1. S. A. RAHMAN, J.-This is an appeal by special leave calling in question orders passed by the High Court of West Pakistan in writ jurisdiction.
2. Two contiguous houses baring Nos. 45 and 47, Empress Road, were allotted to Mr. N. M. Khan, the first appellant, and to Dr. Abdur Rauf, the second respondent, respectively, by the Rehabilitation authorities. The allotment in favour of Mr. N. M. Khan who is a Senior. C. S. P. Officer, was made it appears, on a temporary basis on the 13th of October 1953, whereas the allotment order in favour of Mr. Abdur Rauf in respect of the other house was of the year 1955. Prior to his allotment, some other persons had been in possession of No. 47, as allottees. The order of allotment in favour of Mr. N. M.
3. Khan made it clear that it would operate in his favour for such time as he was unable to get residence at his place of posting. It was further stipulated therein that Mr. N. M. Khan's family would stay in Model Town in the house of Mr. Masud, another C. S. P. Officer who was then Secretary, Agriculture, in the Punjab and that Mr. Masud would be allowed to stay in house No. 45, Empress Road. It seems nevertheless, that house No. 45, Empress Road, remained in the possession of Mr. N.
4. M. Khan even when he was posted as Chief Commissioner, Karachi, where he had the Chief Commissioner's residence at his disposal.
5. Mrs. N. M. Khan put in a C. H. Form for transfer of house No. 45 to herself on 14-7-59. In that Form in answer to question No. 10, she made it clear that no part of the house was in occupation of any person other than the applicant and her family. The claim to transfer was based on an allotment order in favour of her husband, but she had a verified claim in her name. There was clearly no indication in this Form that house No. 47 was being claimed as part of house No. 45.
6. On 21-7-59, another C. H. Form was put in by Mr. N. M. Khan himself, in respect of house No. 45, Empress Road, as a claimant in his own right. In answer to question No. 10 in this Form Mr. N. M. Khan indicated that a small portion was in occupation of another family. This was apparently a reference to house No. 47. .
7. A claim form for the transfer of bungalow No. 47, Empress Road, was submitted by Dr. Abdur Rauf who is a non-claimant displaced person on the ground of his possession and allotment of the house to him.
8. The, Deputy Settlement Commissioner, Lahore, by order dated the 13th of January 1960, transferred bungalow No. 47 to Dr. Abdur Rauf and bungalow No. 45 to Mr. N. M. Khan. Mr. And Mrs. N. M. Khan challenged the order of the Deputy Settlement Commissioner in respect of bungalow No. 47, by an appeal to the Additional Settlement Commissioner, Lahore, but they were unsuccessful. By order dated the 9th February 1960, the Additional Settlement Commissioner held that the two houses were separate and that even if they could be regarded as one house, they were conveniently divisible, into two parts. Mr. And Mrs. N. M. Khan presented a petition for revision of the Additional Settlement Commissioner's order, to the Settlement and Rehabilitation Commissioner, Lahore. That officer by order dated the 28th of April 1960, allowed the revision petition and directed the transfer of both the bungalows as one unit to Mr. N. M. Khan. A second revision petition was filed by Dr. Abdur Rauf from that order but it was dismissed by the Chief Settlement and Rehabilitation Commissioner, Mr. Ahsan-ud-Din, oil the 16th January 1961. 'The main consider--ation that bungalow No. 47 was, according to him, all annexe of bungalow No. 45.
9. Dr. Abdur Rauf sought to have the orders of the Settlement authorities quashed in writ jurisdiction from the High Court of West Pakistan. His main condontion was that tile two houses hang separate, tile Settlement authorities had no power to declare them as one premises. This contention was upheld by the learned Single Judge as well as by the Letters Patent Bench, in appeal. The High Court directed that bungalow No. 47 be transferred with its appurtenant garage and outhouses to Dr. Abdur Rauf.
10. Special Leave to Appeal was granted in this case to consider whether it was open to the High Court, in the circumstances of this case, to issue a writ on a point which apparently related to a simple matter of fact.
11. Mr. Abdul Haq who appeared for the appellants has taken ins through the history of the property involved in this case. It appears that one, Mrs. K. Bowering, owned bungalow Nos. 1 and 2, Davis Road, Lahore, which had lot of vacant space appurtenant to those bungalows, going up to the Empress Road side of one corner of Davis Road. 'This lady applied to the Municipal Committee of Lahore in 1930, for permission to build oil the vacant site abutting on the Empress Road. A certified copy of the site plan which she submitted to the Municipal Committee, has been placed on record along with a copy of the plan of actual construction proposed to be erected. The newly- constructed bungalow received tile number 45. What is now known as bungalow No. 47 is, according to Mr. Abdul Haq, identifiable with the building shown as "existing building" in the plan at page 1 of the supplementary paper books. As is clear from this plan the building in question was separated by a nullah at that tile, from the vacant spot on which the new construction was proposed to be built. Later on, Mrs. Bowering appears to have applied again to the Committee for making additions to house No. 45, ride the site plan at page 3 and the building plan at page 4 of the supplementary paper book. Even this plan at page 3 shows a fencing and a nullah between what is admitted to be house No. 47 and tile new construction which was later known as house No. 45, Empress Road. It seems, the owner allowed ingress to house No. 47 from the Empress Road side after the new construction had been completed and the nullah had been filled up.
12. The inference sought to be drawn by learned counsel for the appellants from these plans that house No. 47 became an annexe of house No. 45 after the latter was put up, is far from being established from these documents. On the contrary, the inference would seem to be that house No. 47, which is shown by the legend "existing building" was an independent unit of property and had no organic connection with house No. 45 from which it was separated by a nullah as well as a fenc--ing. No positive evidence exists proving that the two bungalows were ever treated as a single unit by the owner. The deno--mination of bungalow No. 47 as a "Guest House" in one map may merely suggest that it was being used probably as a Boarding House. There is no evidence that it was used as an adjunct of house No. 45. Far from lending support to the contention of the learned counsel that the two houses had at some time or other been joined together into one unit by the owner, the documents referred to, would tend to support the opposite conclusion.
13. House No. 45 came into being long after the existence of house No. 47 as the above history shows.
14. Unless, therefore, by some positive act, house No. 47 was attached to house No. 45 as an adjunct or an ancillary building, their individual entities could not be destroyed. 1t is further admitted that the two houses have been in occupation separately by different persons from the very start and the same state of affairs has continued even after the Partition. They have been separately assessed to immovable property tax ever since the tax was imposed. Access to the two houses is by separate paths through separate gates from Empress Road, They have also consistently borne two separate numbers, namely, 45 and 47. All this material leads to the positive conclusion that the two houses are separate entities and unless clear material existed to lead to the contrary conclusion, it was not open to the Settlement authorities to treat them as one unit, on the hypothesis that one was the annexe of the other. Even on a question of fact the Settlement authorities cannot arbitrarily treat what are ostensibly two separate houses, as one, unless cogent evidence is placed before them to that effect.
15. The first detailed order by any Settlement Officer in respect of this property is that of Lt.-Col. J. D.
16. Malik, Additional Settlement Commissioner, Lahore, appearing at page 148, et seq, of the typed record. This officer stated in his order that he had visited the site and had prepared a rough sketch of the two houses, Exh. M. He made the following observations with regard to the sketch "The access to house No. 47 is shaded light blue. On' the left band side, separating this road from the main house No. 47, is a wall about eight feet high. Once one enters the gate marked "X" in red, there is no interference with any bode living in house No. 47. Tile road eventually emerges right in front of house No. 45. This house comes into view only after one has converged about half the approach road. Therefore, unless a person is definitely proceeding with the intention of visiting house No. 47, the user of this road does not auto--matically interfere with the inmates of house No. 47.
17. The servants' block, which is shown on the right hand side of the sketch consists of a garage and eight small rooms for servants. The respondent has two rooms marked "X" out of the servants' block and a garage at the beginning of this block. The latter is also marked "X" in blue. The rest of the servants' quarters are all with the appellants. Bungalow No. 45 has a separate garage within its own four walls. It has also a kitchen block quite close to the main building. The transferee of bungalow No. 45 has to cross the approach road leading to house No. 47 in order to get to the servants' quarters. The servants have to do the same. This, however, does not in any way interfere with the privacy of house No. 47.
18. Coming to house No. 47, it has six main rooms and other small rooms like bath rooms etc. It has its own lawn which is not overlooked from any side. The privacy of inmates of house No. 47 is fully ensured."
19. The learned Additional Settlement Commissioner put it down as his impression that the house in dispute (47) might have been an annexe at one time (though he did not specify of which house), but as it stood on the date of his inspection, it was, to all intents and purposes, a separate house.
20. There were one or two offending windows in house No. 47 which opened into the back yard of appellants' bungalow No. 45. Some of these had already been blocked by a wall and one window which could still overlook the back yard of the appellants' house could also be blocked up, in his opinion, to remove any cause of grievance. The sharing of the servants' block also, he thought, need not cause any friction between the parties.
21. The Chief Settlement Commissioner in his order in second revision supported the conclusions of the Settlement and Rehabilitation Commissioner after inspection of the spot. He thought that the two bungalows should be treated as one unit because they were located in a common campus and their occupation by two separate families would interfere with the privacy of each other and would thereby lead to unhappiness. He also referred to the fact that the outhouses were so inter-- mingled that the parties would be at loggerheads if they were transferred the two houses separately. He, therefore, agreed with the learned Settlement Commissioner, Lahore, that the bungalow No. 47 was really an annexe of bungalow No. 45.
22. One of the older allottees of house No. 47, Empress Road, seems to have been one, Azhar Hussain Rizvi. At page 192 of the typed record, appears a petition by this gentleman, addressed to the Rehabilitation Commissioner, Punjab, dated the 10th of. August 1954. His complaint was that there existed an iron railing between house No. 47 which was allotted to him and house No. 45 which was in the occupation of Mr. Masud (the railing serving the purpose of a partition wall), but that Mr. Masud had got it removed and installed elsewhere, thereby annexing a part of his plot. The petitioner went on to say that he understood that the Rehabilitation Department was now proposing to build a pucca partition wall between the two houses to resolve the dispute and that a sum of Rs. 1,000 had been sanctioned for the purpose. He, therefore, prayed that the partition wall should be built at the original site of the railing and not at the place to which the railing had been removed by Mr. Masud. What happened on this petition is not clear but the petition itself highlights the dispute that had cropped up even at that time between Mr. Masud, the occupant of house No. 45 and Mr. Rizvi who was in possession of property No. 47. The suggestion was being clearly made that an attempt had been made by the occupant of house No. 45 to appropriate a part of the land appertaining to house No. 47, which was a separate building and that till then the Department itself had regarded the two bungalows as independent units.
23. At page 211 of the typed record, is a reply from the Secretary, Corporation of the City of Lahore, to Begum N. M. Khan in respect of a letter which she addressed to the Corporation and which appears at page 210. This letter was written by her on the 7th of January 1960. Mrs. N. M. Khan wanted have from the Corporation a certificate as to whether houses Nos. 45 and 47, constituted one unit of property or two different units. The reply given to her was to the effect that these were two separate units though they belonged to the sane owner, that they were separately assessed in their records, had separate numbers and each had its own servant quarters. Some objection is taken on b-.Half of the appellants to the number of servants' quarters shown as ancillary to bungalow No: 47, in this reply sent by the Corporation. Any such inaccuracy, however, could be corrected by reference other available documents. The fact remains that in the public records, the two houses are being treated as separate residential units with separate numbers and had all along been separately assessed to tax.
24. The circumstance that the houses are situate close to each other and that they belong to the same owner, are the two facts which seem to have weighed with the Settlement and Rehabilitation Commissioner and the Chief Settlement Commissioner for the inference that one was an annexe to the other. This inference, by no means, follows from the established facts. It would indeed be surprising if house No. 47 which existed prior to the construction of house No. 45 could be an annexe to it. If at all, house No. 45 might have been annexe to an older house but certainly not to house No. 45 from which it was separated by a nullah and a fencing. It would be flying in the face of facts, therefore, to treat the two houses as one unit, as the learned Settlement and Rehabilitation Commissioner and the Chief Settlement Commissioner appear to have done. They had no material before them for coming to this finding at all. Their conclusion was inferential from certain facts which cannot sustain that conclusion, in the circumstances of this case. The question whether an inference follows from certain facts or riot, B is a question of law and on this question these two learned officers appear to have misdirected themselves, having regard to the ample material which led to the conclusion opposite to that which they adopted and which they seem to have bypassed. They have failed to refer to that material which was pertinent and cogent enough to demolish the assumption of unity between houses 45 and 47.
25. We understand that proceedings are pending before the Settlement authorities for demarcation 'of the boundaries of houses Nos. 45 and 47. This demarcation may also settle the dispute between the parties as to which servant quarters are appurtenant to which of these houses. At present there may be some confusion in the matter which could be easily resolved by reference to older documents.
26. Mr. Abdul Haq drew our attention to the definition of "outhouse" in Odham's Concise English Dictionary in which the term is defined as "outbuilding, shed away from the house". He suggested that house No. 47 was really an outhouse of house No. 45. It is difficult to understand how a building which existed long before house No. 45 as an independent residential unit, could be regarded as an outhouse of building No. 45 which was constructed long after it. Secondly, a big residential unit such as No. 47 apparently is, could by no stretch of interpretation, be regarded as an "outhouse"-.
27. In the Oxford English Dictionary and "outhouse" is defined as "a house or building, belonging to and adjoining a dwelling-house, and used for some subsidiary purpose ; e. g. a stable, barn, wash- house, tool house, or the like" House No. 45 certainly does not answer to this description vis-a-vis house No. 45. In Wharton's Law Lexicon, "out house are described as "buildings belonging to and adjoining dwelling houses". We are unable to accede to the contention that in the` circumstances of this case, any foundation was laid for the allega--tion that house No. 47 was merely an "out house" of bungalow No. 45. Indeed no evidence was adduced before the depart--mental authorities to establish any nexus between them apart from the circumstances of common ownership and contiguity.
28. We are at one with the High Court in holding that if there were in existence two separate houses, the Settlement authorities had no power to declare them to be one house, merely on an assumption based on contiguity and an argument of inconvenient. Even if some inconvenience is caused to the occupant of one house or the other by the contiguity of the properties, this circumstance cannot destroy the essential fact that the two houses are independent premises, in fact as in law. The view that prevailed with the Settlement authorities having been influenced by an erroneous deduction from facts which manifestly could not support such an inference, reduced their decision to an arbitrary and illegal exercise of power and threw it open to review in writ jurisdiction by the High Court. The order of the High Court, in consequence, requires no interference by this Court. The appeal is dismissed with costs.