1978 PLP 446 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑It is not necessary to go into the lengthy details of this case or the litigation through which it passed and for the purpose of present order, it is sufficient to state that the dispute herein pertains to division of property no. S‑49‑R/66, situated in Chamberlane Road, Lahore. The learn‑.d Deputy Settlement Commissioner in his order dated, 26‑2‑1976, took notice of the accommodation available in this property as also of the relevant portion which was in possession of various parties. As there were various applicants to the claim the Iran‑leer of this property, the learned Deputy Settlement Commissioner divided it in the manner laid down in paragraph 11 of his order, which reads as follows;-- "Keeping all the facts and reasons in view and appreciating the claim of each patty and the accommodation in possession of each party as welt as the divisibility of property, the transfer of the double shop, residential flats above this shop and the residential portion situated at the back in the street is ordered as under :‑

(1) The double shop and the residential flat on the first floor above this shop is transferred to Mst. Hanifa Begum and other successors of Atta Muhammad Ghaznavi; (2) The residential flats situated on the 2nd, 3rd and 4th floors above the double shop are transferred to Shahzada Muhammad Hussain and his four associatees, namely, Muhammad Yaqub, Abdus Salam, Abdul Khaliq and Mst. Maryam Bibi. (3) The residential portion at the backside situated in the street is transferred to Atta Ullah. The transfer price of each unit will be determined separately."

2. The petitioner filed a revision, which was dismissed by the learned Settlement Commissioner on 15‑4‑1976 as being incompetent. The petitioner then filed a writ petition being Writ Petition No. 660‑R of 1976, in which he' claimed whole of the house or some room or rooms which according to him were earlier in his possession but during the course of the division of the property were transferred by the learned Deputy Settlement Commissioner to Atta Ullah son of Muhammad Ismail respondent. In this way the petitioner challenged the whole manner of the division of the property. The writ petition was dismissed by a learned Single Judge of the Lahore High Court, by means of his order dated 13‑3‑1978. The learned Judge observed that the house had been divided into various portions and that each portion as a result of the division became indepen dent unit and as such the petitioner who had obtained one separate unit as a separate house could not be allowed to lay claim over any other unit or any part thereof. The petitioner has come up in a petition for special leave to appeal to this Court.

3. Learned counsel argued that some room or rooms, which were in his possession were wrongly given to the respondent and therefore the order of the division of the property which kept no regard for the existing possession was without lawful authority. The contention has no merit. We were taken through certain charts prepared by the learned counsel which show that in the process of division, the petitioner himself had received large portions which were is possession of others. If he was agreeable to receive those portions he should similarly be agreeable to part with some portion from his own possession. 1n cases of division of property under the settle ment law some shift and change is obvious and merely because a unit ulti mately carved out is not to the entire satisfaction of one or the other it does not mean that the order of division of the settlement authority is without lawful authority in any manner. In Muhammad Yusaf v. The Chief Settlement Commissioner (P L D 1968 S C 101), Ali Muhammad and another v. Raja Muhammad Ziaullah and 3 others (1972 S C M R 299), Habibullah v. Settlement Commissioner, Rawalpindi (1968 S C M R 277), Abdul Majid v. Chief Settlement Commissioner and others (P L D 1967 S C 437) and Siddiq Ahmad v. Abdul Ghafur and another (1974 S C M R 180) it was laid down that this Court will not interfere with the mode of division of a property especially when the order is neither arbitrary nor fanciful or capricious. In the instant case it appears that the settlement authorities tried to accommodate all the occupants and its order seems to be just and fair and in these circumstances the High Court rightly held that it called for no interference. The order of the High Court does not suffer from any legal or factual error and calls for no interference by this Court. The petition has no merit and is dismissed. Petition dismissed.