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Letters Patent Appeal No. 223 of 1968, decided on 1st March, 1983.

‑‑ S. 10‑Transfer of property‑Question of divisibility‑Settlement Authorities in first round and Additional Settlement Commissioner in second round of proceedings before them finding that house in question was one unit and indivisible on material date and exercising their discretion for cogent reasons in favour of respondent‑Additional District Judge and ex officio Settlement and Rehabilitation Commissioner setting aside order of Additional Settlement Commissioner holding premises indivisible and creating another unit there-from for appellant on grounds untenable in law‑Order, held, based on irrelevant considerations and question of exercise of discretion for first time not arising as same had already been decided in favour of respondent.

Mst. Fatima and others v. Deputy Settlement Commissioner, Lyallpur and others 1975 S C M R 381 ; Allahbakhsh v. Chief Settlement Commissioner, Lahore arid 3 others 1976 S C M R 275 and Mst. Saeeda Khatoon and another v. Amir Begum and another P L D 1980 S C 133 ref.

‑‑ Art. 98‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 10‑Jurisdiction‑Appellant himself approaching High Court first to question divisibility of house in dispute and his petition entertained‑‑Appellant, held, cannot object to jurisdiction of High Court to entertain writ petition if other party aggrieved by order passed in consequence of order made in writ petition filed by appellant.‑(Jurisdiction].

‑ S. 10‑Property not transferred in accordance with law and house divided in a manner not warranted by law, held, not in conformity with spirit of Act.

Maroof Ali Khan for Appellants.

Respondents (absent).

Date of hearing : 1st March, 1983.

‑This Letters Patent Appeal is directed against the judgment, dated 10th October, 1968, delivered by Mr. Justice Noorul Arfin (as he then was) in Constitution Petition No. 711 of 1964, whereby he accepted the petition and set aside the order, dated 5th October, 1964, passed by the Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner, Tharparkar at Mirpurkhas, and restored the order, dated 4th December, 1963, passed by the Addi tional Settlement and Rehabilitation Commissioner, Hyderabad. Before dealing with the contentions raised for the appellants, we may briefly state the relevant facts.

The dispute relates to the divisibility of a residential single storey house bearing No. F‑82, situated in Mohallah Lalchandabad, Mirpur khas. It was claimed by Muhammad Ebrahim respondent No. 1 that he was claimant/displaced person alongwith the members of his family he had occupied the house in the year 1948. He was allotted the house on 16th September, 1950. According to respondent No. 1 the appellants were related to him and they came to Mirpurkhas in 1950 in distressed condition and were given shelter by him in the disputed house, but in abuse of his hospitality the appellants obtained allotment in their own favour of the portion in which they were staying with his permission.

On coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter called the Act), respondent No. 1 applied for transfer of the house on C. H. Forms. The appellants also applied for transfer of the rooms in their occupation on N. C. H. Forms.

The Assistant Settlement Commissioner, by the order, dated 24th November, 1959, rejected the N. C. H. Forms of the appellants and ordered the transfer of the whole house to respondent No. 1. The appellants preferred an appeal with the Deputy Settlement Commissioner, who dismissed the same holding that the house was indivisible single unit. This led the appellants to file revision before the Additional Settlement Commissioner, which was heard by Mr. Abdullah Akhund, who, by the order, dated 6th August, 1900 accepted the same and gave the following directions :‑

"therefore, direct that he should be transferred the portion in his possession. Alongwith the store room which is part and parcel of this portion which is in possession of the respondent. Abdul Razak is transferred the three rooms in possession plus half of the verandah and the open yard with permission to construct a partition wall so that the portion in his possession and that of in possession of the respondent would be self‑contained. Abdul Razzak will have a separate door from the public street. Abdul Razak then constructed his own kitchen. Bath and latrine in the open area in the verandah. Ibrahim is transferred the three rooms and half of the verandah, and open. In half open space he should construct the ladder. The roof could also be vertically divided between Ibrahim and Razzak."

We may state that the learned Single Judge in the impugned judg ment with regard to this order has observed that the learned Additional Settlement Commissioner, by the above‑quoted observations accepted that the house was one unit but with alterations, constructions suggested by him he came to the conclusion that the house could be divided into three units: The order, dated 6th August, 1960, passed by the Additional Settlement Commissioner was however, set aside in revision by the Settlement Commissioner whose order was upheld by the Chief Settle ment Commissioner by the decision recorded on 23rd August, 1961 and 10th November, 1961.

Aggrieved by the aforesaid order of the Chief Settlement Commis sioner, the appellant filed a constitutional petition, being Petition No. 544 of 1961, which was allowed by Mr. Justice Waheeduddin Ahmed, by the judgment, dated 14th February, 1961 and the case was remanded with the following directions

"On this view of the matter the impugned orders are quashed. The Additional Settlement Commissioner is directed to rehear the matter before him after notice to the parties and to dispose it of in accordance with law. Till the matter is finally disposed of by the learned officer, the transfer in favour of respondent No. 5 will hold good."

The main reason which weighed with the learned Single Judge for remanding the case was that while deciding the rights of the parties before him the learned Additional Settlement Commissioner had failed to take into consideration the preferential rights of respondent No. 1 before us and had proceeded on the assumption that the appellants and respon dent No. 1 were all claimants. It was however, noted in the judgment that the Additional Settlement Commissioner was competent to divide the house into separate units in view of the directions contained at page 92 of the Settlement Manual, but the discretion vested in him had been exercised on wrong assumption and facts. The relevant observa tion of the learned Judge in this regard are fully quoted in the judgment impugned before us.

Accordingly, on remand the matter was taken up by the Additional Settlement Commissioner Mr. Abdul Matin Siddiqui, who, by the order dated 4th December, 1963 accepted the claim of respondent No. 1 to the whole house holding the same to be indivisible. It may be conve nient for future reference, if we may herein-below quote the relevant portion of the order:

"It has been urged that since the portion, occupied by the appli cants, has separate entrance and separate amenities of life the entire premises can be vertically divided alongwith the line of demarcation which already exists. It bas also been pointed out that since these portions, were separately assessed, in the Custodian record, there was no justification for treating the entire premises as one unit.

The respondent has denied the said allegations and alleged that in the beginning, the entire premises was allotted to him as one house under No. F/82 and it was later on, that portions of this house were allotted to the applicants. The attention of the Court has in this connection, been drawn to the allotment orders filed in the lower Court, which go to show, that whereas house No. F/82 was allotted to the respondent, the applicants were allotted one room and three rooms of the said house respec tively.

It has also been pointed out that in the Custodian Enquiry Cards also no attachments were shown in the portion occupied by appli cant No. 1 and the existing attachments were improvised later on.

Having regard to the evidence on record and having inspected the site, I am convinced that originally the entire premises comprised one residential house No. F/82 as shown in the allotments issued to the parties in 1950. These allotments go to show that the applicants were allotted only portions of the said house and not separate, independent houses, Survey Nos. F/82/1 and F/82/2 were assigned to these portions later on by the Custodian Depart ment. Even now the portion occupied by applicant No. 1 is without any attachments. It is, therefore, not a separate and independent house by any stretch of imagination. No doubt there is an inter‑connecting door between the portion: of the applicants and attachments have been improvised in the portion of the applicant No. 2, but the fact remains that these portions are part of House No. F/82; as shown in the letters of allotment. The compound is without any partition wall, though there is a line of demarcation and a partition wall can be raised alongwith it. The question of divisibility of a house, is however, to be decided taking into consideration the things as they stand and not considering the position which may arise after carrying out additions and alterations.

For the reasons stated above, I am convinced that the entira premises constitutes one residential unit, which does not admit division. The respondent being .a claimant has preference over the applicants, who are non‑claimants displaced persons. The revision petition have thus no force and hence dismissed."

This order led the appellants to file a civil miscellaneous appeal before the Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner, Tharparkar, at Mirpurkhas, who by the order, dated 5th October, 1964 allowed it and divided the house into three portions. We may here in extenso quote the relevant portion of the order

"Since the applicants had been agitating that the house is divisible I saw the site in the presence of the parties and their Advocate to have an idea of the house since both the Assistant Settlement Commissioner and Deputy Settlement Commissioner had seen the house and found into be indivisible. On seeing the site I was satisfied that the house was divisible, only a small partition wall from the compound would separate the houses and both parties can comfortably live in their respective houses. When I saw the site I found that the portions to the occupation of the appli cants had separate entrance from the street. These entrances existed when the house was transferred to the parties. There were kitchen, bath room laterine in the portion of the applicant Abdul Razak and separate bath rooms and a laterine in front of the room of applicants Abdul Razzak and kitchen in the portion of the compound in the occupation of the applicant Abdul Razzak. There is separate entrance from the street and from this entrance the applicants ascend the ladder leading to their roofs. Applicants Abdul Razzak and Abdul Aziz are cousins and they live together. The portions in the occupation of the applicants constitutes separate house and it can be separated from the house of respon dent Muhammad Ibrahim by raising a short partition wall from the compound of house.

It is contended that when the portions of the house were trans ferred to the applicants, there were absolutely no amenities of life in their portions and they were using the amenities of life existing in the house of opponent Muhammad Ibrahim since they were related to him. It is contended that amenities of life were constructed by the applicants after the order of the Additional Settlement Commissioner Mr. Akhund Abdullah. This is correct. The applicants were only transferred the rooms and if there existed amenities of life in their portions, the Assistant Settlement Com missioner and the Deputy Settlement Commissioner would not have treated the house as one unit. The evacuee owner of ‑the house being one he could not have constructed more than one bath room, kitchen and laterine.

The Additional Settlement Commissioner had power delegated to them by the Chief Settlement Commissioner to divide the houses and this power was even conceded by the High Court in the Writ Petition No. 544 of 1961 as appears from the order of the High Court, dated 14th February, 1963."

The learned Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner, after quoting the notification, which appears at page 92 of the Settlement Manual, further observed as follows :‑

"Although the Additional Settlement Commissioner Mr. Akhund Abdullah made a wrong assumption that the applicants were claimants which is not a fact, he had a power to divide the house. At present the portions in the occupation of the appli cants combined together form a separate independent house and as they are living together being cousins and do not want parti tions between themselves, their house can be separated from the house of the respondent Muhammad Ibrahim by constructing a partition wall from the compound which can be conveniently constructed without inconvenience to any party. I accept this revision and set aside the order of the Settlement Authorities and maintain the order of the Additional Settlement Commissioner, Mr. Akhund Abdullah and direct the Deputy Settlement Com missioner, Mirpurkhas to transfer documents to the applicants and divide house by partition wall between the parties. The expenses of the partition wall should be decided by him."

It was this order which was impugned by respondent No. 1 before the learned Single Judge in the Writ Petition and the decision wherein has led to the filing of the present Letters Patent Appeal.

We have heard Mr. Maroof Ali Khan, learned counsel for the appellants. He has raised before us the following contentions :‑

(1) The High Court had no jurisdiction to interfere with the order of the Settlement Commissioner, dated 5th October, 1964, as the same was passed in the exercise of discretionary powers.

(2) The finding of fact should not have been interfered with.

(3) The order of the High Court is contrary to the spirit of the Act inasmuch as the object of the Act is to rehabilitate as many people as possible."

In support of the first two contentions the learned counsel relied on Mst. Fatima and others v. Deputy Settlement Commissioner, Lyallpur and others (1975SCMR381), Allah Bakhsh v. Chief Settlement Commissioner. Tahare and 3 others (1976SCMR 275) and Mst. Saeeda Khatoon and other v. Amir. Begurn and another (P L D 1980 S C 133).

Now, taking up the contentions raised before us we would first deal with first two contentions together. It may be recalled that the Deputy Settlement Commissioner had on appeal, found that the house was in divisible and his findings were based on site inspection. We may here reproduce the original order which is very brief as the same is not available on the file of the Letters Patent Appeal, but we have seen it on the file of the writ petition. It reads :‑

"I have seen the site. For all purpose it is a single house, and I do not find any reason to modify the orders of the Assistant Com missioner‑C‑I, Mirpurkhas. The appeal Petition filed by Messrs Abdul Razzak and Abdul Aziz (appellant before us) is hereby rejected."

This finding was accepted by all the Settlement Authorities except the Additional Settlement Commissioner. Mr. Abdullah Akhund whose order was set aside. Again on remand the Additional Settlement Com missioner Mr. Abdul Matin Siddiqui in his order, which has been quoted herein above in extenso had found the house indivisible as the portions claimed by the appellants contained attachments which were provided subsequently as mentioned by the Additional Settlement and Rehabilitation Commissioner, Hyderabad, dated 4th December, 1963.

Now, the Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner has set aside the order of Mr. Abdul Matin Siddiqui, Additional Settlement Commissioner on the ground that "at present the portions in the occupation of the applicants combined together form a separate independent house and they are living together being cousins and do not want partitions between themselves, their house can be separated from the house of the respondent Muhammad Ibrahim by constructing a partition wall from the compound which can be con veniently constructed without inconvenience to any party." But this point has been dealt with by the learned Single Judge in paragraph 3 of the judgment which may be reproduced herein below for the sake of convenience. It reads ‑‑

3. The main contention of Mr. Shafi, the learned Advocate for the petitioners, is that the power to declare a house divisible into two or more units extends only to those cases where there are in fact more than one unit at the time of transfer, and that this power does not authorise the Settlement Authority to create more than one units out of one house by ordering alterations and construc tions in an existing house. Mr. Shafi referred me to the Division Bench decision of the Lahore Bencb reported in Mst. Hameeda Khanum v. Sufi Fazal Muhammad and others P L D 1966 Lah. 139 in support of this contention. He also brought to my notice the Supreme Court decision in Muhammad Yusuf v. The Settlement Commissioner and others P L D 1968 5 C 101 which was in appeal from the Lahore decision referred to by me above. I would express my agreement that the view taken in the Lahore case that the power to declare a house to compromise more than one unit presuppose that at the time of transfer there are in existence more units than one, and that this power does not authorise Authority to make out several units out of one unit by ordering alterations and construction in the house. What Mr. Abdullah Akhund did was precisely this, that is, he divided the house into three units by giving directions for making suitable additions and constructions so as to make the three units inde pendent of each other. It was this order which was adopted by the Settlement Commissioner in his order, dated 5th October, 1964, given after the case was remanded by the High Court. In my opinion, this order offends the rule laid down in the Lahore Judgment, which rule was not dissented from by their Lordships of the Supreme Court when they heard the appeal from this decision. Mr. Raza, however, contended that the relevant date to ascertain whether there are more units than one should be the date when the Settlement Commissioner made the impugned order, that is, 5th October, 1964. I am unable to accept this proposi tion. The relevant date for these purposes is either the date when the applications for transfer are made to the Settlement Authori ties or when the case first. come up before a Settlement Officer for the purpose of recording the order of transfer. In the instant case, the relevant date was, therefore, the date when the Petitioner and the respondents 3 and 4 filed applications for transfer, or the date when the Assistant Settlement Commissioner first considered the question of entitlement of each party and held by order, dated 24th September, 1959 that the house was one indivisible unit. The Settlement Commissioner, by the order which is impugned in these proceedings, has attempted to impart legality to the order of Mr. Abdullah Akhund which made out three units out of one house This course, in my opinion, was not open to the Settlement Commissioner, in view of the rule laid down in the Lahore decision referred to by me,"

Now, from the record it is more than clear that the Assistant Settlement Commissioner, Deputy Settlement Commissioner, the Settlement Commissioner and the Chief Settlement Commissioner all in the first round and the Additional Settlement Commissioner in the second round had found that the house was one unit and indivisible on the material date. Therefore, if there was any question of exercise of discretion it had already been exercised for cogent reasons in favour of respondent No. 1. According to the learned Single Judge even Abdullah Akhund had found the house as it existed on the material date as one unit. It would suffice to say that the Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner set aside the order of the Additional Settlement Commissioner on the grounds or for reasons untenable in law. The discretion had already been exercised and the question of exercising of discretion by hit0 for the first time did not arise. In any case, the order is based on irrelevant consideration.

Now, as regards the cases cited by the learned counsel for the appel lants we may first refer to the case of Mst. Fatima and others. In this case it was held that the question of practicability of the division of the house was not for the High Court to consider in writ jurisdiction. But in this case the question for consideration was whether the order passed by the Additional Settlement Commissioner as to divisibility of the house after consideration of all material facts could be set aside for the reasons given by the Additional District Judge and Ex Officio Settlement and Rehabilitation Commissioner did not the practicability of the division of the house.

Taking up the case of Mst. Saeeda Khatoon and others it was obser ved on the facts of the case that the question of the divisibility of the house was unexceptional. Indeed the question was posed to the learned counsel for the appellant that if the question of divisibility was un exceptional what right his clients had to claim another house after having already been given her house in the form of unit consists of first and second floors.

In the present case it was the appellants who had come first to this Court questioning the divisibility of the house and that petition, was entertained and, therefore, it does not lie now in his mouth to question the jurisdiction of this Court to entertain a writ petition, if other party is aggrieved by the order passed in consequence of the order passed in writ petition filed by the appellants.

Now, reverting to the case of Allah Bakhsh it may be stated that it does not support the learned counsel for the appellants for what is laid down in this case is that if discretion has been exercised reasonably and justly it cannot be interfered with. However, it could be interfered with, if it was exercised perversely or on irrelevant consideration.

Now, taking up the third contention that the order of the High Court is contrary to the spirit of the Act it may be stated that the object of the Act, as stated in the Preamble, no doubt is to provide for payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in the properties left in India or in area occupied by India and rehabilitate others. But, if the property is not transferred in accordance with law and if the house is divided in a manner which is not in accord with law that would not be in conformity with the spirit o the Act and we feel that in the present case by the order impugned the writ petition the house was not transferred in accordance with law.

We, therefore, find no merits in this appeal and dismiss it.

Since the respondents have remained absent we make no order as to costs.

M. Y. H. ‑‑‑‑‑‑‑‑ Appeal dismissed.

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