P L D 1966 (W (PLP)

Nemo for Respondent No.

2. Dates of hearing: 13th and 14th December 1965. The dispute in this case concerns House No. 2‑S‑17/18 situated in Block No. 13 of Sargodha Town. The petitioner H. N. Khanum is in possession of some rooms on the ground floor where two rooms were also in possession of one Mushtaq Ahmad who is no longer in the picture. The respondent Rao Ihsan Ali Khan is in possession of the entire first‑floor as well as two rooms on the ground floor. It is stated that he has also now taken possession of the rooms vacated by Mushtaq Ahmad. When the Settlement operations started the petitioner submitted an NCH form, whereas the respondent submitted a CH form for the transfer of the house. The Deputy Settlement Commissioner by his order dated the 22nd of December 1959 transferred the whole house to the respondent Rao Ihsan Ali Khan on the ground that the house was indivisible and a claimant had to have preference over a non‑claimant. The petitioner thereupon preferred an appeal which was, however, dismissed by the Additional Settlement Commissioner by his order dated the 29th of April 1960. The petitioner then went up in revision and the case was remanded to the Additional Settlement Commissioner for giving a hearing to the petitioner, as she had not been heard when the first appellate order was passed. After remand the Additional Settlement Commissioner again rejected the petitioner's appeal by his order dated the 24th of September 1960. He expressed the opinion that the house did not admit of partition and had, therefore, been rightly transferred to the respondent. Once again the petitioner filed a revision petition which was dismissed on the 16th of November 1960 by the learned Settlement Commissioner. He observed that the petitioner was in possession of a very small portion of the house while major portion thereof had been with the respondent. He went on to state that both the Courts below had inspected the spot and recorded the concurrent conclusion that the house was not capable of partition. The petitioner then filed a second revision petition which was also dismissed by Mr. Farzand Ali Khan, exercising the powers of the Chief Settlement Commissioner, by his order dated the 28th of July 1961. The learned Chief Settlement Commissioner also maintained the finding of the lower officers to the effect that the house was not divisible.

2. The main contention raised on behalf of the petitioner by her learned counsel Mr. Lodhi is that in fact there are two houses bearing Nos. 17 And 18 owned by two evacuee owners, and accordingly there was no power in the Settlement Authorities to combine these two houses and to transfer them to one party. In the alternative, he contends that, in any case, the house is clearly divisible as it has two deorhis, and two kitchens and it was occupied by two ovacuee owners before Partition, and since Partition also it has been occupied by at least two families, if not three. It is submitted that in these circumstances the Settlement authorities have not exercised their discretion in a reasonable and judicious manner.

3. I see no substance in the contention put forward by Mr. Lodhi that in fact there are two houses on the ground. It is correct that the house has been described as bearing No. 17/18, but a reference to some of the documents placed on the record by the petitioner herself clearly shows that only one house was built on Khasra No. 54/4. For example, in Annexure "G" to the petition which is a certified copy of the Jamabandi entries relating to the year 1946‑47 it appears that only one house was built on Khasra No. 54/4 which was jointly owned by several evacuees. The other documents relating to. the year 1960‑61, namely, Annexures "H" and "I", are not directly relevant, because they do not show the correct position prevailing in the year 1946‑

47. Annexure "J", however, which is a certified copy of the Shajra Kishtwar also shows only one whole Khasra No. 54 on which the house is said to be standing. The contesting respondent has placed on the record as Annexure R/1 , a certified copy of the building plan submitted by the evacuee owner in the year 1938. The heading of this plan is as follows: --‑ "Plan of House No. 54, Block 13, New Construction, Owner Messrs Ram Ditta Mal, Sahib Ditta Mal." The plan no doubt shows that the house was to consist of two deorhis, two baithaks and two kitchens but it was nevertheless intended to be one house. The same position emerges from Annexure "R/3" which again is a plan of the house showing the occupation of various parties. The correctness of these plans has not been challenged by the learned counsel for the petitioner. Again Annexure "A/4" is the application which was submitted by the evacuees for the construction of this house and this also does not show that it was intended to build two independent houses. The sanction of the Municipal Committee to the building plan was accorded by its resolution dated the 19th of March 1938 and its certified copy is Annexure "R/Y". This also shows that it was only one house which was built on Khasra No.

54. This conclusion is further strengthened by reference to Annexure "R/8" which is an extract from the Municipal Assessment Register for the year 1946‑47 and it describes the house in dispute as 17/18/1751, Block No. 13 and the owners are shown to be Sahib Ditta and Ram Ditta, sons of Lorin Chand. From a perusal of the building plans as well as the extracts from the Municipal Assessment Register it is clear that only one house was built by two brothers although the house was built in such a manner that most of the usual facilities were duplicated. The first contention, therefore, fails and it cannot be held that the Settlement authorities have transferred two houses to one claimant.

4. There is no doubt that, as already observed, the house does have duplicate facilities like two kitchens two deorhis and two baithaks, etc., and, therefore, it does consist of more than one residential unit and they are occupied by several persons, but the question is whether the presence of these factors casts any obligation on the Settlement Authorities to divide the house. The first proviso to clause (4) of section 2 of the Displaced Persons (Compensation and Rehabilitation). Act, 1958 lays down that even if a house consists of more than one residential unit and these units are occupied by several persons, the entire premises or building is to be deemed to be a house unless ordered otherwise by the Chief Settlement Commissioner. It is, therefore, clear that even when, these two conditions are fulfilled, the power to divide vests in the Chief Settlement Commissioner or his delegate and it is not for this Court to substitute its own opinion for that of the Settlement Authorities. It is no doubt true that in the case of Ch. Altaf Hussain and two others v. Shabbir Hussain and others (P L D 1961 Lah. 449) a Learned Single Judge of this Court did lay down that if this power was not exercised by the Settlement Authorities in a reasonable manner or if the power was exercised without giving any reasons the High Court could interfere, but on appeal to the Letters Patent Bench this view was reversed and the case is Chief Settlement Commissioner v. Ch. Altaf Hussain (P L D .1962 Lah. 189). The view taken by the Letters Patent Bench was approved by their Lordships of the Supreme Court in Ch. Altaf Hussain and others v. Chief Settlement Commissioner and others (P L D 1965 S C 68). I have myself, in a previous reported case Muhammad Iqbal Khan v. The Chief Settlement and Rehabilitation Commis sioner and another (P L D 1963 Lah. 11), expressed the view that it is not for the High Court to interfere with the question of divisibility or otherwise of a house, as the power to divide is vested by law in the Settlement Authorities.

5. Mr. Lodhi, however, referred me to Muhammad 1qbal Khan v. The Chief Settlement Commissioner (P L D 1965 S C 404) in which their Lordships observed that in a case like the present the order could be challenged by way of certiorari or under Article 98 of the Constitution. Their Lordships were dealing with a case where the power had been exercised and the house had been divided into two portions, and the contention raised on behalf of the respondent was that the conditions precedent for the exercise of this power were not present inasmuch as that the house did not consist of more than one residential unit. Their Lordships observed that the contention would fail even if they were themselves to determine whether more than one unit existed. They then went on to point out that the house had two kitchens, two courtyards, two deorhis, two staircases, etc. But in the next paragraph they observed that "however, we should not be understood to be accepting that an order like the one passed by the Additional Settlement Commissioner would always be liable to attack on the ground that more than one residential unit did not exist. If the decision of the question whether one or more units existed depended on belief or disbelief of witnesses or appreciation of evidence, a finding by the Additional Settlement Commissioner could not be ignored even by a Court being an order passed in the exercise of a quasi judicial jurisdiction. It would have first to be set aside in proceedings by way of certiorari. It may be different if there was no dispute about facts and the Additional Settlement Commissioner assumed jurisdiction on a misinterpretation of the‑ law that granted him jurisdiction. It has also to be pointed out in connection with this contention of the respondent that under section 25 of the Act orders made by officers under that Act are final, save as otherwise expressly provided and are not liable to be questioned in any Court. An order passed under the Act can, therefore, be challenged either in accordance with the Act or under Article 98 of the Constitution".

6. Basing himself on these observations of their Lordships Mr. Lodhi has argued that it is open to the High Court to examine whether in the present case the Settlement Authorities have acted in a reasonable and judicious manner in refusing to exercise the power vesting in them under the law to divide a house where the two pre‑requisite conditions are present. It seems to me that the observations of their Lordships of the Supreme Court are not susceptible of this interpretation. They really have reference to a case where the power has been exercised and where the contention is that the conditions necessary for the exercise of the power were not present. As the existence of such conditions may be based on appreciation of evidence or belief or disbelief of witnesses their Lordships have observed that that aspect of the matter may be open to challenge either by way of certiorari or under Article 98 of the Constitution. But they have not laid down that in case the conditions are present, as I have said that they are in the present case, then the High Court has the power to direct the Settlement Authorities to proceed to divide the property. The question whether even in the presence of these conditions the discretion to divide shall be exercised or not is one which must be answered by the Settlement Authorities themselves and it is not for this Court to substitute its opinion for that of the statutory authorities concerned. The result, therefore, is that whatever may be my personal opinion about the divisibility of the house in dispute, it is not open to me to interfere with the view taken by the Settlement Authorities and with their refusal to exercise the power of division vesting in them under the law.

7. Once the house is treated as indivisible, it is obvious that the respondent as a claimant will have to be given preference over the petitioner who is a non‑claimant. On this view of the matter the case has been correctly decided by the Settlement Authorities and no interference is called for on the part of this Court. The petition is dismissed but the parties are left to bear their own costs. K. B. A. Petition dismissed.