P L D 1981 Lahore 766 (PLP)

IRSHAD HASAN KHAN, J.--This Letters Patent Appeal has been filed against the judgment dated 5th of June 1968, of the learned Judge-in-Chambers whereby he declared the order of the Settlement Commissioner, Lahore Division, Lahore, dated 23-12-1963, as without lawful authority and of no legal effect and accordingly, remanded the case to the Settlement Commissioner for disposal afresh after taking into consideration the question of limitation in respect of the appeal filed by respondent No. 1.

2. The dispute relates to transfer of Southern portion of House No. 50, Duni Chand Street No. 8, Lake Road, Lahore. The whole of the property in dispute was in occupation of Nazar Abbas, Shamshad Hussain and Tahir Hussain who are all real brothers. The Deputy Settlement Commissioner treating the property as indivisible vide his order dated 22nd April 1960, transferred the entire property, in favour of Syed Nazar Abbas Mashhadi, respondent No. 1 who was a claimant allottee. The CH Form filed by the appellant Syed Tahir Hussain Mashhadi was rejected. Tahir Hussain Mashbadi challenged the order, in question, before the Additional Settlement Commissioner (Judicial), but the same was dismissed as time barred. On revision, the Settlement Commissioner, Lahore Division, vide his order dated 23rd December 1963, accepted the revision petition and after inspection of the premises, found the property in dispute as divisible into two indepen dent portion and accordingly, transferred the portion in occupation of Syed Tahir Hussain Mashhadi appellant, consisting of two rooms, a courtyard, kitchen and latrine as an independent self-contained residence and the rest was ordered to be transferred as an independent unit to the respondent Syed Nazar Abbas Mashbadi. The learned Single Judge passed the impugned order following the dictum in Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others P L D 1964 S C 260, on the ground that the learned Settlement Commissioner had neither cared to deal with the question of limitation nor gave any finding upon it.

3. Learned counsel for the appellant has assailed the order of the learned single Judge on two-fold grounds. Firstly ; that the dictum laid down in Syed Azmat Ali's case was not attracted in the instant case, inasmuch as, after conscious application of his mind that the appeal was dismissed on question of limitation, the learned Settlement Commissioner transferred the portion in occupation of Syed Tahir Hussain Mashhadi appellant as an independent and self-contained unit and therefore, the delay was deemed to have been condoned by him. He submitted that in Syed Azmat Ali's case, there was nothing in the order of the Settlement Commissioner to show that he was even conscious that any question of limitation arose in the appeal. And secondly ; the order dated 22-4-1960 of the Deputy Settlement Commis sioner was ex parte and that the appellant was neither summoned, nor his statement was recorded nor the copy of the order was communicated to him in terms of para. 10 of Settlement Scheme No. 1 and thus there was no disposal of his CH Form.

4. We are inclined to agree with the contentions of the learned counsel for the appellant and following the dictum in Ahsan Ali and others v. District Judge and others P L D 1960 S C 167, the order of the learned Single Judge cannot be sustained, inasmuch as, the order of the Settlement Commissioner clearly shows that he was fully conscious that the appeal was time barred and after giving his anxious consideration to the question of limitation, declared the property as divisible into two independent portions to which no exception can be taken. In Ahsan Ali's case, it was held :- "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was con scious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceed ing on merits vide Ala Ullah Malik v. The Custodian of Evacuee Pro perty and others P L D 1964 S C 236, Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner etc. P L D 1964 S C 260 and Mohd. Farooq Imam v. Claims Commissioner etc. P L D 1964 S C 585."

5. As regards second contention, it is apparent that the order dated 22-4-1960 of the Deputy Settlement Commissioner was an ex parte order an the property, in dispute, was transferred in favour of respondent No. 1 without notice to the appellant in violation of the principles of natural justice and mandatory provisions of para. 10 of Settlement Scheme No.

1. This being so, the ex parte order of the Deputy Settlement Commissioner was void and the proceedings before him were coram non judice . Following the dictum in Yousaf Ali v. Muhammad Aslam Zia and 2 others (P L D 1958 S C (Pak.) 104), the order dated 25th October, 1961 of the Additional Settlement Commissioner was also non-existent in the eye of law. Reference may also be made to Muhammad Ashraf and 2 others v. Muhammad Usman and 8 others (1973 S C M R 403) in which it was held that failure on the part of settlement authorities to hear an interested party and conveying to him the order rejecting his NCH Form tantamounts to non-disposal of his Form in accordance with law.

6. The learned counsel for the respondent was unable to rebut the aforesaid propositions. He however, contended that the mode of division of the property, in dispute, by the learned Settlement Commissioner was arbitrary and fanciful. It is now well-settled law which has been reiterate time and again by the superior Courts that the question regarding the mod of division is a matter within the exclusive jurisdiction of the Settlement Authority and is not open to interference in writ jurisdiction . The parties are real brothers and have been living in the same house eversince its occupation and we see no reason why they should not be able to continue occupying their independent self-contained units. The division on the face of it appears to be just, fair and in accordance with law. The plea of the learned counsel for the respondent is, therefore without any substance. Reference may be made to Kh. Fateh Muhammad Anwari v. Kh. Mumtaz Ahmad and another (1976 S C M R 71,) in which it was held :- "It is now well-settled proposition that it is within the special juris diction of the Settlement Authorities to determine whether or not a house is divisible and the High Court in its writ jurisdiction will not interfere unless on the face of it the order is arbit rary,' fanciful or mala fide, which definitely is not the case here. Nor there is any substance in the plea that the division will be inconvenient to the parties or that it would violate their privacy. The parties have been living in the same house apparently peacefully for the last 27 years or so, and given little goodwill, there is no reason why they should not be able to do in future."

7. Reference may also be made to Allah Bakhsh v. Chief Settlement Commissioner, Lahore and 3 others (1976 S C M R 275), wherein it was held that in the exercise of its limited constitutional jurisdiction, the High Court cannot interfere with the question of divisibility of the property. The relevant portion at page 281 reads thus :- "There remains for consideration the question of the divisibility of the property in dispute. This question was not examined by the Deputy Settlement Commissioner, but the Additional Settlement Commissioner had not held that the property was divisible even though he bad inspected it. This however, cannot help the fourth respondent's case, because the Settlement Commissioner was entitled, in the exercise of his discretion, to hold that the property was divisible, and the only question is whether his finding that it was divisible can be challenged as perverse. In holding that the property was divisible, the Settlement Commissioner relied on the fact that the families of the appellant and of the fourth respondent had been living in it for many years. Further a plan of the property showing the portions in the occupation of the respective parties was produced before him and on an examination of the plan, the correctness of which is not questioned before us, the Settlement Commissioner held that the property was divisible subject to the directions given by him. The question was in his sole discretion and in my humble opinion, the discretion has been exercised reason ably and justly. In any event, no case had been made out for inter fering with these findings in the limited constitutional jurisdiction of the High Court under Article 98 of the Constitution. Therefore, the High Court was not justified in substituting its own finding for that of the Settlement Commissioner."

8. The dictum laid down in Kh. Faten Muhammad Anwari's case and Allah Bakhsh's case are fully attracted in the instant case.

9. Reference may also be made to Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others P L D 1971 S C 252, in which Hamoodur Rahman, C. J. observed :- "Again as was pointed out in the case of Syed Abdur Rashid v. Pakistan and others P L D 1962 S C 42, there was no question of displaced persons coming to Pakistan from territories which now constitute India being entitled as of right to get properties in Pakistan in lieu of pro perties left by them in India. The evacuee laws were designed purely to alleviate the hardship and misery of as large a number of displaced persons as possible who had been uprooted as a result of the setting up of the two Dominions of India and Pakistan by rehabilitating them and in this sense too it was `fallacious to conceive of a claim . . . . . , as being in the nature of a right or interest in property". It was rather a question 'of purely granting a benefit or a privilege' and it was, therefore, within the competence of the authorities to determine as to who were the persons best fitted for the grant of such benefit."

10. In view of the above discussion we see merit in this appeal which is hereby accepted with no order as to costs. s. Q. Appeal accepted.