KARAM ELLAHEE CHAUHAN, J.-It 1s not necessary to go into the lengthy details of the stages through which this case passed and it will be sufficient for our purpose to state that the dispute in this case is about-(what has been termed as)-Portion "B" in premises bearing Survey No. SW-111- 43--S-21, situated at Shri Ram Road, Krishan Nagar, Lahore. In the ultimate analysis the learned Deputy Settlement Commissioner by means of his order dated 3-4-1968 transferred a portion of this property i.e. Portion from unit "B" marked as B/1 to the petitioner, and a portion marked as B/2 to the respondent herein.
2. The petitioner filed an appeal which was accepted by the learned Additional Settlement Commissioner who transferred the whole of unit "B" to him vide his order dated 11-7-1968.
3. The respondent filed a revision but without any success as it was dismissed by the learned Settlement Commissioner on 12-9-1968.
4. The respondent at that stage filed a constitutional petition being W. P. 11.76-R/68 which was accepted by the High Court vide its order dated 1-11-1974 whereby the order of the learned Settlement Commissioner was quashed and the case was remanded for fresh decision in accordance with law and in the light of various legal and factual aspects highlighted by the High Court.
5. The petitioner has come up in a petition for special leave to appeal against the aforesaid order of remand to this Court.
6. Learned counsel has argued that there was no justification on the part of the High Court for remanding the case because-
(a) the petitioner was allottee of the entire unit "B", and from that point of view whole of that unit was in his possession and no part of it could be legally considered to be in lawful possession of the respondent, though he too relied on certain allotment of a portion of this property and was also in physical possession thereof from long before year 1958 but that possession and as a matter of fact none of these factors or incidents could reflect on the aforesaid allotment of the petitioner who alone should be considered eligible for transfer of this unit and to be in possession;
(b) that no doubt at some earlier stage in an earlier writ petition filed by the petitioner-(W. P. 450-R of 1961)-the petitioner had in the alternative suggested that unit "B" was divisible and had claimed only the portion in his possession but according to the learned counsel, statements and positions adopted by litigants in such matter, particularly the alternative pleas could not render the orders of settle--ment authority as to be without lawful authority, if they earlier or later held the unit to be indivisible. The above-mentioned alternative case once set up by the petitioner, it was argued, was no ground for remanding the case in the second round of litigation to re-examine the question of the divisibility of the aforesaid unit;
(c) that the view of the learned Additional Settlement Commissioner in his order dated 11-7-1968 and of the learned Settlement Commis--sioner in his order dated 12-9-1968 that unit "B" was indivisible did not suffer from any legal or factual infirmity and the High Court could not declare them to be without lawful authority. In these circumstances, it was argued, the transfer of the whole unit "B" to the petitioner was perfectly in order and should be restored by granting the impugned order of remand of the High Court dated 1-111974.
7. We have considered these submissions and have heard the learned counsel at great length and also gone through the record.
8. Taking up the point at (a) above, attention is invited, to the finding of the High Court in its earlier judgment and order dated 1-11-1965, passed in P. W. 450-R/61 wherein the case was remanded to "the Settlement Authorities to decide the case afresh on the basis that the petitioner remained in lawful possession of the upper story of portion "B" of the house in dispute from the date of its allotment to him in 1947". This passage is quoted in para. 1 of the judgment now under challenge (at page 22 of the typed paper book) (The petitioner has not filed any certified copy of that judgment dated 1-11-1965). The passage above reproduced anyhow clearly shows that in the earlier round of litigation the High Court considered the possession of the petitioner only over the upper portion, and to be specific, not over the lower portion. This finding was not got varied by the petitioner either in any review or appeal etc. And remained intact. When therefore, in the ensuing remand the learned Additional Settlement Commissioner and also the learned Settlement Commissioner in their respective orders tried to assume or hold otherwise their orders were rightly declared by the High Court in its order dated 1-11-1974 (now under challenge) to be without lawful authority and the said Court justifiably again felt the necessity of a second remand, which in this respect suffers from no infirmity, legal or factual.
9. Here we may also make mention of a statement of the petitioner dated 21-11-1959--(certified copy filed by the caveator)--wherein he i.e. Petitioner had stated that he was allottee only of the upper portion.
As against this learned counsel for the petitioner submitted that this Court while reciting facts in C.
P. 122/66 decided on 5-4-1966-(which respondent No. 3 had filed to challenge the judgment of the Single Judge dated 1-11-1965 in W. P. 450-R/61 and consequent L. P. A. Bench, decision dated 18-1- 1966, in L. P. A. 185/65)-had observed that :- "In 1.954, Muhammad Hussain was allotted the ground-floor of the house, which he had been allowed by Ahmad Kamal to occupy in 1948, on compassionate grounds. Both floors had been allotted to Ahmad Kamal by the House Magistrate earlier."
Learned counsel argued that this will show that the respondent was not an allottee of any portion of this house. This passage, we may point out, was later on neutralised or washed off when in a Review filed by the respondent exception was taken to its correctness on factual plane. This Court then held that: "A judgment is authority only for what it decides and the decision of this Court is contained in the last para of our judgment dated 5-4-1965, which had no bearing, whatsoever, on the question of the date on which or the manner in which Muhammad Hussain came into possession of the ground floor of the disputed property."
In this state of affairs the objection raised by the learned counsel for the petitioner with regard to the extent of his possession or for now challenging possession or extent of the possession of the respondent, cannot be accepted because, the finding of the High Court in its direction in remand order dated 1-11-1965 remained intact and scope of remand was neither varied nor enlarged by this Court.
10. As regards (b) all we need observe is that if at one stage a suitor is prepared to advance, as was argued before us, an alternative case, the same would need examination in the whole context, though it will be ultimately up to the concerned Court to hold as to what impact it has on the overall facts and circumstances of the Ifs between the parties. The High Court in the context committed no illegality in highlighting this fact, while ordering remand, for being considered for whatever worth it possessed for ultimate decision along with the other relevant factors.
10-A. As regards (c) suffice it to say that the High Court has given cogent reasons for quashing the aforesaid orders and we have not been able to find any defect therein.
11. Before parting with this case subject to what has been held by us above, we may observe, that, the impugned order of remand was passed by the High Court on 1-11-1974, where after the petitioner took part in the remand proceedings without any protest and filed written arguments in support of his case, in general and also on the above points. The learned Settlement Commissioner vide his order dated. 18-9-1976 held, (a) that the unit "B" was divisible into two Portions B/1 and B/2;
(b) that the parties have been living in these portions from year 1947 and (c) that there was no justification at such a belated stage to hold otherwise, particularly, when as mentioned above, the petitioner himself, while the whole house had been taken away from him, desired division in the alternative in the earlier round --of litigation. In our opinion, after having taken a chance of success in remand proceedings and after having taken part therein, and after having acted on the order dated 1-11-1974, in the above-mentioned manner, the present petition from that point of view has become infructuous. When confronted with this situation, learned counsel for the petitioner submitted, that remand proceedings will remain subject to the result of this petition which was filed in this Court much earlier somewhere in January, 1975. Legally this is true, but above like conduct of a petitioner some--time may affect the result of a petition for special leave to appeal itself,-- (which is always in the discretion of the Court)-and as we hold it will do in this case, particularly, when neither the remand order dated 1-11-1974 nor the consequent order which is to be judged in its light, appear to have brought any injustice to the petitioner. It may further be mentioned that the final order dated 18-9-1976 was, as was told to us, not deliberately challenged by the petitioner at its own place inappropriate forums, because, the petitioner suffered it to remain subject to the merits of the remand order dated 1-11-1974 in which to excuse repetition, we have not been able to find any factual or legal infirmity. In our opinion, granting leave to appeal in this context will tantamount to upsetting the aforesaid order as well, which even otherwise, is quite fair and, just, inasmuch as it purports to settle two claimant-displaced-persons in the property in which they have been living from year 1947-48. Looked at from whatever angle, we think this is not a fit case for grant of leave to appeal. The result is that this petition is dismissed hereby in limine.