1. ANWARUL HAQJ.-This appeal by the leave of the Court is directed against the judgment of a Division Bench of the Erstwhile High Court of West Pakistan at Lahore, dated the 10th of February 1966, whereby an appeal filed by the predecessor of the present appellants under clause (10) of the Letters Patent was dismissed.
2. The dispute in this case relates to the transfer of are evacuee house situate in Okara town of the Sahiwal district. At the commencement of the Settlement operations under the provision of the Displaced Persons (Compensation rind Rehabilitation) Act, 1958 the house was in possession of Sheikh Shabbir Hussain, predecessor-in-interest of the present appellants and the respondent Abdul Raoof, botra being claimants as well as alottees. The allotment in favour of Shabbir Hussain was made on 27-11-47 in respect of the entire house, but a portion was later allotted on 6-11-1953 to Abdul Raoof Both the parties applied, it appears, for the transfer of the entire house, The spot was inspected by the Deputy Settlement Commissioner, and by his order dated the 23rd of January 1960, he directed that the house be divided vertically according to the possession of tae parties on the ground floor, with the result that one room on the first floor fell to the share of Sheikh Shabbir Hussain, even though he was not is possession thereof. As this room did not have soy independent access from the ground floor in the possession of Shabbir Hussain, the Deputy Settlement Commissioner directed that he should make his own arrangements for ibis purpose.
3. The respondent Abdul Raoof was satisfied with this order but Shabbir Hussain filed an appeal which was partly accepted by the Additional Settle--ment Commissioner by his order dated the 18 ofth April 1960. This Officer amended the order of the Deputy Settlement Commissioner to the extent that "the Deorhi through which the staircase leads to the top of both the portions, and the staircase will be transferred jointly to both the parties".
4. Aggrieved by this appellate order both the contending parties filed separate revision petitions, which were disposed of by the learned Settlement Commissioner by his order crated the 8th of March 1961, directing that the property should be transferred to the parties on the basis of their respective possession as it appeared to have been already permanently partitioned into two portions. This order had the effect of depriving Shabbir Hussain of one room on the first floor, as the same was not in his possession.
5. The revisional order of the Settlement Commissioner was accepted by the respondent, but Shabbir Hussain challenged the same by filing a writ petition in the High Court, which was, however, dismissed in limine, by a learned Judge by his order dated the 12ih of May 1961, observing that "it is not shown that any legal right has been infringed". As already stated, the Letters Patent appeal flied by Shabbir Hussain against this order has also been dismissed by a Division Bench of the High Court.
6. At the time of obtaining leave to appeal it was urged before this Court that the order of the Settlement Commissioner was defective and incomplete in so far as it made no order with record to the staircase, and was thus incapable of being implemented without the assistance of the Settlement authorities. It was contended that this order was, therefore, in violation of tape broad principles laid down in the instructions issued by the Chief Settlement Commissioner with regard to the division Of residential properties, which enjoined upon tile Settlement authorities to divide these properties in such a manner as to lender the partitioned portions independent and self-- contained residential units, each with their own independent access. Leave to appeal was granted to examine the question whether the High Court had properly exercised its extraordinary jurisdiction by upholding a manifestly irregular order of the Settlement authorities.
7. At the commencement of the hearing of the appeal, a preliminary objection was raised on behalf of the respondents by their learned counsel Rao Muhammad Yousaf to the effect that the appeal had abated owing to the death of the original appellant Sheikh Shabbir Hussain on the 19th of August 1967, and the failure of his legal representatives to make an application under Order XVI, rule 17 of the Supreme Court Rules within the prescribed period of ninety days. We find that this objection must prevail.
8. It is common ground that Sheikh Shabbir Hussain had died in Okara on the 19th of August 1967, whereas the application for bringing his legal representatives on the record was not moved until the 11 of January 1969. It was thus barred by 320 days. In the application submitted by his representatives for the condonation of delay, it was stated that they had succeeded to the estate of their deceased grandfather under a will, and that they came to know of the, present litigation only on the 16th of December 1968 when they received a notice from the Supreme Court addressed in the name of the late Shabbir Hussain. In the application no explanation is given for the delay which occurrence on the part of the applicants from the 16th of December 1968 until the 11th of January 1969, and accordingly no sufficient cause had been shown for setting aside the abatement as this delay of 26 days was not at all explained.
9. Apart from this fact, it also transpires that the statement made in the application that the legal representatives of the late Shabbir Hussain had come to know of this litigation only on the receipt of a notice from this Court on 16-12-68 is not correct. It is admitted by Mr. Pervaz Akhtar that the applicants, who are the sons of a pre-deceased daughter of Shabbir Hussain, and claim to be his only heirs under a will, were living in the same house with their grandfather, which is the subject- matter of the present appeal. It is further conceded that they are both educated young man. It is, therefore, difficult to accept the position that, although living with their grandfather in the disputedth house they did not have any knowledge of the pending litigation between their grandfather and the other occupants of the house.
10. Still another fact which goes against the legal representatives of Shabbir Hussain is that the will relied upon by the two brothers was registered by the deceased on the 10th of August 1967, and it clearly mentions the fact of the pendency of the present appeal. As there is no averment to the contrary, it must be presumed, in the ordinary course of human affairs, that the will must have become known to the legal representatives soon after the death of Shabbir Hussain, if indeed they did not know of it during his life--time. It is, therefore, legitimate to presume that they had acquired knowledge of the present litigation by a perusal of the will of their maternal grand--father before car soon after his death on the 19th of August 1967. It is, therefore, futile to contend that they acquired knowledge of this appeal only in December 1968.
11. Finally, it is conceded that the late Shabbir Hussain has also left a maternal grand-daughter by the name of Mst. Aziz Fatima but she has not been brought on the record by her two brothers, on the basis that under the will of their grandfather they are the only legatees. As Mst. Aziz Fatima was also one of the heirs, she should also have been brought on the record even though as a respondent.
12. For all the foregoing reasons, it becomes abundantly clear that the two applicants who now claim to be the only heirs of the deceased appellant Shabbir Hussain, were aware of the present appeal and they have failed, without sufficient cause, to make the necessary application for being brought on the record within the time prescribed by the rules of this Court. Accord--ingly, the appeal does indeed stand abated, and there is no justification for setting aside the abatement.
13. Even otherwise, we find that it has little substance on merits. It will be seen that the house in dispute has been held to be divisible by all the Settle--ment authorities that have dealt with the question of its transfer between the contending parties. The only dispute raised in the present appeal is regarding the mode of division, which is a matter eminently within the domain of the statutory functionaries. This Court, or the High Court, would interfere only if it is shown that the power of division has not been exercised in a judicious manner. This view has been repeatedly expresses by the superior Courts, and reference in this behalf may be made to Altaf Hussain v. Shabbir Hussain (PLD 1961 Lah. 449) F, Mohammad Khalil v. Jamaluddin (PLD 1965 Lah. 602), Karam Din v.
14. Settlement & Rehabilitation Commissioner (PLD 1970 Lah. 766) and Mohammad 1qbal Khan v.
15. Chief Settlement Commissioner (PLD 1965 SC 404).
16. Now, in the present case, the learned Deputy Settlement Commissioner thought that a vertical division of the house according to the portions occupied by the contending parties on the ground floor would be a proper mode of division, but his order created a problem in regard to the availability of access to one room on the first floor, which had thus fallen to the share of Shabbir Hussain, but had no access at all from his portion on the ground floor. It lead never been in his occupation either. It was in order to meet this difficulty of access, that the learned Additional Settlement Commissioner, acting in appeal, modified the Deputy Settlement Commissioner's order by directing that the Deorhi and the staircase would remain common between the parties.
17. However, this modification was not acceptable to both the parties as both of there went up in revision against this order. The learned Settlement Commissioner set aside the mode of division adopted by both the Officers subordinate to him, and instead directed a division according to the actual possession of the contending parties, thus eliminating the question of access to the room on the first floor. The question is whether this revisional order of the learned Settlement Commissioner is capricious, arbitrary, or otherwise unjust, so as to be treated as an order without lawful authority and of no legal effect.
18. We find that at the time of obtaining leave to appeal from this Court, the facts were not correctly presented, as it was made out that the Settlement Commissioner had created a problem with regard to the access to the room on the first floor, and he bad acted arbitrarily or illegally in leaving it to the appellants to find their own access for this room. This error perhaps arose out of the same erroneous narration of facts in the order made by the Letters Patent Bench of the High Court. It appears to us that it was in this background that the learned Judges of this Court, who granted leave to appeal, were impressed by an apparent irregularity in the mode of division adopted by the learned Settlement Commissioner and it was en this erroneous assumption of fact that leave was granted to examine whether the High Court had exercised its writ jurisdiction properly by maintaining such an irregular order.
19. Our examination of the terms of the final revisional order made by the learned Settlement Commissioner on the 8th of March 1961 shows that the correct position is that be has adopted a proper mode of division, and his order does not create any problem of access to any portion of the property which now stands transferred to the appellants. It is an admitted position that their predecessor-in-interest Shabbir Hussain was in occupation of only a portion of the house on the ground floor, with no access to any of the rooms on the roof of this portion. The mode of division adopted by the Settlement Commissioner has transferred the earns portion to Shabbir Hussain, and as least four doors of this portion open on two public streets, thus showing that Shabbir Hussain's portion had an independent access. The portion also has a small courtyard as well as a kitchen, and has been in use as a self-contained residential unit with Shabbir Hussain since 1347. In these circumstances, it is difficult to accept the contention that the mode of division adopted by the Settlement Commissioner was arbitrary, capricious or otherwise unjust or impracticable so as to attract interference in the exercise of the writ jurisdiction of the High Court.
20. It was submitted by Mr. Pervaz Akhtar, learned counsel for the appel--lants, that the order of the Settlement Commissioner has denied to the appellant---s access to the roof of their portion of the house and, therefore, it vas defective. Such an argument, however, overlooks the fact that even in the instructions issued by the Chief Settlement Commissioner on the 22 of October 1959, regarding the division of residential premises, horizontal division has been approved which clearly has the effect of depriving one party of the use of the roof and the structures built thereon.
21. Considering all these circumstances, we are of the view that no fault could be found with the order made by the learned Settlement Commissioner on 8-3-1961, dividing the disputed house according to the respective posses--sion of the contending parties. Such being the case, the appeal must also fail on merits.
22. As a result, the appeal is hereby dismissed but we leave the parties to rear their own costs.