1. HADAOODUR RAHMAN. C. J.-The dispute in this case relates to premises No. 45-A on Road No. A. M.
2. 2, Karachi. These premises originally consisted of four independent flats on the ground floor, which had been separately numbered as G/1 to G/4. At the time of Partition, this was an incomplete building. Only the ground floor had been constructed.
3. One flat on the ground floor was allotted to the present petitioner by the Rent Controller, Karachi, on the 23rd February, 1948, but admittedly flats Nos. G/3 and G/4 on the ground floor were in the possession of the respondents since 1947 and the petitioner was in possession only of two flats, i. e., G/1 and G/2.
4. The flats G/3 and G/4 have, as found by High Court, separate amenities and separate entrances through the open compound. The building is situated practically in the centre of the plot. The flats G/1 and G/2 have a staircase leading to the roof and similarly flat's ,G/3 and G/4 have each separate staircases leading to the roof. `"
5. Since coming into possession the petitioner has, with the permission of the Custodian, constructed two more stories over his own portion. The occupants of flats G/3 and G/4 have also completed their respective portions since Partition but they have not made any construction on the upper storey.
6. When settlement operations started, all three parties applied for the transfer of the property. The petitioner alone applied for the transfer of the whole building, whereas the respondents Nos. 3 and 4 applied only for the transfer of the portions in their respective occupation.
7. The Deputy Settlement Commissioner, on the 22nd October 1959, held the entire building to be one indivisible unit and transferred the whole of it to the petitioner on the ground that his possession was prior in point of time and he was in possession of a major portion o1 the building. This order was maintained by the Additional Settlement Commissioner in appeal, and in revision by the Settlement Commissioner, by his order dated 25th April 1960. Against this order of the Settlement Commissioner, the respondents filed second revisional applications before the Chief Settlement Commissioner on the 13th May 1960. On this date such revisional applications were maintainable, but by subsequent legislations introduced by Ordinances Nos. II of 1962 and XIII of 1962, the revisional power was taken away, except in cases in which the record had already been summoned before the 13th January 1962.
8. These second revisions, according to the respondents, were pending and bad not been finally disposed of when, on the 21st May, 1965, the present petitioner issued notices to them presumably under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 calling upon them to pay rents and to vacate the 6 re-rises in their respective occupation. The respondents replied to the above notices on the 2nd June 1965, and maintained that notices could not be issued, as the transfer in favour of the petitioner had not attained finality by reason of the pendency of the second revisional applications before the Chief Settlement Commissioner.
9. The petitioner, on the other hand, claimed that the Chief Settlement Commissioner had summarily dismissed the second revisional applications on the 30th May 1962 and produced a Certified copy of such order. In previous litigations in the High Court being Writ Petitions Nos. 467 o 1965 and 490 of 1965.
10. The respondents challenged the authenticity of the said order even it those proceedings and the High Court on the 23rd November 1967 remitted the question regarding t1le authenticity of the order of dismissal of the second revisions to the Chief Settlement Commissioner for enquiry.
11. The Chief Settlement Commissioner found the order of dismissal to be forged and made over the case to the Enforcement Staff' for investigation.
12. The contention of the present petitioner that even otherwise the second revision petitions before the Chief Settlement Commissioner bad abated by reason of the change in law, was repelled in the previous writ petitions, as the. Division Bench, which heard these petitions, also remitted the decision of this question to the Chief Settlement Commissioner.
13. In pursuance of the above order, the matter came up before Mr. Azhar, Settlement Commissioner, exercising the delegated power of the Chief Settlement Commissioner. He has come to the conclusion that the record of the second revision application had in fact been called for by the Chief Settlement Commissioner before 13th January 1962,-and the order of dismissal of the second revisional applications being forged; the consequence was that those applications were still pending. He, accordingly, proceeded to consider those applications on merits and arrived at the conclusion that the respondents were entitled to the transfer of the portions of the premises admittedly in their respective possession.
14. This was the order that was challenged by the petitioner in the High Court by Writ Petition No. 354 of 1970. The High Court has, after hearing elaborate arguments on each and every point, come to the finding that the two ground floor flats G/3 and G/4 of the said premises had been rightly transferred to the two respondents by the Chief Settlement Commissioner and, therefore, the petition should be dismissed. The petitioner now seeks special leave to appeal.
15. Learned counsel appearing in support of this petition has urged almost all the points that here urged in the High Court and has endeavoured to make out the case that under the settlement law the building had to t e treated as a single building and not as separate portions. We are unable to accept this contention in the face of the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1953, wherein it has been specifically provided that a house including outhouses and garages is to be treated as a single unit unless the Chief Settlement Commissioner decides otherwise. In the present case, the Settlement Authorities have so decided; namely, that the building consists of three separate and independent flats on the ground floor and each of these was both structurally and amenity-wise independent and self-contained unit. Therefore, there was no legal bar to the Settlement Authorities treating the house as divided house into three or more houses and once such a division has been made and a portion had been transferred to a person, he could no longer agitate for the other houses, because he is, under the settlement law, entitled to only, one house.
16. The division, which is clearly based on the structural characteristic of, the building, is a matter entirely for the Settlement Authorities and if that decision to divide the premises is neither perverse nor arbitrary nor fanciful, neither the High Court nor this Court will interfere with such a decision.
17. In the present case, the division seems to us to be in every way justified in the light of the findings of the Court below 'that the portion transferred to each of the occupants, was entirely independent and separate.
18. Learned counsel also sought to contend that there is no clear proof of the records having been called for by the Chief Settlement Commissioner before the 13th January 1962. It appears that on this point, the then the Chief Settlement Commissioner, Mr. Hashim Raza, had been actually examined and after consideration of his evidence the Courtsbelow have come to the conclusion thatthe records had in fact been called for before, the relevant date. This is a finding of fact which cannot be interfered with in the writ jurisdiction, as has been rightly held by the High Court.
19. Learned counsel has lastly sought to contend that the order of the Chief Settlement Commissioner was, to any event, without jurisdiction and, therefore, it nullity. We are afraid the petitioner cannot be allowed to blow hot and cold in the same breath. Lie cannot, after be has taken up the position that the Chief Settlement Commissioner had the jurisdiction to deal with the matter and had actually disposed of it by dismissing the revisional application, the allowed to set up the case that the order passed by the Chief Settlement Commissioner ors the sank application without jurisdiction after it has beers found that the order set up by him was a forged order lie cannot approbate and reprobate at the same time, Having carefully considered the arguments advanced in support of this petition, we have come to the conclusion that no ground for interference has been made out the order was in every way just and proper.
20. This petition is, accordingly, dismissed.