1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Writ Petition No. 1242/R of 1961, dated the 2nd June 1965. By this judgment, the writ petition was dismissed.
2. The dispute between the parties is in respect of a house known as Muweshi Khana (cattle shed), situated in the Abadi Deh of village Darweshke, Tehsil Wazirabad, District Gujranwala. It is in possession of the appellant who is a local resident of the said village. Respondent No. 2 Farman A.I who is a displaced person from the territories now forming part of India, applied for the allotment of the said property to the Assistant Rehabilitation Commissioner (Lands). His application was consigned to the record room. Thereupon, he filed an appeal before the Deputy Rehabilita-- petition Commissioner (Lands) who remanded the case to the Assistant Rehabilitation Commissioner (Lands) for a fresh decision after enquiry.
3. The Assistant Rehabilitation Commissioner again on the 31st March 1961, dismissed the application of respondent No. 2 and held that the house was constructed by the appellant who is living there from the time of his forefather. He further held that the land underneath was Shamlat Deh. This order was challenged before the Deputy Rehabilitation Commissioner and the appeal of the respondent No. 2 was dismissed on the 31st May 1961. The respondent No. 2, filed a revision petition against it which was accepted by the Settlement and Rehabilitation Commissioner, Lahore Division, on the 16th September 1961. He allotted the property in dispute to respondent No. 2. The appellant challenged the legality of the order allotting the house in dispute to respondent No. 2 by respondent No. 1 in Writ Petition No. 1242/R of 1961. He contended that the house in dispute belonged to him and his forefathers. It was built on a Shamlat Deb, and not on evacuee property and as such respondent No. 1 had no jurisdiction to allot it. He further submitted -that the house in dispute was never treated as evacuee property immediately before the 1st January 1957, and, therefore, respondent No. 1 had no jurisdiction to deal with it. The High Court held that according to the finding of respondent No. 1, the house in dispute was evacuee property and its possession by the appellant was unauthorised and unlawful. The High Court further held that in the absence of documentary evidence, the appellant failed to prove to the satisfaction of respondent No. 1, that he has made any construction or improvement on the house in dispute. The High Court also held that the property in dispute was a hidden evacuee property and section 3 of the Pakistan (Administration of Property) Act XII of 1957 had no application on the facts of the present case. The appellant challenged this order in Petition for Special Leave to Appeal No. 258 of 1965.
4. Leave was granted to him on the 18th October, 1965, to consider the following contentions :-
(i) that the Settlement and Rehabilitation Authority had no power to treat this property as evacuee property, and
(ii) that in any event this property not having been treated as evacuee property prior to 1st January 1957, it could not be so treated after that date.
5. Mr. A. H. Najfi, learned counsel for the appellant has urged the following points in support of the appeal
(1) Settlement and Rehabilitation Commissioner, had no jurisdiction.
(2) The property in dispute was not treated as evacuee property before 1st January 1957.
(3) The order of the Settlement and Rehabilitation Commissioner is bad because he has not applied his mind to the facts of the case.
(4) That the finding of the Settlement and Rehabilitation Commissioner is not immune from the scrutiny in the High Court.
(5) That the property being a Shamlat property could not be treated as evacuee property without partition.
6. After hearing the learned counsel for the parties, we are satisfied that the Settlement and Rehabilitation Commissioner, Lahore, has not applied his mind to the facts of the present case.
7. While dealing with the dispute between the parties, he has observed as under :- "The parties are present with their respective counsel. Arguments heard and record examined. The respondent fails to produce any allotment chit either for the house or for the vacant site under it.
8. His plea is that he constructed this house after partition and the allegation of the other party is that he built out of the evacuee melba. Whether he built it or not it was irregular and' unlawful possession of a man who is a local and who had his own house. His arguments that because the petitioner is a blind man and has got no family, does not debar him from shelter. I, therefore, accept the revision petition and allot the house to the displaced person, the petitioner."
9. A bare perusal of the above will show that the learned Se and Rehabilitation Commissioner did not go into the question whether the property in dispute is an evacuee property or not or whether the property was constructed by the appellant and whether it was Shamlat Deh or not. His order is based on conjectures and surmises and clearly indicates that he has not applied his mind and has assumed jurisdiction without dealing A with the points involved in the matter. In these circumstances, it was open to the High Court to consider the nature of the property in dispute and to find out whether on the facts of the present case, the order of the Settlement Commissioner is liable to be set aside. This view is supported by a decision of this Court in Mr. Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (PLD 1965 SC 698). In that connection, it was observed as under at p. 705 :- "The Displaced Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to Settlement Authorities to bring all property within their jurisdiction on their own findings. According to the contention of the learned counsel for the respondent if the Settlement Authorities chose to transfer property which never vested in the Central Government the only remedy of the person aggrieved was an appeal or revision under the Displaced Persons (Compensation and Rehabilitation) Act. We see no ground for attributing such an intention to the Legislature. However, if the property was in fact property which the Settlement Authorities were empowered to transfer their orders would be liable to be set aside only on the ground that the jurisdiction was -not validly exercised. The proceedings would be liable to challenge in the High Court under Article 98 of the Constitution on grounds applicable to certiorari, but not on the simple ground that the decision were not in accord with facts."
10. Mr. Najfi, learned counsel for the appellant has also referred to us to para. 270 of Halsbury's Laws of England (Third Edition), Volume 11, under the heading `Collateral facts', which reads as under "The case is more difficult where the jurisdiction of the inferior tribunal depends, not upon some preliminary proceedings but upon the existence of some particular fact. If the fact is collateral to the actual matter which the inferior tribunal has to try, that tribunal cannot, by a wrong decision with regard to it, - give itself jurisdiction which it would not otherwise possess, unless by statute the inferior tribunal is given power to determine conclusively questions relating to its own jurisdiction.
11. The inferior tribunal must, indeed, decide as to the collateral fact, in the first instance ; but the superior Court may upon certiorari inquire into the correctness of the decision, and may quash the proceedings in the lower Court if such decision is erroneous. On the other hand, if the fact in question is not collateral, but a part of the very issue which the lower Court has to inquire into, certiorari will not be granted, although the lower Court may have arrived at an erroneous conclusion with regard to it."
12. From the order of the Assistant Rehabilitation Commissioner (Lands), it appears that the land on which the property in dispute is situated is Shamlat Deh and it was constructed by the appellant.
13. The finding of the Assistant Rehabilitation Commissioner (Lands) is not also disputed by the learned counsel for respondent No. 2. He has contended that the land is" Shamlat Deh and, therefore, the property is situated on the land of Muslims and non-Muslims and it is an evacuee property. This contention does not appear to be well founded. In para. 1 of the writ petition, the appellant has stated that he owns 4 acres of land. He is, therefore, a zamindar in the village Darweshke, and had interest in Shamlat Deh property. The right of co-sharer in the Shamlat Deh land was considered in Wazir Singh v. Mahtab Singh (108 P R 1889). While remanding the case, it was ,observed by Plowden, J. As under :- "It is not universally true that every co-sharer in joint land is entitled to have actual joint possession of every portion of the joint land. . It is a matter of every day experience that a co-sharer may take exclusive possession of a portion of Shamlat and may keep exclusive possession of it for his own use until partition. It does not necessarily follow that he may alter the condition of the land by building upon it; but even this may be legitimate by usage or by express provision in the Settlement Record. The commonest instance of the right of exclusive possession here mentioned occurs when a joint owner may break up an cultivate a portion of the Shamlat and take the produce for his own benefit, often without any payment, sometimes upon payment of a quota of revenue in proportion to the area cultivated. The principle is precisely the same when a plot of Shamlat is used as a bara or for any purpose other than cultivation. In neither case when one joint owner has legitimately appropriated the land to his own use is another joint owner necessarily entitled to disturb the first joint owner in his possession. Generally speaking the first occupant is entitled to maintain his possession undisturbed until partition."
14. It will thus be noticed that the appellant who is co-sharer in the Shamlat Deh land is entitled to maintain his possession undisturbed until partition. In the present case, it was necessary for the Rehabilitation authorities to partition joint Khata of Muslims and non-Muslims in West Pakistan in the manner prescribed by Rehabilitation Scheme. This is provided in para. 15 of the Rehabilitation and Settlement Scheme No. I. No such action was taken. In these circumstances, the property in dispute was not evacuee property and the view of the learned Assistant Rehabilita--petition Commissioner (Lands) was correct that it could not be allotted to respondent Farman A.I.
15. Mr. M. Z. Khalil, learned counsel for respondent No. 2 has referred the case of K. B. Muhammad Abdul Rahim Khan v. Hussaina and others (PLD 1949 Lah. 352This decision also shows that Shamlat Deh is owned by the proprietors of the village both Muslims and non-Muslims and unless partition it is remained in the exclusive possession of a co-sharer.
16. The learned Judges of the High Court failed to notice that the land on which the property in dispute is situated is a Shamlat Deh and being a joint property could not be declared as evacuee property.
17. The learned Settlement and Rehabilitation Commissioner also failed to notice this fact. In these circumstances, we would hold that the property in dispute was wrongly held to be evacuee property. The order of the Settlement and Rehabilitation Commissioner is set aside. On this view of the matter it is unnecessary to decide the other points raised on behalf of the appellant.