1976 PLP 415 (SCMR)

SALAHUDDIN AHMAD, J.‑‑This appeal by special leave is from the order of the late High Court of West Pakistan allowing the Letters Patent Appeal of Choudhary Fateh Din, predecessor‑in‑interest of the respondents herein. The order of the learned Single Judge passed in the writ petition filed by the appellant herein was set aside and the orders of the Settlement Commis sioner dated 7‑3‑1961 and the Chief Settlement Commissioner dated 9‑5‑1962 were maintained. Under these orders of the Settlement Authori ties the house in disputed stood divided between the parties according to their respective possession and they were transferred to the parties: The dispute over property No. B‑11‑5‑8‑56 situated in Okara is between the appellant, a claimant and an allottee in possession and respondent No. 1, Abdul Hameed, a non‑claimant mho obtained allotment in the year 1955. The appellant was in possession of a half portion of the house in dispute and had filed a C. H. form. Respondent No. I tiled a N. C. H. form and claimed to foe an allottee in possession of the property. His father, Choudhary Fateh Din (now deceased) filed a C. H. form as a claimant and claimed possession of the property on the basis of the possession of his son, respondent No.

1. The Deputy Settlement Commissioner found the house ire possession of the appellant and respondent No. 1 and having found it indivisible, trans ferred the entire house to the appellant. Respondent No. I did not file any appeal but his father Choudhary Fateh Din filed as appeal from the order of the Deputy Settlement Commissioner which was dismissed on the 25th June 1960, by the Additional Settlement Commissioner. Both father and son approached the Settlement Commissioner on revision and the revision was accepted and the house was divided by an order dated the 7th March 1961, and the portions in possession of the respective parties were transferred to them. The appellant filed a second revision before the Chief Settlement Commissioner and the latter, by his order dated the 9th May 1962, dismissed the revision on the ground that as the record had not been summoned before the 13th January 1962, namely the date on which section 2(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was abolished by Ordinance No. IX dated the 13th March 1962, the revision was incompetent. The appellant filed a writ petition from the order dated the 7th March 1961, on 9‑5‑1862 and the peti tion was accepted. The respondent filed a Letters Patent Appeal and it was allowed and the writ petition was dismissed. It bas been contended before us that Choudhary Fateh Din was not entitled to file the C. H. form under paragraph I of the Schedule to the said Act inasmuch as his son respondent No. 1, Abdul Hameed bad already filed a N. C. H. form. It appears that the son supported the father and relinquished his claim in favour of the father, Choudhary Fateh Din. The learned Judges of the High Court in the impugned order accordingly held that Choudhary Fateh Din was not debarred from maintaining his application for transfer of the house. They were of the opinion that the C. H. form filed by Choudhary Fateh Din was in the nature of an alternative case to the one set up by his son Abdul Hameed who had claimed that the house was divisible and had been occupied by two families from, the year 1947, For this the learned Judges relied on the case of Altaf Hussain v. Chief Settlement Commis sioner (P I D. 1965 S C 68). They further held that once the house was divided into twos units by the Settlement Commissioner, it was immaterial whether one of the units went to respondent Abdul Hameed or his father Choudhary Fateh Din. The plan shows the existence of a wall running right along the line dividing the two portions. Having regard to the facts and circumstance mentioned above we do think that the impugned order of the High Court calls for our interference particularly when substantial justice has been done and the two families who have been in possession of the properties for a large number of years have been transferred the portions in their respective possession. The orders of division made by the Settlement Commissioner is neither incompetent nor irrational. The appeal is accordingly dismissed without any order as to costs. Appeal dismissed.