1975 PLP 381 (SCMR)

Rana Maqbool Ahmad, Advocate‑on‑Record for Respondents. Date of hearing : 13th December 1974. HAMOODUR RAHMAN, C. J.‑The dispute in this case relates to the transfer of House No. P./85, Street No. 5, Partab Nagar, Lyallpur. This consists of three rooms with one chaubara and a shop with a common deori. Two rooms thereof were in occupation of one Mohammad Din, the predecessor‑in‑interest of the present petitioners. One, Ali Mohammad, was in occupation of one room, although the said room was allotted in the name of his son, Allah Baksb, and another room was in the occupation of Mst. Hamida. Ali Mohammad and Mohammad Din both filed CH forms but Mst. Hamida filed no form at all. The Deputy Settlement Commissioner, on the 21st December, 1959, allotted the two rooms in possession of Mohammad Din to him and to Ali Mohammad the room in his possession as also the room in possession of Mst. Hamida. Subsequently, Mst. Hamida submitted some application and on this a Settlement Inspector made a report that the value of the property being less than Rs. 10,000, it could not have been transferred under the Settlement Scheme No. I but should have been transferred under Settlement Scheme No. 7, therefore, permission should be sought to review this order. This permission was granted by the Additional Settlement Commissioner on the 12th October, 1961. In the meantime, Mst. Hamida also filed a belated CH form. In review, the Deputy Settlement Commissioner, on the 5th June, 1962, modified his previous order by transferring the portions to the persons in respective possession thereof leaving the deori and courtyard common. From this order three appeals were filed but all were dismissed by the Additional Settlement Commissioner on the 7th August, 1962. Against this; order, Mohammad Din alone went up in revision which was allowed by the Settlement Commissioner. He transferred the entire house exclusively to Mohammad Din, as the house, to his opinion, being a small one, was not conveniently divisible having only one entrance and one courtyard. Apart from this, Mohammad Din alone was considered to be a claimant allottee. Allah Baksh and Mst. Hamida were considered to be non‑claimants. Mst. Hamida sought to challenge this order by an application under sections 20 (3) and 21 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, but at the hearing, at the request of her learned counsel, this was treated as a review application under section 21 (3) of the said Act. The Settlement Commissioner dismissed the application as being misconceived. Then Mst. Hamida came to the Lahore High Court in the writ jurisdic tion. A learned Single Judge of the said High Court accepted her petition and declared the order of the Settlement Commissioner to lie without lawful authority on the ground that, since before the Deputy Settlement Commissioner, Mohammad Din had voluntarily permitted Mst. Hamida to stay in one room and the Deputy Settlement Commissioner had transferred the said room to her, Mohammad Din could not challenge that order. The heirs of Mohammad Din now seek special leave to appeal and it is contended on their behalf that the High Court has misinterpreted the order of the Deputy Settlement Commissioner. If Mohammad Din had voluntarily permitted Mst. Hamida to stay in one room then there was no order of transfer in favour of Mst. Hamida. Alternatively, unless the house eras first divided, it could not be transferred and the only order with regard to the division of the house is that of the Settlement Commissioner who held the property to be indivisible. It is true that the Deputy Settlement Commissioner in the earlier portion of his order of the 5th June, 1362, has stated that "Mohammad Din :s permitted to accommodate Mst. Hamida Begum, a non‑claimant" but the operative portion of the order reads as follows :‑ "Consequently the applicant are transferred the portions in their respective possessions with common deori and common courtyard." This clearly indicates that there was an order of transfer in favour of Mst. Hamida and since this was with the consent of Mohammad Din, the High Court is right in taking the view that Mohammad Din could not challenge it subsequently. It is also not without significance that Mohammad Din, in his appeal, only challenged the transfer against Allah Baksh. The Additional Settlement commissioner, in his order of the 7th August, 1962, was, therefore, wrong on taking the view that "the Deputy Settlement Commissioner has not transferred the property to her but direction has been given that Mohammad 'Din should accommodate her" The very fact that the house has been transferred to three parties, who were already living in it for several years, does show that the house was considered to be divisible. Hence in 1964, the Settlement and Rehabilitation Commissioner had no jurisdiction, to interfere with that order, as the order of the Deputy Settlement Commissioner was passed as his delegatee. The power to interfere with such orders passed by delegatees was conferred by an amendment made long after this; vide Jalaidin's case (P L D 1965 S C 261 ). ' The law was changed by Ordinance XV11I of 1965, which was long after the order of the Settlement Commissioner in this case. The contention that the division was, in any event, impracticable, as pointed out by the Settlement Commissioner, has not impressed us, because, of obviously all the three parties were living in different portions of the same property ever since they came in to possession thereof. In any event, the question of practicability of the division was not for the High Court to consider in the writ jurisdiction. None of the contentions advanced in support of this petition has impressed us. This petition is, accordingly, dismissed. Petition dismissed.