1. HAMOODUR RAHMAN, C. J.-The dispute in this case relates to an evacuee, property No. S-73-R-3/2 Begum Road, Lahore. It is a large property consisting of a main bungalow, an annexe, out-houses, garages and a large compound. It was in occupation of eight different parties. Five of these who occupied the garages and out-houses were eliminated as these were treated as appendages to the main bungalow. We are not con--cerned with them now. The annexe was in occupation of one Fazal Muhammad Khilji, but the main bungalow was in occupation of three parties, namely, Syed Hasan Askari, the predecessor-in-interest of the present appellants, Syed Iftikhar Ahmad, husband of respondent No. 1, and one Mumtaz Alam Bhatti, a local.
2. On the 3rd of December 1959, the Deputy Settlement Commissioner transferred the annexe to its occupant Fazal Muhammad Khilji, then eliminating Mumtaz Alam Bhatti, as he was a local, divided the main bungalow into two portions and transferred each portion respectively to Syed Hasan Askad and the respondent Mst. Shamim Akhtar. The portion in occupation of the local was also given to Mst. Shamim Akhtar. Neither Syed Hasan Askari nor Mst. Shamim Akhtar filed any appeal against this order, but Fazal Muhammad Khilji, the transferee of the annexe, filed an appeal on the 23rd of December 1959, claiming that the entire property including the main building should be transferred to him. While this appeal was pending, Syed Hasan Askari, some six months later, on the 23rd of May 1960, filed a time-barred cross-appeal along with an application under section 5 of the Limitation Act.
3. Both these appeals were heard together and disposed of on the 26th of May 1960. The appeal of Fazal Muhammad Khiljee was dismissed on merits and the cross-appeal of Syed Hasan Askari was dismissed as being barred by time. Against this order, both Fazal Muhammad Khiljee and Syed Hasan Askari filed review petitions. Both the review petitions were rejected on the 3rd of August 1960, with the modification that a main gate in front of the annexe, which was given to Mst. Shamim Akhtar be deleted from her transfer and given exclusively to Fazal Muhammad Khilji,"as his portion had no other access on Begum Road except a small temporary door for servants. The other main gate on the Begum Road was to be the joint property of both Syed Hasan Askad and Mst. Shamim Akhtar.
4. This modification, though apparently slight, caused serious trouble as it not only made the gate common but also the passage and the front lawn common, because, Mst. Shamim Akhtar would have had of necessity to pass from in front of the portion transferred to Syed Hasan Askari to get to this gate. No party was satisfied with this order and, therefore, three revisions were filed on the 30th of August 19110, against the- order passed on the 3rd of August 1960. Mst. Shamim Akhtar prayed that the status quo ante be reverted to and the gate allotted to her be returned to her as her own separate entrance. Syed Hasan Askari not only prayed that his privacy should not be disturbed but also asked for the variation of the transfer order passed by the Deputy Settlement Commissioner by giving him half of the main bungalow instead of only the portion in his occupation. Fazal Muhammad Khiijee similarly prayed that as he was a prior allottee amongst the claimants he should be given preference and the entire property should be transferred to him.
5. All the three revisions were heard together by the Settlement and Reha--bilitation Commissioner, Lahore Division. The latter, by his order dated 12-12-61, dismissed the petition of Fazal Muhammad Khiljee, holding that he had got an independent portion and deserved nothing more. The gate given to him was taken away from him but then, without noticing that the appeal of Syed Hasan Askari had been dismissed as being time. Barred by the Additional Settlement Commissioner and that Mst. Shamim Akhtar had not filed any appeal against the order of the Deputy Settle--ment Commissioner, he purported to revise the division of the main build--ing and to modify the transfers in their respective favours on the ground that he found "little alteration absolutely essential" to make each portion independent.
6. He drew a new line dividing the property. The result of this was to take away from Mst. Shamim Akhtar one big room, a verandah and a store and a portion of the back compound which was formerly in her possession. In spite of this, she had with the addition of the- portion in possession of the local Bhatti, which consisted of a bath-room, two narrow rooms, a store, a kitchen, a verandah and a courtyard, practi--cally half of the main building. Nevertheless, she was dissatisfied with this order of the Settlement Commissioner which on the plan does appear to have made a division of the house into two more or less equal portions independent of each other right from Begum Road up to the back of the building. She accordingly sought to challenge this order by Writ Petition No. 832-R of 1962 before the Lahore Seat of the former High Court of West Pakistan.
7. A learned Single Judge of the High Court acceded to her request and set aside the order of the Settlement Commissioner on the ground that he had not "dealt with the correctness or propriety of the appellate order of the Additional Settlement Commissioner on the question of the respondent's 'appeal being barred by time" and until he had done that he "could not proceed to deal with the revision petition on merits."
8. Syed Hasan Askari went up in Letters Patent Appeal from this order, but his appeal was dismissed in limine by a Division Bench.
9. Leave was granted in this case to the heirs of Syed Hasan Askari to consider "whether a Settlement Commissioner is not entitled, in revision to ignore an intermediate appeal that had been dismissed as time-barred by an Additional Settlement Commissioner, and deal with the whole case by way of revision of the order of the Deputy Settlement Commissioner which had been appealed against.".
10. Learned counsel appearing in support of this appeal has contended that the powers of revision given to a Settlement Commissioner specially empowered in that behalf (as Raja Muhammad Zia Ullah Khan was in the present case) by subsection (3) of section 20 of the Displaced Persons (Com--pensation and Rehabilitation) Act, 1958, were wide enough to entitle such a Settlement Commissioner to revise without any limitation of time any order of a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction, relating to the transfer of a property by calling for the record thereof and satisfying himself as to the correct-- ness, legality and propriety of such order. In support of this contention; reliance has been placed on two decisions of this Court in the cases of Sheikh Rashid Ahmad v. Settlement Commissioner, Lahore (1970 5 C M R 278and Ch. Nazir Ahmad Bhatti v. Ch. Noor Muhammad (1970 SCMR 716).
11. Subsection (3) of section 20 is in these terms :- "A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner, may at any time, call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Com--missioner or an Assistant Settlement Commissioner under his juris--diction has passed an order, relating to the entitlement of a person to the transfer of a property or to a matter involving title for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit."
12. This deals with the suo motu powers of a Settlement Commissioner, and the powers conferred on him by this order are indeed very wide, as has been pointed out by this Court.
13. Syed Azmat All v. The Chief Settlement and Rehabilitation Commissioner, Lahore (PLD 1964 SC 260), which has been relied upon by the High Court, it was, however, specifically held that even when exercising such a revi--sional jurisdiction the Settlement Commissioner cannot go into the merits without first considering as to whether the order of the Additional Settle--ment Commissioner dismissing an appeal as barred by time was proper or not.
14. Syed Azmat A.I's case is not applicable here, because, the Additional Settlement Commissioner had himself actually allowed a review and thereby altered the original order and the same adversely affected the interests of both Mst. Shamim Akhtar and Syed Hasan Askari. An independent gate given to Mst. Shamim Akhtar had been taken away from her and she had been given a right of passage over the area transferred to Syed Hasan Askari therdby burdening his property by making the portion transferred to Mst. Shamim Akhtar a dominant tenement qua the portion transferred to him. It was in these circumstances that both Mst. Shamim Akhtar and Syed Hasan Askari went in revision from that order. No question of limitation, therefore, arose.
15. As against this, Mr. Iftikhar Ahmad, the husband of Mst. Shamim Akhtar, who is also Advocate and is appearing on her behalf, contended that if the Settlement Commissioner had confined himself to revising only the order passed in review, he would have had nothing to say ; but since Syed Hasan Askari went beyond that and asked for a revision of the original transfer order made by the Deputy Settlement Commissioner the Settlement Commissioner could not grant 1 that in revision without first noticing that the appeal of Syed Hasan Askari had been dismissed as barred by time. In support of this conten--petition, Mr. Iftikhar Ahmad has also referred us to another decision of this Court in the case of Ahsan A.I v. District Judge (PLD 1969 SC 167). Mere disposal of the revision on merits was not sufficient to lead to the inference that the question of limitation had been decided in favour of the other party. The dismissal of the appeal of Syed Hasan Askari as barred by time had created a vested right in the respondent to retain the portion transferred to her and she could not be deprived of the same so lightly.
16. Learned counsel for the appellant relies on a decision of this Court in Abdul Majid Shaida v. Mst.
17. Noor Jehan (PLD 1967 SC 221), to support his conten--petition that there is no period of limitation for a suo motu revision and any attempt even by the Settlement Authorities to prescribe such a period of limitation in exercise of the powers of general superintendence of the Chief Settlement Commissioner, would be illegal. It is no doubt correct that there is no period of limitation fixed for a suo motu revision and no such period can be prescribed under the general power of superintendence given to the Chief Settlement Commissioner, but this does not mean that even where an appeal had been dismissed on the ground of limita--petition and the order of the Deputy Settlement Commissioner has acquired a finality, the Settlement Commissioner can revise it on merits without first deciding as to whether the dismissal on the ground of limitation was proper or not. All that has been laid down in Azmat A.I's case is that the Settlement Commissioner when exercising his powers of revision under subsection (3) of section 10 of the Act of 1958 must, in a case where an earlier appeal has already been dismissed by an Addi--tional Settlement Commissioner on the ground of limitation, first decide as to whether such a dismissal was proper, and only after he has come to the conclusion that it was not proper, he can go into the merits of the case.
18. Mst. Shamim Akhtar and Syed Hasan Askari.
19. Learned counsel for the appellant, in the circumstances, has further contended that, in any event, the High Court should not have allowed Mst. Shamim Akhtar to raise this point, as she had not taken it before the Settlement Commissioner himself, particularly since the division of the main bungalow was in every way fair and equitable. In support of this contention, he has relied on a Division Bench decision of the West Pakistan High Court, Karachi Seat, in the case of Mst. Sartaj Begum v. Karachi Municipal Corporation (PLD 1962 Kar 785), and a decision of this Court in the case of Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (Pakistan), Lahore (PLD 1964 SC 829). In the latter case, it was held that where a party who was aware of the illegality being committed by the Settlement Commissioner did not raise it before the Settlement Commissioner first he could not be permitted to ask for a certiorari for quashing the order of the Settlement Commissioner in the High Court on the same ground.
20. Mst. Shamim Akhtar filed an independent revision applica--petition only for the revision of the order passed in the review jurisdiction. She only wanted the restoration of the gate which was taken away from her in review and nothing more. It was Syed Hasan Askari who wanted the order of transfer passed by the Deputy Settlement Commissioner to be revised. It was incumbent upon him to point out to the Court that he had already filed an appeal against the order of the Deputy Settlement Commissioner and the same had been dismissed as being barred by limita--petition. If he did not do so and then came to the High Court in the Writ Jurisdiction to have that order set aside, he would certainly have been hit by the rule laid down in Ghulam Mohi-ud-Din's case.
21. Mst. Shamim Akhtar did not at first want the order of the Deputy Settlement Commissioner to be revised. In fact, she only wanted that the order of the Deputy Settlement Commissioner, which had been varied in review, should be restored. But when the Settlement Commissioner wanted to revise the transfer order on merits she not only did not point out that he could not do so but actually joined in the prayer for revision and wanted a share in the outhouses and garages. In these circumstances, we have come to the conclusion that she too was hit by this principle and ought not to have been allowed to raise this point in the writ petition. The High Court should have refused her relief on this ground and her writ petition should have been dismissed.
22. This conclusion necessitates the consideration of another contention advanced on behalf of Mst.
23. Shamim Akhtar that if the division made by the Settlement Commissioner in revision is upheld, then she should be per--mitted to elect to take the house transferred to Syed Hasan Askari under paragraph 1 of the Schedule to the Act of 1958. This point was not raised in any of the Courts below and should not be allowed to be raised for the first time in this Court. In any event, this election cannot be allowed to be made where it would totally defeat the right of a claimant in occupation.
24. Syed Hasan Askari was not in possession of any portion of the house transferred to Mst. Shamim Akhtar. He would not, therefore, be entitled to its transfer. The provisions of the schedule must be read together and reading them in this way we -would hold that the election would be available only where there was no preferential claimant. In the present case, Syed Hassan Askari, who was also in occupation as a direct claimant, had a better right to the portion trans--feered to him. Her claim is accordingly without any substance.
25. For the reasons given above, this appeal is allowed, the writ issued by the High Court is recalled and the order of Settlement Commissioner restored. The parties are, however, left to bear their own costs.
26. K. s. A.Appeal accepted.