1973SCMR 154 (PLP)

On the appeal of the appellant the Additional Settlement Commissioner held that the house in dispute had been in occupation of the appellant being a separate house, and that it was not lawful to transfer two houses to the said Najaf Raider. He further held that house No. F/67‑1199/ 1 was not included in List. The Additional Settlement Commissioner, the Earmarking application for the transfer however, dismissed the appellant's application for the transfer of the house to him and directed that the disputed house be sold by public auction as it was not included in the Earmarking List. Two revisional applications were filed before the Settlement Commissioner, one by the appellant and the other by res pondent No.

5. In the latter application the appellant was not made a party. The Settlement Commissioner allowed the appli cation of respondent No. 5, but rejected the application of the appellant, and held that both the houses had been legally trans ferred to respondent No. 5, because the earmarking list treated them as one house. The appellant then approached the High Court on a Constitution Petition, but it was dismissed. It has been contended on behalf of the appellant that on reference to the survey numbers and the assessment made by the Excise and Taxation Department in the year 1958, it appears quite clear that house No. F/6i‑1199/1 and house No. F/67‑1199 are two separate and distinct houses. In fact they have been found to be so by the Additional Settlement Commissioner. In the revisional application filed by the appellant, the Settlement Commissioner neither considered the findings of the Additional Settlement Commissioner that these were two houses and that house No. F/67‑1199/1 had not been put in the earmark ing list, nor set them aside. In the revisional application Bled by respondent No. 5, the appellant was not a party at all, and therefore no adverse finding should have been given against the appellant without first having made him a party. The finding of the Additional Settlement Commissioner as that these are two separate and distinct house. The Settlement 4.ommissioner suffered from misconception when he said that there was nothing to show that the house had been divided into separate units. As a matter of fact the finding of the Additional Settlement Commissioner was not set aside. The learned Judges of the High Court appear to have over, looked this aspect of the matter. We have examined the records of the case. On reference to the assessment papers of the Excise and Taxation Department for the year 1958 we land that house No. F/67‑1199/1 has an area of 23 Sq. Yds., its tenure is B, and the assessment was Rs.240, and it was in possession of Abdul Rahim son of Abdul Majid Qureshi, and house No. F/67‑1199 is three storied, has an area of 45‑4 Sq. Yds, its tenure is A, and its assessment was Rs.360 and the house was in possession of Kazi Ahmed. The Earmarking List appearing at page 41 of the paper‑book shows that house No. F/67‑1199 in possession of Kazi Ahmed and bearing assessment of Rs.360 was put in the list. It appears from the order of the Settlement Commissioner dated the 6th March 1967, passed on the revisional application of respondent No. 5 that on payment of price of one house only, namely, a sum of Rs.14,400 respondent No. 5 was given two houses valued at Rs.28,000 approximately. If indeed these are two distinct and separate houses as is evident from the aforesaid assessment of Excise and Taxation Department and as has been found by the Additional Settle ment Commissioner, they cannot both be transferred to respon dent No.

5. Furthermore, the Earmarking List itself shows that house No. F/67‑1199/1 was never put on the list. It has also been submitted on behalf of the appellant that there is absolutely no satisfactory proof of the fact that the appellant ever withdrew his C. H. form. The records relied on by the Settlement Authorities are highly unsatisfactory and bear no date, and no application of the appellant for withdrawal has been produced at all. Indeed it is highly improbable as to why the appellant who has been in possession of the disputed house and put in his C. H. form would suddenly withdraw the C. H. form without any rhyme or reason. From the foregoing it is evident that the observations of the High Court that the finding of the Additional Settlement Commissioner that these were two houses was perverse, are no based on evidence, and the High Court should have, therefore exercised its jurisdiction under Article 98 of the 1962‑Constitution. We accordingly allow the appeal and set aside the orders of the Settlement Commissioner and the High Court in so far as they relate to house No. F/67‑1199/1 containing an area of 23 Sq. Yds. The appellant will retain this house on payment of its evaluation price There is no order as to costs. Appeal allowed‑