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Civil Appeal No. 141 of 1974, decided on 9th October, 1984.

(Against the judgment of the Lahore High Court dated 20‑11‑1973, passed in Writ Petitions No. 71‑R‑67, 306‑R‑67 and 307‑R‑67).

‑‑‑Art. 185(3)‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 2(4) & 10‑‑Servant quarters, transfer of‑‑Leave granted to consider inter alia whether High Court was not justified in reversing concurrent finding of fact arrived at by two Settlement Commissioners with powers of Chief Settlement Commissioner that structures on two plots bearing different numbers, constituted two different houses.

‑‑‑Ss. 2(4) & 10‑‑Transfer of evacuee property‑‑Servant quarters‑ Settlement authorities holding two properties as ‑separate units‑‑High Court reversing concurrent finding of fact mainly on ground that division was not justified‑‑Properties constructed on different plots not indivisible‑‑Servant quarters not being appurtenant to house, Settlement authorities were not only empowered but also justified in dividing premises and in treating quarters as separate houses‑‑High Court, held, not justified in reversing their concurrent finding on such fact.

Sh. Muhammad Nasim with Sh. Salahuddin, Advocate‑on‑Record for Appellant.

Shahzad Jahangir, Advocate Supreme Court for Respondent No.l. Tanvir Ahmad, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 9th October, 1984.

The dispute in this appeal relates to two plots (,Nos. 75 and 76) situated in Krishan Nagar, Lahore and measuring 10 Marlas and 13 Marlas respectively. The Hindu owner built a house on Plot No: 75 and some servant quarters on Plot No. 76.

The house on Plot No. 75 is a double‑storeyed building. When the settlement proceedings started the ground floor of the house on Plot No. 75 was in occupation of Muhammad Aslam while its upper storey was in the occupation of Mat. Maryam Begum. The latter filed a C.H. Form for the transfer of the portion of the house in her possession while Muhammad Aslam (appellant herein) filed an N.C.H. Form for the transfer of the ground floor. But he added a note therein to the following effect:‑

"In case, due to certain restrictions and limitations, the whole house cannot be transferred to me, only the out houses (which stand allotted to me and are quite independent) may kindly be given to me."

The Deputy Settlement Commissioner vide order, dated 9‑1‑1960 transferred the entire house, including the portion in possession of list. Maryam Begum, to her, holding that the servant quarters were part of the house and could not be separated from it. The form of Muhammad Aslam appellant was rejected. He filed an appeal against the said order urging, inter alia, that the house could be divided. The appeal was, however dismissed by the Additional Settlement Commissioner on 4‑4‑1960. He also held that Muhammad Aslam being a local could not be given the house in question.

Muhammad Aslam (appellant herein) challenged this order before the Settlement Commissioner, through a revision petition. His revision petition was dismissed by Malik Fateh Khan, Settlement Commissioner on 19‑9‑1960. He then filed the second revision petition which was allowed by Mr. Muhammad Rafique, Settlement Commissioner exercising the powers of Chief Settlement Commissioner, holding, inter alia, that the quarters on Plot No. 76 were in occupation of Muhammad Aslam (appellant herein) and that the value of the said quarters was not more than Rs.10,000. As such, while maintaining the transfer of the house on Plot No. 75 in favour of Mst. Maryam Begum, he ordered the transfer of Plot No. 76 with quarters thereon to Muhammad Aslam as separate residential premises. Against this order Mst. Maryam Begum and her brother Syed Rizwan Ali Shah filed Writ Petition No. 943‑R‑62 before the High Court on the ground that they were not given an opportunity of being heard in the second revision. The writ petition was allowed on the ground that they (the writ petitioners) had not been heard by Mr. Muhammad Rafique, (Settlement Commissioner), and the case was remanded for a fresh decision. On remand the matter went to Ch. Ali Ahmad. Settlement Commissioner, with powers of Chief Settlement Commissioner. By his order, dated 31‑12‑1966 he held that the quarters constructed on Plot No. 76 were a "house by itself". He also held that Mst. Maryam Begum could not claim the whole house except that portion transferred to her. By the same order the servant quarters were made available for transfer under Settlement Scheme No. VIII, and was also ordered that Plot No. 76 with servant quarters should be transferred by the Deputy Settlement Commissioner under Settlement Scheme No. VIII to the persons found to be entitled thereto.

Feeling aggrieved by this order Mst. Maryam Begum challenged it through Writ Petition No. 71‑R‑67. while Muhammad Aslam (appellant herein) filed Writ Petition No. :306‑R‑67, and one Muhammad Adam filed Writ Petition No. 307‑R‑67, all of which were heard together by the High Court. Vide the impugned judgment the High Court accepted Writ Petition No. 71‑R‑67 while it dismissed the other two writ petitions (No. 306 and 307‑R of 1967).

Feeling aggrieved Muhammad Aslam filed a petition for leave to appeal praying, inter alia, that the judgment of the High Court accepting Writ Petition No.71‑R‑67 be set aside and the order transferring the servant quarters on Plot No. 76 to Muhammad Aslam be restored.

Leave was granted to consider, inter alia, that the learned Judge in Chamber was not justified in reversing the concurrent finding of fact arrived at by the two Settlement Commissioners with powers of Chief Settlement Commissioner that the structures on the Plots Nos. 75 and 76, constitute two different houses.

4. We have heard the learned counsel for the parties as well as Mr. Jahangir, counsel for the Department, at considerable length.

The learned counsel for the appellant drew our attention to the findings given by Mr. Muhammad Rafique and Ch. Ali Ahmad, the two Settlement Commissioners (with powers of Chief Settlement Commissioner) holding that the bungalows and servant quarters built respectively on Plots Nos. 75 and 76 were separate units. The learned High Court has, however, reversed the concurrent finding of fact mainly on the ground that the division was not justified. He submitted that the house and the quarters were built on two altogether different plots of land, it could not be said that they were indivisible.

5. Learned counsel for the respondent relied on the definition of the word 'House' and the proviso thereto, in section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, which provides that garages and out‑houses, etc. appurtenant to residential premises would be considered part thereof.

6. We are not impressed with this contention because in the present case, as shown by the plan attached with the appeal (at page 48 of the P.B.), the relevant area in Krishan Nagar was divided in a large number of plots, each of which was obviously meant for construction of a separate building. In the present case the house and the quarters cannot, therefore, be said to be "appurtenant" to the house. The learned Settlement Commissioners were not only empowered but also justified in dividing the premises in question and in treating the structures as separate houses. Since it was wholly in their competence to do so the High Court was not justified in reversing their concurrent finding on this fact. As such the judgment of the High Court accepting Writ Petition No. 71‑R‑67 must be set aside. It is, therefore, ordered accordingly.

7. As for the transfer of the quarters to Muhammad Aslam (appellant) the learned counsel for the respondents argued that he was admittedly a local and since the value of the quarters is more than Rs.10,000 and were not in occupation of the appellant who resided on the ground floor of the house on Plot No. 75, the quarters could not, in law, be transferred to him.

8. The learned counsel for the appellant, however, drew our attention to the findings of fact arrived at by Mr. Muhammad Rafique Settlement Commissioner (with powers of Chief Settlement Commissioner) to the effect that the price of the quarters was not more than Rs.10,000 and that they were in occupation of the appellant. As such there was no bar to the transfer of the same to him and the Jearned Settlement Commissioner was justified in doing so. Therefore, we restore the said order notwithstanding the subsequent order of Ch. Ali Ahmad, Settlement Commissioner because the case was remanded to him not because the decision of Muhammad Rafique was bad on merits but only on the principle of audi alteram partem, i.e. failure to afford an opportunity of hearing to the respondents.

9. The net result of the above discussion is that the appeal is allowed; the house on Plot No. 75 stands transferred to Mst. Maryam Begum (respondent) or her heirs, while Plot No. 76 alongwith the quarters on it, shall stand transferred to the appellant. No order as to costs.

M. I. Order accordingly.

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