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Civil Appeal No. 33 of 1970, decided on 9th June 1975.

(On appeal from the judgment and order of the erstwhile High Court of 'West Pakistan, Lahore, dated the 19th 'February 1968, in Letters Patent Appeal No. 277 of 1964).

----Sched.‑Division of property by Settlement Authority for purpose of transfer to more than one claimant.‑validity of division cannot be questioned merely because some adjustments made and party given something not actually in his possession.

The Settlement Authority concerned is fully competent to make the necessary modifications while making a division of the property, and merely because some adjustments have been made to make the two units separate and independent of each other, the validity of the division cannot be challeng ed on the ground that something not actually in the, occupation of, one party has been given to him.

-‑‑ S. 21 ‑-- Review --‑ Chief Settlement Commissioner delegating his power of review to Settlement Commissioner on 20‑12‑61‑--Order of review passed by Settlement Commissioner prior to this date, held, without jurisdiction.

Mst. Zainab Khatoon's case P L D 1965 S C 55 and Mst. Zaitoon Begum's case 1968 S C M R 611 ref.

S. Jamil Hussain Rizvi, Senior Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record (absent) for Appellant.

Samad Mahmood, Advocate Supreme Court instructed by Iftikharuddin Ahmad, Advocate‑on‑Record (absent) for Respondents Nos. 1 and 2.

Muhammad Hasan, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Respondent No. 3.

Date of hearing: 9th June 1975.

This appeal is by special leave of this Court. The dispute between the parties is over the division of bungalow No. B‑XVIII‑2S‑64 situated at College Road, Gujranwala. Both the appellant and respondent No. 3 Syed Razi Abbas are claimants, and they are allottees with effect from the same date, and both applied for the transfer of the bungalow. The claim of the appellant has been verified to the extent of Rs. 64,000 and that of the said respondent to the extent of Rs.13,250.

It appears that on the 1st of March 1960, the Deputy Settlement and Rehabilitation Commissioner held that the bungalow was divisible and it consisted of two portions namely, stable (also described subsequently as the garage), and the main bungalow, and marked the two portions as 'A' and 'B', respectively. He put portion 'A' in the earmarking scheme and transferred portion B in its entirety to appellant Kh. Riffat Ali, although respondent No. 3 Syed Razi Abbas was also one of the occupants of the main bungalow. The basis' of the transfer was that the appellant was in occupation of the major part of the bungalow. The appellant Kh. Riffat Ali and respondent No. 3 Syed Razi Abbas both preferred appeals from this order, but they were both dismissed by the Additional Settlement and Rehabilitation Com missioner by his order dated the 14th of April 1960, and the impugned order of the Deputy Settlement and Rehabilitation Commissioner was maintained.

Two separate revision petitions, one by the appellant and the other by the said respondent, were filed before the Settle ment and Rehabilitation Commissioner (Khan Farzand Ali Khan), and they were both accepted on the 20th of August 1960. Although the finding that the property was divisible was maintained, the actual division was modified. The parties were given the portions in their respective occu pation, with this modification that while the appellant was given the portion marked 'A' entirely on the ground that this formed part of the bungalow, he was deprived of a verandah, and a room (the latter had been constructed on the upper floor) that were in his possession. This verandah and room wire given to respondent Syed Razi Abbas in order to effect a vertical division so that the portion transferred to him had no connection with the portion transferred to the appellant.

The appellant filed a second revision before the Settlement and Rehabilitation Commissioner (Malik Fateh Khan), with powers of Chief Settlement and Rehabilitation Commissioner, and the latter by his order dated the 29th of March 1961, dismissed the revision, and maintained the order of Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, dated the 20th of August 1960.

The appellant then filed a review of the order of Malik Fateh Khan dated the 29th of March 1961, and it was accepted by the latter on the 8th of April 1961, and the case was remanded to the Additional Settlement and Rehabilitation Commissioner directing him to inspect the property in dispute and then make a division.

Upon remand the Additional Settlement and Rehabilitation Commissioner by his order dated the 2nd of January 1963, transferred to the appellant and respondent No. 3 the portions of the bungalow which were in their respective possession, and in addition gave to the appellant portion A', i.e., the stable,

Both the parties once again filed revision petitions before the Settlement and Rehabilitation Commissioner (Mr. S. Ijaz Hussain Shah). The Settlement and Rehabilitation Commissioner by his order dated 10‑5‑1963 accepted the petition of the said respondent after having heard the case ex parts against the appellant. The order of Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, dated the 20th of August 1960, was maintained in its entirety as the division made by him was found to be fair and equitable and ensured complete vertical division of the bungalow.

The appellant thereafter filed, first, a Constitution Petition before the erstwhile High Court of West Pakistan, Lahore, and subsequently a Letters Patent Appeal. Both the Writ Petition and the Letters Patent Appeal were dismissed and the High Court observed that the division of the bungalow as ordered by Khan Farzand Ali Khan, Settlement and Rehabilitation Commissioner, was fair and equitable. The Letters Patent Bench was satisfied that substantial justice had been done between the parties in this case and that the appellant got more than what had been originally given to him by the Deputy Settlement and Rehabilitation Commissioner.

Mr. S. Jamil Hussain Rizvi, learned counsel appearing on behalf of the appellant, has contended, firstly, that the ex parts order passed by the Settlement and Rehabilitation Commissioner against the appellant on the 10th of May 1963, was not justified, and secondly, that respondent Syed Razi Abbas could not get the portion which he neither occupied nor had asked for its transfer.

The learned Single Judge as well as the learned Judges of the Division Bench of the High Court were of the opinion that the case had been rightly heard ex parte against the appellant. Reasons have been given in support of this finding, and we are unable to find any fault with it. On merits, too, both the Benches were of the opinion that the division had been fair and equitable. We ourselves have applied our mind to the case with reference to the records of the case and agree with the learned Judges of the High Court that the division between the parties has been fair and equitable.

The second contention does not appear to us to have any substance. The Settlement Authority concerned is fully competent to make the necessary modifications while making a division of the property, and merely because some adjustments have been made to make the two units separate an independent of each other, the validity of the division cannot be challenged on the ground that something not actually in the occupation of one party has been given to him. Substantially the parties have been given the portions in their respective possession, and the giving of the disputed verandah and room to the said respondent and in lieu thereof the portion marked 'A', i.e., stable/garage to the appellant appears to us to be just and equitable.

On behalf of respondent No. 3 it has been contended that Malik Fateh Khan, Settlement and Rehabilitation Commissioner was not competent to review his earlier order dated the 29th of March 1961, inasmuch as on the day he made the review order he had not been delegated the power to review by the Chief Settlement and Rehabilitation Commissioner. In support of this contention he has relied on the case of Mst. Zainab Khatoon (P L D 1965 S C 55) and of Mst. Zaitoon Begum (1968 S C M R 611). We accept this contention, for the order passed upon review is dated the 8th of April 1961, while the Notification whereby the Chief Settlement and Rehabilitation Commissioner delegated the power of review to various Settlement Commissioners is dated the 20th of Decembers 1961. According to the aforesaid two decisions Malik Fateh Khan had n to jurisdiction to entertain the review and pass the order dated the 8th of April 1961. Consequently all subsequent proceedings and the orders passed therein are illegal, and with their elimination the order of Khan Farzand Ali Khan dated the 20th of August 1960, and that of Malik Fateh Khan dated the 29th of March 1961, are restored. Thus the result in any case remains the same.

We, therefore, see no reason to interfere with the impugned orders of the High Court. The appeal is, accordingly, dismissed but without any order as to costs.

K. B. A. Appeal dismissed.

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