1984 PLP 1623 (CLC)

‑‑Art. 199‑.Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 2(4)‑Constitutional jurisdiction‑Question that finding of fact recorded by tribunal is not normally interferable in constitutional jurisdiction, held, depends on circumstances of case. (b) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑ ‑‑.‑S. 2 (4)‑Transfer of property‑Divisibility of house‑Two families living in a house since after 1947‑House having two separate stair cases and virtually divided by two families‑Finding that house is indivisible, held, perverse, untenable and set aside‑Purpose of Settle ment laws, held further, is to settle people and not to unsettle them. Shahzad Jahangir for the Settlement Department. The dispute relates to portion B' of property No. S. 1‑23‑S‑3, Milkhi Ram Street No. 23, Gowalmandi, Lahore. It was transferred to Mst. Amina Bibi, respondent No. 1 by the Deputy Settlement Commissioner on 4‑2‑1960. Mst. Hashmat Bibi, the petitioner filed an appeal. It was contended before the learned Additional Settlement Commissioner that the appellant wanted to contest in fact the portion 611' transferred to the respondent which is further divisible into portions as it had two staircases from bottom to top, The learned Additional Settlement Commissioner observed that "According to both the sketches, portion 1B' is further sub- divisible into two independent portions. But unfortunately her demand in appeal is for potion 'C' which was transferred by the D S C to one Ghulam Muhammad. In the ground of appeal she has not mentioned any where that she wanted to get half of the portion 'B' which is divisible. Therefore, in spite of the fact that portion B' is divisible and she appears to be an occupant since 24‑12‑1947 through her deceased husband Khair Din. I cannot hold (help) her as the appeal is not with regard to portion B'. He, therefore, rejected the appeal vide order, dated 3‑6‑1960. It is just unfortunate that the Additional Settlement Commissioner did not realise that what the appellant was asking him was the relief and he need not have gone by whether the appeal had reference to letter `B' or `C'. If he had seen through and got hold of the‑substance of the appeal, he could have decided the case in favour of Mst. Hashmat Bibi and that would have been the end of the matter. Unfortunately he did not do so. The lady had to go in revision but the learned Settlement Commissioner thinking that the portion 'B' was not divisible rejected her revision petition vide order dated 5‑9‑1963. The lady had to file Writ Petition No. 2942 R163 which was accepted by Mr. Justice Shamim Hussain Kadri (as then he was) vide order dated 24‑11‑1966 with the observation that 'it is clear that after the finding of the Additional Settlement and Rehabilitation Commis sioner that the house consists of two units, the Settlement Commissioner has not treated those two houses as one and unless he exercised the powers under section 2(4) of the Displaced Persons (Compensation and Rehabilita tion) Act, 1958, declaring the property in dispute as a house' he could not transfer the property to the respondent. It is clear that he has by this order transferred two houses to the respondent". The order was quashed and the case was remanded for fresh decision. The order was upheld by a learned Division Bench which approved the observation as well, vide judgment, dated 8‑3‑1977: Consequently, in pursuance to the remand order the matter came up before the Additional Settlement Commissioner who in his wisdom had come to the conclusion that the house was not divisible. This is vide order dated 27‑8‑1977. The petitioner has filed the present writ petition.

2. Learned counsel for the petitioner has contended that the Officer was not conferred with the jurisdiction to deal with the remand case and could not hold the house to be indivisible in which the parties have been living since the creation of the country.

3. Learned counsel appearing for the vendee from the transferee Mst. Amina Bibi, respondent No. 1, has vehemently contended that‑ the order of the learned Additional Settlement Commissioner dated 27‑8‑1977 impugned in this petition is not interferable in exercise of Constitutional jurisdiction for the simple reason that it records a finding of fact that the house is indivisible and this loud of finding of fact is not interfered with by the High Court in exercise of Constitutional jurisdiction.

4. Learned counsel for the respondent No. 1 is quite right that the finding of fact recorded by a Tribunal is not normally interferable by this Court in exercise of Constitutional jurisdiction but it all depends on the circumstances of the case. How could a Settlement authority with any sense of responsibility declare a house to be indivisible in which two families have been living since after the creation of the country ? They have virtually divided the house themselves. This house had two separate staircases. The basic purpose of the Settlement laws is to settle people and not to unsettle settled people. Petitioner is a claimant widow in possession. How can she be thrown on read for transfer of the house to the respondent No. 1 who had no more interest than to sell it to somebody else. The finding that the house is indivisible, is totally perverse, capricious and untenable on any rational ground. Therefore, the same is set aside. The matter would have normally been referred back for fresh decision but that was done some 7 years ago and the result is there to see that the litigation is still going on. Therefore, I see no reason that any useful purpose would be served at all by remanding the case. The impugned order is, consequ ently, quashed. The property shall be transferred to the two applicants viz. petitioner and respondent No. 1 in accordance with their possession. The petition is thus allowed with costs. M.Y.M Petition allowed.