The petitioner is a displaced person from occupied Jammu & Kashmir State and after Partition settled in village Talwaran Mughlan District Sialkot and occupied house F/104 there. Her husband, Haji Badar Din deceased, was also alive that time. A ration card in his came as displaced person Jammu & Kashmir State was prepared, copy of which Annexure 'A'. This fact is also borne out from Annexure 'B', report of the Additional Naib-Tehsildar for Jammu & Kashmir according to this report, her husband, Badar Din deceased, had been drawing ration and was allotted an area temporarily in village Dogran Tahsil Sialkot in 1959, and for that reason, on 30-9-1959, this ration card was cancelled which, according to the petitioner, was got restored later on.
2. According to the petitioner, she leased out a portion of the house in dispute to respondent No. 2 on rent of Rs. 3 p. m. Vide Annexure 'C', copy of the rent-note. She has alleged that respondent No. 2 exploited this position and on account of her being widow and old lady forged on agreement deed, copy of which is Annexure 'D', to the effect that respondent would be owner in the property to the extent of 19%. Later on, another document was allegedly, forged by respondent No. 2 whereby the entire property was transferred to him. Copy of this document is Annexure 'H'. Thereafter, respondent No. 2 made an application before the Assistant Rehabilitation Commissioner (Land) for transfer of the house who disposed of the same vide Annexure 'F' on 18-1-1965. Respondent No. 2 had alleged in that application that he was a displaced person from occupied Jammu & Kashmir State and was occupying the house in dispute since before 1-1-1961 and the value of the house was less than Rs. 10,000, therefore the same should be transferred to him. The learned Assistant Settlement Commissioner (Land), however, observed on that application that respondent No. 2 was in occupation of the house in dispute since before 1961, therefore under Scheme No. 7, the house would be deemed to have been transferred to him, free of charge, and as such there was no need to issue any permit.
3. According to the petitioner, she came to know of this order quite late and as such challenged the same byway of appeal on 19-7-1967 before the Deputy Settlement Commissioner (Land), Sialkot, who disposed of the same vide Annexure 'G', The learned Deputy Settlement Commissioner, however, while dealing with the time-barred appeal, condoned the delay in filing the same and, observed that since the order passed by the learned Assistant Settlement Commissioner on 18-1- 1965 was nor conclusive against the rights of the petitioner, therefore there was no need to file the appeal. He further observed, that since according to the petitioner, respondent No. 2 was a tenant who had forged abovementioned agreement and transfer-deed, therefore she should approach the civil Court for the purpose of determination of her title, Against this order of the learned Deputy Settlement Commissioner (Land), Sialkot, the petitioner filed revision petition, which was disposed of by the learned Settlement Commissioner (Land), Lahore Division vide his order dated 9-7-1968, Annexure 'H', whereby he, without deciding the merits of the case and entitlement of the parties with regardthe property in dispute ordered that the parties should remain i: possession of the respective portions in their occupation. The learned Settlements Commissioner further observed that as the appeal filed before the Deputy Settlement Commissioner was time-barred, therefore the same was not tenable under the law, and for that reason, he quashed the appellate order being without lawful authority. The petitioner has now come up to the High Court, in writ petition, challenging all the impugned orders.
4. The learned counsel for the petitioner failed the following contentions:-
(a) Petitioner has been in occupation of the property in dispute, which is a kacha rural building, as defined under Chap. 4 of unamended Settlement Scheme No. 7 since 1947, therefore the same shall be deemed to have been transferred to her free of charge,
(b) respondent No. 2 occupied. a portion of the house in dispute as tenant of the petitioner after 1- 1-1961, which Was the target date under Scheme No. 7, before which a house was to be occupied for the purpose of its transfer under the scheme, as such respondent No. 2 was not entitled to transfer of the said house,
(c) respondent No. 1 had no authority to divide the house under Settlement Scheme No. 7 and declare the same to be more than one house. This can be done under section 2(4) of the, Displaced Persons (Compensation and Rehabilitation) Act of 1958 -by the Chief Settlement Commissioner or his delegatee. The definition of the house, as given in that Act, is "such 'evacuee residential. Premises' value of which is Rs. 10,000.00 or more in. Rural area", and since the value of the house in dispute was less than Rs. 10,000.00, therefore it could not be divided and declared by respondent No. 1 to be more than one house. Respondent No. 1 as well as Assistant Settlement Commissioner (Land), Sialkot, had no authority .To deal with the matter as Scheme No. 7 was framed under Displaced Persons (Compensation and Rehabilitation) Act of 1958,
(d) the findings of respondent No. 1 with regard to time., barred appeal of the petitioner are unwarranted and based on no reason whatsoever,
(e) respondent No. 2 was already in occupation of another house in village Nandpur, Tehsil and District Sialkot, which was damaged in 1965 Indo-Pak War, and he got Rs. 600.00 as compensation in lieu thereof, vide Annexure 'L', copy of report made by Patwari Halqa, which fact has not been rebutted."
5. The learned counsel for the respondent has contended that in accordance with the order made by the Deputy Settlement Commissioner (Land), Sialkot, Annexure 'G' the petitioner filed a civil suit against respondent No. 2 for the determination of her title with regard to the property in dispute.
That suit has since been withdrawn by her, but as the present petition contains disputed facts, therefore right forum for the determination of her right is not the High Court but the civil Court. He lots further contended that the documents mentioned above alleged to have been got executed by respondent No. 2 by fraud or misrepresentation are genuine and respondent No. 2 is entitled to the transfer of the property on their basis.
6. According to Settlement Scheme No. 7, which was enforced on 7-8-1961, "Settlement Authority" has been defined as "Chief Settlement Commissioner, Additional, Deputy, or Assistant Settlement Commissioner" and it was further provided in para. 6 of Chap. 1 of the Scheme that "all other words and expressions used but not defined in this scheme shall have meanings respectively assigned to them in the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and the schemes made thereunder".According to para. 5 of amended Settlement Scheme No. 7, enforced on 16-4- 1966, as rural proper--ties' were to be disposed of under the scheme, therefore revenue officers, who had already been invested with powers of 'Rehabilitation authorities' under the Displaced Persons (Land Settlement) Act of 1958, were appointed as "Settlement authorities" of the same denomination under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 for the purpose of disposal of such petitions under this scheme. It may be mentioned that the word 'Act' used in this para. Means 'Displaced Persons (Compen--sation and Rehabilitation) Act of 1958' as defined in para. 1 of this scheme. The Assistant Settlement Commissioner (Tehsildar) of the area or the Deputy Settlement Commissioner (Revenue Officer) of the area who have already been invested with powers of Settlement authorities under the Displaced Persons (Land Settlement) Act of 1958, are also to act as "Settlement authori-3 ties" of the same denomination under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 for disposal of 'rural properties' gas defined in this scheme. According to para. 5(2) of the Settlement Scheme No. 7 (amended) an appeal can be filed before the Deputy Settlement Commissioner (Revenue Officer) against the order of Assistant Settlement Commissioner (Tehsildar) of the area. The impugned orders dated 18-1-1965 and 13-12-1967 passed by the Assistant Settlement Commissioner (Land) and Deputy Settlement Commissioner (Lard), Sialkot, respectively do not indicate that they have been passed by the Settlement authorities appointed under the Displaced Persons (Compensation and Rehabilitation) Act of 1958, but this omission will not nullify the said orders as the said others have also been invested with powers of "Settle--ment authorities of the same denomination" under the Displaced Persons (Compensation and Rehabilitation) Act of 1958. Mere omission to write the correct designation, if that authority really invested with the power to decide the matter, does not invalidate the said order. Reliance can be placed in this respect upon Piao Gul v. The State (PLD 1960 SC 307).
7. According to para. 5(2)(b) of Settlement Scheme No. 7, 'where an order has been passed by a Deputy Settlement Commissioner (Revenue Officer) not being an order passed in appeal under clause (a) of sub-pare. (2) of para. 5 of the scheme, appeal will lie to the Additional Settlement Commissioner (Deputy Commis--sioner). There is no provision for filing a revision petition under this scheme. However, Settlement Commissioner (Land) under the Displaced Persons (Land Settlement) Act of 1958 has not been authorised under any provision of this scheme to hear the revision petition against an order of the Deputy Settlement Commissioner or the Additional Settlement Commissioner as the case may be. It appears that this has been purposely omitted so that the revision' may be heard by the Settlement Commissioner under Displaced Persons (Compensation and Rehabilitation) Act of 1958. The learned counsel for respondent No. 2 has not been able to show me any provision whereby a Settlement Commissioner (Land) has been authorized to dispose of the revision petition. He has tried to argue that since the application and appeal were disposed of by the Settlement authorities (Land), therefore revision against the said order was to be heard and disposed of by the Settlement Commissioner (Land), I am afraid this contention has no force. As already stated, the Settlement authorities appointed to dispose of 'rural properties' in 'rural areas' under para. 5 of the Settlement Scheme No. 7, were invested with powers under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 and not under the Displaced Persons (Land Settlement) Act of 1958 and it was specifically provided that order of Assistant Settlement Commissioner (Tehsildar) invested with power of "Settlement Authority" under the Displaced Persons (Compensation and Rehabilitation) Act of 1958 will be open, in appeal, before the Deputy Settlement Commissioner (Revenue Officer) invested with powers of 'Settle-- ment Authority of the same denomination' under the said Act. The order, therefore, passed by Settlement Commissioner (Land), Lahore Division, in revision, on 9-7-1968, vide Annexure 'H'. Cannot be maintained in law.
8. According to para. 3(3) (g) of Settlement Scheme No. 7, a 'kacha rural building' under the Act is liable to be transferred to its occupant, free of charge, and where there is more than one occupant, the property can be divided in accordance with the principle laid down in para. 4 and transferred accordingly. According to para. 4 of the said scheme, if a 'rural property' is in possession of one or more persons, the inter se entitlement of the c occupants will, wherever necessary, be determined in accordance with the general principles of the Act. The contention of both the parties has been that they are entitled to transfer of the property in dispute on account of their occupation of the same since before 1-1-1961. The petitioner has alleged that respondent No. 2 occupied a portion of the property as her tenant and further forged certain documents to get the property transferred to his name. Respondent No. 2 has denied all these allegations and has alleged that 'being a displaced person from occupied Jammu & Kashmir State, he is entitled to the transfer of the house in dispute being occupant since before 1961. All the points involving entitlement of the parties regarding the property in dispute can be decided by the Settlement authorities authorized under Scheme No. 7 according to para. 4 of the said scheme (amended). All the allegations arid counter- allegations made by the parties relate to their inter se entitlement with regard to the property in dispute, and, under the circumstances of the case, it is necessary for the Settlement authorities to decide the same after hearing the parties. The same cannot, however, be decided in petition under Article 98 of the Constitution by the High Court.
9. The contention of the learned counsel for the petitioner that the property could not be divided by the Settlement Authority to be more than one house, has no substance in view of the specific provision, as mentioned above, for that purpose, as contained in para. 3(3)(g) of Settlement Scheme No. 7.
10. As a result of the above discussion, the order dated 9-7-1968 passed by respondent No. 1, is hereby quashed being without lawful authority and of no legal effect. The orders passed by the learned Deputy Settlement Commissioner, Sialkot, and Assistant Settlement Commissioner, Sialkot, on 13-12-1967 and 18-1-1965 respectively, are also set aside. The case is remanded to the learned Settlement Commissioner, Lahore Division, with the direction to dispose of the same in the light of the observations made above. The writ petition is accepted to this extent but there will, however, be no order as to costs.