SAAD SAOOD JAN, J---These are three appeals by special leave from the judgment dated 28-5- 1975 of the Lahore High Court whereby the Constitution petitions preferred by the appellants calling in question the legality of the order dated 31-8-1971 of the Settlement Commissioner were dismissed.
2. The dispute in these appeals relates to a big residential building, bearing No, S.I.
31. S.16, situate in Gandhi Square of Gawalmandi, Lahore. It has four storeys and about forty rooms.
Immediately after Independence it was occupied by nine families. When the Settlement operations started, a Deputy Settlement Commissioner, by an order dated 2-1-1960, divided the house into three residential units, which were for the sake of convenience described as 'X', `Yand 'Z'. 'Xwas transferred to Dr. K. M. Munir who is respondent No,1 in CA. No, 437. 'Zwas transferred to Sh. Naseeb Elahi who is respondent No,1 in C. As No, 436 and 438. 'Ywas transferred jointly to Feroze Din, Mehraj Din, Zaheer-ud-Din and Mehtab Din. It may be mentioned that Feroze Din has since died. His legal representatives are the appellants in CA. No, 438. Mehraj Din, Zaheer-ud-Din and the legal representatives of Mehtab Din are the appellants in CA. No, 436.
3. From the order dated 2-1-1960 of the Deputy Settlement Commissioner, five appeals were preferred before the Additional Settlement Commissioner (Malik Ghulam Jilani Khan) by Mst.
Akhtari Begum (appellant in CA. 437), Dr. K.M. Munir (respondent No,1 in CA. 437), Feroze Din (predecessor-in-interest of appellants in CA. 438), Mehtab Din (one of the appellants in CA. 436) and Sh. Naseeb Elahi (respondent No,1 in CAs. 436 and 438). They all felt aggrieved over the manner in which the house had been divided and the way the various units had been transferred to the claimants. Before disposing of the appeals, the Additional Settlement Commissioner inspected the house. He found that its physical features permitted its division only into two units, left wing and right wing. By his order dated 14-2-1961 he set aside the order of the Deputy Settlement Commissioner and instead divided the house into two units. He transferred the right wing to Sh. Naseeb Elahi and the left wing to Dr. K.M. Munir. It may be mentioned here that the right wing consisted of the portion marked 'Xby the Deputy Settlement Commissioner and the left wing comprised the portions 'Yand 'Z'.
4. From the order of the Additional Settlement Commissioner, five revision petitions were preferred before the Settlement Commissioner (Syed Ijaz Hussain Shah). He accepted the revision petition filed by Dr. K.M. Munir and transferred some additional portion from the common courtyard in his favour. He dismissed the other four petitions.
5. The order of the Settlement Commissioner led to the institution of four Constitution petitions in the High Court. One was filed by Mehraj Din, Zaheer-ud-Din and Mehtab Din jointly. The other three were filed by Feroze Din, Sh. Naseeb Elahi and Mst. Akhtari Begum. By an order dated 12-3-1964 a learned Single Judge accepted all the writ petitions and remanded the case to the Settlement Commissioner for a fresh decision after determining the dates of occupation of each claimant.
From the order of the learned single Judge Dr. K. M. Munir and Sh. Naseeb Elahi filed letters patent appeals. These were dismissed by a Division Bench on 6-11-1968 and the order of remand was maintained although on somewhat different grounds. The Division Bench also directed that it would be open to the Settlement Commissioner to reconsider the division of the house into smaller units.
5. In pursuance of the order of remand, the Settlement Commissioner (Kh. Mahmood Sadiq) inspected the house. He too found that the house could be divided only into two residential units.
He observed: "After spot inspection I am convinced that the building is so constructed that it is not capable of being divided into more than two parts and consequently is not capable of being transferred to 5 or 6 different families. I, therefore, order the division of the entire house into two portions, one consprising of portion 'Xand the other comprising of 'Yand 'Zas mentioned in the site plan."
The division made by him almost, coincided with that made by Syed Ijaz Hussain Shah in the first round of litigation. He further held that on the basis of the dates of possession of the parties Sh.
Naseeb Elahi had a better right to the transfer of unit 'X(formally right, wing) than any of other claimants namely Feroze Din, Mehraj Din, Mehtab Din and Zaheer-ud-Din. Similarly, in respect of the other portion (that is, the left wing) he found that Dr. K.M. Munir was entitled to its transfer in preference to Mst. Akhtari Begum on the ground, inter alia, that whereas Dr. K.M. Munir was resting his claim on his own possession, Mst. Akhtari Begum was seeking the transfer on the basis of the possession of her son, Khalid Mahmood. In accordance with his findings he transferred the right wing to Sh. Naseeb Elahi and the left wing to Dr. K.M. Munir.
6. From the order of Kh. Mahmood Sadiq, the appellants preferred separate Constitution petitions in the High Court. These were dismissed by a learned Single Judge on the ground that the order of the Settlement Commissioner was based on findings of fact which could not be reopened in Constitutional jurisdiction. The appellants have now come in appeal to this Court.
7. As regards the division of the house into two units, as mentioned above, the Deputy Settlement Commissioner thought that it could be carved into three units. On appeal by the aggrieved parties, the Additional Settlement Commissioner after inspection of the house came to a different conclusion and divided it into two units. His order with a very minor modification was upheld by the Settlement Commissioner (Syed Ijaz Hussain Shah). After the order of remand made by the High Court, another Settlement Commissioner (Kh. Mahmood Sadiq) inspected the house and mantained the division made by his predecessor-in-office. Learned counsel for the appellants were unable to show that the division of the house into two units was arbitrary, capricious, fanciful or mala fide. In the circumstances the learned Single Judge was right in refusing to disturb the order of Kh. Mahmood Sadiq. The view taken by the learned Single Judge has the support of at least two judgments of this Court reported as Gladys M. Jacob v. Chief Settlement Commissioner (1972 SCM R 688) and Azam Beg v. Abdul Hafeez, Deputy Settlement Commissioner (1970 SCMR 182).
8. Taking up the unit described as right wing, it may be mentioned that the contest is between Sh.
Naseeb Elahi on the one hand and Feroze Din, Mehraj Din, Zaheer-ud-Din and Mehtab Din on the other. It was stated at the bar that Feroze Din, Mehraj Din, Zaheer-ud-Din and Mehtab Din were inter related and were prepared to obtain a joint transfer of the unit in their favour. However that may be, the parties on both sides are claimants and the decision on the question as to which party has a preferential right to obtain the transfer depends upon the dates on which they entered into possession of the unit. The date of possession of Sh. Naseeb Elahi is 4-2-1948. It was stated at the Bar that under the orders of Rehabilitation Authorities Sh. Naseeb Elahi was ejected and the allotment order issued to him was withdrawn. There are, no doubt, some orders of the Rehabilitation Authorities on the record supporting the appellantsassertion, but it also appears that despite these orders he was never evicted and that he continued to remain in possession of a portion of the right wing. We are, therefore, not prepared to disturb the finding of the Settlement Commissioner that Sh. Naseeb Elahi has continued to remain in undisturbed possession of a portion of the unit since 4-2-1948.
9. The finding of the learned Settlement Commissioner that the possession of Sh. Naseeb Elahi was in point of time anterior to that of the other claimants of the unit is one of fact. It could not ordinarily be interfered with in writ jurisdiction. However, it is contended on behalf of the appellants that in coming to his conclusion the learned Settlement Commissioner overlooked two important documents which were available on his record. These documents are the survey report prepared by an Assistant Settlement Commissioner on 15-12-1959 and the order of the Deputy Settlement Commissioner dated 2-1-1960. In the survey report the dates of possession of the various claimants are recorded as follows: Sh. Naseeb Elahi 4-2-1948 Feroze Din 24-12-1947 Zaheer-ud-Din 1947 Mehraj Din 1947 Mehtab Din January January 1950 Khalik Mahmood 2442-1947 A perusal of the material placed on the record would show that this report was inaccurate at least in respect of Feroze Din and Khalid Mahmood. In the C.H. Form submitted by him, Feroze Din himself had given his date of possession as March 1948. Thus the survey report is at variance with the date given by Feroze Din himself. Mst Akhtari Begum is the mother of Khalid Mahmood. She sought transfer of a room in the left wing on the basis of the possession of her son. In the C.H. Form submitted by her, she gave the date of possession as January 1949. The allotment order issued to Khalid Mahmood is on the record of CA. No, 437. It bears the date 28-7-1951. Quite obviously, the dates of possession of the parties given in the survey report are unreliable. It is, therefore, difficult to place any credit on it. As regards the order dated 2-1-1960, the Deputy Settlement Commissioner had merely copied the dates given by the parties themselves in their C.H. Forms. So far as Feroze tin and Mehtab Din are concerned, according to their own showing they entered into possession of the portions of the unit after 4-2-1948 which is the date of possession of Sh. Naseeb Elahi. Their claim, therefore, cannot prevail over that of Sh. Naseeb Elahi. As regards Zaheer-ud-Din and Mehraj Din there is no evidence whatsoever that they did enter into possession on the dates mentioned by them in their C.H. Forms. Both were non-allottees and it is, therefore, difficult to verify their actual dates of possession. It is also to be noticed that in the first round of litigation they did not at all claim , that they entered into possession prior to Sh. Naseeb Elahi. In the circumstances we can find no basis for interference with the finding of the learned Settlement Commissioner that on the basis of possession Sh. Naseeb Elahi had a preferential right over all others to the transfer of the unit.
10. As regards the left wing, the contest is between Mst. Akhtari Begum and Dr. K.M. Munir. As noticed earlier, Mst. Akhtari Begum was seeking transfer of the unit on the basis of the possession of her son, Khalid Mahmood. On the the hand, Dr. K.M. Munir was resting his claim on the basis of his own possession. As noticed earlier the date of possession of Dr. K.M. Munir is 4-2-1948 whereas Mst.
Akhtari Begum in the C.H. Form has given the date of her possession as January 1949, that is, subsequent to Dr. K.M. Munir. Quite obviously Dr. K.M. Munir was better entitled to the transfer of the suit than she. That being so, the order of the Settlement Commissioner transferring the left wing to Dr. K.M. Munir did not require any interference by the High Court.
11. For the reasons stated above, all the three appeals are dismissed but the parties shall bear their own costs.