1. MOHAMMAD AFZAL CHEHMA, J.---The dispute in this case relates to the transfer of a for-storeyed evacuee building SWI-IS41 on Mohni Road, Lahore, consisting of 35 rooms and accommodating 13 families. The contest is, however, confined to Ghulam Habib appellant and Mohammad Din res-- respondent No. 1, both of whom are claimant displaced persons. The appellant was held to be resident of Multan a non-allottee of the premises claiming transfer on the basis of possession of his father-in-law Hakim Abdur Rahim. Vide his order dated 29-1-60 the Deputy Settlement Commissioner holding the premises to be indivisible transferred it to Mohammad Din respondent No. 1 as the senior allottee in possession. This order was unsuccessfully challenged by the appellant before the Additional Settlement Commissioner who reaffirmed the finding of the Deputy Settlement Commissioner that the appellant was a non-allottee and resident of Multan city and therefore not eligible for transfer. It would be pertinent to refer to the observation of the Additional Settlement Commissioner to the effect that although having perused the plan of the building he was `"morally convinced" that the whole .House should not go to Mohammad Din yet it became inevitable owing to the ineligibility of the appellant herein. The order of the Additional Settle--ment Commissioner was challenged before the Settlement Commissioner both by Ghulam Habib appellant and his father-in-law Hakim Abdur Rahim who was in actual possession of a few rooms in the house. Having perused the report of Settlement Inspector called by him in regard to the accommodation, structure and indivisibility of the premises, the Settlement Commissioner vide his order dated 28-8-60, dismissed the revisions and upheld the order of transfer made in favour of the respondent on the grounds that the appellant was a resident of Multan and his father-in-law Hakim Abdur Rahim was a non-claimant and non-allottee, both being thus ineligible for the transfer of the portion in possession, particularly when the house was indivisible. Feeling aggrieved the appellant and his father-in-law Hakim Abdur Rahim moved second revision petitions before the Chief Settlement Commissioner. The one filed by Hakim Abdur Rahim was dismissed on the ground of his being a non-allottee and non-claimant while the other filed by the appellant was allowed on the considerations that it was a very commodious and well-built property, that Mohammad Din had a petty claim of Rs. 3,000 only besides being in possession of an evacuee plot in Lahore measuring 20 marlas and claiming its transfer under Settlement Scheme No. VI and that appellant having a substantial claim of about Rs. 14,000 and being in possession of a portion of the house was the fittest person to be associated with Mohammad Din for the transfer of the house. It was therefore directed that "he should be associated in the transfer of the house with Mohammad Din. Distribution of the property will be by the Deputy Settlement Commissioner at the spot".
2. Two writ petitions, one No. 567/11 of 1961 by Mohammad Din respondent herein and the other No. 59.5/11 of 1961 by Hakim Abdur Rahim, father-in --law of the appellant were filed against the aforesaid order of the chief Settle--ment Commissioner. The one filed by Hakim Abdur Rahim was straightaway dismissed on the patent ground of his ineligibility being a non-claimant and non- allottee while the other filed by Mohammad Din was allowed. According to the interpretation placed by the learned Single Judge on the order of Chief Settlement Commissioner the word "associated" occurring therein was used in the technical sense with its necessary connotations under the Settlement Laws. On that assumption it was further held that under paragraph 5 (d) of Settle--ment Scheme No. I the question of joint transfer would only arise when there was a ,joint allotment in the name of two or more persons. It was further observed on the basis of the press note dated 13th February 1960 that the question of association arose only where a claimant, non- claimant displaced person or a local found entitled to the transfer of any property, was unable to pay the amount due from him. Lastly it was observed that if Malik Fateh Khan had proposed to divide the property he would have said so in unequivocal terms instead of leaving it to be "a matter of highly dubious inference". Having unsuccessfully challenged this order of the learned Single Judge in L. P. A. The appellant preferred a petition for special leave to appeal. Leave was granted to examine the contention that the word "associated" occurring in the order of Chef Settlement Commissioner was misconstrued as having been used in its technical sense whereas it only meant that the property in dispute be divided between the parties.
3. Having been taken through the various orders of the Settlement Authorities passed at different levels as also the two judgments of the High Court, I am clearly of the view that the word association occurring in the order of Chief Settlement Commissioner was not used in the technical sense A but in its ordinary meaning by which he intended the division of the property between the parties as indicated by the use of word distribution which was left to the Deputy Settlement Commissioner to be completed at the spot. My reasons for saving so are : Firstly, that a high functionary of the status and experience of the Chief Settlement Commissioner could not be credited with such sheer ignorance of the correct legal position as could dispose him to the making of a patently illegal order, inasmuch as no association in the technical sense could be imposed on the parties under a valid direction of the Settle--ment Authorities, it being a matter entirely within their volition. This is not all.' The circumstances of the case hardly necessitated or justified an association in the technical sense. The respondent being keen to seek transfer of the entire property, without the slightest indication of his inability to pay the price single-handed.
4. Again, the construction placed by the High Court does not fit in with the tenor of the Chief settlement Commissioner's order which makes pointed reference to tae availability of vast accommodation in ,the house, the insignificance of the quantum of the respondent's claim and lastly the specific reference to the distribution of the property to be effected by the Deputy Settlement Commissioner at the spot.
5. It was strenuously contended on behalf of the respondent that the appellant not being in possession, found to be a resident of Multan and being a non-allottee had no locus standi to file a CH form which was rightly rejected. It was further submitted that in terms of paragraph 1 of the schedule the appellant could not take benefit of the possession of his father---in-law Hakim Abdur Rahim who had himself vigorously agitated for its transfer up to the High Court though without success. Reliance was placed on Jehan Ara Begum v. The Chief Settlement arid Rehabilitation Commissioner, Pakistan and others (PLD 1963 Kar. 726) and Abut Hassan v. Mst. Mariam Bibi and another (1975,SCMR 416). It was next contended that in. The absence of a finding on a jurisdictional defect the Chief Settlement Commissioner could not have proceeded to divide the house which in fact he never intended to do inasmuch as such a material departure from the consistent view of the subordinate authorities. If at all, called for a categorical finding as to the physical and structural feasibility of the division. Reliance was placed on Abdul Majid Khan v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore (PLD1968SC154) and Atta Mohammad Qureshi v. The Settlement Commissioner, Lahore and others (PLD1971SC61). Lastly it was submitted that the order of the. Chief Settlement Commissioner was based on misreading of evidence in clear disregard of the finding of fact that the appellant had never been in possession.
6. As stated earlier, I am clearly of the view that considered in its totality the Chief settlement Commissioner in his order did not use the word associated in the technical sense but directed the division of the property between the parties as further clarified by the concluding observation made therein that the distribution shall be made by the Deputy Settlement Commis--sioner on the spot. It now remains to be considered as to whether the Chief Settlement Commissioner was competent to make such a direction in disregard of the consistent view of the subordinate authorities regarding the indivisibility of the premises. Learned counsel for the respondent conceded that the findings of the subordinate authorities in this regard were not binding on the Chief Settlement Commissioner who was within his right to take a different view but strenuously contended that in the absence of any positive finding regarding the feasibility of a division based on structural considerations the order was arbitrary and as such could not be clothed with any solemnity.
7. I am not impressed by the argument. In the first instance the Deputy Settlement Commissioner in the initial order of transfer made in favour of the respondent had clearly expressed his reservation about the propriety of the transfer of a huge for-storeyed building consisting of 35 rooms to only one of the several occupants with a petty claim of Rs. 3,000. Again it appears from the record that neither the Additional Settlement Commissioner nor the Settlement Commissioner had personally inspected the spot to examine the question of divisibility and the finding in this regard was based only on the report of an Inspector which cannot be credited with authenticity particularly in the face of the admitted position that 13 families have continued to live in the premises for the last several years. This per se would be good enough to show that the finding of indivisibility was prima facie incorrect. Even otherwise precedents are not wanting where the Settlement Authorities tried to accommodate the parties in possession and found to be eligible for transfer by effecting structural alterations such as erection of a wall, fixation or closing of a door etc. Since however the question of indivisibility is essentially one of fact to be exclusively determined by the subordinate Settle--ment Authorities normally this Court would remand the case with the direction that the question of indivisibility may be properly considered after spot inspection In the instant case like the Additional Settlement Com--missioner and Settlement Commissioner, the Chief Settlement Commissioner had also not personally inspected the spot, he had very rightly left the question of the actual division to be effected on the spot by the Deputy Settlement Commissioner. No' fault can, therefore, be found with the exercise of discretional jurisdiction in this regard.
8. This brings us to the last contention as to the eligibility of the appellant to the transfer of a portion of the house in possession of his father-in-law. It is abundantly clear on the basis of a concurrent finding of the Settlement Authorities that the appellant was a resident of Multan and was not in personal occupation of any portion of the premises in question. There is also no gainsaying the fact that he could not take advantage of the possession of his father-in-law Hakim Abdur Rahim in terms of para. 1 of the Schedule, the latter having himself agitated for the transfer of the portion in his possession pursuing the matter up to the High Court though without success. Notwithstanding the fact that the appellant was not found to be in possession, it appears that the learned Chief Settlement Commissioner had erroneously held him so contrary to the concurrent finding of fact arrived at by subordinate Settlement Authorities. This is obviously based on misreading of evidence and in fact has no basis on the record. In the circumstances, therefore, it is not possible consistently with the factual and the legal position to uphold this part of the Chief Settlement Com- -missioner's order. The position as it finally emerges, therefore is that the finding of the Chief Settlement Commissioner as to the divisibility of the property remains intact and the orders of the single Bench and the L. P. A Bench in the High' Court upholding the transfer of the entire premises in favour of the respondent are .Et aside; and the case is remanded to the Chief Settlement Commissioner for a fresh decision after taking into consideration the respective merits of the different occupants and candidates. This would also be in accord with the view taken by this Court in Mohammad Zaki and another v. Maqsood Ali another (PLD 1976 SC 309).
9. The appeal partly succeeds to the extent indicated above with no order as to costs.
10. DORAB PATEL, J.-I agree.