' Property No,SW-III-90-S-8, Guru Tegh Bahadur, Road, Krishan Nagar, Lahore is a composite building consisting of '5 "shops and 2 residential units. There is no dispute about the shops. The two residential units stood allotted to the petitioner, Muhammad Akbar Malik and his father-in-law Dr. Bashir Ahmad, who died and is being represented by his legal heirs. The Deputy Settlement Commissioner marked the units as 'A' and 'B' and transferred unit 'A' to Dr. Bashir Ahmed and unit 'B' to the petitioner by his order, dated 28-4-1960. Two appeals were filed by the parties separately against the order of the Deputy Settlement Commissioner. The appeals came up for hearing before Mr. S. Muhammad Azhar, Additional Settlement Commissioner, Lahore, who modified the order of division of the Deputy Settlement Commissioner to the extent that two rooms, situated on the 1st and 2nd floors of the house across the south of the line of demarcation drawn between the two portions should go to Muhammad Akbar Malik, petitioner in addition to the portion already transferred to' him by the' Deputy Settlement Commissioner. The operative part of his order, dated 29-4-1961 is reproduced with advantage: "I find that the learned D.S.C., by his demarcation in the aforesaid plan has tried to divide the property vertically. In doing so he has, however, transferred two rooms on the first and second floors which are situated to the South of the dividing line to Dr. Bashir Ahmed by including it in portion 'A'. I have not been able to find out why these rooms have been included in portion 'A'. Their proper inclusion should have been with portion 'B' and transferred to Malik Muhammad Akbar.. I, therefore, amend the aforesaid order of the D.S.C., in so far as the transfer of these two rooms situate by the side of the passage on the first and second floors is concerned. They are deleted from the portion 'A' and included in portion 'B' of the plan and are transferred to Malik Muhammad Akbar in addition to the portion already transferred to him by the D.S.C. The proportionate value of these two rooms will be deleted from the price of the portion of the house transferred to Dr. Bashir Ahmed and included in the transfer price of Malik Muhammad Akbar. The D.S.C. Concerned will pass amended transfer documents accordingly."
' The order of the Additional Settlement Commissioner was further challenged by filing two revisions separately by the parties. The learned Settlement Commissioner inspected the site and heard the arguments of the parties and recorded his order, operative part of which reads as: "The building in dispute is of the type which could not be easily divided between the two parties but as they were closely related to each other and there was no question of Pardah among the members of the parties, they to begin with, accommodated themselves in the building. There were at least five shops besides two entrances in the building but the shops had nothing to do with the allotment of the residential portion. The learned Additional Settlement Commissioner was anxious to draw a line in the middle of the residential portion of the house to ensure vertical division but while doing so he seems to have overlooked that the room described as the dressing room on the first floor was contiguous to the staircase constructed in the entrance from Guru Nank Road, but according to his order it fell in the share of Malik Muhammad Akbar. This room is independent of the remaining portion of Malik Muhammad Akbar and adjoins the portion allotted to Dr. Bashir Ahmad. Keeping this fact in view, this room should be transferred to Dr. Bashir Ahmad, who will have exclusive right to use the enterance from Guru Nanak Road, otherwise the portion ordered by the Additional Settlement Commissioner is maintained. Malik Muhammad Akbar will have entrance into his portion from the Guru Tegh Bahadar Road. To elucidate the matter, it may be reiterated that the division would be as has been marked by me in blue pencil on the plan on page 57, of the file. 1 have signed the plan today. This decision would place the tubewell constructed next to the entrance to be transferred to Dr. Bashir Ahmed on the ground floor, in the portion transferred to Malik Muhammad Akbar. The portion as suggested by me ensures equitable division between the two parties."
' Very precisely, by order of the Settlement Commissioner one room contiguous to the staircase on the 1st floor was included in the portion 'A' transferred to Dr. Bashir Ahmed but in respect of the other room it was recorded that "otherwise the portion ordered by the Additional Settlement Commissioner is maintained". The order of the Settlement Commissioner was challenged in the High Court by means, of Writ Petition No,528/R of 1965 by the petitioner but the same was 'dismissed in limine on 3-6-1965. The petition for Special Leave to Appeal filed against the order of the High Court was also dismissed by the Supreme Court. Thus, order of the Settlement Commissioner, which was very precise in terms as to the division of the house attained finality and the documents of title should follow the description of the portions in the manner transferred by the Settlement Commissioner. However, there was a plan-on which the two portions were demarcated by drawing by the Settlement Commissioner was tempered with and an attempt case made to undo the division made by the Settlement Commissioner. 0 the basis of this tempered plan the parties once again started claiming accommodation of each other's portion and to secure the settlement of rights once for all the petitioner filed an application praying that the plan should be brought in conformity with the order of the Settlement Commissioner which is the sheet-anchor of the rights of the parties. This application came up before another Settlement Commissioner, who admitting the legal position that order of his predecessor could not be reviewed or revised, but for some logical clarification he included a room on the second floor once again in the portion of Dr. Bashir Ahmed and according to him it was the omission to make mention of this room in the order of his predecessor. Its order in the part in which he has reasoned out the transfer of room on the second floor to Dr. Bashir Ahmed is reproduced with advantage.
"5. The perusal of the order, dated 29-4-1961 passed by Mr. S.M. Azhar, the then Additional Settlement Commissioner, Lahore Division, supports the petitioner's contention that he had taken away two rooms from portion 'A' (one room on each floor), and included the same in portion 'B' which had been transferred to the petitioner. In the revisions filed by both the parties, however, the said order was upset to the extent that the room, on the 1st floor, described as dressing room, which was contiguous to the staircase was restored to the respondent alongwith his portion. But no order was passed with regard to the other room, which was on the top, above the said room. The site inspection revealed that this room on the terrace is a 'Barsati' which is over and above the room on the 1st floor which has been described as dressing room and which is in possession of the respondent and has ultimately been given to him. This Barsati or room on the top is also in possession of the respondent and is accessable only from his side. In fact it is inreparable from the room down below and for all practical purposes should go alongwith it. It is, however, correct that under the order of my learned predecessor only the room beneath, it had been restored to the respondent and not this room on the top. Obviously it must be an oversight, otherwise, there could be little justification for excluding it from the respondent's portion, when it is in his possession and is accessable only from his side," and the room beneath it has already been transferred to him. I cannot review or revise the order of my learned predecessor, but that can be the only logical clarification and interpretation of the said order.
6. The learned counsel for the respondent has questioned the jurisdiction of the Court and maintained that since the matter had already been finally decided by my learned predecessor, this Court is not competent to reopen this question. Obviously there is little force in this contention, as this Court has not been approached to revise or review the order of its predecessor, but only to interpret or clarify it. It was observed by my learned predecessor that he had signed the plan in accordance with the orders passed by him, but unfortunately the map which exists on the file is in a mess. Some endorsements made on it have been subsequently scored out. It appears to have been tampered with subsequently. However, it is the judicial order of my learned predecessor, which holds the field and the plan should be in accordance with it and not vice versa. As already observed, the room in dispute is a Barsati. It is in possession of the respondent and the only access to it is from his side. It is over and above the room on the 1st floor, which is adjacent to the staircase and which has been transferred to the respondent. Perhaps it was an oversight that my learned predecessor omitted to mention it while restoring the room down below to the respondent. I cannot of course review or revise the order of my learned predecessor, but in view of the facts stated above this can be the only logical clarification of the said order."
2. There are two questions for consideration in this writ petition.
The first question is whether the transfer of a room on the second floor to Dr. Bashir Ahmed was an omission arising out of accidental slip or it was a substantive order affecting the right of the petitioner. The order of the Settlement Commissioner passed earlier had got the finality on dismissal of the writ petition and the petition for Special Leave to Appeal holds the field between the parties and was recorded after site inspection in precise terms. Clearly only the room on. The 1st floor was transferred to Dr. Bashir Ahmed and the order in respect of the rest of the portion was maintained as made by the Additional Settlement Commissioner. There was thus no omission in the order of the Settlement Commissioner passed earlier that out of the two rooms only one was transferred to Dr. Bashir Ahmed and the second room allowed to be remained with the petitioner.
When the order of division is in the precise terms and practically can be given effect to no omission can be presumed in the order. From the language used in the order it is sufficiently clear that the other room transferred to Dr. Bashir Ahmed by the Settlement Commissioner while interpreting the order of his predecessor is not an omission supplied in the context of the order but an additional order affecting the right of the petitioner already settled under the order which got finality.
3. The second question is about the jurisdiction of the Settlement Commissioner to review or revise the order of his predecessor on merits or in relation to the rights of the parties already determined by his predecessor. This legal position is conceded by the Settlement Commissioner in his order, dated 22-11-1969. The extent of the power available to him was that provided by section 21(3) of the Displaced. Persons (Compensation and Rehabilitation) Act, 1958 which is reproduced as: "21. (3) Clerical or arithmetical mistakes in any order passed by an officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority or his successor-in-office."
' After examining the order of the Settlement Commissioner, dated 22-11-1969 there remains no doubt in a reasonable mind that he has exceeded the jurisdiction conferred on him under section 21(3) of the Act, and it was not an omission corrected by him in the order of his predecessor -but has inserted something which had not existed in that order.
4. Learned counsel for the respondents has tried to meet the point argued by the learned counsel for the petitioner with the help of the plan about which no doubt was entertained by the Settlement Commissioner himself that plan was tampered with subsequently. Where there is a conflict between a plan and the order of entitlement of the parties the letter of the order shall govern the entitlement of the parties and not the plan on which great stress has been laid by the counsel for the respondents. The plan is not in its original shape and cannot be relied upon to rebut the arguments of the learned counsel for the petitioner.
5. In the above circumstances, the order of the Settlement. Commissioner, dated 22-11-1969 passed on the application for clarification of the order, dated 8-2-1962 is set aside and the transfer of the orations in the house shall be governed by the precise terms of the order of the Settlement Commissioner, dated 8-2-1962 by which a room on the 1st floor was taken away from the petitioner and transferred to Dr. Bashir Ahmed but the transfer of the other portion as ordered by the Additional Settlement Commissioner to the petitioner is maintained. The plan is completely out of shape and can be brought in conformity with the order of the Settlement Commissioner, dated 8- 2-1962 as indicated above. The petition is accepted with the above conclusion but there is no order as to costs as the parties are related inter se.