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Civil Appeal No. 206 of 1977, decided on 21st November, 1982.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27‑3‑1975, passed in Writ Petition No. 366‑R of 1974).

‑‑ Sched., Part I‑Appellant himself admitting claimant A to be allottee in possession of chowbara‑Appellant also admitting in his memo. of appeal stain case leading to upper portion having no connection with two shops below‑Neither of two settlement authorities noting such admissions while recording claimant A to be not in possession, or having left possession nor relating discontinuance of his possession to crucial or prescribed date‑Possession if discontinued after crucial date such fact would not have affected entitlement of claimant A Finding of .settlement authorities in view of such two facts as to claimant A and afterwards his successors being not in possession of chowbara, held, against record and admissions of contesting parties.

‑‑ Sched., Part A‑Appellant though filing both N. C. H. and N. C. S. forms for transfer of property yet not claiming any portion of property not in his possession‑Claimant A while making possession of locals on lower portion of property claiming only upper portion (chowbara) Chowbara, in view of admissions of appellant having an independent access and being independently in possession, of claimant A and Rehabilitation Department having treated it so, same, held, could be treated as a distinct unit complete in itself and parties having claimed portions in their respective possession they could be kept confined to their own portions‑Shop and chowbara if having to be treated as one unit, claimant A could successfully match his claim against that of local.

‑‑ Sched. Part A‑Order of Deputy Settlement Commissioner held by High Court to be sacrosanct in fact passed behind back of appellant without seeking clarification from appellant in respect of discrepancy in date of possession‑‑Disposal of form by outright rejection because of discrepancy in date of possession, held, could not make such order sacrosanct nor render subsequent hearing of case legally objectionable or without jurisdiction.

Ch. M. Anwar Buttar, Senior Advocate Supreme Court, Ch. Qadir Bakhsh, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on‑Record (absent) for Appellants.

Zakaur Rehman Lodhi, Advocate Supreme Court S. Wajid Hussain, Advocate‑on‑Record (absent) for Respondents Nos. 3 to 7.

Respondents 1 to 2 : Ex parte.

Date of hearing : 21st November, 1982.

‑Leave to appeal was granted to Ghulam Muhammad appellant, a non‑claimant displaced person, to examine whether the High Court was justified, on the facts of the case, in interfering with the findings of fact recorded by the settlement authorities and in substituting them by its own judgment dated 27‑3‑1975.

Composite property No. 244 in district Toba Tek Singh came up for disposal. It comprises two shops, each shop consisting of two rooms and a verandah and a chowbara over the verandah. The Deputy Settlement Commissioner while examining the competing claims of the appellant Ghulam Muhammad who had filed N. C. S. and N. C. H forms for the transfer of the property in his possession found that he had given different dates of his posses sion and consequently was not entitled to any portion of it. The claimant Muhammad Abdullah was found to have priority over Ghulam Muhammad Non‑Claimant and the whole property was transferred as one unit to him.

On 28‑12‑1959 Ghularn Muhammad, the appellant, filed an application for review of the order and also filed an appeal against the order of the Deputy Settlement Commissioner. The appeal was dismissed in view of the pendency of the review application in which permission was granted by the Additional Settlement Commissioner to review the order. In the meantime the other shop which was in possession of a local was put to auction and purchased by Abdur Rahman a local. Ultimately on 1‑2‑1961 the review petition of Ghulam Muhammad appellant was accepted and Abdullah was excluded altogether from the transfer of the property. The Deputy Settlement Commissioner by his order dated 1‑2‑1961 divided the shops into two, treated the chowbara as a shop and amalgamated it with the portion in possession of Ghulam Muhammad appellant. As Abdullah had withdrawn from the review proceedings in protest so as not to estop himself from further questioning the review proceedings after the dismissal of appellants' appeal he was disentitled and an observation was made by the Deputy Settlement Commissioner that "the form C. S. submitted by Muhammad Abdullah for the transfer of chowbara possession of which he had left long ago having with drawn is rejected." The appeal filed by Abdullah against this order was dismissed on 8‑10‑1962 and while his revision petition was pending he died on 2‑9‑1963. Not aware of his death the Settlement Commissioner dismissed his revision petition in default on 19‑8‑1969 whereupon the respondents Nos. 3 to 7, the successors‑in‑interest of that Abdullah invoked the constitutional jurisdiction. Their petition was accepted and the revision petition was restored for disposal by the Settlement Commissioner. This petition ultimately came up for disposal before the Settlement Commissioner on 25‑1‑1974. He kept intact the division of the property into two portions, maintained the auction in favour of Abdur Rehman, considered the appellant entitled to the transfer and non‑suited the respondents Nos. 3 to 7 on the ground that it was doubtful that they were ever in possession of the chowbara and the appellant had made considerable construction over the first floor.

A constitutional petition was filed by respondents Nos. 3 to 7 challenging this order of the Settlement Commissioner. The learned Judge in the High Court held that Abdullah was definitely the allottee in possession of the chowbara and his case had been considered alongwith that of the appellant by the Deputy Settlement Commissioner on 18‑12‑1959 and Abdullah being claimant was entitled to preference and the entire property was transferred to him. Thereafter the review proceedings concurrently with the appeal were incompetent and so was the interference by the settlement authorities in the transfer order of Abdullah. The division of the property was set aside and the transfer of a portion of he property to the appellant and another to Abdur Rehman.

After hearing the learned counsel for the parties we find that so far a the fact that Abdullah was the allottee in possession of the chowbara concerned, there is a definite admission of the appellant himself in para. 3 of his memo of appeal dated 21‑7‑1960. It is to the effect that "at the time of partition the property in question consisted of two independent separate shops and one upper portion on the frontal portions of the two shops and that upper portion has always been used for residential purposes and is also being used for residence by the respondent." In this memo. of appeal it was also made clear that the staircase leading to the upper portion had no connection with the two shops. It is also to be noted neither the Deputy Settlement Commissioner nor the Settlement Commissioner noted this admission while recording that Abdullah was not in possession or had left possession nor did they relate the discontinuance of his possession t the crucial or the prescribed date. If the possession had been discontinue after the crucial date this would not have affected the entitlement of Abdullah to claim property. In view of these two factors the finding or the observe lion of the settlement authorities that Abdullah and afterwards the respon dents Nos. 3 to 7 were not in possession of the chowbara is manifestly against the record and admissions of the contesting parties and could not be allowed to stand or form the basis of determination.

Another important feature of the case is that though Ghulam Muhammad appellant filed both N. C. H. and N. C. S. forms for the transfer of the property, he did not claim any portion of the property which was not in his possession, for in column No. 1.0 he did not mention the possession of either Ghulam Muhammad local, or that of the respondents Nos. 3 to 7 or their predecessors‑in‑interest on the chowbara or of anyone else. Similarly Abdullah while mentioning the possession of Abdul Ghafoor, Ghula Muhammad local on the lower portion of the property claimed only the upper portion as would appear from column No. 4 of his C. H. form. The principle adopted by the Settlement Authorities in dividing this property was that the Rehabilitation Department had itself divided the property into two shops and a residential portion. Full effect was however not given by them to this principle, by making three units instead of two. In view of the admission of the appellant that chowbara had an independent access and was independently in possession of Abdullah and the Rehabili tation Department had so treated it, the same could be treated as a distinct unit complete in itself. In that case where the parties had claimed the portion in their respective possession and nothing more they could kept confined to their own portions and this would have satisfied the genuine claim of the contesting parties. If at all the shop and the chowbara had to be treated as one unit then Abdullah could successfully match his claim against that of Ghulam Muhammad because he was a claimant while the appellant was a non‑claimant displaced person and the prior possession, it appears, was of Abdullah. This aspect of the case was also ignored and preference was given to Ghulam Muhammad when, in fact, on the findings of the settlement authorities preference should have been given to Abdullah on account of his being a claimant. The order passed by the Deputy Settlement Commissioner on 18‑12‑1959 which has been held by the High Court to be sacrosanct was, in fact, passed behind the back of the appellant and the conflicting dates of possession at best could put the Deputy Settle ment Commissioner on inquiry and prompt him to seek clarification of it from the applicant instead of outright rejecting his form because of the discrepancy in the date in possession. The disposal of the form in such circumstances by the Deputy Settlement Commissioner could not make the order sacrosanct nor render subsequent hearing or Ghulam Muhammad legally objectionable or without, jurisdiction.

In the circumstances and for the reasons recorded above we accept the appeal, set aside the judgment of the High Court and direct that the transfer of portions of property No. 244 between contesting parties shall be confined to what they actually claimed, Ghulam Muhammad appellant to one shop in the lower portion, while whole of the upper portion on both the shops 244/1 and 244/2 going to respondents Nos. 3 to 7. No order as to costs.

Appeal accepted.

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