SHAFIUR RAHMAN, J.--Leave to appeal was granted to a P.T.D. Holder of a house to examine the correctness of the decisionof the Lahore High Court, dated 16-7-1976 whereby the finding of fact recorded by the Settlement Commissioner was set aside and substituted by a finding that the house was part of an industrial concern, Krishna Ice Factory, sold by auction much later than the P.T.D. Of the appellant.
2. Krishna Ice Factory existed since before partition within the limits of Lahore Municipal Corporation and was given the Property No. 86-R-124. In 1953-54 when the survey of evacuee properties was undertaken by the Rehabilitation Department, it was shown therein to comprise an area of 5 Kanals 5 Marlas of which 1 Kanal 14 Marlas was covered area and 3 Kanals 11 Marlas was open. In the remarks column, the appellant was amongst others, shown as illegal occupant of premises being used as a house. The Jamabandi numbers were not incorporated in the survey register and instead a plan of the property was appended to it but that did not show the portions occupied by the so-called illegal occupants.
3. The appellant claimed to be allottee of the residential portion since 1952 and he stated that on 9- 5-1958 he was ordered by the Rehabilitation Staff orally to vacate the premises. He claimed alternative accommodation or permission to construct Katcha houses on the open space. The Additional Settlement Commissioner (Industries) rejected his request on 26-5-1959. He then applied for its transfer under Settlement Scheme No. 1 on C.H. Form and obtained its transfer on 24- 10-1960. He paid the price and cleared the dues and obtained P. T . D. For the same on 3-6-1965.
4. Krishna Ice Factory was put to public auction on 23-1-1968 and purchased by the respondents.
The auction was confirmed on 18-6-1968. The auction-purchaser of the Ice Factory thereafter complained of the presence of intruders and the deficiency in the area of which he was able to obtain possession subsequent to the auction.
5. The Additional Commissioner (Industries), by an order, dated 22-3-1969, held that the transfer in favour of the appellant was erroneous as it formed an integral part of the factory.
6. A revision petition was filed by the appellant before the Settlement Commissioner, who allowed it after recording a finding of fact as appears from his judgment, dated 26-3-1974 as hereunder:-- "The simple question which falls for determination is as to what was the actual area of the Krishna Ice Factory which was auctioned on 28-1-1968 in favour of the respondents. The area of the factory is neither recorded in the auction notice issued from the C.S. And R.C. Nor in the bid sheet prepared at the time of auction. In the circumstances we have no other alternative but to revert to the revenue and other record available on the file. It is an admitted fact that Property No.S.XVIII.9.S.7 stands transferred to the petitioner. It is situated in Khasra No.8152. As against this, the area of the Krishna Ice Factory is 4 Kanals 1 Marla and 135 sq.Ft. It is situated in Khasra No.8204. Its No. Is 86.124.
In the copy of Khasra Amarti for the year 1953-54 there is a reference of a (sic) in column No.4, showing its owner Dina Nath, evacuee. Similar area is recorded in the copy of Khasra Amarti for the year 1941-42. Its column No.3 will prove that its Khasra number was 8204 with an area of 4 Kanals 1.
Marla and 135 sq.Ft. It is of interest to note that beneath the area, the word (sic) is also clearly written. In the same way, Khasra Amarti for the year 1957-58, will show that an area of 1 Kanal 1 Marla and 217 sq.Ft. Which is in Khasra No.8152 belonging to Charanji Lal son of Dina Nath. It may be mentioned that both Dina Nath and Charanji Lal are father and son respectively. Hence, it is an established fact on record that the area of Krishna Ice Factory is 4 Kanals 1 Marla and stated above that both the units are situated different Khasra numbers and they are numbered separately. The plea of the petitioner also gets support from the copy of the P.A List of Lahore Municipal Corporation. The unit which stands transferred to the respondents bears No.86.R.124. Its area is also recorded therein as 4 Kanals in column No.7."
The operative part of the order of the Settlement Commissioner is as hereunder:- "On the basis of what has been said above, I am satisfied that the respondents are entitled to have an area of 4 Kanals 1 Marla and 135 sq.Ft. Already delivered to them as premises of the Krishna Ice Factory. They cannot claim the units falling entirely in different Khasra numbers. Actually they wanted the premises of Krishna Ice Factory and they got the same."
7. This was challenged by a Constitutional Petition in the High Court which succeeded and the finding of fact recorded by the Settlement Commissioner was upset. The reasoning which prevailed in the High Court is reproduced hereunder:--- "The Ice Factory was bounded by walls and according to the survey report, the total area of the Ice Factory was 5 Kanals 5 Marlas, and the quarters and shops were situated within the boundary walls of the Ice Factory. The learned Additional Settlement Commissioner (Industries) had also inspected the spot in the presence of the parties. Mirza Akram Beg, respondent No.1 had admitted before him that the doors of the quarters towards the Factory side were closed by him. I agree with the learned Additional Settlement Commissioner (Industries) that the quarters and shops were an integral part of the Factory in question. The Settlement and Rehabilitation Commissioner erroneously held that area of Krishna Ice Factory was 4 Kanals 1 Marla 135 sq.Ft. A factory alongwith the quarters can be situated on two or more khasra numbers. Similarly, a factory and its quarters can be owned by two persons. In the instant case, Charanji Lal is son of Dina Nath and the land measuring 1 Kanal 11 Marlas and 217 sq.Ft. Had been transferred to him vide Mutation No-1426. This land was shown as Kabil-e-Tameer. It would show that it was a vacant side and no quarters a been constructed over it. Admittedly this area is situated within the boundary walls of the Ice Factory. The quarters under the possession of Mirza Akram Beg could not legally be transferred to him by the Deputy Settlement Commissioner. The order of transfer was without jurisdiction."
8. Mr. Zafar Pasha, Advocate, the learned counsel for the appellant contended that not only the appellant had received the transfer documents of the property but was entitled to it. The High Court could not, in constitutional jurisdiction, substitute a finding of fact with regard to the extent of the area of the property purchased by the respondents at an auction subsequently held. By reference to the pre-partition records, the learned counsel for the appellant has attempted to demonstrate that the finding of the Settlement Commissioner was sound on merits and sustainable in law and could not be interfered with in the constitutional jurisdiction.
9. Mr. A.R. Shaukat, Advocate, the learned counsel for the respondent No.1 /auction-purchaser, on the other hand contended that the appellant had suppressed material facts in obtaining the transfer of the house that he had delayed his representations to the Department and was ineligible to have the house transferred to himself as it was an integral part of the Ice Factory which had been auctioned to the respondents.
10. After going through the entire record and the submissions of the learned counsel for the parties, we find that the order of the Settlement Commissioner, which was impugned by the constitutional petition, had examined in depth the question of the exact extent and area of the properties by reference to the pre-partition records. Such an exercise was not undertaken either by the Additional Settlement Commissioner (Industries) whose order has been blessed nor a reference to these documents has been made in the judgment of the High Court. The records of the year 1946- 47 were of utmost importance in determining the extent and the limits of the properties for it was not the case that some other property which was not already an industrial concern had been converted into an industrial property or amalgamated with the industrial property. A reference is found in the order of the Settlement Commissioner to the Jamabandi of the year 1941-42 wherein the area of khasra No.8204, on which the Ice Factory is located, was shown as 4 Kanals 1 Marla, 135 square feet. This was corroborated by the Provisional Assessment List of the year 1946 wherein also the area of the Krishna Ice Factory was recorded as "about 4 Kanals". Khasra No.8152 happened to be an adjacent khasra number measuring 1 Kanal 11 Marlas, 217 square feet and it was shown in the pre-partition record and in the Provisional Assessment List as a building site. The Settlement Commissioner, by reference to these two documents of great importance in any such dispute, confined the claim of the auction-purchaser to khasra No.8204 measuring 4 Kanals 1 Marla, 135 square feet.
11. The Additional Settlement Commissioner and the learned Judge in the High Court have relied on the state of things as found and reported in 1953 and afterwards. Such a record, if in conflict with the basic record, could not be given preference in deciding this dispute or such a dispute. The Additional Commissioner had decided the dispute without reference to the basic documents, having material bearing on the controversy while the Settlement Commissioner had taken all the relevant factors into consideration and had arrived at a conclusion at which he could competently arrive. His decision, therefore, was immune from interference on a question of fact in the constitutional jurisdiction. There was no legal or jurisdictional defect in the order.
12. As regards the technical objection taken up by the learned counsel for the respondents, we find that it has no bearing on the merits of the case. The appellant had already the permanent transfer deed-and it was not the case against him that he had obtained it fraudulently or illegally. If his property was not shown to be a part of the industrial concern as held by the Settlement Commissioner, it was not open to interference on any of the grounds taken up by the learned counsel for the respondents.
13. In the circumstances and for the foregoing reasons, we accept this appeal, set aside the impugned judgment of the High Court and restore the decision of the Settlement Commissioner.
No order as to costs.