1. SAMAD AHMAD, J.-The property involved in this petition for special leave to appeal is of a composite character consisting of two shops with some residential accommodation on the ground-floor and two residential storeys above it. On the 8th of December 1959, the Deputy Settlement Commissioner transferred the entire property as a house to the petitioner Munawar Hussain who is a non-claimant displaced person. Muhammad Shafi respondent who was in occupation of a shop on the ground-floor had also filed a C. H. Form which was rejected on the ground that since he was in possession of a small shop only, the question of the transfer of the house did not arise in his case. One, Rashid, Ahmad, who was in possession. Of a portion of this property, had also filed a N. C. ;H. Form which was also rejected. It may be noted here that the second shop on the ground-floor was in occupation of one, Muhammad Hussain, who was a local. : Muhammad Shafi and Rashid Ahmad afore said, filed appeals against the order of the Deputy Settlement Commissioner, transferring the entire house to the petitioner, which were ' rejected.
2. However, on a revision jointly filed by Rashid Ahmad and Muhammad Shall; the Settlement Commis--sioner by his order dated the 9th of August 1960, accepted the claim of 'Muhammad Shaft, and transferred the entire property to him on the ground that `he was a claimant who had a better entitlement for the transfer of the house as against, the other contestants, including the petitioner, who were non-claimants. A second revision was then preferred by the petitioner and Rashid Ahmad to the Chief Settlement Commissioner (Malik Fateh Khan) who by his order dated the 19th April ,1961, held that the property in question was capable of division, into three units. The shop which was in occupation of Muhammad Hussain, a local, was treated as one unit and was directed to be put to auction pool. The second shop on the ground-floor, along with the residential portion contained in it, as well as the inter-floor, were treated as a sec6nd -unit and transferred to Muhammad Shall. The first and second floors which comprised residential portions, were treated as a third unit and transferred to Munawar Hussain petitioner as a house. The order of the Chief Settlement Commissioner was challenged in the High Court by three writ petitions separately filed by the petitioner Munawar Hussain, Muhammad Shafi and Rashid Ahmad. A learned Single Judge of the High Court by a common order dated the 1st of April 1969, accepted the writ petitions and remanded the case to the learned Chief Settlement Commissioner for a fresh decision on the points as mentioned in his order. The order of the learned Single Judge was challenged in Letters Patent Appeals filed by Muhammad Shafi and Rashid Ahmad. It was held by the ,learned Judges of the Letters Patent Bench that as the property in question was of "a composite character consisting of commercial and residential units, the Chief Settlement Commissioner was quite competent, under the second proviso of subsection (12) of section 2 of the Act; to direct that the .Whole of 'the building or such part or parts thereof as he may specify in his order, shall be deemed to be a house or a shop. In the instant case, the learned Chief Settlement Commissioner, acting in his authority under this provision of law, has divided the property into three units and has disposed them of separately as such. He has ordered that the ground-floor and the inter-floor minus one shop in possession of the local, Muhammad Hussain, should be transferred to Muhammad Shafi appellant as a shop. The second floor which was treated as a residential house was ordered to be transferred to Munawar Hussain petitioner and the second shop on the. Ground-floor in occupation of Muhammad , Hussain"., a local, was treated as an independent unit and directed to be put to auction. The learned Judges of the Letters Patent Bench have observed in their judgment that "no doubt there are factual errors in the order, of the Chief Settlement Commissioner as regards the portions that were actually in possession of the rival claimants`, but the said mistakes do not affect' the legality or the , propriety of the order of the Chief Settlement Commissioner, which was fair and equitable and not open 'to any exception on the legal plane". In effect, the learned Judges have upheld the division of the property as competently made by the learned Chief Settlement Commissioner within his lawful authority under proviso to subsection (12) of section 2 of the Act mentioned above.
3. The learned counsel for the petitioner did not challenge the legal authority of the Chief Settlement Commissioner to divide the property, but he has argued that in the apportionment of the separate units carved out by him, the Chief Settlement Commissioner has ignored the possession of the petitioner over the portion of the property held by him which has been given by him to Muhammad Shafi. It may be that the division made by the Chief Settlement Commissioner has disturbed the petitioner's possession over a part of the property held by him, but once it is conceded that the Chief Settlement Commissioner has the powers to make the division, it is not for the High Court in writ jurisdiction or for this Court, to take exception to the division made by the Chief Settlement Commissioner within his legal authority, unless it is found to be fanciful or arbitrary. We do not think that the division of the property in the present case made by the Chief Settlement Commissioner suffers from any such infirmity.
4. The order of the learned Single Judge of the High Court whereby the case 'vas remanded for a fresh decision, ignored this basic fact that the Chief Settlement Commissioner was competent under the law .To divide the property. We see no reason to disagree with the view taken by the Letters Patent Bench and dismiss his petition.