1984 PLP 457 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑This appeal through special leave by this Court is directed against the judgment, dated 23rd February, 1973 of the Lahore High Court, whereby petitioners Letters Patent Appeal arising out of an Urban Settlement Case was dismissed. Leave was granted to examine the question whether the High Court correctly assumed the transfer of the property, in this case to both the contesting parties, as one on the basis of division thereof. The property in dispute is a house. Its ground floor was at the relevant time in possession of Muhammad Ibrahim the predecessor‑in‑interest of the appellants, while the first floor was in possession of father of Syed Hussain Ahmed Shah respondent. After two rounds of litigation a Settlement Commissioner in his order, dated 15th November, 1963 transferred the ground floor to Muhammad Ibrahim and the first floor to the respondent with the following observation:‑ "The question is whether the house is divisible or not. Considering that both the occupants are claimants, I am inclined to hold that the order of D. S. C., Lahore, dated 1‑7‑1961 transferring the building to its occupants according to their possession should be restored. The result is that the order of the learned Additional Settlement Commissioner . . . . is set aside and that house . . . stands transferred to its occupants according to their possession." Learned counsel has contended firstly that the house having been declared as indivisible by the lower Settlement Authorities, the Settlement Commissioner should not have interfered with the transfer of the entire house to the appellants predecessor‑in‑interest, and, secondly that in any case there was no conscious application of mind by the Settlement Commissioner on the question of the divisibility. It is not denied that the Settlement Commissioner had the power to divide the house even if the lower Settlement Authorities had declared it indivisible. The question, therefore, is one whether the division was lawful. In that behalf learned counsel argued on the lines that the lower Settlement Authorities having applied mind to this aspect of the matter had found that the house was indivisible. In the circumstances of this case. therefore, learned counsel further argued, the Settlement Commissioner should have devoted more particular attention to the question of divisibility. The order of the Settlement Commissioner shows that he was acutely conscious of three aspects of the case. One that both the contesting parties were claimants but one was able to establish through cogent evidence an "allotment" in favour of either of them. Secondly that both the contesting parties were occupying separate parts of the house which even now it is undeniable could be definitely described and demarcated as ground floor and first floor. And thirdly that in the peculiar acts and circumstances of the case it was not possible to declare either of the two contesting parties as prior allottee. It cannot be said that the aforenoted aspects are not relevant for consideration of the question of divisibility of a house. That being so the short phrase used by the Settlement Commissioner namely "transfer (of the house) to its occupants according to their possession" in the context would clearly signify the conscious division of the property in accordance with the possession of the parties. This order is neither arbitrary nor otherwise against any law or principle. That being so the appeal fails and is accordingly dismissed. There shall, however, be no order as to cost. S. Q. Appeal dismissed.