1. MUHAMMAD AKRAM, J.-This is an appeal by special leave from the judg--ment dated 2nd of July 1969, passed by a Letters Patent Bench of the High Court of West Pakistan at Lahore.
2. Bungalow No. 165-B-VII situated in Civil Lines, Montgomery (Sahiwal) is a spacious property consisting of the main Bungalow and 23 outhouses or servant quarters spreading over an area of 36 kanals underneath and attached thereto. The 23 servant quarters are occupied by a number of families displaced from India. The dispute in this case however, is confined to the disposal of six of these servant quarters respectively occupied by the appellants.
3. On the 14th of November 1959, the Deputy Settlement Commissioner observed that Mst. Bilquis Jahan, respondent No. 3 was in possession of an outhouse and a garage and therefore, there must go with Bungalaw and rejected her C. H. Form. He also rejected the forms filed by the other occupants of the outhouses and transferred the Bungalow along with out-- houses in favour of Syed Yaqub A.I Shah, respondent No. 2 and one Raja Ahmad Saeed in equal shares. Respondent No. 3 went up in appeal against the order. On the 16th February 1960, Brigadier Altaf Hussain, Additional Settlement and Rehabilitation Commissioner, Montgomery observed that Raja Ahmad Saeed allottee was not in possession of any portion of the property and thus eliminated him from the transfer. He held that Syed Yaqub A.I Shah and Msr. Bilquis Jahan were in possession of the main Bungalow and were prepared to accept the transfer of the property in their favour jointly. In has opinion however, in order to avail hardship to the 23 families and in the interest of settlement, servant quarters should be separated from the main building. He, therefore, excluded from the transfer of the Bungalow to the respondents the area on the other side of the red line drawn by him on the blueprint attached with his order and directed that the Deputy Settlement Commissioner would go into the details of the occupants of the servant quarters and arrange to transfer to those who were in occupation in accordance with rules. This order gave rise to three separate revisions filed by the said Raja Ahmad Saeed. Bilquis Jahan and Syed Yaqub A.I Shah. These three revisions were disposed of by Mr. Ghulam Shabbir, Settlement and Rehabilitation Commissioner. Multan and Bahawalpur Divisions, Camp Moatgomery, by a single order on tile 7th of March 1961. He dismissed the revision of Raja Ahmad Saeed and upheld the transfer of the main building to Syed Yaqub A.I Shah and Mst. Bilquis Jahan, respondents, with the observations:---- "The learned counsel for Mst. Bilquis Jahan Begum and Syed Yaqub A.I Shah petitioners agree to the demarcation made by the Additional Settlement Commissioner oar the plan attached with the file. The red line drawn by the Additional Settlement Commissioner has been agreed to by both the petitioners. The 23 servant quarters are occupied by refugees, most of them lave filed necessary forms and thus the learned Additional Settlement Commissioner rightly excluded these from the rest of the property."
4. Respondents Nos. 2 and 3 filed their separate writ petitions against the orders of the Settlement authorities refusing to transfer to them the 23 outhouses pertaining to the main building. But on the 15th of October 1965, the then Chief Justice of the West Pakistan High Court at Lahore, declined to interfere in the larger interest of the rehabilitation of a number of families residing in them. Syed Yaqub A.I Shah went up in Letters Patent appeal from the judgment. On the 2nd of July 1969, a Division Bench of the High Court, formed the opinion that under section 2 (4) of the Displaced Person (Compensation anal Rehabilitation) Act, 1959, the Additional Settle--ment Commissioner had no power to separate the servant quarters from the main building and order their transfer to the occupants thereof. They observed that out of 23 families occupying the servant quarters only 17 had applied for the transfer, some before the Deputy Settlement Commissioner dealt with the case, and others at a subsequent date, whereas six occupants did not at all apply for the transfer. These six who had not applied were, therefore, not entitled to the transfer of the servant quarters in their occupation. The Court, therefore, accepted the appeal to the extent of the servant quarters occupied by six non-applicants, namely, Ahmad Din son of Jan Muhammad, Jan Muhammad son of Roora, Amanat A.I son of Bapth A.I, Sardar Muhammad son of Ghulam Muhammad, Qazi Muhammad Ashraf son of Qazi Barkat A.I and Barkat A.I son of Master Allah Ditta.
5. It is evident from the facts stated above, that the demarcation made by Brigadier Altaf Hussain, the Additional Settlement and Rehabilitation Commissioner. Montgomery, in his order dated 6th of February 1960, excluded the servant quraters from the transfer of the main building to the respondent. The area on which these servant quarters are located was shown on the other side of the red line separating it from the main building transferred to them. This demarcation was accepted by the respondents before Mr. Ghulam Shabbir the Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions, in his revisional order dated 7th of March 1961 reproduced above. In view of this consent before the Settle--ment Commissioner and the Additional Settlement Commissioner neither of the transferees of the Bungalow could agitate for the inclusion of the q servant quarters regardless of the fact whether the occupants thereof were entitled to the same or not. On this view of the matter, therefore, the two respondents were debarred from filing their writ petitions against the revisional order passed with their consent. This aspect of the case appears to have escaped the notice of the Letters Patent Bench of the High Court.
6. The learned Judges of the High Court have also erred in observing that the six appellants had not applied fox the transfer of the servant quarters in their occupation. In fact from the record summoned from the Settlement Department, after the order passed by the Additional Settlement and Rehabilitation Commissioner, the Deputy Settlement Commissioner had actually transferred the servant quarters occupied by appellants Nos. 1, 3 to 6 and Appendix X was also issued to there.
7. Appendix X was also issued in the name of Muhammad Ramzan son of Roora for the servant quarter in his occupation and there appears to be a possible error in the name of appellant No. 2 Jan Muhammad son of Roora.
8. For the foregoing reasons we accept this appeal and set aside the judgment dated 2nd of July 1969 passed by the Letters Patent Bench of the then High Court of West Pakistan at Lahore and restore the orders dated 6th of February 1960 passed by Brigadier Altaf Hussain, Additional Settlement and Rehabilitation Commissioner and dated 7th of March 1961 passed by Mr. Ghulam Shabbir, Settlement and Rehabilitation Commissioner.
9. No cost as the respondents have not put in appearance.