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Writ Petition No. 1365‑R of 1974, decided on 31st October, 1981.

‑‑ O. XLI, r. 23 read with Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S. 2(4)‑Remand‑Division of property‑Case remanded to Settlement Commissioner with direction to determine only question of prior possession case entrusted to Additional Settlement Commissioner who found respondents' residence in property prior to petitioner's and divided property as well‑Contention that case remanded for determination of prior possession only and as such order regarding division of property without jurisdiction, held, not devoid of force‑Nevertheless mere division of property into two halves by Additional Settlement Commissioner does not render order without lawful authority.

Sana Ullah Malik for Petitioner.

Kh. Muhammad Tufail for Respondents Nos.‑ 1 to7.

Date of hearing : 26th October, 1981:'

Abdul Sattar Abbasi petitioner, by means of this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, has challenged the order dated 29‑11‑1973 passed of the Additional Settlement Commissioner, whereby property No. S. W‑IIf‑71‑S‑4 situated in Karishan Nagar Lahore was divided into two portions one half of which was transferred to the petitioner and the remaining half to one Abdul Aziz, predecessor‑in‑interest of the respondents.

2. The background of this litigation is that the petitioner was transferred the house in dispute on 6‑12‑1959 as he was in possession of the same since 1948. As Abdul Aziz was in possession of the one of the rooms of the house in question, he filed a review application which was rejected by the Deputy Settlement Commissioner vide order dated 22‑2‑1960. Aggrieved by this order, Abdul Aziz filed an appeal before the Additional Settlement Com missioner who vide order dated 28‑5‑1960 remanded the case to the Deputy Settlement Commissioner for fresh decision. But the Deputy Settlement Commissioner, again transferred the house in favour of the petitioner by an ex parse order dated 28‑6‑1960 which was set aside on 4‑10‑1960 'on the move of Abdul Aziz. Then on 29‑5‑1961 the house in dispute was divided into two portions and transferred to the parties half portion each.

Feeling aggrieved of the division, both the parties went in appeal to the Additional Settlement Commissioner who vide his order dated 25‑10‑1961 held the property to be indivisible and transferred the entire house to the petitioner. Against this order, Abdul Aziz preferred a revision petition but the same was rejected by the Settlement Commissioner on 10‑8‑1963. Then, Abdul Aziz filed a writ petition (No. 2719‑R/63) which was allowed by M. S. H. Qureshi J., (as he then was) and the case was remanded to, the Settlement Commissioner for a fresh decision on the revision petition of Abdul Aziz after hearing both the parties. On receipt of remand, the case was entrusted to the Additional Settlement . Commissioner who passed the impugned order. Hence this writ petition.

3. Learned counsel for the petitioner contended that as the case was remanded to the Settlement Commissioner, the Additional Settlement Com missioner was not competent to deal with the matter and that the case was remitted only to determine the question of prior possession meaning thereby that the question of division could not be re‑opened.

Learned counsel for the respondents submitted that so far as the question of prior possession is concerned, it has been observed in the impugned order that "Abdul Aziz came to reside in the property in dispute prior to Abdus Sattar Abbasi". He submitted that on the basis of this observation the respondents were entitled to the transfer of the entire house but acting on the principle live and let live', the respondents accepted the order of the Additional Settlement Commissioner which otherwise is with lawful authority.

4. I have noticed the direction given by the learned Judge while remanding the case which was only with regard to prior possession. If strictly this is to be applied, then the submission of the counsel for the respondents is not devoid of force. Nevertheless the mere fact that the Additional Settlement Commissioner divided the property into two halves does no amount to such an error so as to render his order to be without lawful authority. On the other hand, I am of the view that his order is just and equitable. The parties have been residing since long in the property in dispute and they must now accept that position without any grievance.

5. For the foregoing reasons, there is no merit in this petition which is dismissed with no order as to costs.

K. M. A. Petition dismissed.