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Civil Petition for Special Leave to Appeal No. 270 of 1969, decided on 28th January 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th May 1969, in L. P. A. No. 270 of 1963).

Sched., Part I‑Divisibility of house‑Settlement Authorities not applying mind to question of divisibility or otherwise of house‑High Court, in writ jurisdiction, held, right in remitting case for decision afresh.

Mian Abdul Khaliq, Advocate Supreme Court instructed by Abdul Karim Sheikh, Attorney for Petitioners.

Ghulam Mujtaba, Attorney for Respondent.

Date of hearing : 28th January 1970.

The High Court has remitted the case to the Settlement Commissioner to determine the divisibility of the house in the occupation of the parties since 20th December 1947. The Deputy Settlement Commissioner had drawn lots in which the respondent succeeded, but on appeal the Additional Settlement Commissioner disapproved of this course and in the view that the petitioners had an advantage over the respondent in that their verified claim was slightly higher and they were in occupation of the ground floor gave the entire house to them. It was observed that the house was indivisible. No reason was, however, given nor any reference made to the plan or lay out of the house. The higher Settlement Authorities followed suit.

In the circumstances, the order made by the High Court is just and proper. None of the Settlement authorities had applied their mind to the question of divisibility. It was, therefore, apt that the case be remitted for fresh decision.

Learned counsel for the petitioners urged that the High Court has already held the house to be divisible. We do not find any such determination. The issue has yet to be decided by the Settlement Commissioner.

The petition is dismissed.

Petition dismissed.

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