1. MUHAMMAD HALEEM, J.-This appeal is by special leave against the judgment dated 26-3-1968 of a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat by which Writ Petition No. 31-R of 1968 was dismissed in limine.
2. The dispute relates to the transfer of house No. 45 in village Piplan, District Mianwali. The appellant on the basis of his exclusive possession apple--ed for its transfer under Scheme No. VII which was transferred to him on 25-10-1966 by the Deputy Settlement Commissioner (Lands), Jauharabad.
3. The second and the third respondents who are the son-in-law and nephew of the appellant also applied for the transfer of the house but their entitlements were rejected on the ground that the second respondent had no concern with the house as he lived in a shop in the bazar of village Piplan and the third respon--dent resided with the appellant in a room of the house as his licensee.
4. Both these respondents appealed against this order before the Addl. Settlement Commissioner, Bhakkar. The Additional Settlement Commissioner held that the second respondent was to possession of a portion of the house which was being used by him as a shop for repairing watches and that the remaining portion was in the possession of the appellant and the third respondent in `equal shares' on the crucial date, i.e. 1st of January 1961. Accordingly by order dated 19-7-1967 he transferred the shop to the second respondent and the remaining portion in `equal shares' to the appellant and the third respondent. The appellant filed a revision against this order before the Additional Commissioner Revenue, Sargodha Division exercising powers of the Chief Settlement Commissioner (Lands), who confirmed the finding of the Additional Settlement Commissioner and dismissed the revision by order dated 12-12-1967. The appellant assailed this order in writ jurisdiction and a Division Bench on the basis of the finding that the appellant and the respondents were residing in the disputed property held that it could be dealt with in accordance with the general principles of the Act and the Settlement Schemes Nos. I, IV and VI in accordance with the direction contained in paragraph 4 of the Revised Settlement Scheme No. VII and upheld the order of transfer in favour of the parties and dismissed the petition as before mentioned.
5. Leave to appeal was granted to consider whether the Settlement Com--missioner had acted with jurisdiction in subjecting the property situated in a rural area to a division when its value was less than Rs. 10,000 and also as to whether the High Court was correct in holding that a part of the house was in the occupation of the second respondent against the documentary evidence on record. The appellant died on 29-9-1973 and an application for substituting his legal representatives was filed on 26-9-1974 on the ground that the delay m not taking steps within time to bring on record the L. Rs. Was due to the fact that the particulars of the Advocate-on-Record engaged by the deceased were not known to the L. Rs. And it was only when they had received a communication from him on 18-9-1974 that they had come to know about his engagement. By an order dated 28-1-76 the L. Rs. Were brought on record subject to all just exceptions. At the hearing it appeared that the cause shown hardly justified the condonation of delay. Subject to this defect we examined the merits of the legal question raised in the appeal.
6. It was contended by the counsel for the appellants that the transfer in favour of the parties in fact amounted to a division of the house, which was not permissible as under the Settlement Scheme No. VII the Settlement Authorities had no power to divide a house. This contention was not specifically taken before any of the Settlement Authorities either in appeal or revision but was raised for the first time in the High Court. The learned Judges in the High Court, however, held that the Settlement Authorities had power to divide the house on the basis of possession in accordance with the direction contained in paragraph 4 of the Revised Settlement Scheme No. VII which permitted the property to be dealt with in accordance with the general principles contained in the Displaced Persons (Compensation and Rehabili--tation) 1958 and the Settlement Schemes Nos. I, IV and VI. Undoubtedly, if the principles are applicable then it cannot be denied that the Settlement Authorities had power to divide the house. Even the revised Settlement Scheme No. VII itself provides for the manner of disposal of a property in occupation of more than one person and this could only be done if there was power to divide the property. It was, therefore, that the general principles before mentioned were made applicable to facilitate the disposal of they property. The Learned counsel was not able to point out any legal bail while raising this contention. As such this contention is without substance.
7. It was next urged that the Addl. Settlement Commissioner did not give effect to a compromise dated 17-4-67 In which the second respondent had admitted that it was Imam Din who was in exclusive occupation of the house and that he had no connection with it. Be that as it may, Imam Dill failed to press this point in revision and it is not now possible to take that compromise into consideration in determining the question as to the exclusive possession on Imam Din in the context of the Settlement Authorities that he was only in occupation of a portion of the house.
8. Accordingly no exception can be taken to the order of the Settlement Authorities transferring the respective portions of the house to Imam Din since deceased and respondents 2 and 3. It was stated at the Bar that the second respondent has been transferred another house. If that be so, then the appellants can approach the Settlement Authorities for the cancellation of the portion of the house transferred to the second respondent.