P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑The dispute in this writ petition concerns a portion of property No. SW‑III‑40‑S‑9, Krishan Nagar, Lahore. It is comprised of 7 shops in front and residential accommodation at the back on the ground floor and first floor of the building. The seven shops were transferred to different persons and there is no dispute in this writ petition about them. As regards the residential part of the premises it was occupied by 5 claimants namely, Abdul Majid Paul on 'the ground floor; Muhammad Khalil petitioner, Jamaluddin and Muhammad Sharif respondents Nos. 1 and 2 and Muhammad Jamil who are putting up on the first floor of the property. . All the five are claimants and had put in their respective CH Forms. However, subsequently Abdul Majid Paul and Muhammad Jamil decided to withdraw their forms and were not considered by the Settlement Authorities for the transfer of this property. The contest for the residential part of the house was confined to the petitioner, respondent No. 1 and respondent No. 2.

2. The Settlement Inspector after visiting the spot reported that the building has three residential independent portions, one on the ground floor and two on the upper storey; there are separate entrances and separate stair cases for the upper storey. He recommended that the ground floor portion (shown as `A' on the plan) was in the occupation of Abdul Majid Paul who was not willing to get and it may be transferred to Muhammad Sharif respondent No. 2 as the biggest claimant. The Settlement Inspector further recommended that the other portion in the upper storey marked B' on the plan in the occupation of Muhammad Sharif should be transferred to Syed. Jamaluddin respondent and the third portion in, the upper storey marked 'C' in the occupation of Syed Jamaluddin and Muhammad Jamil and M. Khalil be transferred to the petitioner exclusively. This proposal of the Settlement Inspector was accepted by the Deputy Settlement Commissioner on 26th of March 1960.

3. Syed Jamaluddin and Muhammad Sharif, respondents preferred separate appeals against that order. These were heard and disposed of together by Mr. Muqarrab Khan, Additional Settlement Commissioner (Judicial), Lahore on 18th of May 1960. He held that the residential portion of the property was not capable of division into three sets as ordered by the Deputy Settlement Commissioner. He remarked that if the house was transferred as done by the Deputy Settlement Commissioner it would cause infringement of the portions among the transferees. The order passed by the Deputy Settlement Commissioner was modified by him and instead he divided the property into two portions, transferring' one each to the respondents 1 and 2, as the two senior allottees thereby excluding the petitioner altogether from the transfer. Thus Muhammad Sharif was given the portion in his occupation as well as that with Abdul Majid Paul. The portion in the occupation of Syed Jamaluddin that of the petitioner was transferred to respondent No. 1.

4. Dissatisfied with that order the petitioner filed a revision against it which was dismissed by the Settlement and Rehabilita tion Commissioner, Lahore Division, Lahore on 21st of September 1962. He concurred with the appellate order of the Additional Settlement Commissioner. He noticed that it was curious that the petitioner did not produce‑ the allotment order in the lower Courts on the basis of which he was claiming to be in possession and remarked that he had seen the allotment order and found that bold attempt at forgery and fraud was made in it by erasures and typing etc. The petitioner made are unsuccessful attempt for a review of that order but his application was dismissed by the learned Settlement and Rehabilitation Commissioner, Lahore on 30th of October 1962, as time barred and incompetent.

5. In this writ petition the petitioner has challenged the orders passed by the Additional Settlement Commissioner on appeal and the learned Settlement Commissioner on revision and review. He is not aggrieved against the transfer of a portion of property made in his favour by the Deputy Settlement Commissioner on 26th of March 1960.

6. It is not denied before us that respondents 1. and 2 are claimants in .possession of portions of the property held by them as allottees. Their possession is prior to that of petitioner. The petitioner claims that he is in possession of the two rooms along with the accessories on the first floor from 8th of September 1948, as an allottee. As against this according to the entries in the Survey Register (Annexure `A') produced by the petitioner the possession of respondent No. 1 dates back to the 12th of April 1948, and that of respondent No. 2 to the 28th of August 1948, as allottees. In view of this position it is not denied before us that respondents 1 and 2 are the two senior‑most allottees of the residential portion.

7. However, it is maintained that the residential premises is comprised of three distinct and independent house as held by the learned Deputy Settlement Commissioner ‑in his order dated 26th of March 1960 and the petitioner is entitled to the third portion as he was eligible 'for it. Relying on the first proviso to subsection (4) of section 2 of the Displaced Persons Act it is argued by the learned counsel that the Deputy Settlement Commissioner, in the exercise of the delegated powers of the Chief Settlement Commissioner, having held that the residential premises in dispute was divisible into three independent portions, his decision was not open to any appeal or revision before the Additional Settlement Commissioner and the Settlement Com missioner, that the power of the Chief Settlement Commissioner having been once exercised by the delegatee, namely, the Deputy Settlement Commissioner, was exhausted and that order passed on behalf of the highest authority in the hierarchy of the Settlement Laws was sacrosanct and final.

8. This contention of the learned counsel has no force. Section 2 (4) of the Act defines a "house" for the purposes of that Act and its relevant provisions is as follows:‑ "House" means evacuee residential premises of any value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and out‑houses, if any, attached to the appurtenant of such garden, ground, garage or out house is in the possession of the person other than a person or persons in possession of such residential premises, but does not include any residential building or premises declared under paragraph 15 of the First Schedule to be a big mansion or hotel. Provided that where a building not so declared consists of more than one residential premises, and such premises are in the‑possession of several persons, the premises in the possession of any on of such persons shall be deemed to be a house." The proviso lays down that if any residential building or premises "(which has not been declared as a big mansion under para graph 16 of the Schedule) consists of more than one residential units in possession of several persons, then in the absence of any order of the Chief Settlement Commissioner, the whole of the building or premises is to be deemed to be a house. In that case it will have to be disposed off under the Schedule as an indivisible house. However, it is open to the Chief Settlement Commissioner in a case of this type to order that the building or premises should be disposed of "otherwise" than as an in divisible whole. This power has been expressly reserved in the Chief Settlement Commissioner. But the power is confined to an order by the Chief Settlement Commissioner that the house should not be treated as indivisible. It extends no further and does not include in it the further power to prescribe a mode of division or even to specify the number of units into which the building or the premises is to be divided. These details are left to the subordinate authorities in the Settlement Department to be disposed of in their ordinary course and their decision in that respect is subject to the usual incidents of an appeal and revision provided under the Act. But the precise order of the Chief Settlement Commissioner or his delegate to the effect that the building or premises may not be deemed to be indivisible passed under section: 2 (4) of the Act is not open to any further appeal or revision and is sacrosanct. It may be mentioned here that by virtue of Notification No. 6481‑P‑Reh. 59 dated the 14th of October 1959, (reproduced on page. 70 of the Manual of Settlement Land and procedure, 1960 Edition) the Chief Settlement Commissioner has delegated this power under section 2(4) of the Act to all Settlement Commissioners, Additional Settlement Commissioners and Deputy Settlement Commissioners in West Pakistan and Karachi.

9. Our interpretation of the first proviso to section 2 (4) of the Act is based on the authoritative interpretation of their Lordships of the Supreme Court in Jalal Din and others v. Sh. Muhammad Rafiq and others Civil Appeal No. 71 of 1963, decided on the 2nd of November 1964). In that case it was held that the power of the Chief Settlement Commissioner which he possesses under the proviso and which is the, subject of delegation to his subordinates, is not in reality a power of the division of the house but a power of simply pronouncing that the building or premises is not to be deemed to be indivisible one. Repelling the contention that the power of the Chief Settlement Com missioner under the proviso was the full and complete power of division into different portions, their Lordships of the Supreme Court have held as under:‑ "It appears to us on a consideration of this proviso that another construction of the extent of power granted by it to the Chief Settlement Commissioner was not only possible but the more reasonable one under the circumstances. All that the proviso says is that the house shall be regarded as one unless the Chief Settlement Commissioner otherwise orders. These words may be granting to the Chief Settlement Commissioner only the authority to pronounce the house to be not one but divisible. It is not necessary to read into the words otherwise orders' a power of actual division of a house into separate portions. The intention of the proviso could be that the Chief Settlement Commissioner will determine whether a house should be transferred only as a single unit or shall be capable of being converted into different units, but that once he decides that the house is divisible the Deputy Settlement Commissioner and other authorities will in the exercise of ordinary powers which they have determined the particular portions into which a house to be divided. The interpretation that the power of actual division too belongs wholly to the Chief Settlement Commis sioner will lead to undesirable results . . . . . ." After an elaborate discussion the conclusions of their Lordship of the Supreme Court in Jalal Din's case are to the effect that "(1) the power granted to the Chief Settlement Commissioner by the first proviso of the section 2 (4) is only a power of pronounc ing a house to be divisible and (2) that the exercise of this power by a delegatee is not subject to appeal or revision".

10. Quite recently in another case in Muhammad Iqbal Khan v. The Chief Settlement Commissioner and another Civil Appeal No. 129 of 1963 decided on 8th of February 1965, their Lordships of the Supreme Court have again interpreted this proviso to section 2 (4) of the Act in the light‑ of their earlier judgment in Jalal Din's case, and it was affirmed that under the proviso to section 2 (4) of the Act the power of the Chief Settlement Commissioner is to simply direct that the house was not to be regarded as an indivisible whole.

11. In the present case the Deputy Settlement Commissioner as a delegatee of the Chief Settlement Commissioner exercising powers under section 2 (4) of the Act, had pronounced the premises in dispute to be divisible. That power having been exercised by him on behalf of the Chief Settlement Commissioner, he was denuded of it and that decision was not open to any appeal or revision. After having taken that decision, the Deputy Settlement Commissioner, proceeded to lay down G mode of division of the premises in question and divided it into three portions giving one etch to the three claimants, This further order was passed by the Deputy Settlement Commissioner is the exercise of his own normal powers to settle these properties under the Act and not as a delegatee of the Chief Settlement Commissioner and as discussed above this part ‑of his order which properly pertains to the mode and manner of the division of the premises in dispute was subject to the ordinary incidents of appeal and revision. Therefore, the Additional Settlement Com missioner was competent to sit in appeal against that part .of the order of his subordinate alter the mode of division of the premises and divide it into two independent portions in place of the three units carved out by the Deputy Settlement Commissioner.

12. The learned counsel for the petitioner has next argued before us that at any rate, the division of the residential premises, into two portions made by the learned Additional Settlement and Rehabilitation Commissioner on appeal was arbitrary, illegal, irregular and is based on no evidence or reason. To support his contention that in these circumstances it is legally open to us to interfere in the exercise of our writ jurisdiction, the learned counsel has relied on two rulings of this Court. The first one is Ch. Altaf Hussain and others v. Shabbir Hussain and others (P L D 1961 Lah. 449) decided by a Single Bench of this Court, in which it was held that the Settlement Law has conferred authority on officers of the Settlement Department to decide whether the property is divisible or not and if their decision was based on good ground and was not arbitrary or capricious, no interference can be made by the. High Court in the exercise of the writ jurisdiction. Where the decision is based on no ground not to say of reasonable ground and is arbitrary and capricious, the High Court will be justified in interfering by the issue of an appropriate writ. The parties to that case had fled a Letters Patent Appeal against the decision of the learned Single Judge and then a special appeal to the Supreme Court. The decision in the Letters Patent appeal is reported as the Chief Settlement Commissioner v. Ch. Altaf Hussain and others (P L D 1962 Lah. 189) 'in which it was held that the order of they Settlement Authorities in regard to the divisibility or otherwise of a house cannot be questioned. by a petition for writ. In the Supreme Court in Ch. Altaf Hussain v. The Chief Settlement Commissioner (P L D 1965 S C 68) it was held that the view taken by the Letters Patent Bench of the. High Court that a building will be treated as one house even though occupied by more than one person, unless the Settlement Authorities, in their discretion, order it to be divided, was in accord with the language of the first proviso to the definition of "house" in section 2 (4) of the Act. The other authority on which the learned counsel has relied is Mrs. Keays Byrne v. Settlement Commissioner (P L D 1963 Lah. 88) which is to the effect that the High Court will not interfere with a finding of fact arrived at by the Settlement Authorities unless it be shown that it is the result of misreading of evidence or is based on no evidence whatsoever. No exception can be taken to this principle of the law so far as it goes. But it cannot be said that the decision of the Additional Settlement Commissioner on appeal in the instant case was based on no evidence or is the result of any misreading of evidence. He had heard the parties, examined the record and the plan of the building which was before him, was of the opinion that the residential premises could not be easily divided into three portions as was done by the Deputy Settlement Commissioner. The division made by the Deputy Settlement Commissioner had resulted in unwarranted interference with the possession enjoyed by the respective parties. Muhammad Sharif respondent who was occupying a portion of the upper storey was dislocated and transferred the ground floor in the occupation of Abdul Majid Paul. The portion in the occupation of Muhammad Sharif on the first floor was transferred to Jamaluddin respondent and Muhammad Khalil was given the portion in his occupation as well as that occupied by Jamaluddin resulting in the dislocation of the latter. The learned Additional Settlement Commissioner was of the opinion that the premises was not capable of division into two equal portions and be gave the bigger portion of the premises to Muhammad Sharif respondent No. 2 and the smaller one to Syed Jamaluddin, respondent No. 1 the two senior-most allottees. These are some of the good reasons and relevant considerations on which the order of the Additional Settlement Commissioner is based. Therefore, this contention of the learned counsel for the petitioner has no force in it.

13. The last contention of the learned counsel is that respondent No. 1 was debarred and estopped by his conduct in asking for the transfer of the property. It appears that on the 6th of December 1959, the statement of respondent No. 1 was recorded by the Settlement Authorities. It is to the effect that case for the transfer of, the house be decided in his presence, that he was in possession of the two rooms and a portion of the house should be transferred to him. In the same breath respondent No. 1 added that his C H Form may be cancelled because the, valuation price of the house was too much. No action seems to have been taken on this statement. There is another statement of respondent No. 1 recorded on the 3rd of March 1960, on the same file: In this statement he deposed that he was, the senior-most allottee and has a preferential right to the transfer of the house; that the house was divisible into 2 or 3 portions and it be divided and that the price of the portions transferred to him may be fixed. It is apparent that before the first statement dated the 6th of December' 1959, could be acted upon, respondent No. 1 made the second statement ore the 3rd of March 1960 by, which he impliedly withdrew his earlier statement and decided to press his claim for the transfer of a portion of the house to him. Notwithstanding his previous statement his C H Form remained pending and was never rejected. The petitioner was in no way debarred from withdrawing the earlier statement made by him.

14. In view of the above discussion there is no force in any of the contentions raised on behalf of the petitioner. In the result this writ petition fails and is dismissed with costs. K. B. A. Petition dismissed.