SAAD SAOOD JAN, J.--This is an appeal by special leave from the judgment and order of a Division Bench of the Lahore High Court whereby the appellant was held ineligible to obtain transfer of a share in an evacuee house on the ground that he was not in possession of .Any portion thereof at the relevant time.
2. The house is situate in Tagore Park, McLeod Road, Lahore. It consists of two floors with 22 rooms and 2 passages. When the settlement operations started five persons applied for its transfer on C.H. Forms. These were the appellant and his two paternal-uncles, namely, Abdul Ghafoor and Abdul Haq, respondents Nos. 2 and 3, Ch. A.I Muhammad, respondent No. 4, and one Mistry Din Muhammad. An Inspector from the Settlement Department conducted an inquiry during the course of which he recorded statements of the occupants of the house. He found all the claimants to be in occupation of different portions of the house but recommended that as the appellant and his paternal-uncles were in possession of the major portion and were also senior allottees the entire house be transferred to them. By an order, dated 7-2-1960 the Deputy Settlement Commissioner accepted the said recommendation and directed that the whole house be given to the appellant together with respondents Nos. 2 and 3.
3. From the order of the Deputy Settlement Commissioner, Ch. A.I Muhammad and Mistry Din Muhammad preferred appeals before the Additional Settlement Commissioner. By an order, dated 3-6-1960 the Additional Settlement Commissioner rejected the appeals after recording the additional finding that the house was indivisible. Ch. A.I Muhammad and Mistry Din Muhammad then went in revision before the Settlement Commissioner. Khan Farzand A.I Khan who heard the revision petition observed that the house was a fairly large one and that the accommodation in possession of Ch. A.I Muhammad, which comprised whole of the second floor could be conveniently transferred to him. He also held that the appellant was not in possession of any part of the house at the relevant time and Mistry Din Muhammad was a non-allottee. On the basis of these findings, by an order, dated 30-5-1961, he rejected the revision petition filed by Mistry Din Muhammad but accepted the one preferred by Ch. A.I Muhammad. Accordingly, he directed that the whole of the second floor which consisted of 3 rooms be transferred to Ch. A.I Muhammad and that he should also have the use of one of the passages. As regards rest of the house, he directed that the same be transferred to respondents Nos. 2 and 3 to the exclusion of the appellant.
4. From the order of the Settlement Commissioner three revision petitioners were filed before Malik Fateh Khan who exercised the powers of the Chief Settlement Commissioner. One was preferred jointly by the appellant and his two paternal-uncles. They challenged the transfer of a part of the house to Ch. A.I Muhammad. The second was filed by Ch.. A.I Muhammad. His claim was for the transfer of the whole house. The third was lodged by Mistry Din Muhammad who was aggrieved by his total elimination. By an order dated 14-9-1961, Malik Fateh Khan set aside the order of the Settlement Commissioner and restored that of the Additional Settlement Commissioner. As a result the whole house again stood transferred to the appellant along with respondents Nos. 2 and 3.
5. Mistry Din Muhammad did not pursue his claim any further. Ch. A.I Muhammad challenged the order of Malik Fateh Khan in writ jurisdiction in the High Court. By an order, dated 3-1-1966, a learned Single Judge dismissed his writ petition. He then filed a Letters Patent Appeal. By its judgment, dated 5-10-1973 the Division Bench which heard the appeal set aside the order of Malik Fateh Khan and restored that of Khan Farzand A.I Khan. The legality of this order has been challenged by the appellant before us.
6. In this appeal, to begin with, the appellant had raised two matters. The first was with regard to the transfer of a portion of the house to Ch. A.I Muhammad; the second related to his own exclusion on the ground that he was out of possession at the relevant time. As regards the first matter, it is no longer being pressed before us; neither the appellant nor any of his paternal-uncles, that is respondents Nos. 2 and 3, has challenged the transfer made in favour of Ch. A.I Muhammad. Thus, we are now only concerned with the second matter. It may also be mentioned that leave to appeal was granted to the appellant only to consider the question if the finding of the Settlement Commissioner, accepted by the Division Bench, that the appellant was not in possession of any part of the house, was the result of misreading of the evidence.
7. As already noticed, the Deputy Settlement Commissioner and the Additional Settlement Commissioner had, on the question of possession, recorded a finding favorable to the appellant. In coming to a contrary) conclusion the Settlement Commissioner took into consideration only two) circumstances. These were:
(i) in a voters list the appellant was shown as resident of some house in Kot Ladhha of district Gujranwala; and
(ii) in his C . H . Form the appellant had shown the house to be ink possession of his brother.
The Settlement Commissioner, however, overlooked the fact that during the course of inquiry held by the Settlement Inspector the occupants of the house had admitted that the appellant together with respondents No.2 and 3 was in possession of a portion of the house. That being, so, the fact that in a voters list the appellant was shown as resident) of a village in Gujranwala District could not lead to the conclusion that) he lost possession of the portion in the house in question. Taking up his residence in Kot Ladhha and retention of possession of the portion allotted to him in the house in dispute were not incompatible circumstances. As regards the C .H . Form submitted by the appellant, the Settlement Commissioner clearly misread it. A perusal of the said Form does not indicate that he was seeking transfer of the house merely on the basis of the possession of his brother or uncles. On the other hand, while mentioning names of the occupants of the house, in reply to Item No. 10, he included his name as well. It will thus be seen that the grounds on which the Settlement Commissioner chose to interfere with the concurrent finding of the Deputy Settlement Commissioner and the Additional Settlement Commissioner with regard to the possession of the appellant were non-existent. There was thus no legal basis upon which his claim to the transfer of a portion in the house could be rejected.
8. During the hearing of this appeal the only party which attempted to support the finding of the Settlement Commissioner was respondent No. 3. It may be mentioned that at no stage during the proceedings before the Settlement Authorities he took up the position that the appellant was out of possession at the relevant time. Similarly, when the appellant was joined with him and respondent No. 2 in the transfer of the house he did not protest at all. It is, therefore, not open to him now to aver that the appellant being out of possession had been rightly eliminated.
9. We should, therefore, think that the appellant has been deprived of the share in the house on the basis of an insupportable finding. The learned Judges of the High Court omitted to notice this position while restoring the order of the Settlement Commissioner. We, therefore, partly allow this appeal and declare that alongwith respondents Nos. 2 and 3 the appellant too is entitled to the transfer of a portion of the house which remains after excluding the part transferred to respondent No.4. The writ issued by the High Court may be amended accordingly. The parties shall bear their own costs in this appeal.