P L D 1973 Lahore 286 (PLP)

JAVID IQBAL, J.‑These two Letters Petent Appeals Nos. 1.146 of 1966, filed by Dr. Abdur Rauf against the Settlement Commis sioner, Lahore, etc. and 1166 of 1966, filed by Mr. N. M. Khan against Dr. Abdur Rauf, etc. have a background, familiarity with which is necessary bet‑ore proceeding with these appeals.

2. The background is that two houses bearing Nos. 45 and 47, Empress Road, Lahore. which are contiguous to each other, were allotted to Mr. N. M. Khan and Dr. Abdur Rauf, respectively, by the Settlement Authorities. House No. 45 was allotted to Mr. N. M. Khan on the 13th of October 1953, on a temporary basis, whereas the allotment of house No. 47 was made in favour of Dr. Abdur Rauf some time in 1955.

3. Subsequently on the 14th of July 195, Mrs. N. M. Khan who had a verified claim in her name, submitted a C H form for the transfer of house No. 45 to her which was in her possession on the basis of an allotment order in favour of her husband. On the 21st of July 1959, Mr. N. M. Khan also submitted a form in respect of the same house for its transfer to him as a claimant in possession in his own right.

4. For the transfer of house No. 47 an NCH form was submitted by Dr. Abdur Rauf, a non‑claimant displaced person, on the basis of his possession and the allotment of the said house to him.

5. The Deputy Settlement Commissioner, Lahore vide his order dated the 13th of January 1960, transferred House No. 47 to Dr. Abdur Rauf. House No. 45, however, was transferred to Mr. N. M. Khan. Mr. and Mrs. N. M. Khan challenged the order of the Deputy Settlement Commissioner dated the 13th of January 1960, by way of an appeal to the Additional Settlement Commissioner, Lahore. They claimed that house No. 47 was an annexure of the main house and, therefore, they prayed for its transfer to them along with house No.

45. But their appeal was rejected by the Additional Settlement Commissioner vide his order dated the 9th of February 1960. It was held by him that the two homes were separate and that even if they were to be considered as one unit, the property was divisible into two parts. Aggrieved by the order of the Additional Settlement Commissioner, Mr. and Mrs. N. M. Khan presented a revision petition to the Settlement and Rehabilitation Commissioner, Lahore, who vide his order dated the 28th of April 1960 accepted the revision petition and directed that property Nos. 45 and 47 should be treated as one unit and transferred as a whole to Mr. and Mrs. N. M. Khan. Thereupon Dr. Abdur Rauf filed a second revision petition from that order, but it was rejected by the Chief Settlement Commissioner vide his order dated the 16th of January 1961. The Chief Settlement Commissioner also held that house Nos. 45 and 47 could not be deemed to be two separate units, and that, therefore, Mr. and Mrs. N. M. Khan were entitled to the transfer of the disputed property as one unit.

6. Dr. Abdur Rauf challenged the orders of the Settlement Authorities by way of Writ Petition No. 178/11 of 1961. His contention before the High Court was that two houses, namely, Nos. 45 and 47, being separate units, the Settlement Authorities :had no authority to declare them as one unit. This contention of Dr. Abdur Rauf was upheld by S. A. Mahmood, J. in his judgment dated the 7th of November 1961. The learned Single Judge directed that house No. 47 "along with its garage, all its servant quarters and compound shall be transferred to the petitioner (Dr. Abdur Rauf.") Against that judgment, L. P. A. No. 319 of 1961 was filed by Mr. and Mrs. N. M. Khan which ‑was dismissed by a Division Bench of this Court consisting of Shabbir Ahmad, A. C. J. and Nazeer Ahmad Mahmood, J. vide judgment dated the 28th of February 1962. It was held that houses Nos. 45 and 47 were separate units and that house No. 47 should be transferred to Dr. Abdur Rauf. Subsequently vide judgment dated the 18th of June 1962, the Letters Patent Bench added the following sentences to their Lordships' judgment dated the 28th of February 1962:‑ "The demarcation of the two properties is left to the Settle ment Authorities. The windows mentioned in paragraph 9 of the judgment will be closed only if the Settlement Authorities come to the conclusion that the grassy plot in which the windows open is part of the house No.

45. The grassy plot mentioned above is the one skirted by the curved wall. The title to the outhouses will depend on whether they originally formed part of house No. 45 or No. 47." Mr. and Mrs. N. M. Khan challenged the judgment of the High Court dated the 28th of February 1962, by way of Civil Appeal No. 143 of 1963, presented to the Supreme Court of Pakistan. The Supreme Court granted Special Leave to Appeal to consider the question that in the circumstances of this case whether or not it was open to the High Court to issue a writ on a point which apparently related to a simple matter of fact. The Supreme Court also considered the question that on the basis of the material on the record whether or not the Settlement Authorities were legally justified in holding houses Nos. 45 and 47 as a single unit. However, the appeal of Mr. and Mrs. N. M. Khan was eventually dismissed by the Supreme Court vide its judgment dated the 26th of June 1964. Their Lordships of the Supreme Court held:‑ "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 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 witty costs."

7. Thus the result of the first round of litigation between the contesting parties was that houses Nos. 45 and 47 were adjudged as two separate units and that in compliance with the judgment dated the 28th of February 1962, of the Letter Patent Bench the demarcation of the two properties, namely, houses Nos. 45 and 47 was taken up by the Settlement Authorities. A perusal of the orders of the Settlement Authorities as well as the judgment of the High Court and the Supreme Court would indicate that the main question which required determina tion in that round of litigation was whether the properties in dispute were a single unit or two separate units. This question was eventually determined when it was held by the Supreme Court that houses Nos. 45 and 47 were two separate units in fact and in law. Since it was not a matter involving the divisibility of a single house, but demarcation of the boundaries of two separate properties Nos. 45 and 47, already allotted and transferred by the Settlement Authorities to two separate persons, ordinarily it was the jurisdiction of the civil Courts and not of the Settlement Authorities to give an authoritative pronouncement in respect of this matter. In this connection Syed Ali Moazzam v. M. A. Effandi and others (P L D 1965 Lah. 193), which was approved in S. Anwar Hussain Sani v. Sarfraz Ahmad and 2 others (P L D 1971 S C 669), may be noted. But as the Letters Patent Bench had directed the Settlement Authorities to demarcate the bound aries of properties Nos. 45 and 47, and to this the parties did not take exception in appeal before the Supreme Court, the second round of litigation started between them.

8. In compliance with the direction of the Letters Patent Bench, the Deputy Settlement Commissioner, Lahore, proceeded with the work of demarcation of the boundaries of the disputed properties Nos. 45 and

47. In his order dated the 13th of July 1962, which was primarily based on a construction of plan submitted by the original owner of these properties Mr. Bowering, to the Municipal Committee, Lahore, in 1931, for permission to construct the residential portion of house No. 45 along with outhouses towards its East, and subsequently, another amended plan for the construction of two blocks of outhouses, the Deputy Settlement Commissioner arrived at the following conclusion:‑ "At the time when the above constructions were completed there used to be a Nullah separating the annexe now bearing No. 47 and the newly constructed bungalow No. 45 and the aforesaid blocks of outhouses. Later on, it appears that this Nullah was filled up and the annexe bearing No. 47 was included within the compound of the house No.

45. This annexe No. 47 had an approach road opening into the Davis Road. That approach road was closed, but its remnants are still visible at the site and access was allowed to No. 47 through the compound of the newly built bungalow No.

45. It appears that sometime later some additions were also made to the building of the annexe No.

47. The above facts and circumstances make it perfectly clear that the two sets of outhouses now in dispute along with the latrines towards the south or south‑west of these outhouses were built as apart of bungalow No. 45 and they must be treated as such. The mere fact that the annexe bearing No. 47 was brought within the compound of bungalow No. 45 cannot deprive bungalow No. 45 of all that was a part thereof under the original design. This means that property No. 47 consists only of the old annexe building and the old Nullah which has been filled up is to be line of demarcation between the two properties. In other words the two blocks of outhouses and the entire compound on four sides of these outhouses is a part of bungalow No.

45. The High Court has directed that the Settlement Department should demarcate the two properties as they originally existed. This is done end the old Nullah, which can still be located on the spot by reference to the aforesaid plans which had been submitted by Mr. Bowering to the Municipal Committee should form the boundary line between the two properties."

9. Dr. Abdur Rauf filed an appeal against the order of the Deputy Settlement Commissioner dated the 13th of July 1962, before the Additional Settlement and Rehabilitation Commis sioner, Lahore. But the appeal was dismissed as barred by time vide order dated the 18th of October 1962 of the Additional Settlement and Rehabilitation Commissioner. However, it was observed in the said order: "In compliance with the order of the High Court the D. S. C. concerned inspected the premises on the 11th of July 1962 in the presence of the appellant and the representatives of the respondents and thereafter he passed the impugned order on the 13th July 1962, obviously without summoning any of the parties or hearing any of them . . . . . I find that the inspection was made by the Dr, S. C. in the presence of the appellant, two days earlier to the passing of the impugned order; that the appellant did not take due diligence in finding out, whether the order of the demarcation was passed or not. He kept quiet for more than two months. No reasonable cause for this negligence on his part is shown. 1, therefore, hold that there is no ground to condone the delay. As this appeal is now barred by time, I dismiss it."

10. Aggrieved by the order dated the 18th of October 1962, of the Additional Settlement and Rehabilitation Commissioner, Dr. Abdur Rauf presented a revision petition before the Settle ment Commissioner, Lahore, but the same was dismissed vide his order dated the 17th of July 1964. Settlement Commissioner disagreed with the findings of the Additional Settlement Commis sioner on the point that the appeal of Dr. Abdur Rauf was time barred. However, on merits he upheld the demarcation of boundaries between the disputed properties, namely, houses Nos. 45 and 47 made by the Settlement Authorities and thereby dismissed the revision petition.

11. It may be noted here that although the Deputy Settlement Commissioner had inspected the site in the presence of Dr. Abdur Rauf and the representatives of Mr. and Mrs. N. M. Khan, be did not summon or hear the parties or take into consideration the evidence which they may have produced in support of their respective contentions. Tae basis on which the Deputy Settlement Commissioner had demarcated the boundaries between houses Nos. 45 and 47 was, according to him, the construction plans submitted by the original owner to the Municipal Committee, Lahore, during the year 1931. According to Dr. Abdur Rauf the demarcation of the boundaries of the disputed properties by the Settlement Authorities, whereby a nullah (watercourse) which passed through the two properties and was subsequently filled up, was considered as the dividing line, had not only reduced the total area of house No. 47 according to the entries in the P. A. list for the years 1946‑47 as well as the survey register, from 4 kanals to 2 kanals, but had taken away structures like garage, servant quarters and other outhouses, which according to the record were part and parcel of house No. 47 and added the same to house No.

45. In addition to that, Dr. Abdur Rauf was deprived of an access to his own house, namely, house No. 47 from any road, Davis Road as well as Empress Road. According to Dr. Abdur Rauf a horizontal nullah which was filled up during the course of time has been held to be, by the Settlement Authorities, a dividing line between houses Nos. 45 and

47. As a result, every thing which fell to the west of the nullah has been included as part of house No.

45. Consequently Dr. Abdur Rauf challenged the orders of the Settlement Authorities by way of Writ Petition No. 1407/11 of 1964. The writ petition was heard by our brother K. E. Chauhan, J. who held as follows:‑ "The upshot of the above discussion is that the Impugned orders or the Settlement Authorities on the point of demarca tion of the boundaries of the two houses Nos. 45 and 47 are upheld except with respect to the subject‑matter of passage of house No. 47 as indicated in Paragraph 8 above. To that extent and on that point the impugned orders of the Settlement Authorities are declared to be without lawful authority and the Settlement Commissioner is directed to allow the same passage to Bungalow No. 47 from Empress Road side as was observed and found by the Supreme Court in its judgment, dated the 26th of June 1964, as has been hold by me In Paragraph No. 8 of this judgment."

12. As the perusal of the judgment of the learned Single Judge would show. Dr. Abdur Rauf was granted an access to his house (No. 47) from Empress Road side by the learned Single Judge who in all other respects upheld the demarcation of the boundaries of the two houses Nos. 45 and 47 made by the Settlement Authorities. The judgment of the learned Single Judge dated the 5th of August 1966, is the subject‑matter of two Letters Patent Appeals Nos. 1146 of 1966 filed by Dr. Abdur Rauf and 1166 of 1966 filed by Mr. N. 1M. Khan, Dr. Abdur Rauf prays that the judgment of the learned Single Judge be set aside because thereby the demarcation of the boundaries of the disputed properties Nos. 45 and 47 made by the Settlement Authorities was upheld with the exception of providing access to house No. 47 from Empress Road side ; whereas Mr. N. M. Khan prays that the said judgment be set aside because the learned Single Judge had no jurisdiction to direct the Settlement Authori ties to make provision for the access to house No. 47 from Empress Road side when the Settlement Authorities in compliance with the judgment of the Letters Patent Bench dated the 28th of February 1962, bad legally demarcated the boundaries between the disputed properties Nos. 45 and 47.

13. Dr. Abdur Rauf argues that the learned Single Judge after quoting paragraphs Nos. 9, 10, 11, 16, 17, IS and 19 of the judgment of the Supreme Court dated the 26th of June 1964, has erroneously held that the Supreme Court gave certain findings respecting demarcation of boundaries in its judgment. He contends that in the first round of litigation the question which the Supreme Court had to determine was whether the properties in dispute, namely, houses Nos. 45 and 47 were a single unit or two units. In order to determine this question the Supreme Court went through the history of construction of these properties but its finding was that properties Nos. 45 and 47 were two separate units in fact as well as in law. Therefore, according to Dr. Abdur Rauf, the learned Single Judge had no grounds for arriving at the conclusion that while holding that houses Nos. 45 and 47 were two separate houses, the Supreme Court gave clear findings respecting the demarcation of the boundaries of these two houses.

14. It may be useful at this stage to quote paragraphs 6 and 7 from the judgment of the learned Single Judge: "

6. A study of the above passages from the judgment of the Supreme Court shows that their Lordships gave the following findings and made the following observations : (a) That a reference to a certified copy of site plan for construction of Bungalow No. 45 in year 1930 shows that this bungalow was built subsequently and that Bungalow No. 47 already existed prior to it on the spot. This plan further shows that Bungalow No. 47 was separated by a nullah at that time from the vacant spot on which the new construction was proposed to be built. (Paragraph 9 of the Supreme Court's judgment). (b) That later on Mrs. Bowering submitted another plan for making additions to house No.

45. Even this plan showed a fencing and a nullah between the two properties. (Paragraph 9 of the Supreme Court's judgment). (c) That it seems that the owner allowed ingress to house No. 47 from the Empress Roadside after the new construction had been completed and the nullah had been filled up. (Paragraph 9 of the Supreme Court's judgment). (d) That house No. 47 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 fencing. (Paragraph 10 of the Supreme Court's judgment). (e) That access to the two houses is by separate paths through separate gates from Empress Road. (Paragraph 11 of the Supreme Court's judgment). (f) That house No. 47 could not be an annexe of house No. 45 from which it was separated by a nullah and a fencing. (Paragraph 18 of the Supreme Court's judgment). (g) That confusion regarding servants quarters could not resolved by the Settlement Authorities with reference to older documents. (Paragraph 19 of the Supreme Court's judgment.")

7. The sum total of the above observations is that according to the Supreme Court the old nullah iron fencing constituted the damarcation and the boundary line between the two bungalows. The orders of the Settlement Authorities which have been impugned in this case also observe the same as the boundary line and in this way they are in consonance with the findings and observations of the Supreme Court and cannot be said to be without lawful authority and nor can they be said to be in derogation of Supreme Court's findings and observations. Rather In the face of the above findings of the Supreme Court, the Settlement Authorities could not hold otherwise. When confronted with this situation, the learned counsel for the petitioner, who was initially arguing that Supreme Court's findings and observations have not been followed by the Settlement Authorities, himself tried to argue that the said Authorities should not have followed the Supreme Court's find ings, and contended that the nullah should not be made the line of demarcation. I am afraid that in view of the clear findings of the Supreme Court that the nullah did constitute the line of demarcation, I cannot give effect to the submission of the learned counsel for the petitioner."

15. Dr. Abdur Rauf points out that although the Supreme Court made certain observations regarding the history of construc tion of these properties, it could not and did not give any clear findings relating to demarcation of the boundaries between houses NOS. 45 and

47. According to him, this is clearly illustrated from paragraph 19 of the judgment of the Supreme Court which is as follows :‑ "

19. 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 the 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." So according to Dr. Abdur Rauf, the demarcation of the boundaries of houses Nos. 45 and 47, as also observed by the Supreme Court, could resolve the confusion in the matter if reference was made to older documents. In this respect, Dr. Abdur Rauf contends that the Deputy Settlement Commis sioner who inspected the site in the presence of the parties should have also given opportunity to the parties to be heard before he passed the order demarcating boundaries of the disputed properties. He argues that the construction plans of 1930/31 alone were not sufficient to be considered as the basis on which the boundaries of the disputed properties were to be demarcated. The Settlement Authorities should have also considered other older documents such as assessment list of the Corporation of the City of Lahore.

16. To sum up Dr. Abdur Rauf argues that had the Deputy Settlement Commissioner given him an opportunity of being beard before passing his order respecting demarcation of the boundaries of the disputed properties, he would have placed before him all the older documents in order to resolve this dispute. But since Dr. Abdur Rauf was not given such oppor tunity, the Deputy Settlement Commissioner passed the demarcation order basing it on the construction plans of 1930/31. As a result the area of house No. 47 was reduced from 4 kanals to 2J kanals the garage, servant quarters and outhouses which were formerly considered to be attached to house No. 47 were taken away and added to house No. 45 ; finally access to house No. 47 from Empress Road side was disallowed and on the basis of these construction plans which seemed to indicate that there did exist an access to house No. 47 from Davis Road side in 1930‑31, access from Davis Road side was allowed without realizing that new houses had been constructed on that side and no access was available. According to Dr. Abdur Rauf, the orders of the Settlement Authorities suffered from legal infirmity because the Deputy Settlement Commissioner did not give an opportunity to Dr. Abdur Rauf to be heard and passed the orders In his absence, and that the Additional Settlement Commis sioner had illegally dismissed his appeal as time‑barred. Dr. Abdur Rauf assails the judgment of the learned Single Judge, 'because, after reproducing a few passages from the judgment of the Supreme Court he draws an inference based on an erroneous assumption that the Supreme Court had given clear findings in respect of the demarcation of boundaries of the disputed houses.

17. Sh. Abdul Haque, learned counsel for Mr. and Mrs. N. M. Khan assails the judgment of the learned Single Judge on the sole ground that when the Settlement Authorities were specially authorized by the Letters Patent Bench as well as the Supreme Court to demarcate the boundaries of the disputed properties, and in compliance with the orders of the High Court confirmed by the Supreme Court the boundaries of the disputed properties were eventually demarcated by them, the learned Single Judge should have not interfered with the demarcation by granting an access or a passage to house No. 47 from Empress Road side and holding the orders of the Settlement Authorities to be without lawful authority to this extent. The boundaries, according to learned counsel, were demarcated on the basis of construction plans as N ell as site inspection and the learned Single Judge exercising his powers under Article 98 of the 1962‑Constitution had no jurisdiction to alter or change the demarcation only because it was erroneously held by him that the Supreme Court had given a definite finding in respect thereof.

18. There is no denying the fact that the previous round. of litigation between the parties only involved the determination of the question as to whether properties Nos. 45 and 47 were one unit or two units. The matter went up to the Supreme Court and It is obvious that all the documents which were placed on the file of this case were studied with a frame of mind which was considering the question whether houses Nos. 45 and 47 were one house or two houses. After studying all the documents the conclusion arrived at in the previous round of litigation between the parties was that houses Nos. 45 and 47 were two separate houses and not one. Had there been one house which was to be divided between two claimants, the Settlement Authorities were certainly competent at law to undertake the task of division. In the present case the Deputy settlement Commissioner proceeded to demarcate the boundaries of the two houses ‑because the Settlement Authorities were directed by the to do so. The order of the Deputy Settlement Commissioner indicates that he relied on the copies of the plans etc. secured from the office of the Municipal Committee, Lahore, and placed by Mr. N. M. Khan on the appellate file of the High Court in Letters Patent Appeal No. 391 of 1961. There was no other evidence or document before him. It is also clearly established that although he had inspected the site, he did not summon the parties or hear them before passing the order dated the 13th of July 1962. It is contended that bad he summoned or heard Dr. Ahdur Rauf, more evidence would have been produced for his consideration, But his order shows that he had only one set of evidence before him at the time of making the order which had been produced by Mr. N. M. Khan. The opening part of the order dated the 13th of July 1962, of the Deputy Settlement Commissioner reads as follows A reference to the copies of the plans etc. secured from the office of the Municipal Committee, Lahore, and placed by Mr. N. M. Khan on the appellate file of the High Court in the Letters Patent Appeal No. 391 of 1961 (Mr. N. M. Khan and others v. The Chief Settlement and Rehabilitation Commissioner and others) makes it perfectly clear that whereas the residential portion of No. 47 Empress Road originally was an annexure of another old bungalow belonging to Mr. K. flowering, the rest of the plot on which the residential portion of bungalow No. 45 along with two blocks of servant quarters now in dispute and the kitchen and a garage close to the said residential portion were built from the compound of the said old bungalow of Mr. Bowering. "

19. Dr. Abdur Rauf filed an appeal, against the order of the Deputy Settlement Commissioner in the Court of the Additional Settlement Commissioner and had taken the ground that the Deputy Settlement Commissioner had passed the impugned order without affording any opportunity to Dr. Abdur Rauf to present his case. This fact was noticed by the Additional Settlement Commissioner in his order dated the 18th of October 1962, wherein he observed that the order dated the 13th of July 1962, of the Deputy Settlement Commissioner had been passed "obviously without summoning any of the parties or hearing any of them", yet he dismissed the appeal of Dr. Abdur Rauf as being barred by time. Subsequently, Dr. Abdur Rauf presented a revision petition in the Court of the Settlement Commissioner and again took the ground that the Deputy Settle ment Commissioner had passed the original order without notice to and without hearing him. But the Settlement Commissioner did not care to consider this aspect of the case. Instead in his lengthy order he took pains to demonstrate that the construc tion plans were a more reliable form of evidence as compared to any other form, such as entries in the P.A. list, survey registered. Furthermore, the Settlement Commissioner was of the view that the judgment of the Letters Patent Bench dated the 18th of June 1962, had emphasized on demarcating the two properties as they originally existed. Hence the Deputy Settlement Commis sioner had correctly relied upon the construction plans of 1930‑

31. Aggrieved by the orders of the Settlement Authorities Dr. Abdur Rauf eventually filed Writ Petition No. 1407/R of 1964. He again took the ground (paragraph 9 of the writ petition) that the Deputy Settlement Commissioner had passed the impugned order ex parte and without affording any opportunity to him to explain his case. But the learned Single Judge also did not examine this aspect of the case. The impugned judgment of the learned Single Judge is based on the assumption that the Supreme Court had given certain clear findings in respect of the demarcation of the two properties and that the orders of the Settlement Authorities were in consonance with the findings of the Supreme Court except to the extent that the Settlement Authorities did not take note of the finding of the Supreme Court in respect of the access to house No. 47 from Empress Road side. About the type of evidence on the basis of which the Settlement Authorities bad proceeded to demarcate the boundaries of the two houses, the learned Single Judge held that it was open to the Settlement Commissioner to prefer one set of evidence against the other and; that merely because he chose to prefer the original plan, he could not be said to have acted without lawful authority. The result was that the orders of the Settlement Authorities were upheld by the learned Single Judge with the sole modification that ingress to house No. 47 should be provided from Empress Road side.

20. We are of the opinion that in the previous round of litigation between the parties the Supreme Court had before it an entirely different matter i.e., the determination of the question as to whether the properties Nos. 45 and 47 were one unit or two separate units. If the Supreme Court had made any observa tions which may have some bearing on the demarcation of boundaries of the two properties, these could not be considered as clear findings regarding the demarcation of two properties because this was not the matter before the Supreme Court for consideration. The Supreme Court was aware that the Settle ment Authorities had been directed by the Letters Patent Bench to demarcate the boundaries between the two properties. In the circumstances, it would be erroneous to conclude that the Supreme Court had given definite or clear findings as to how the demarcation should be carried out.

21. We are of the opinion that the inference of the learned Single Judge drawn from certain paragraphs of the judgment of the Supreme Court to the effect that the Supreme Court had given clear findings regarding the demarcation of the boundaries of the properties in dispute, is based on an erroneous assumption. The Supreme Court has given no such findings in its judgment and there is no justification in arriving at any such conclusion.

22. It is clear from the record that the Deputy Settlement Commissioner had passed the impugned order without hearing. Dr. Abdur Rauf's main grievance throughout has been that the Deputy Settlement Commissioner had passed the impugned order ex parte without giving him an opportunity to present his case. Furthermore, it is also established that the set of evidence, namely, construction plans on which the Deputy Settlement Com missioner relied were the documents placed by Mr. N. M. Khan on the appellate file of the High Court in Letters Patent Appeal No. 391 of 1961. The Deputy Settlement Commissioner had no other set of evidence before him at the time of passing the impugned order, although had he given as opportunity to Dr. Abdur Rauf to present his case, he would have placed before him another set of evidence in the form of entries in the P. A. list for the year 1946‑47, survey register etc., for his considera tion. Nevertheless, the learned Single Judge has held that it was open to the Settlement Authorities to prefer one set of evidence against the other and that merely because the Settlement Authorities chose original construction plans in preference to any other form of evidence (such as entries in the P. A. list for the year 1946‑47, survey register etc.), the orders of the Settlement Authorities could not be considered as illegal or said to have been passed without lawful authority. This finding of the learned Single Judge may have been acceptable if there had been in fact two sets of evidence before the Deputy Settlement Commissioner so as to prefer one against the other. Dr. Abdur Rauf points out that findings of the learned Single Judge were not justified because there was no question of choice or preference of evidence involved. If the Settlement Authorities were to choose to prefer one set of evidence against the other, then not only the two sets of evidence ought to be before them for consideration, but reasons are also required to be recorded under law as to why one set of evidence was preferable against the other. But it seems that the learned Single Judge did not consider that the Deputy Settlement Commissioner relied on the construction plans not in preference to any other set of evidence but because 'he had no other evidence before him at all for consideration. We are, therefore, of the opinion that this inference of the learned Single Judge was also founded on an erroneous assumption.

23. We, therefore, set aside the judgment of the learned Single Judge and declare that the orders of the Settlement Authorities were illegal having been passed without lawful authority and of no legal effect. We remand this case to the Settlement Authorities to demarcate the boundaries of the disputed properties Nos. 45 and 47 afresh after giving opportunity to Dr. Abdur Rauf as well as Mr. and Mrs. N. M. Khan to present their respective cases as required by law, and to pass an order only after hearing the parties.

24. The result is that L. P. A. No. 1146 of 1966 filed by Mr. Abdur Rauf is accepted and L. P. A. No. 1166 of 1966 filed by Mr. N. M. Khan is dismissed. There will be no order as to costs. Orders accordingly.