1977 PLP 189 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑The dispute in this case relates to a, double‑storeyed house No. 105 on Ferozepur Road, Lahore. It is not necessary to go into the details of the several rounds of litigation between the parties over the transfer of the house; suffice it to say that in exercise of his revisional jurisdiction, Mr. Ahsanuddin, Chief Settlement & Rehabilita tion Commissioner, vide his order dated 19‑11‑1960 made after spot inspection held the house, to be divisible and directed its horizontal division leaving the parties in occupation of the portions in their respective possession. The relevant observation whose interpretation culminated in the present litigation is as follows :‑

"The respondent (appellant herein), however, has the advantage that the stair‑case leading to the first floor of the house goes through his portion of the house and, therefore, he alone has access to the first floor. I, therefore, hold that the learned Settlement Commissioner and the learned. Additional Settlement Commissioner have erred in deciding that the house is not divisible. It is clearly divisible and is in occupation of the parties in distinct positions, which shall be maintained for the future. The respondent, Ch. Bahar Muhammad, shall be allowed to have the first floor as well." The dispute over the demarcation of the portions transferred by Mr. Ahsanuddin to the parties, which in fact was confined to the open space on the first floor was taken to his successor Mr. M. H. Soofi, who vide his order dated 4‑12‑1962, after inspecting the spot clarified the position as follows:‑

"I, therefore, hold that the words `first floor' used in my predecessor's order include the built up portion as well as the open space which should go to Ch. Bahar Muhammad." Feeling aggrieved respondent No. 2 unsuccessfully invoked the writ jurisdiction of the High Court and while dismissing the writ petition, the learned Judge vide his order dated 30‑1‑1964 held that the decision of the Chief Settlement Commissioner in regard to the interpretation of `first floor was final and conclusive'. This finding was however, reversed by the L. P. A. Bench, inter alia, on the ground that in interpreting the order of his predecessor Mr. M. H. Soofi had acted in excess of his authority. Leave to appeal was granted by this Court to examine the contention that Mr. Soofi was quite competent to interpret and clarify the order of his predecessor and as such the L. P. A. Bench had acted beyond its jurisdiction in interfering with his order. A perusal of the impugned order shows that the principal ground which found favour with the L. P. A. Bench in reversing the order of Single judge was that section 5 of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, 1962, had by repealing subsections (1) (1‑A) and (2) of section 21 of the Parent Act drastically curtailed the scope of the Chief Settlement Commissioner's power of review which was now confined to correction of mistakes or errors arising from any accidental slip or omission and since the order passed by Mr. Soofi did not fall within the reduced ambit of this power, he had while trying to interpret the order of his predecessor acted in excess of his authority. The learned Judges also relied on the dictionary meaning of the expression `first floor' and interpreting it "as a set of rooms and landings to a house on the same level" held the disputed open space on the first floor to be outside the scope of its definition and as such not included in the portion transferred in favour of the appellant herein. Reliance was also placed in this regard on the policy of the Department contained in the Manual of Settlement Laws and Procedure and in particular the following observation made therein:‑ "Bungalows should as far as possible, be transferred as complete units except in very obvious cases where they can be divided into more than one independent unit and complete bungalow." On this basis also it was held that the transfer of the open space on the first floor in favour of the present appellant would be in transgression of the principle mentioned above. The conclusion reached therefore was that Fir Ahsanuddin had directed the transfer of the open space on the first floor to respondent No.

2. Having heard the learned counsel for the parties as also having perused the record we are absolutely clear in our mind that the only reasonable interpretation that could be placed on the order of Mr. Ahsanuddin dated 19‑11‑1960 was the one given by his successor Mr. M. H. Soofi as rightly held by the learned Single Judge. Our reasons are as follows :‑ Respondent No. 2 had infact neither used the disputed open space on the first floor nor had he otherwise claimed its transfer. The entire firs floor which obviously included the open space had all along been within the exclusive use and possession of the appellant who alone bad access to it. In fact one of the rooms on the first floor transferred to the appellant is built on the room on the ground floor transferred to respondent No.

2. In the circumstances therefore it is inconceivable that while transferring the entire first floor to the appellant Mr. Ahsanuddin had proposed to exclude the open space on it to which respondent No. 2 never had an access. The perusal of his order leaves one in no manner of doubt that he divided the property so that the parties were left in undisturbed occupation of their respective portions. A pointed reference in the order reproduced above, to the appellant's advantage of being in possession of the stair‑case leading to the first floor to which he alone had the access, makes the position abundantly clear. Of course one can appreciate the inconvenience and the complications created by horizontal division of a promises where the room is transferred to one party but its top is inevitably given to another and yet this is not a unique case of its kind. In order to accommodate and settle maximum number of refugees, the Settlement Authorities had in certain cases inevitably resorted to this mode of division. In a similar situation arising out of the division of a composite building when the matter was brought to this Court in Muhammad Yaqub v. Settlement and Rehabilita tion Commissioner and others (P L D 1973 S C 439) it was held that "the transferees of the shops situated on the ground floor would have no rights beyond the line of division between the two floors of the building, with the result that their rights would extend from the ground to the ceiling of the shops, but not to the roofs of the shops as those roofs would constitute the first floor of the building". Again reliance by the learned Judges on the policy relating to transfer of bungalow namely that as far as possible they should be transferred as complete units, except in very obvious cases where they could be divided into more than one independent unit was, if we may say so with respect, wholly irrelevant being more germane to the question of divisibility which already stands concluded and therefore beyond the scope of this Court's jurisdiction. As regard the point that in interpreting his predecessor's order Mr. M. H. Soofi had exceeded the powers vesting in him under section 21 of the Displaced Persons (Compensation and Rehabilitation) (Amendment) Ordinance, the learned Judges had again fallen into an error inasmuch as it was not a case of reviewing the order of his predecessor as mistakenly held by the L. P. A. Bench that the matter came before him in the fresh round of litigation on the question of demarcation of the portion respectively transferred in favour of the parties. It was none else than respondent No. 2 himself who had moved the Deputy Settlement Commissioner for demarcation when the case was ultimately referred to Mr. M. H. Soofi who was called upon to interpret the order of his predecessor and while doing so also took the extra precaution of spot inspection. It was, therefore, absolutely wrong to characterise the order of Mr. Soofi as one of review which was neither passed under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 nor was it otherwise hit by the provision of finality contained in section 22 ibid. As stated earlier the respondent was neither in occupation of the disputed open space nor had ever an access to it nor otherwise did he lay claim to it as clearly established by his form and the statement made in that regard. In conclusion therefore we find it difficult to uphold the rather laboured judgment of the L. P. A. Bench wherein, if we may say so with respect, a priori assumptions were sought to be justified on irrelevant and misconceived technicalities. Accordingly we allow this appeal with no order as to costs. Appeal allowed.