1. DORAB PATEL, J.-This is an appeal against the judgment of a Division Bench of the Lahore Seat of the West Pakistan High Court by which the learned Judges of the Division Bench had allowed the Constitutional petition of the fourth respondent and set aside the order of the Chief Settlement Commissioner dated 16-3-1960 and an order of Settlement Commissioner, dated 27-9-1963.
2. Property No. P. 83-B, 4 in Jaranwala, Lyallpur District was evacuee property. It consisted of a mill, a go down with residential premises over it and residential premises behind the mill. It is common ground between the parties that the residential premises behind the mill consisted, of two units and the dispute in this appeal relates only to these two residential units behind the mill. The appellant, a non-claimant displaced person claims to have been in possession of one of these two residential units ,since 1947. The other unit had been allotted to the husband of the fourth respondent and when settlement operation began, the fourth respondent who was a claimant, filed a C. H. Form for what was described as, the residential portion at the back of the property. The appellant also claims to have filed a N. C. H. Form in 1959 but the concurrent findings both of the Additional Settlement Commissioner in his order of 3 October 1960 and of the Settlement Commissioner in his order of 27th September 1963, are that the claim was false. The alleged N. C. H.
3. Form is not in the record, and we are satisfied that the appellant's claim to have filed a N. C. H. Form was false. The result is that the fourth respondent's C. H. Form was the only application for the property in dispute, and it was allowed by a Deputy Settlement Commissioner, Lyallpur in January 1960. The learned Deputy Settlement Commissioner observed in his order "Razia Begum is found entitled to the residential portion at the back in view of the allotment of her husband Abdul Rahim".rd In due course Razia Begum: the fourth respondent obtained a P. T. O. Which also describes the property as the "residential portion at the lack of the property in his possession". Neither this P. T. O.
4. Nor the Deputy Settlement Commissioner's order on which it was based are dated, and further the Deputy Settlement Commissioner---s order has not even been signed properly. However, there cannot be any doubt about the existence of the order because the appellant first filed an application for its copy on 10-2-1960 and then filed an appeal against it before the Additional Settlement Commissioner. However, he also filed an application before the Settlement Commissioner stating that he was an allotteo of the property in dispute, that he bad filed a N. C H.
5. Form which was not traceable and that as the property "has not yet been transferred to any body else, not it has been listed in the earmarking list, he prayed that he should be permitted to file a fresh N. C. H. Form" for the house in question. As the report on this application was that the applicant was an allottee and in possession of an independent portion of the house, the Deputy Settlement Commissioner recommended that the application should be registered. The Settlement Commissioner's recommendation on 14-3-1960 was that the case was a deserving case and that they delay "may be condoned if the house is not in earmarking". Finally, this recommendation was, approved by the Chief Settlement Commissioner on 16-3-1960. Reverting, however, to the appellant's appeal against the Deputy Settlement Commissioner's order, like the order which it challenged, it is undated. But Mr. Qadir Bakhsh informed us that it had been filed in March 1960. In any case it was in tune and was contested by the fourth respondent. It was dismissed by the Additional Settlement Commissioner on 3-10-1960 on the abort ground that the; appellant had not "submitted his form N. C. H. When the property was transferred to' Razia Begum" (the fourth respondent). Then, with, reference to the N. C. H. Form which the appellant had been permitted to file, the learned Additional Settlement Commissioner stated that it could not be entertained since the property had been deed of and gone out of the compensation pool. Aggrieved by this order, the appellant filed a revision before the chief settlement Commissioner. The claim in this, revision was for I the entire residential premises at the back of the mill, but it would appear from the Settlement Commissioner's order that at the time of the hearing of the revision, the appellant had conceded that the premises in dispute consisted of two separate and independent residential units, therefore, his contention in the alternative was that the premises should be divided into two residential units and that the unit in premises should be transferred to him. The revision was contestedby his possession should be transferred to him.The revision was contested by the fourth respondent who submitted that the appellant had fraudulently obtained the Chief Settlement Commissioner---s sanction for filing his belated N.C.H. From and this respondent further contended that the property in question was not divisible even though her family and the family of the appellant had been living in it for many years.
6. The Settlement Commissioner allowed the revision. He pointed out that the residential premises behind the mill had not been disposed of the earmarking. Accordingly he observed "that the result that the N. C. H. Form becomes effective in, the aforesaid observation of the Chief Settlement Commissioner and the Settlement Authorities are not in a position to ignore this order". This observation had reference to the N. C. H. Form filed by the appellant in March 1960. Next, with reference to the question whether the residential premises were divisible, on a careful examination of the facts, the Settlement Commissioner held that they were divisible, therefore, he divided them on the basis of a plan of the premises which is on the file and directed the Deputy Settlement Commissioner to prepare transfer documents accordingly.
7. The fourth respondent then filed a Constitutional petition in the Lahore Seat of the West Pakistan High Court to challenge this order by the Settle--ment Commissioner as well as the Chief Settlement Commissioner's order of 16-3-1960. The contention in this petition was that the Deputy Settlement Commissioner had transferred to the fourth respondent the residential premises In her occupation as well as those in the appellant's occupation, the Settlement Commissioner had erred in allowing the appellant's claim on the basis of the time barred N. C. H. Form filed by him in March 1960. The appellant opposed this petition but the learned Judges of the Division Bench allowed it.
8. They held, that the appellant had obtained the Chief Settlement Commissioner's order of 16-3-1960 by fraud, the fraud being that he had deliberately acid falsely stated in his application for a second N. C. H. Corm that the property in dispute had not been disposed of to anyone. Accordingly they held that the permission to file this N. C. H. Form "was patently without lawful authority", therefore, they set aside the finding in the Settlement Commissioner's order of 27-9-1963 that the appellant's N. C. H. Form of March 1960, had become effective. Finally, despite the categorical finding by the Settlement Commissioner that the disputed property consisted of two houses the learned Judges allowed the petition and restored tot undated order of the Deputy Settlement Commissioner in the fourth respondent's favour.
9. The appellant filed a petition for leave against this judgment, hand leave was granted on 23-2- 1968 to consider whether the High Court was justified in setting aside the orders of the Chief Settlement Commissioner and of the Settlement Commissioner permitting to appellant to file a N.
10. C. H. Form in 1960 and allowing the claim in that form.
11. The first three respondents are ex parte and have not contested the appeal. On the other, hand, although the fourth respondent was contesting the appeal, she bad not cared to file is concise statement. Mr. Ghulam Mujtaba, however, filed an application for permission to file it and to address us in the appeal. As this request was allowed on payment of Rs. 100 as costs, I would now turn to the submissions advanced.
12. As the High Court has restored the undated order of the Deputy Settlement Commissioner passed in 1960, Mr. Qadir Bakhsh's first submission was that this order was void because it was neither dated nor signed. As it was passed by a Deputy Settlement Commissioner, whose jurisdiction is not in dispute, the order is not void, but it might have been, open to the appellant to challenge it before the Settlement Authorities as illegal on the ground that it was undated and unsigned. As he did not, he cannot now be permitted to raise this objection.
13. Mr, Qadir Bakhsh then submitted that the High Court was not com--petent in its constitutional jurisdiction to set aside the, Settlement Commissioners findings on the divisibility of the property in dispute. The High court has repelled this contention with the observation, that the appellant could only succeed on the basis of the merits of his own case and not "on the demerits of the case of the petitioner`. With respect, as it was the fourth respondent who had challenged the Settlement Commis--sioner---s order in a constitutional petition, it was for her to prove her contention, the moreso she was challenging a final order by a tribunal of exclusive jurisdiction. And her case turned on the proper construction of the Deputy Settlement Commissioner's undated order in her favour, the question whether it was final, and if it was not, whether the-Settlement Commissioner's order dividing the property in dispute was so grossly illegal that it warranted inference in the Constitutional jurisdiction of the High Court.
14. I referred earlier to the Deputy Settlement Commissioner's order and it transferred to the fourth respondent "the residential portion at the back in view of the allotment of her husband" What was the residential portion at the back? As the Deputy Settlement Commissioner has not clarified the position, Mr. Qadir Bakhsh referred us to the P. T. O. Issued to the fourth respondent and her C. H.
15. Form. The P. T. O. Which is also undated transfers to the fourth respondent only the "residential portion at the back of the proper ty under his possession". As the fourth respondent was a lady, the words "under his" should be read to mean "under bar". But the dispute is as to what was in her possession, and as the P. T. O. Is also ambiguous, the ambiguity has to be construed by reference to the fourth respondent's C. H. Form, because it was her claim in this form which had been allowed by the Deputy Settlement Commissioner. The fourth respondent was required to state in her form whether the property claimed by her was in her possession, and if any part of it was in the possession of some other person, it was for her to disclose the name of that person. As she has merely stated against column No. 10 in her C. H. Form "the house is in my husband's possession . . . .
16. Who is the allottee of the house", Mr. Qadir Bakhsh's contention was that the entire property could not be transferred to her because she had only claimed the portion in her possession. Mr. Mujtaba's reply was that the fourth respondent had been in possession of the property divided by the Settlement Commissioner into two units. But it is no this case that the appellant had obtained possession between 10-7-1959, the date of the fourth respondents C. H. Form, and the date of the Deputy Settlement Commissioner's order in this respondent's favour, therefore, learned counsel's submission is contrary to the express averment of the fourth respondent in her constitutional petition. The fourth respondent had expressly stated in her constitutional petition that the property transferred to her was "one residential portion jointly in her possession and respondent No. 4" The respondent No. 4 in the writ petition is the appellant before us and reading the fourth respondent's own petition with her C. H. Form, it is clear that she had not claimed the 'house' transferred to the appellant.
17. I would refer here two other circumstances which are fatal to the fourth respondent's claim. The first in the express finding in the Settlement Commissioner's order, which was not challenged before us, that the fourth respondent's claim was "of a meagre amount". The second statement is the fourth respondent's statement in column No. 13 of her C. H. Form. She has stated that the monthly rent of the house claimed by her was only Re. 6/2 per month. Admittedly this was not the aggregate rent of the portion occupied by her and the portion occupied by the appellant but only the rent for her portion. In these circumstances, the property transferred to the fourth respondent under her P. T. O. Does not include the portion in the appellant's occupation which has been held by the Settlement Commis--sioner to be another house. And in this view of the matter it is clear that there was no bar to the appellant's N. C. H. Form.
18. However, on the footing that the property transferred to the fourth respondent consisted of both the residential units at the back of the mill, the Deputy Settlement Commissioner's order was subject to the provisions of sections 19 and 20 of the Displaced Persons (Compensation and Rehabili--tation) Act, 1958, therefore, it was an order which could be set aside in appeal or in revision and has been so set aside. How then could the High Court substitute its own finding for that of the Settlement Commissioner's? As Mr. Mujtaba has relied on the reasons given by the High Court I would examine those reasons.
19. The appellant's N. C. H. Form, which was allowed to be entertained by the Chief Settlement Commissioner's order of 16-3-1960, had been filed after the order of the Deputy Settlement Commissioner in the fourth respondent's favour. Therefore, the learned Judges of the High Court held, on the basis of this Court's judgment in Altaf Hussain v. Chief Settlement Commis--sioner (PLD 1965 SC 68), that this claim form was not fit to be entertained. But as according to Mr. Qadir Bakhsh, this judgment supported his contention, a brief reference to the facts of the case are necessary. The dispute was about a house which was claimed both by the appellants and by the respon--dents. The first appellant had filed a fresh C. H. Form which was rejected by an Additional Settlement Commissioner on the ground that the first appel--lant based his entitlement on the possession of his son, who was an allottee. Therefore, after the dismissal of this application, the first appellant filed an application for permission to file a fresh C. H. Form based "ors the twin grounds that he was himself an allottee of one room in the house and that his son, who was in possession of a part of the house was allottee of that house". Thus the application for permission to file the second C. H. Form was only in order to get round the order rejecting the first form. This application had nor been accepted by the Settlement Authorities but the first appellant's contention was that it should have been allowed. And S. A. Rahman, J. As he then was, who pronounced the judgment of the Court, held that the first appellant was entitled to file the second application. Now the case of the appellant before us stands on a higher footing because it is nobody's case that his earlier application had been rejected. Accord--ingly, in my humble opinion, the judgment cited supports the appellant's claim. Additionally the view taken in this case was examined and reaffirmed in Allah Bakhsh v. Nizam Din and others (1975 SCMR 182), and on the view taken by the Court in this case, the Settlement Commissioner could have allowed the appellant to file a fresh N. C. H. Form even at the revisional stage. In these circumstances, nothing turns on the fact that the appellant had not filed any claim at the date of the Deputy Settlement Commissioner's order.
20. The other reason given by the learned Judges of the High Court for rejecting the appellant's N. C. H.
21. Form was that he had obtained the Chief Settlement Commissioner's order in his favour by fraud. In seeking con--donation of his alleged delay, the appellant had stated in his application to the Settlement Commissioner that "the house has not yet been transferred to any body else, now it has been enlisted in the earmarking list". Admittedly the house had not been included in the earmarking list, but the learned fudges held that the Chief Settlement Commissioner's order dated 16-3-1960, permitting the appellant to file his claim was without lawful authority because this order of 16-3-1960 had been obtained by fraud. Now the appellant's application is dated 11-3-1960, and though he had filed his appeal in March 1960, it is not known whether the appeal was filed after this application for permission of a belated N. C. H. Form to be filed. However, as the appellant had stated in his memorandum of appeal that he had applied for a copy of the Deputy Settlement Commissioner's order of 10-2-1960, the learned Judges reached the conclusion that the appellant had dishonestly suppressed the fact that the house had been transferred to the fourth respondent by the Deputy Settlement Commis--sioner's order. But the appellant had not stated in his appeal that he had obtained a copy of the. Relevant order, and there is nothing on the record to show that he was in possession of a copy of this order s4en he filed his application for the N. C. H. Form on 11- 3-1960. In these circumstances, in my humble opinion, it would not be safe to hold that the appellant was aware of the contents of the Deputy Settlement Commissioner's order. However, assuming that he was aware of its contents, the order was ambiguous, and reading it with the fourth respondent's C. H. Form, the appellant was entitled to conclude that the fourth respondent had not even claimed the transfer of the portion of the 'house' in his possession. There were also other infirmities in the order. As it was neither dated nor properly signed, he might have been advised that the order was illegal. In any event, the question could not be decided without evidence, and, on the other hand, the Settlement Commissioner has in his well considered order, rejected the allegation of the fourth respondent of fraud against the appellant. In the circumstances discussed I see no error in the Settlement Commissioner's finding, much less an error so gross as would have justified interference in the constitutional jurisdiction of the High Court.
22. There remains for consideration the question of the divisibility of the property in dispute. This question was not examined by the Deputy Settle--ment Commissioner, but the Additional Settlement Commissioner had not held that the property was divisible even though he had inspected it. This, however, cannot help the fourth respondent's case, because the Settlement Commissioner was entitled, in the exercise of his discretion, to hold that the property was divisible, and the only question is whether his finding that it was divisible can be challenged as perverse. In holding that the property was divisible, the Settlement Commissioner relied on the fact that the families of the appellant and of the fourth respondent had been living in it for many years. Further a plan of the property showing the portions in the occupation of the respective parties was produced before him and on an examination of the plan, the correctness of which is not questioned before us, the Settlement Commissioner held that the property was divisible subject to the directions given by him. The question was in his sole discretion and in my humble opinion, the discretion has been exercised reasonably and justly. In any event no case had been made out for interfering with these findings in the limited constitutional jurisdiction of the High Court under Article 93 of the Constitution. Therefore, the High Court was not justified in substituting its own finding for that of the Settlement Commissioner.
23. In the result the appeal is allowed. The judgment of the High Court is set aside and the order of the Settlement Commissioner dated 27-9-1963 is restored. The parties are left to bear their own costs.