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Writ Petition No. 440 of 1961, decided on 5th December 1962.

House Chief Settlement Commissioner has jurisdiction to divide into two portions‑Division need not necessarily be vertical even if possible--- Whether house was divided into two units or was one independent premises before Partition‑Question of fact.

Objections not raised below nor affidavit filed that objections were taken but were not considered by lower authorities--- Cannot be urged before High Court exercising writ jurisdiction--- Constitution of Pakistan (1962), Art. 98.

Ihsanul Haq and A. H. Siddiqui for Petitioner.

A. Aziz Kureshi and Rashid Akhtar for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing : 5th December 1962.

This is a writ petition whereby the petitioner has prayed that the order of the Chief Settlement Commissioner dated the 31st of August 1961 be quashed.

2. The facts shortly put are these : The petitioner was in occupation of the upper portion of a house bearing No. C‑106/7, situated in Sukkur, while the respondent No. 2 was in occupation of the ground floor. The petitioner and the respondent No. 2 had both been in occupation of the two portions of the house since 1948. The petitioner applied in CH form for the transfer of the entire house, while the respondent No. 2 also applied in LH form for the transfer of the entire house to himself. The Deputy Settlement Commissioner on 9th February 1961, rejected the claim of the respondent No. 2 mainly on the ground that he was a local and "owns his own property in Pakistan". On appeal by respondent No. 2, the Additional Settlement and Rehabilitation Commissioner on 24th February 1961, maintained the order of the Deputy Settlement Commissioner on the same ground. The relevant portion of his order reads as under :‑

"He (respondent No. 2) admits that he is a local person and owns a share in a house inherited from his deceased father. He wants that the house in C‑106/7 Sukkur be divided and his portion be transferred to him. The respondent is admittedly a claimant and has superior right. The house cannot be divided under the rules and given to a local person."

On a revision to the Chief Settlement Commissioner, he allowed the revision on the ground that "according to the instructions there is no bar to the transfer of the property to the locals who owns house."

3. Mr. Ihsanul Haq, the learned Advocate for the petitioner, has raised several points before me. I propose to deal with these objections separately. He contended in the first place that the house could not be divided into two units so as to transfer one portion to the respondent No. 2 who was a local. In this connection he relies on the instructions of the Chief Settlement Commissioner in respect of transfer of houses to locals reproduced at page 139 in Government of Pakistan, Manual of Settlement.

The relevant portion reads as under :‑‑

"The Chief Settlement Commissioner desires that complete units of houses of the value of Rs. 10,000 or less only should be transferred to the locals in possession and the houses the value of which is more than Rs. 10,000 should not be divided in order to make the local in possession entitled to the transfer of a portion thereof, unless such division existed before partition and the sub‑divided unit is an independent residential premises in every respect."

Whether a certain house before partition was sub‑divided into two units and is an independent residential premises is one of fact. It would appear from the orders passed by various Settlement Authorities that the petitioner had not taken this point before these Authorities. It is true that the Deputy Settlement Commis sioner had passed the order in his favour which was confirmed by the Additional Settlement Commissioner. It was, however, open to the petitioner to challenge the claim of the respondent on various grounds that may have supported his claim to the whole house. It is a salutory rule that a party aggrieved must either show that he has taken his objection at the hearing before the Authorities whose orders have been challenged, or state in his affidavit that he has taken these points, but they were not consider ed by the Authorities. The petitioner cannot be allowed to urge this point for the first time in this Court

4. In the next place, Mr. Ihsanul Haq contended that the value of the house being Rs. 16,800 the respondent No. 2 being a local, could not be transferred the house in question. It is true that the value of the house being more than Rs. 10,000 the same could not be transferred to a local. The house, however, has not been transferred to a local. What has been transferred to him is only the ground floor. Mr. Ihsanul Haq in this connection contended that the ground floor consists of 4 rooms, while the first floor consists of 2 rooms and, therefore, the value of the ground floor is more than Rs. 10,000. This is also a question of fact, and I cannot go into it in the exercise of my extraordinary jurisdiction, unless it was agitated before the learned Chief Settlement Commissioner, and it was shown that there was a disregard of rule or law.

5. It was also contended that the Chief Settlement Commis sioner has erred in dividing the house into two portions. I do not think there is any force in this contention. The Chie

Settlement Commissioner has jurisdiction under section 2 (4) of Act XXVIII of 1958 to divide a house into different portions.

6. Lastly it was contended that the house should have been divided vertically and not horizontally. The instructions in respect of the division of a house that it should be divided as far as possible vertically, are only meant for the guidance of the Settlement Authorities, and they are not rigid rules of law which must necessarily be followed. They are only, as would appear from the Instructions, broad principles.

7. For the reasons given above, I would dismiss the petition but in the circumstances of the case would make no order as to costs.

K. s. A.

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