' The dispute in this writ petition relates to a Tavela (stable) contiguous to a house, bearing No, 756, situate in Akal Garh Town of Tehsil Wazirabad. The said house was transferred to Nazar Hussain on 8-8-1960 on a C.H. Form submitted by him. Before passing the order of transfer, the local settlement authorities, prepared a sketch of the house. In this sketch the Tavela was shown as part of the house. Later a P.T.D. Was also issued in his favour. More than six years later, that is, on 28-10- 1966, Ali Hassan, respondent No,2, applied for the transfer of House No, 755 under Scheme No, VIII.
The settlement authorities found that he was not in possession of the said property but that he was occupying the Tavela. However, on 10-10-1968 a Deputy Settlement Commissioner gave a fresh property number to the Tavela by describing it as Property No, 756 A and transferred it to him on market price. Nazar Hussain and his wife filed an appeal before the Additional Settlement Commissioner alleging that the Deputy Settlement Commissioner had wrongly sliced away a portion of the property already transferred to them at their back without giving them an opportunity of being heard. They also alleged in their memorandum of appeal that after obtaining transfer of the house Nazar Hussain had inducted respondent No,2 into the property on compassionate grounds. By an order, dated 10-1-1970 the Additional Settlement Commissioner accepted the appeal and remanded the case back to the Deputy Settlement Commissioner for a fresh decision after inspection of the spot.
2. After the remand a Deputy Settlement Commissioner visited the spot and heard the parties. He described the Tavela as cattle-shed and observed that since Property No, H/756-A did not exist in the survey record maintained by the office of the Settlement Department and the Tavela had not been separately assessed to rent it was to be considered as part of the House No, H/756.
Accordingly by his order, dated 16-3-1970 he directed that as the Tavela was part of House No, H /756 which already stood transferred to Nazar Hussain, the form submitted by Ali Hassan should be rejected. He further directed that the price of the Tavela should be recovered from Nazar Hussain.
From this order Ali Hassan filed an appeal which was accepted on 14-10-1970 by the Additional Settlement Commissioner who found that the Tavela did not form part of the property transferred to Nazar Hussain. He based his firrding solely on the direction given by the Deputy Settlement Commissioner that the price of the Tavela should be recovered from Nazar Hussain. He thought that the very fact that Nazar Hussain was asked to pay the price of the Tavela indicated that it did not form part of the property transferred to him. From the decision of the Additional Settlement Commissioner, Nazar Hussain and his wife preferred a revision before the Settlement Commissioner. By an order, dated 8-4-1971 the Settlement Commissioner accepted the revision and remanded the case to the Additional Settlement Commissioner for a fresh decision after examining a number of points which he indicated in his order. After the remand the Additional Settlement Commissioner visited the spot and reiterated the finding that the Tavela did not form part of the house transferred to Nazar Hussain. In coming to this conclusion he noticed that the house and the Tavela did not have any interconnecting door or approach. Accordingly, by his order, dated 14-3-1972 he upheld the transfer of the Tavela in favour of Ali Hassan. From this order Nazar Hussain and his wife filed- a revision petition which' was heard by another Additional Settlement Commissioner, namely, Mr. Abdus Sattar By an order, dated 20-4-1976 Mr. Abdus Sattar set aside the order of his predecessor on the ground that the points formulated by the Settlement Commissioner had not been properly adjudicated upon. He then remanded the case to the Deputy Settlement Commissioner for a fresh decision after giving proper findings on all the points forinulated by the Settlement Commissioner. By an order, dated 18-10-1976 the Deputy Settlement Commissioner held that the Tavela was an independent property not forming part of Property No, 11/756. On the basis of this finding he upheld the order of the Additional Settlement Commissioner and rejected the claim of Nazar Hussain and his wife to the Tavela. The legal representatives of Nazar Hussain (since dead) including his wife have filed this writ petition to challenge the order of the Deputy Settlement Commissioner.
3. The only controversy between the parties in this writ petition is whether the Tavela formed part of House No, 756 which was transferred to Nazar Hussain in as far back as August, 1960. This is essentially a question of fact and ordinarily findings of fact are not interfered with in writ jurisdiction. But then after going through the record, I find that there are certain circumstances having material bearing on the controversy before me which have been entirely overlooked by the Deputy Settlement Commissioner. Before I set out these circumstances, I may mention here that the Deputy Settlement Commissioner who made the final order here was the same gentleman who after spot inspection had held on 16-3-1970 that the Tavela was part of the house transferred to Nazar Hussain. However, that may be, the Tavela was contiguous to the house transferred to Nazar Hussain and both properties were formerly owned by the same evacuee, namely, Baj Nath. Before Independence, it was not unusual for prosperous house-owners to build Tavelas for keeping cattle, carriages and horses. The Tavelas had usually independent entrances for consideration of Pardas on account of the presence of the male servants there. It was more often than not treated as part of the {{URDU TEXT}} . Thus, the absence of any inter-connecting door with the main house did not imply that the Tavela has not part of the house. Considering that the Tavela in this case was not given a distinct property number nor separately assessed by the local municipal or town committee, it does appear that it was being treated as part of the main house by Baj Nath. It is also to be noticed that Baj Nath was also the owner of House No, 755. If the Tavela had been an independent unit, it would have been given a separate number in the survey record. In fact, after Independence the settlement authorities themselves, too, regarded the Tavela as part of the main house. This is clear from the fact that till 1966 when Ali Hassan applied for its transfer as an independent unit the Tavela did not exist as a separate unit in their records. On the other hand when the C.H. Form of Nazar Hussain was being processed by these authorities, a sketch of the house proposed to be transferred was prepared by the office of the Deputy Settlement Commissioner. In this sketch the Tavela was shown as part of the house. (See reverse of Annexure 'B'). It was for the first time in 1968 that the settlement authorities took the view that the Tavela was not part of the house. This view was not based upon any tangible basis whatsoever. The past history of the property was not referred to at all. There is also no evidence that prior to the transfer of the house in favour of Nazar Hussain in 1960. Ali Hassan was occupying the Tavela in his own right as an independent unit. The assertion of All Hassan in this regard was all along disputed by Nazar Hussain. Ali Hassan gave no proof in support of his case. Apart from that, if he had been in possession, he would have applied for its transfer when Settlement Scheme No, 1 came into force.
His explanation that his means did not permit him to do so till 1966 is not at all impressive or convincing. Taking all these circumstances into consideration there can be little doubt that before Ali Hassan applied for its transfer the Tavela was treated as part of House No, 756 and was as such transferred to Nazar Hussain. The findings of the settlement authorities to the contrary were based on no evidence at all.
4. For the reasons stated above, I hold that as the Tavela already stood permanently transferred to Nazar Hussain alongwith the house there was no question of its transfer subsequently to Ali Hassan.
I would, therefore, declare the orders of the settlement authorities to the contrary to be of no legal effect. There will be no order as to costs in this petition.