SAAD SAOOD JAN, J.--The dispute in this appeal by special leave relates to a part of a composite property known as Hari Chand Building, situate in Massey Street, Rawalpindi Cantt. It consists of four shops and four flats together with some godowns. The flats have been constructed over the shops. When the settlement operations started Fazal Muhammad Malik, respondent No.1 a claimant, applied for the transfer of one of the shops which was in his possession and the overlying flat. An Assistant Settlement Commissioner visited the site and prepared a report on 3-11-1959. In his report he inter alia stated:- "All the four shops are identical as regards their construction and accommodation and so are the flats. The four shops have independent access. However, two flats each have common stairs. The building can therefore, only be divided into two and not four portions. Although Messrs F.M. Malik & Co. Have applied for only one shop and one upper flat, it is not possible to transfer only these two to them. They will have to take- another shop and another flat alongwith them i.e., two shops and two flats as they cannot be separated from each other."
By an order, dated 9-11-1959, the Deputy Settlement Commissioner accepted the report and transferred the whole unit as recommended by the Assistant Settlement Commissioner to respondent No.1. Subsequently, on 1-3-1962 a permanent transfer deed was also given to him.
2. One of the shops transferred to respondent No.1 was in the occupation of the appellant. On 4-10- 1960, the appellant executed a rent deed in his favour.
3. On the information supplied by one Mst. Sughran Bibi the Director of the Enforcement Staff made a reference to the Settlement Commissioner calling in question the legality of the transfer of two shops to respondent No.1. By an order, dated 26-1-1963, the Settlement Commissioner accepted the reference and cancelled the transfer of one shop and one flat which were not in his possession at the relevant time on the grounds that no one could be given more than one shop and that respondent No.1 had not even applied for the transfer of the portion that was not in his possession.
He further directed that the portion taken away from respondent No.1 be given to the informer.
4. Respondent No.1 challenged the order of the Settlement Commissioner in writ jurisdiction in the High Court. While his petition was pending Scheme No. VIII came into force. This Scheme permitted occupants of evacuee property which had not yet been disposed of to obtain transfer of the same.
The appellant who was in possession of the shop taken away from respondent No.1 submitted a form under the Scheme for its transfer. He also moved an application before the High Court for being made a party to the writ petition filed by respondent No.1. The High Court rejected his application on the ground that he had not been a party in the proceedings before the Settlement Authorities which led to the making of the order impugned in the writ petition. He then preferred a petition for leave to appeal in this Court. While dismissing his petition this Court observed:- "It seems, however, correct that being not a party before the Settlement Authorities in the dispute which was eventually taken to the High Court, he had no right to be impleaded in those proceedings in the High Court. If the High Court, in the end, decides to send back the case for re- decision to the departmental authorities, the petitioner may possibly be able to contend before those authorities that his form should also receive consideration. But until such an event materialises we do not see how the petitioner can be said to be a party interested in the litigation in the High Court."
5. In the writ petition, as mentioned earlier, respondent No.1 had challenged the legality of the order, dated 26-1-1963 of the Settlement Commissioner only. By an order, dated 15-5 -1968 a learned Single Judge accepted the petition and declared the said order to be without jurisdiction and thus of no legal effect. He further directed that the case be remanded to the Deputy Settlement Commissioner for a fresh decision. From the order of the learned Single Judge respondent No. 1 preferred a Letters Patent Appeal wherein he impugned the legality of the direction with regard to the remand of the case to the Deputy Settlement Commissioner. By an order, dated 7-6-1980, a Division Bench in the. High Court accepted the appeal and set aside the impugned direction on the ground that the order by which the property in dispute was transferred to respondent No.1 had not been affected by the order of the learned Single Judge.
6. In this appeal the appellant has challenged the legality of the order of the Division Bench. There is a serious objection to the competency of this appeal. As already noticed his prayer for being impleaded as a party to the writ petition was rejected not only by the High Court but also by this Court. On the face of it, therefore, he would not appear to be a person competent to come in appeal to this Court. To get over this objection the learned counsel appearing for him argued that after setting aside the order of the Settlement Commissioner the learned Single Judge had remanded the case to the Deputy Settlement Commissioner for a fresh decision. During the course of proceedings which were. To ensue consequent upon the order of remand he would have had an opportunity to press his claim to the shop in his possession. By setting aside the order of remand, the Division Bench deprived him of that opportunity. He had an interest in the maintenance of the order of the learned Single Judge as he was an aggrieved person from the order of the Division Bench. He had, therefore, a right to come in appeal to this Court.
7. It is difficult to accept the contention of the learned counsel. It is to be noticed that there were two orders of the Settlement Authorities relating to the property in dispute. One was of the Deputy Settlement Commissioner whereby the whole building was divided into two units and one of the units was given to respondent No. 1. The other was of the Settlement Commissioner whereby a part of the unit transferred to respondent No.1 was taken away from him and given to Mst. Sughran Bibi.
After the learned Single Judge set aside the order of the Settlement Commissioner the order of the Deputy Settlement Commissioner stood revived. While directing the Deputy Settlement Commissioner to decide the case afresh the learned Single Judge did not notice that the Deputy Settlement Commissioner had already made an order with regard to the transfer of the property in dispute and unless his order too was set aside the question of remanding the case back to him for a fresh decision did not arise. It may also be mentioned that the legality of the order of the Deputy Settlement Commissioner was not in dispute in the petition before him. In the Letters Patent Appeal the Division Bench by setting aside the order of remand merely corrected this patent error from which the order of the learned Single Judge suffered. The appellant cannot found his right to intervene in the proceedings on the basis of an order which was clearly insupportable. It may also be mentioned that it was not open to him to challenge the legality of the order of the Deputy Settlement Commissioner as it was made long before Settlement Scheme No.VIII came into force.
In fact a permanent transfer deed had also been issued to respondent No.1 before the appellant submitted his form for the transfer of the shop. Consequently, the property in dispute could no longer be regarded as available within the meaning of the said Scheme. The fact that a writ petition with regard to the property was pending when the Scheme came into force could not change this position. Reference in this context is invited to Khawaja Masood v . Ameer Bakhsh 1976 SCMR 8, Hussan Jan v . Abdur Rahman 1976 SCMR 119, Munir Ahmad v. Noor Muhammad 1982 SCMR 1038 and Ghulam Rasool v. Settlement and Rehabilitation Commissioner 1980 SCMR 921.
8. For the reasons stated above we would dismiss this appeal with costs.