their occupation. They also claimed that the whole of the property should have been disposed of as a big mansion and that the order of division passed by the Chief Settlement Commissioner on 19-6-1960 covered only the claims of the to occupants of the bungalow keeping the question of its further division open. The Settlement Commissioner rejected the applications of both groups observing as follows:-- "The property involved in these to applications stands transferred as comprising of to independent units vide orders of Mr. S.H. Raza the then Chief Settlement Commissioner, dated 19-5-1960 and 30- 5-1960. No portion of this property is available for disposal. Even, otherwise none of the applicants has a proof and is a necessary party for the disposal of demarcation proceedings. The applications are therefore rejected."
30. After holding that there was no excess area the Settlement Commissioner took note of that part of the order of the Chief Settlement Commissioner where he said that "Portion occupied by A.A. Khan should be excluded from the P.T.O. Issued to Mr.W.Z. Ahmad" and held as follows: -- "It is therefore, clear that the portion in the possession of Dr. A.A. Khan and his wife was treated as house and transferred to Hakeem Saadat Begum, only this portion is to be excluded from the entire property it is correctly shown in the sketch filed by Mr. W.Z. Ahmad. I, therefore, order that the portion shown in green lines marked ABCD of the main building plus one Garage and to Servant Quarters is demarcated in favour of Hakeem Saadat Begum while the rest of the property is demarcated in favour of W.Z. Ahmad."
31. Three constitutional petitions were instituted in the High Court against this order of the Settlement Commissioner. The main writ petition (No.906-R of 1979) was filed by respondents Dr. A.A. Khan and Begum Saadat. Their case was that the Settlement Commissioner had by misinterpreting the order of division passed by Chief Settlement Commissioner materially altered it and he lacked the jurisdiction to do so. By confining the division in their favour to the four walls of the bungalow and denying to them the entrance, the passage, the lawn and the very access to the portion transferred the Settlement Commissioner had acted arbitrarily and oppressively. Yamin and 19 others, the interveners filed another writ petition (908-R of 1979) challenging their exclusion from the demarcation proceedings and reiterating that they were in possession of an altogether different and available property and were entitled to its transfer. According to them the distinct identity of the property in their possession could be established beyond doubt by associating them in the demarcation, by demarcating the properties in the light of authentic pre-partition record.
32. The third writ petition (1048-R of 1979) was filed by Khalid and 13 others who, were claiming possession of portions of the disputed bungalow itself. Their claim was that they were in occupation of properties either in excess of the entitlement of the to main contestants or divisible into transferable portions. According to them the order of the Chief Settlement Commissioner dividing the property into to portions did not foreclose its further division on their established undisputed possession being considered under the law.
33. The learned Judge in the High Court after considering the instructions of the Chief Settlement Commissioner, the law on the subject, both enacted and precedent, came to the following conclusion so far as the main contestants were concerned-- "It is, therefore, clear that the Settlement Commissioner did not go into the question as to which particular portions, particularly the lawns, gates, approach roads, etc., were being exclusively enjoyed by which party and how to demarcate the to houses so that they would answer the requirement of definition of the house in the present situation."
34. As regards the other to petitions the learned Judge dealt with them in the following words-- "The petitioners, however, will have the right to ask for the portions in their possession only if it is found as a fact that the same did not form part of Bungalow No.9 or that it was in excess of the area of 14 Kanals as mentioned by the Chief Settlement Commissioner. The learned counsel for these petitions relied on the to assessment lists placed on the record but as they have not been considered by any of the Settlement authorities I would not like to go into the same.
35. Be that as it may, as the main case is being sent back to the Settlement Commissioner, the petitioners may also assist the concerned authority in carrying out the demarcation and the measurements and may prove that the portions in their possession are either in excess of 14 Kanals or do not form part of the property No. S.41-R-8."
36. The operative part of the High Court judgment is as follows:-- "In view of the above, this case is sent back to the Chief Settlement Commissioner so as to be entrusted to an officer competent to get the Property S-41-R-8 measured and demarcated in the presence of the parties. In case he finds that the accommodation in possession of the petitioners in Writ Petitions Nos. 908 and 1048/R/71 falls within the bounds of S-41-R-8, he shall not hear them further. He shall then proceed to demarcate the house as defined in law and in the light of the observations made in paras. 14 and 15 above. There will be no order as to costs."
37. The learned counsel for the appellant has contended before us that the appellant was admittedly the transferee of the whole property. The Chief Settlement Commissioner had directed only exclusion of that portion therefrom which was in actual possession of the contesting respondents.
38. The Settlement Commissioner was within his jurisdiction in determining that question. As regards the denial to them of the entrance gate, the passage, the access, the lawns, etc., it is said that what was necessary to the enjoyment of their portion they could have on the general principles of law, but nothing more. As against others, the learned counsel for the appellant urged that if their claim related to any part of the disputed property it was barred in view of the original order transferring the whole to the appellant, thereby excluding everyone else except the contesting respondents for whom an opening was created by the order of the Chief Settlement Commissioner under section 2(4) of the Act.
39. The learned counsel for the contesting respondents on the other hand contended that the order of the Chief Settlement Commissioner, dated 19-5-1960 dividing the property was in all respects complete and exhaustive. Even the appellant admitted possession of the respondents in accordance with it. That order had to be implemented in the record. The Settlement Commissioner during the course of its implementation could neither alter it nor consider the question afresh. The power under section 2(4) of the Act having been exercised for the first the at the level of Chief Settl9ment Commissioner and the review against it having failed it could not be exercised over again much less at a level lower to that of the Chief Settlement Commissioner.
40. The learned counsels representing the to groups of intervenors have contended that their case is based on the assumption that the property in their possession is not a part of disputed property or that it is in excess of the entitlement of the contestants. The determination of these questions of fact should take place by associating them in the proceedings and if they succeed in establishing either they will have under the law a case for its transfer.
41. The Chief Settlement Commissioner in dividing the property by his order, dated 19-5-1960 exercised a -power reserved for him under section 2(4) of Act. He could exercise this power as laconically as saying that this property should not be treated as a house, leaving the determination of entitlement and further division to his subordinates. He could also, within his powers, divide the property into houses to or more. In doing this he had to specify the division either by description or by demarcation or by both. By this order, dated 19-5-1960 the Chief Settlement Commissioner proceeded to justify at great length why he was not treating this bungalow a house but to houses.
42. He took note of the lavish scale of its construction, the sharing of it by the owner himself with a foreigner even before Independence and finally the structural and functional independence of each portion. After taking note of the existence of to staircases, to gates and to pieces of lawns and stating that "the only unit which is used at present by both the parties is the portico", the Chief Settlement Commissioner delineated the portion in fair detail by description without actually demarcating it. When the matter was taken in review to the succeeding Chief Settlement Commissioner he noted in his order, dated 5-8-1980 that-- "Briefly the situation is that Mr. W.Z. Ahmad and the respondent Dr. A.A. Khan are in possession of almost half portion each of, an evacuee bungalow No. 8, Queen Road, Lahore" and maintained the order of division which was based on possession of the parties. Even the appellant in his letter, dated 16-3-1967 (reproduced) to the Chief Settlement Commissioner admitted such possession of the contesting respondents, In view of these facts what was to be done by the subordinate Settlement Authorities was not to pass a fresh order under section 2(4) of the Act but to implement the order already passed by demarcating the property as a request had been made when P.T.Ds had not issued, for demarcating the portions falling to each. The Settlement Commissioner in interpreting the word 'occupation' completely ignored the findings of the to Chief Settlement Commissioners with regard to it, excised the expression from the other part of the order and interpreted it contrary to its plain meaning, the context and the law and instructions on the subject. In this background the order impugned before the High Court could not on any ground be sustained and remand was the proper course. For the same reasons a limited scope allowed for examining the claims put forward by the other writ petitioners was justified. We find no merit in any of these appeals and they are all dismissed leaving the parties to bear their costs.