' CH. MUHAMMAD ARIF, J.---In this appeal by leave of the Court against the judgment dated 7-12- 1992 of the Lahore High Court, Lahore passed in Writ Petition No,71-R of 1988, the appellant has impleaded the Notified Officer-Settlement Department/ Additional Deputy Commissioner (G), Lahore Cantt., Lahore and the legal heirs of Mst. Hakim Saadat Begum (deceased) represented by her legal heirs as also 2-sets of respondents respectively described as (Muhammad Yamin and 21 others) and (Khalid Hassan and 13 others) as respondents Nos.1, 2.(i) to (vi), 3 to 22 and 23 to 50 who were also party in Constitution petition (W.P.No,71-R/1988) before the learned Judge in Chambers. The dispute relates to the Evacuee Property bearing No,S-41-R-8 Queens Road, Lahore.
There have been several rounds of litigations between the parties and the matter was remanded for resolution of the dispute regarding its transfer to the parties herein by the erstwhile Settlement Department and/or the Notified Officer under the Evacuee Property and Displaced Persons Laws (Repeal Act (No,XIV of) 1975, more than once.
2. Paras. 8 and 9 of the judgment under appeal i.e, judgment dated 7-12-1992, read thus: "8. I regret, I do not agree. The order of the Notified Officer, in so far as it pertains to division of property between the petitioner and respondent No,2 minus the portion transferred to respondents 3 to 50 (already held by me to be justified) cannot be sustained. It is hereby quashed to this extent.
The writ petition is, however, dismissed qua respondents Nos.3 to 50
9. The case shall go back to the concerned Notified Officer, who shall visit the spot once again, in the presence of the petitioner and the legal heirs of respondent No,2. He shall ascertain the physical possession of the parties over the constructed portions as well as the lawns and then pass fresh order of division of the property between them keeping in view their respective possessions."
3. Paras. 2 and 3 of the Leave Grant Order dated 2-5-1994 are to the following effect:- "2. The history of the case is a chequered one in which there have been several rounds of litigation between the parties and the case has been remanded more than once. Finally the High Court remanded the case with the direction that the Settlement Authorities were not to pass a fresh order under section 2(4) of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, but to implement the order already passed by demarcating the property.
' Mr. Abid Hassan "Minto, learned counsel for the petitioner, has contended that by the impugned judgment the property, instead of demarcating, has been partitioned into several independent properties. Leave is granted."
4. It would be advantageous to give a short resume of the various happenings in relation to the disputed property No,8 Queens Road, Lahore, described in Official Record as S-41-S-8. According to the appellant, these residential premises consist of ' a main bungalow, ' an annexure, ' several servant quarters as also garages along with the lawn, and Portico.
' The respondent-Notified Officer carried out the measurements on the spot and came to the conclusion that the area is 18 Kanals 19 Marlas. There is no opening to the property on its Lawrance Road-side. On the other side of the property is situated the Plaza Cinema which bears No,S.41-R-6.
The disputed property is located on Khasra No,2121 of Mauza Mozang, Lahore while the Plaza Cinema is located on Khasra No,2120. Both these properties have been delineated on "Musawi' prepared by the Survey of India Department, in 1944"..Showing the compound walls, main bungalow, annexe and servant quarters of the disputed property on Khasra No,2121." The appellant was allotted the disputed property in 1947. In 1955, the northern half portion of the main bungalow was allotted to Dr. A.A. Khan. Later, the annexe came in the possession of late-Sardar Muhammad Zafarullah, Advocate. Several quarters were in possession of the appellant's servants"..While Dr. A.A.
Khan had obtained possession of one garrage and two servant quarters. Other servant quarters were in occupation of other persons including the servants of late Sardar Muhammad Zafarullah."
When Settlement operation started in 1959, the appellant was in occupation of a major part of the main bungalow and several servant quarters and garrages. Dr. Khan was in occupation of northern portion of the main building as per allotment order. Late-Sardar Muhammad Zafarullah was in occupation of the annexe and few quarters. Other persons were in occupation of servant quarters.
5. The appellant had filed 'CH' Form for the transfer of full property. Mst. Hakim Saadat Begum, mother in law, of Dr: A.A. Khan, had filed 'CH' Form for the transfer of the Northern half portion of the main building, which was allotted to her son in law. Dr. A.A. Khan did not apply and late-Sardar Muhammad Zafarullah, belong a local, could not apply for the portion of property in his possession.
6. The then Deputy Settlement Commissioner transferred the entire property to the appellant on 20-11-1959 holding it to be a single unit and inclusive of the servant quarters on one side as also a garage on the same side which was in possession of W.Z. Ahmed. A direction for issuing a P.T.O. In the name of the appellant was complied with, on 20-11-1959.
7. Dr. A.A. Khan made a Miscellaneous Application before the then Chief Settlement Commissioner (Syed Hashim Raza) requesting for suo motu revision of the orders of the Deputy Settlement Commissioner and division of the main building for transferring a portion thereof to his mother-in- law Mst. Hakim Saadat Begum. The then C.S.C. Inspected the property and vide order dated 19-5- 1960, he came to the conclusion that Mst. Hakim Saadat Begum was entitled to the transfer of the portion of the building in occupation of Dr. A.A. Khan "..And added two servant quarters and one garrage of the disputed property to it.." The direction by the then C.S.C. To exclude the portion in occupation of Dr. A.A. Khan from the P.T.O. Of the appellant, was implemented by Advocate Supreme Court, in terms of another order of C.S.C. Dated 30-5-1960 to transfer the portion in occupation of Dr. A.A. Khan to Mst. Hakim Saadat Begum, by effecting the exclusion thereof from the P.T.O. Issued to the appellant.
8. The appellant filed a review petition before the successor C.S.C. And, in the meanwhile, the concerned D.S.C. Had issued a P.T.O. To Mst. Hakim Saadat Begum on 20-6-1960. In this P.T.O. The description of the property transferred to Mst. Hakim Saadat Begum was "'portion in occupation'....'including 4 servant quarters and one lawn on Queens Road and a brickstairs'..."The appellant submitted an application to the Additional Settlement Commissioner who entrusted it to a Deputy Settlement Commissioner and the later official reported that P.T.O. Issued to Mst. Hakim Saadat Begum was against the judgment of the C.S.C. Dated 19-5-1960. He recommended for the cancellation of her P.T.O. The then Settlement Commissioner did cancel her P.T.O. On 1-10-1960.
9. The review petition of the appellant was dismissed by the C.S.C. On 5-8-1960. Failing to obtain relief through a Constitution Petition, he filed a Letters Patent Appeal. During the pendency of L.P.A.
He also addressed a letter to C.S.C. On 16-3-1967 complaining against the expanding claim of Dr. A.A. Khan on the front lawn of the disputed property. In this letter, the appellant had conceded the possession of. Dr. A.A. Khan on the portion of front lawn, which had been transferred to Mst. Hakim Saadat Begum and the request to C.S.C. Was to divide and demarcate the front lawn, accordingly.
In August 1979, the then Settlement Commissioner, Lahore started demarcation proceedings of the disputed property. It was during these proceedings that the 1st, group of the occupants of servant quarters claimed that their quarters were a part of adjoining. Property No,S-41-R-6 (Plaza Cinema).
The other group claimed that the quarters in their possession were in excess of the entitlement of both, the appellant and Mst. Hakim Saadat Begum, as only 14 Kanals of the disputed property had been transferred to them. They had further claimed to have filed appropriate Forms for the transfer of the quarters to them under the Residual Properties Scheme. However, the then Settlement Commissioner dismissed the application of both the groups/occupants of quarters on the ground that these quarters were not available for transfer under the said Scheme, having been transferred to the appellant and respondent No,2. The demarcation of the property was gone ahead, as per orders of C.S.C. Dated 19-5-1960, on 18th August, 1979.
10. Order dated 18-8-1979 was challenged by respondent No,2 in Writ Petition No,906-R of 1979 on the pleas that there was no approach available for the portion demarcated in her favour by Mr. Muqarrab Khan Settlement Commissioner, Lahore and that none of the portions so demarcated has any contiguity or access from one to the other. A claim for open space was also made therein.
11. The two groups of the occupants of servant-quarters made Writ Petitions Nos.908-R of 1979 and 1048-R of 1979, respectively requesting for their imleadment in the demarcation proceedings.
12. Writ Petitions Nos.906-R of 1979, 908-R of 1979 and 1048-R of 1979 were disposed of by a learned Single Judge of Lahore High Court, Lahore on 11-2-1980. The orders of Mr. Muqarrab Khan, Settlement Commissioner were set aside and the Chief Settlement Commissioner was directed to get the disputed property measured and demarcated in the presence of the parties. If it were to be found that the accommodation in possession of the petitioners in Writ Petitions Nos.908-R of 1979 and 1048-R of 1979 fell within the bounds of S-41-R-8, he should not hear them any further.
Judgment dated 11-2-1980 was subject-matter of challenge before this Court in Civil Appeals Nos.41, 42 and 43 of 1984 objecting to the interference by the learned Judge in Chambers in the Orders of the Settlement Commissioner without considering the orders dated 19-5-1960, 30-5-1960 and 1-10-1960. These appeals were decided on 14-5-1985 observing, inter alia, that the division of the disputed property dated 19-5-1960 had attained finality. According to the appellant, the order of demarcation, gone ahead by Mr. Muqarrab Khan, was quashed and the order of the High Court dated 11-2-1980, directing the examination of the claims put forward by the occupants of the servant-quarters etc. Was upheld;
13. Pursuant to the order of this Court dated 14-5-1985, the case was entrusted to ADC(G)/Notified Officer (Settlement) by the C.S.C. Vide his orders dated 9-9-1986 and 7-12-1986. Respondent No,1 held the servant-quarters to be part of present Plaza Cinema S-41-R-6 and that the servant- quarters lying along the annxe of the disputed property are in excess of the entitlement of the two transferees of the disputed property. Further holding that only 14 Kanals were transferred to the appellant and respondent No,2, the measurements of the disputed property were not taken.
However, the disputed property was divided and a passage of 8 feet provided for the use of the occupants of the servant quarters lying behind the Plaza Cinema. The gate of the disputed property was divided to provide a 14 feet passage all along the portion of property demarcated in favour of Mst. Hakim Saadat Begum. On 7-12-1986, the disputed property was further divided with a view to providing 8 feet passage for the use of the occupants of servant-quarters lying along the annexe of the disputed property by effecting various other divisions/demarcations favouring the appellant and respondent No,2. The respondent-Notified Officer further divided the quarters and issued P.T.Ds. In the names of Muhammad Yamin and others who were writ petitioner in Writ Petitions Nos.908 and 1048-R of 1979, including respondents Nos.37 to 39 and 49.
14. The appellant filed Writ Petition No,347-R of 1987 which was disposed of by a learned Judge in Chamber of the Lahore High Court, Lahore on 3-10-1987 alongwith Writ Petition No,13-R of 1987 filed by Muhammad Yamin and others, remanding the case to respondent No,1 for fresh demarcation strictly in accordance with the orders of the High Court and this Court.
15. It was pursuant to the judgment dated 3-10-1987 of the High Court that respondent No,1 herein proceeded to pronounce his judgment on 28-3-1988 holding that the contention of respondents Nos.3 to 49 to the effect that transfer orders dated 19-5-1960 do not include the portions in their possession was correct and that order even spoke of dividing 18 Kanals, 19 Marlas between the appellant and respondent No,2, it was held that the quarters could be separated from the house and transferred to the occupants, with an access, 12 feet wide, from Queens Road while the excess from Lawrence Road, 8 feet vide demarcated by Mr. Lashari, shall remain intact. The disputed property to the extant of 14 Kanals and 19 Marlas was demarcated in favour of the appellant and respondent No,2.
16. Judgment dated 28-3-1988 was challenged by the appellant in Writ Petition No,71-R of 1988 in the High Court on pleas, among others, that the same was against the directions of the High Court dated 3-10-1987 and that the appellant had been deprived of a substantial portion of the property in his possession through the "So-called demarcation." The prayer-clause of the writ petition reads thus:-- "It is, therefore, most respectfully prayed that the order of so-called demarcation dated 28-3-1988 passed by respondent No,1, and the markings made by him on the sketch of the disputed property, showing the area demarcated in favour of the petitioner and the respondents, be declared to be of no legal effect, having been made without lawful authority particularly to the extent it deprives the petitioner of the two sets of quarters, the portion of the lawn in front of his house and all other portion of property in his admitted possession.
"It is further prayed that a direction be issued to respondent No,1, that demarcation be done in accordance with law and the observations of the Supreme Court of Pakistan..."
17. Hence, this appeal.
18. At the very out set it may be pointed out that some of the respondents in this case were proceeded against ex parte and, hearing Mian Qamar-ud-Din, Sh. Afzal Ahmed Qureshi and Mr. Khan Muhammad Bajwa, we have recalled the said order and allowed the learned counsel to address arguments on behalf of their respective clients.
19. We have heard the learned counsel for the private parties as also Mian Qamar-ud-Din, learned Advocate Supreme Court and Mr. M.A. Qureshi, learned Advocate-on-Record for respondent No,1/Notified Officer-Settlement Department. Mr. Sh. Masood Akhtar, learned Advocate-on-Record appearing in support of the appeal, has simply objected to the transfer of the out-houses to intervenors i.e, respondents Nos.3 to 50. According to him, the respondent-Notified Officer was not possessed of any jurisdiction to favour respondents Nos.3 to 50 and that instead of demarcating the property into two units between the appellant and respondent No,1 (i to v), the respondent- Notified Officer has partitioned the same equally between the parties. As respondents Nos.3 to 50 had not submitted any form whatsoever for the transfer of any part of the property on the basis of their alleged entitlement under the then laws, including Settlement Scheme No,1, they could not be treated to have acquired any such locus after the repeal of the Evacuee Laws by the Evacuee Property and Displaced Persons Laws (Repeal) Act, (No,XIV of) 1975. According to him, the case of the said respondent does not fall within the contemplation of the Residual Properties Scheme of 1977, either. Mr. A.R. Shaukat, learned Senior Advocate Supreme Court has contended that the respondent-Notified Officer was required to act in accordance with the directions given to him by the Lahore High Court on 11-2-1980, in Writ Petition No,906-R of 1979. He was also of the view that judgment dated 3-10-1987, passed in Writ Petition No,347-R of 1986 also holds the field in that the matter which was remitted to respondent-Notified Officer was "....To decide the controversy afresh strictly in accordance with the order of remand passed by the High Court as affirmed by the Supreme Court of Pakistan".
20. Mr. Sh. Afzal Ahmed Qureshi and Mr. Khan Muhammad Bajwa, learned counsel appearing for some of the transferees of servant-quarters has supported the transfer of a part of the disputed property to respondent Nos.3 to 50.
21. Mr. Mian Qamar-ud-Din, learned Advocate Supreme Court appearing on behalf of the Settlement Department, has supported the judgment under appeal with the contention that the matter in relation to the transfer of servant-quarters to respondents Nos.3 to 50 was rightly upheld and that the remission of the cause to the concerned Notified Officer to resolve the controversy between the appellant and legal heirs of respondent-Hakim Saadat Begum/deceased after ascertaining physical possession of the parties over the constructed portion as well as the lawns and then pass fresh order of the division of the properties between them, does not fall for any interference therewith.
22. We have considered the arguments addressed at the Bar by all concerned and have also gone through the available material, with their help. The arguments addressed by Mr. Sheikh Masood Akhtar, learned Advocate-onRecord on behalf of the appellant, obviously tantamount to reiterating the plea noticed in the Leave Grant Order, dated 2-5-1994 that vide the judgment in appeal the partitions of the disputed property, amongst all concerned, in many units has been sanctified instead of its demarcation between the appellant and respondent No,2 (i to v) only. The first limb of arguments, revolving around the alleged lack of locus standi of respondents Nos.3 to 50 for the transfer of servant-quarters alongwith the respective approach-roads/passages, need not detain us any longer. Suffice it to say that their joining in the proceedings came about for seeking transfer of that property which fell beyond the entitlement of the appellant and respondent No,2 (i to v). It is not the case of the appellant that the learned Judge in Chambers was not right in observing that the case of respondents Nos.3 to 50 was that they will have no case if the area transferred to the said transferees of Bungalow No,8 was 14 Kanals or less. The High Court had conferred a conditional right on the occupants of the servant-quarters to claim the same if it was found as a fact that the portions in their possession did not form of Bungalow No,8, which was in excess of 14 Kanals. The learned Judge in Chambers was quite right in holding that the respondent-Notified Officer had inspected the premises, gone ahead with measurement of the total area of the Bungalow and found the same to be 18 Kanals and 19 Marlas, therefore, "...It cannot be said that respondents 3 to 50 could not validly claim area measuring 4 Kanals 19 Marlas over which they were settled for the last about forty years. The Notified Officer, therefore, committed no illegality in interpreting and implementing the judgment dated 11-2-1980 in Writ Petition No,906-R of 1979 in so far as the transfer of area measuring 4 Kanals 19 Marlas jointly to respondents 3 to 50 is concerned.... "This disposes of the first limb of the argument.
23. As regards the plea that the respondent-Notified Officer had no authority to equally divide the disputed Bungalow No,8 between the appellant and respondent No,2 (i to v), we suffice by observing that in terms of judgment dated 11-2-1980, in Writ Petition No,906-R of 1979, all the parties to this lis had agreed that the Notified Officer could resolve the controversy between them strictly in accord with the said judgment dated 11-2-1980. The order dated 28-3-1988 passed by respondent- Notified Officer was unsuccessfully challenged by the appellant through Writ Petition No,71-R of 1988. The learned Judge in Chambers did not see eye to eye with the respondent-Notified Officer who proceeded in the matter on the assumption that the same had to be demarcated between the appellant and respondent No,2 (i to v) in equal halves and dealt with it accordingly in para. 9 of his said order. It was rightly held that there was no such direction issued by the Chief Settlement Commissioner on 19-5-1960 to divide the disputed property between the appellant and respondent No,2 (i to v) equally. Further, the building was divisible and the portion in occupation of the predecessor-in-interest of respondent No,2 fell within the definition of the term 'house', therefore, the portion " ...In occupation of A.A. Khan, predecessor-in-interest of respondent No,2, should be excluded from the P.T.O. Issued to W.Z. Ahmad, ....". We further find that the argument addressed on behalf of the appellant before the learned Judge in Chamber was that the dividing line adopted by respondent-Notified Officer starts in the middle of the portico and goes right through the property; that actual physical possession of the parties over the constructed area and the lawns was not kept in view; and that the division by the Notified Officer was not at all controverted by the learned counsel appearing on behalf of respondent No,2 (i to v) before the High Court and that the learned/Judge in Chambers had proceeded in the right direction in quashing the order impugned in the Constitution Petition and by remitting the case back to the concerned Notified Officer with a view to ascertaining the physical possession of the parties over the constructed portion as well as the lawns and to pass a fresh order of division of the property in dispute between them keeping in view their respective possession. Learned counsel for , the appellant was not in a position to even so much as point out any illegality, much less a jurisdictional error, in the judgment under appeal which tantamounts to providing another opportunity to the respondent-Settlement Department to take into account the respective possession of the parties i.e, appellant and respondent No,2 (i to v) of 'house', including the portion of lawns appurtement thereto, strictly in accordance with the letter and spirit of section 2(4) of the Displaced Persons (Compensation & Rehabilitation) Act (No,XXVIII of) 1958.
24. No other point was argued.
25. For all that has gone before, the instant appeal is sans merit and is liable to be dismissed with no order as to costs. So, be it.