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Writ Petition No. 42 of 1971, decided on 12^thMarch 1974.

---S. 20-- Re.vkicti1 Concurrent finding of fact of both lower settle ment tribunals finding disputed room part of house transferred to petitioner----Could not, in law, be disturbed by Settlement Commissioner in revisional jurisdiction even though ire disagreed with such finding on his own view of evidence and that finding appeared to him grossly erroneous---Settlement Commissioner having absolutely misread evidence and based impugned order on surmises, held, wrongfully determined a question of fact and acted illegally in exercise of his revisional jurisdiction.

Held: The two Courts below reached a concurrent finding of fact that room in dispute was a part of the house transferred to petitioner. Such a concurrent finding of fact could not, in law, be disturbed by the Settlement and Rehabilitation Commissioner in revisional jurisdiction even if he disagreed with that finding on his own view of evidence and even though the concurrent finding of the lower Courts appeared to him grossly erroneous. He had absolutely misread the evidence and had based the impugned order on surmises. He had clearly and wrongly determined a question of fact and had acted illegally in the exercise of his revisional jurisdiction.

--- Art. 98-Writ-Impugned finding based on no evidence or on complete misreading of evidence-Can be set aside as without lawful' authority and of no legal effect in writ jurisdiction.

Nawaz v. The Additional Settlement and Rehabilitation Commissioner, Gujrat and another P L D 1970 S C 39; Badrul Haque Khan v. The Election Tribunal, Dacca and others P L D 1963 S C 704 and Muhammad Hussain Munir and other v. Sikandar and others P L D 1974 S C 139 eel.

Peer Bakhsh Khan for Petitioner.

Khawaja Nazir Ahmed for Respondents Nos. 1 to 3.

Karimullah Khan Durrani for Respondent No. 4.

Mian Shaukat Hussain for Respondent No. 5.

Date of hearing : 7th March 1974.

In this Constitutional petition, Shamroz Khan has challenged the order dated 7-10-1970 passed by the Settlement and Rehabilitation Commis sioners Peshawar Division, Peshawar as without lawful authority and of no legal effect.

2. The facts leading to this petition are summarised below.

Evacuee building No. CB. 537 has two parts. This building is located in Bazar Sarrafan, Andar Sher Peshawar City. The parts consist of a shop No. 537/G-2 Municipal No. 1688/967 and a house No. CB. 537/G-1/K1-2-3 Municipal No. 966/1689. According to Form P. T. I. (Annexure D and certified copy at page 122 of the file), Custodian-house Municipal No. 966 is constructed over the site of land measuring 432 sq. ft. The house has been shown as- three-storeyed house with three rooms. The Custodian-shop Municipal No. 967 has been shown constructed over an area of 80 sq. ft. The shop has one room on the land storey. Survey Enquiry Form (Annexure E) and copy Exh. R. 3 on the file also shows that house No. CB. 537/966 AR/GI/ F1/F2/F3 Municipal No. 966 AR/1689 has one room and one kitchen on the First Floor and one room on the Ground Floor. It is not denied by the parties and it is also established from the record that Floors 2 and 3 of the house being in dilapidated condition had been removed by the Custodian Department earlier. Abbas Khan (respondent No. 4) had applied for the shop No. CB. 537/62/537/1688 on L. S. Form. Vide order of the Deputy Settlement Commissioner, Peshawar dated 13-8-1969 Abbas Khan was found in possession of the shop from 1-1-1956. It was allotted to him on 20-1-1956 and therefore it was trans ferred to him on transfer price under Scheme No. VIII. The house No. CB-537/61-F-1-2-3/966/1689 was purchased in auction by Shamroz Khan petitioner on 15-12-1969. The auction was confirmed on 15-1-1970 vide bid -order (Annexure G) and bid sheet at page 22 of the file. P. T. D. was also issued to Shamroz Khan. Later on a P. T. D. was also issued to Abbas Khan with respect to the shop during the pendency of this petition. Abbas Khan then transferred the shop to Abdul Qadir respondent No. 5.

3. Vide application dated 12-2-1970 to the Deputy Settlement Com missioner (Annexure H) and the original placed on the file (at page 36) Shamroz Khan alleged that room appurtenant to the stair-case of the house transferred to him, according to survey-record and tax-register, is his property; but Abbas Khan has broken the interior wall of his shop and has annexed the room with his shop. The Deputy Settlement Commis sioner, in the presence of the parties, inspected the site on 20-2-1970. Statements of Abbas Khan and Shamroz Khan were recorded on 16-3-1970. Abbas Khan deposed that the shop transferred to him consists of two rooms and the disputed room is in his possession since long. He admitted in cross-examination that there is an intervening wooden partition between his shop and the disputed room, that the intervening partition has got a door with no hinges, that the level of the floor of the shop is lower than the level of the floor of the disputed room and that he uses the disputed room since 1947 although he rarely opens it. Shamroz Khan claims the disputed room on the ground floor of his house on the basis of tax-register (copy Exh. R. 3) on the file.

4. The Deputy Settlement Commissioner, Peshawar vide his order dated. 16-3-1970 observed:-

"In order to clarify the situation I have visited the spot personally. Office record and file has been gone through and spot also visited. Survey card of the shop at page 35 denotes that this shop consists of one room. But an over-writing making it in two is evident. It seems to, have been tampered with illegally. The Excise and Taxation Register of 1949 clearly bears that shop consists of one-room Measuring 80 sq. feet. The measurement is correct at the spot. The shop stands transferred to Abbas Khan at my hand vide my decision-dated 13-8-1969, there is no mention of any extra room with the shop.

Survey Card at page 34 shows that Balakhana No. CB-537/GI/966 AR/1689, Ander Sher, Peshawar City, consists of three rooms, two rooms on upper storey and one in the lower plinth-demoting letter (GI). This fact is further supported by Excise and Taxation Register ht serial No. 913. It also shows that Balakhana consist of three rooms.

From the above facts and spot inspection I arrive at the conclusion that lower small room having a gate in the street and bearing plinth higher that plinth of shop is not part and parcel of the shop new bricks wall has been erected in order to disprove the link of this room with Balakhana . . . . . "

He thus ordered that :--

"The transferee of shop being illegal trespasser is ordered to block the illegal door opened by him between shop and disputed room immediately."

5. Abbas Khan challenged the order of the D. S. C. in appeal before the Additional Settlement and Rehabilitation Commissioner, Peshawar. The learned Additional Settlement/Rehabilitation Commissioner, Peshawar, in his order dated 2-5-1970 observed:--

"Before hearing the arguments, on the insistence of the parties, I inspected the spot in their presence. The shop in possession of the appellant and transferred to him has a small room in the rear, which has a higher plinth by about two feet than the shop. The area of the shop is precisely according to the measurement given in the assess ment record of the Excise and Taxation Department. It has a very small door which to me appeared has been opened recently. The disputed room has a door, which opens in the street and another door opening in the stairs leading to the Balakhana, which has been blocked. After spot inspection I am of the view that the room in the rear of the shop transferred to the appellant has wrongly been claimed as its part and parcel. It is more connected with the residential portion that the shop which is borne out by the level of the floor of the disputed room and the dewry having the stairs. The existence of a door, which at present is blocked, is another factor which leads to the conclusion that the disputed room is a part of the residential portion and not the shop . . . . .

He, therefore, upheld the impugned order and dismissed the appeal. Abbas Khan went in revision before the Settlement/Rehabilitation Commis sioner, Peshawar Division, Peshawar. The learned Settlement/Rehabilitation Commissioner in his order dated 7-10-70 observed :--

"From an appreciation of the aforesaid position and from a perusal of the record of the case I am of the view that the constructional position of the suit rooms would not in fact matter much for a decision particularly when auction of the property to the respondent was confined to the Balakhana which for all purposes would be the upper storey and secondly which possession over the said room has also been with the petitioner as a part of the shop. The fact of possession with him long before 1958, is not found contested. Transfer of the property to the petitioner having taken place on the factum of possession, the said room would be understood to be a part of the property transferred to him. Even if the position recorded on Excise and Taxation record showed the shop to be of one room, the user to which the other room was put of course as a shop would bring the extent of the property transferred within legal manner on the simple ground that the state of occupation and its use before the year 1958 would be a material factor in that direction."

With this view he held that the disputed zoom would be deemed to have been transferred to the petitioner and the test of the property i. e. Balakhana any top to be the stare of the respondent as its auction-purchaser. He, while accepting the revision petition, set aside the orders of the two Courts below.

6. Mr. Pir Bakhsh Khan, Advocate, learned counsel for the petitioner argued that the impugned order of the learned Settlement/Rehabilitation Commissioner is based on misreading of the evidence and surmises and therefore he has acted in the exercise of his jurisdiction illegally. The argument is forceful. The wrong description of the house sold in auction and transferred to Shamroz Khan petitioner as Balakhana would not change the constructional position of the house. According to the survey enquiry Form and the tax-register, the house has got three rooms viz., one room, one kitchen on the First Floor and one room on the Ground Floor. Again according to the tax-register, the shop transferred to Abbas Khan respondent consists of one room. Vide transfer order and the P. T. D. one shop has been transferred to Abbas Khan. The shop has not been transferred together with any godown or store-room. The site area of the shop according to the tax-register is 80 sq. ft, and is comprised of one room only on the ground. The two Courts below after inspection of the spot, found that the shop-site was 80 sq. ft. that the disputed room is on a higher level than the shop and that Abbas Khan respondent No. I trespassed into the disputed room by opening a door in the intervening wall. The two Courts below have, therefore, reached on a concurrent' finding of fact that room in dispute is a part of the house transferred to, Shamroz Khan petitioner. Such a concurrent finding of fact could not, in law: be disturbed by the Settlement and Rehabilitation Commissioner in revisional jurisdiction even if he disagreed with that finding on his own view of evidence and even though the concurrent finding of the lower Courts appear to him grossly erroneous. He has absolutely misread the evidence and has based the impugned order on the surmises. He has clearly and wrongly determined a question of fact and has acted illegally in the exercise of his revisional jurisdiction.

7. Mr. Krimullah Khan Durrani, Advocate, the learned counsel for Abbas Khan and Abdul Qadir respondents Nos. 4 and 5 contended that the High Court in the exercise of its writ jurisdiction cannot decide the disputed question of fact. The argument is not well founded in law. In Nawaz v. The Additional Settlement and Rehabilitation Commissioner, Gujrat ands another (P L D 1970 S C 39) it has been held :

"The High Court, in the exercise of its writ jurisdiction, does not act as a Court of facts and ought not to enter into and decide disputed question of fact, although it can interfere with a finding of fact given by a subordinate Court or a tribunal or other authority if the finding is based on no evidence or is based on a complete misreading of the evidence."

In the case Badrul Haque Khan v. The Election Tribunal, Dacca and others (P L D 1963 S C 704), Kaikaus, J in a separate judgment observed :

"If an order can be without legal authority because of a clearly wrong; determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on question of fact. There is no reason for any distinction in the connection between a decision on a question of law anal, a proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matter of facts as well as matter of law."

In case Muhammad Hussain Munir and others v. Sikandar and others (P LD 1974 S C 139), it has been held:--

"The High Court's supervisory jurisdiction under Article 98 (2) (a)(ii) of the 1962 Constitution (or for that matter under Article 199(i)(a)(ii) of the present Constitution) having regard to its nature or content is assimilable to its jurisdiction under section' 115, Civil Procedure Code except in two important respects: first; the former jurisdiction being a creation of the Constitution stands in a higher pedestal that that under section 115, C. P. C., second; the former jurisdiction has a wider reach than the jurisdiction under section 115, Civil Procedure Code, which is confined to subordinate Courts."

8. In my view, the revisional order of the Settlement and Rehabilitation Commissioner dated 7-10-1970 is based on complete misreading of evidence and surmises. The order has clearly and wrongly determined a question of fact. I, therefore, while accepting the writ petition, declare the impugned order to be without lawful authority and of no legal effect. Parties are to bear their own costs.

S. A. H.

Petition accepted.

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