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Letters Patent Appeal No. 20 of 1963, decided on 12th April 1968.

Ss. 19(b) & 20 and First Sched.‑‑Additional Settlement Commissioner after dismissing appeal under S. 19(3), becomes functus officio when no further dispute remains pending before him against order of Deputy Settlement Commissioner‑‑ Additional Settlement Commissioner, in circumstances, could not exercise revisional powers under S. 20.

Held, a right of appeal is provided under section 19(b) to the Additional Settlement Commissioner where an order not being an order passed in appeal under clause (a) of section 19 has been passed by a Deputy or Assistant Settlement Commissioner. A person had preferred an appeal before the Additional Settlement Commissioner against the order of the Deputy Settlement Commissioner and had claimed only this much that the lower portion of the house be transferred in his favour. The moment the Additional Settlement Commissioner dismissed the appeal he became functais officio as no further dispute was pending before him against the order of Deputy Settlement Commissioner. Therefore, the argument that he could exercise the powers of revision under section 20 of the Act completely disappears.

Ch. Qadir Bakhsh for Appellant.

Nemo for Respondents.

This is a L. P. A. against the order of a learned Single Judge, dated the 29th of January 1963, dismissing in "Mine Writ Petition No. 231‑R of 1963 of the appellant. The brief facts, giving rise to this appeal are as follows:‑--

The dispute has arisen on account of difference between two brothers Muhammad Yaqub and Muhammad Ishaq who were residing in the house in dispute after migration from India to Pakistan. Muhammad Yaqub, real younger brother of Muhammad Ishaq appellant, was living with him under his protection since his infancy. When the Settlement operations com menced the appellant filed Form C.H, while the form of Muhammad Yaqub was not filed and it was alleged that the appellant had prevailed upon him to hand over his form so that he will file both the forms together but the appellant did not file the form of Muhammad Yaqub and only filed his Form C. H. No. 934. On the 4th of November 1959, the Deputy Settle ment Commissioner Centre I, Lyallpur, ordered that the house in dispute be transferred to the appellant on usual terms as claimant displaced person. This order was challenged by Muhammad Yaqub before the Additional Settlement Commissioner who, by order dated the 21st of September 1960 rejected the appeal as he had compromised with the appellant. The learned officer also observed that as Muhammad Yaqub had filed no form he had no right to maintain his appeal before him. After having rejected the appeal of the respondent the learned Additional Settlement Commissioner proceeded to divide the property with the following observations :‑--

"Since the property is a double storeyed residential house, it can easily be divided into to portions. The respondent is entitled to retain the portion in his occupation only. The portion which is vertical in possession of the appellant will remain available for open auction."

This order gave rise to a petition under section 20 (3) on behalf of the appellant but it was dismissed by the Settle ment Commissioner on the 27th of July 1961. The learned Settlement Commissioner observed that the appellant has no justification to claim the portion of the house which was not in his possession. The second revision of the appellant was dismissed by Sh. Muhammad Rafiq, Settlement Commissioner with powers of Chief Settlement and Rehabilitation Commissioner, Lahore, on the 30th of November 1962 on the ground that the records were not called for before the 13th of January 1962. The appellant challenged the orders of the Settlement Authorities in this Court under Article 98 of the Constitution of the Islamic Republic of Paktktan but the learned Single judge declined to interfere on the ground that the Additional Settlement and Rehabilitation Commissioner while dismissing the appeal of Muhammad Yaqub could also exercise the powers of revision conferred by section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and pass such order as he could deem fit. The case of Bahar Muhammad, was also pressed into service but the learned Single Judge repelled the contention of the appellant on the ground that the delegated powers in this case were not exercised by the Deputy Settlement Commissioner and as such the Additional Settlement Commissioner could easily order the division of the property. This order is being impugned before us in the present Letters Patent Appeal.

2. Learned counsel for the appellant has urged that Muhammad Yaqub did not file any form for the transfer of this property and as such he was not eligible to contest its transfer in favour of the appellant. It was further sub mitted that once Muhammad Yaqub had withdrawn his appeal after having compromised with the appellant the order of the Deputy Settlement Commissioner should have been allowed to stand and the order of division passed by the Additional Settlement Commissioner was wholly unwarranted by law.

3. After hearing the learned counsel for the appellant we are satisfied that the orders passed by the Settlement authorities in this case are wholly void for more than one reasons. In the first place it may be pointed out that Muhammad Yaqub was real younger brother of the appellant. According to the grounds of appeal filed by Muhammad Yaqub it is apparent that he was not in occupation of the house in dispute in his own right but he was residing with Muhammad Ishaq appellant. as his licensee. Muhammad Yaqub himself has stated in his memorandum of appeal that his father had died and that he was living under the protection of appellant, his real elder brother, since his childhood. In these circum stances it cannot be said that Muhammad Yaqub was in possession of the house in question. The house was, therefore, occupied as a whole by the appellant and his family members which included his younger brother and no other person under the law was eligible for its transfer. The appellant, therefore, was fully justified in filing his Form C. H. and to ask for the transfer of this house in his favour. The other facts which emerge from the grounds of appeal of Muhammad Yaqub are that he was doing joint business with his brother for a considerable long time but subsequently they started doing their own business. This friction in business might have resulted in dispute between the two brothers for the transfer of the house in their favour but ultimately better sense prevailed with them and they compromised with each other. In these circumstances the proper course open for the Additional Settlement Commissioner would have been not be examine the question of divisibility of the house as no such question fell for determination before him in appeal.

4. From the prayer made by Muhammad Yaqub in the grounds of appeal it is clear that he demanded horizontal division of the house and requested the Additional Settlement Commissioner that the lower portion of the house be transferred in his name. The learned Additional Settlement Commissioner did not advert to this aspect of the case. Neither he cared to examine that particular portions were in possession of the parties but directed that the portion which is vertical in possession of the appellant before him will remain available for open auction. There was no evidence before the Additional Settlement Commissioner that Muhammad Yaqub was in posses sion of vertical portion of the house. The learned Additional Settlement Commissioner did not care to examine thoroughly the grounds of appeal and the prayer of Muhammad Yaqub otherwise it would nave become crystal clear to him that Muhammad Yaqub was only asking for horizontal division of the house and was in possession of the lower portion of the house and there was no vertical portion in possession of Muhammad Yaqub, If the order of division passed by the Additional Settlement Commissioner is examined with the prayer in the grounds of appeal filed by Muhammad Yaqub it is difficult to understand how a vertical division of the house could be ordered when Muhammad Yaqub and Muhammad Ishaq are in possession of the upper portion and the lower portion. In these circumstances the order passed by the Additional Settlement Commissioner suffers from an error patent on the face of the record as he has directed that the appellant should retain the portion in his occupation only and the portion vertical in possession of Muhammad Yaqub should go to open auction. This fact is not at all borne out from the facts on the record that Muhammad Yaqub was in vertical possession of the house. The order of division is, therefore, bad in law.

5. The learned Single Judge non‑suited the appellant on the ground that the Additional Settlement Commissioner could exercise the revisional powers under section 20 of the Act after he had dismissed the appeal of Muhammad Yaqub with utmost respect to our learned brother we do not agree with his reasoning. In the first place a right of appeal is provided under section 19 (b) to the Additional Settlement Commissioner where an order not being an order passed in appeal under clause (a) of section 19 has been passed by Deputy or Assistant Settlement Commissioner. Muhammad A Yaqub has preferred an appeal before the Additional Settle ment Commissioner against the order of the Deputy Settlement Commissioner, dated the 4th of November 1959 and had claimed only this much that the lower portion of the house be transferred in his favour. The moment the Additional Settlement Commissioner dismissed the appeal Muhammad Yaqub he became functus officio as no further dispute was pending before him against the order of Deputy Settlement Commissioner. Therefore, the argument that he could exercise the powers of revision under section20(4) of the Act completely disappears. Otherwise also, it eras no every Additional Settle ment Commissioner who could hear revisions at the relevant time against the orders of Deputy Settlement Commissioner and Assistant Settlement Commissioner. Under subsection 20(4) of the Act as it stood on the 21st of September 1960 only such Additional Settlement Commissioners could hear revisions, who had been especially emp7wered by the Chief Settlement Commissioner to exercise the revisional powers under the Act against the order of a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under their jurisdiction. In the absence of positive proof that Lt.‑Col. Khushi Muhammad had been especially authorised by the Chief Settlement Com missioner to exercise the revisional power under section 20(4) of the Act as an Additional Settlement Commissioner against the orders of the Deputy Settlement Commissioner and the Assistant Settlement Commissioners under him it could not be presumed that such powers were available with him and he had the authority to deal with the matter as a revisional Court after the dismissal of the appeal of Muhammad Yaqub.

6. Ch. Qadir Bakhsh, learned counsel for the appellant relied upon the following observations, made by one of us (Wahiduddin Ahmad, C. J., in Jalil Ahmad v. Settlement and Rehabilitation Commissioner (P L D 1962 Kar. 197):‑

"Apart from this the manner in which the petitioner's provisional transfer order was cancelled is open to serious objection. Mr. Khalid Ishaque failed to satisfy me that there existed any provision of law under which the Addi tional Settlement Commissioner in appellate jurisdiction could convert the property into three units and direct the disposal of some of them by unrestricted public auction. The appeal before him was whether in the face of the Provisional Transfer Order in favour of the petitioner, the property could be transferred to Mst. Asafia Begum. This was the only question before him and I quite agree with the argument of the petitioner's counsel that there being no cross appeal or revision, the learned appellate authority was incompetent to consider the validity or propriety of the transfer in favour of the petitioner."

and contends that in spite of the fact that that authority has been expressly dissented from on the point that the Settlement Authority has power to divide property to transfer the portions separately. Nevertheless, the observations relating to the exercise of power by appellate authority have not been set aside and they still hold good, therefore, after the dismissal of appeal of Muhammad Yaqub, the Additional Settlement Commissioner had no further jurisdiction to deal the matter and the order of division passed by him is in excess of his power. We feel inclined to uphold the argument of the learned counsel. In the absence of there being any cross appeal or revision the Additional Settlement Commissioner as an appellate authority was incompetent to consider the validity or propriety of order of transfer passed in favour of the appellant by the Deputy Settlement Commissioner.

7. In view of what we have said about the locus standi of Muhammad Yaqub that he was only licensee of the appellant being his younger brother and had been living with him since his childhood and that the Additional Settlement Commissioner was not especially empowered under section 20(4) of the Act to exercise the revisional powers we have no doubt in our mind that the order of division of this property passed by the Additional Settlement Commissioner was beyond the scope of his appellate jurisdiction and the same is hereby set aside.

8. So far as the revisional order of the Settlement Commissioner is concerned, it will be useful to reproduce the operative part of his order at this stage. It reads :‑--

"the facts of the case or that the petitioner has been given a portion of the house which is in his possession and he wants that the other portion which is in possession of somebody else should also be transferred to him. The petitioner has no justification to claim a portion of this house which is not in his possession."

The learned Settlement Commissioner also did not examine the material aspect of the dispute before him. He disposed of the revision petition cursorily. Had he carefully examined the circumstances in which Muhammad Yaqub bad preferred the appeal before the Additional Settlement Commissioner and how this small house was ordered to be divided by the Additional Settlement Commissioner be would have been able to find out that Muhammad Yaqub, who is younger brother of the appel lant, was fighting with him on account of certain friction in the business and neither he had submitted any form nor was he allottee of the house and after the withdrawal of the appeal there was no authority with the Additional Settlement Commissioner to direct that a portion of the house he placed in auction. In these circumstances the revisional order of the Settlement Commissioner is also bad in law. The house in dispute is comprised of a small piece of land measuring about 411 Marlas, which was occupied only by one family in which Muhammad Yaqub was living as licensee of his elder brother, the present appellant before us and it could only go to him as an indivisible one unit.

9. The upshot of the above discussion is that the appeal is accepted. The order of the learned Single Judge dated the 29th of January 1963 is set aside and the appellate order of the Additional Settlement Commissioner, dated 21st of September 1960 and that of Settlement Commissioner, dated the 27th of July 1961 and the order of Chief Settlement Commissioner, dated the 30th of November 1962 are hereby quashed as being without lawful authority and of no legal effect and the order of the Deputy Settlement Commissioner, transferring the house as a whole to the appellant, is hereby restored. The Deputy Settlement Commissioner, Lyallpur, is hereby directed to issue necessary documents of title in favour of the appellant. Since no one appears for the respondent there will be no order as to costs.

A.E. Appeal accepted.

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