M. S. H. QURHSHI J.-This appeal by leave of the Court concerns the dispute over transfer of 1/3rd evacuee share of a bungalow situate in Garden West, Karachi. Initially the whole bungalow had been transferred to Muhammad Siddiq and Muhammad Rafiq, appellants herein, and a P. T. D. Had issued in their favour on 28-4-1962 but as the Custodian had later decided that 2/3rd share of Sonu and Narain, respondents 2 and 3 herein, was non-evacuee and only 1/3rd share of Mohan, who had migrated to India, was evacuee, the P. T. D. Issued in favour of the appellants was amended on' 11-2-1965 so as to restrict it to 1/3rd evacuee share of the bungalow. In the meantime, Sonu respondent had in 1964, applied for transfer of the evacuee share also in his favour under para. 16-C of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
In the litigation that followed in which Narain also joined the proceeding, the Additional Settle-- ment Commissioner, in the appellants' appeal, held that the bungalow could not be rationally divided into evacuee and non-evacuee portions and that it being indivisible the respondents were entitled to its transfer in their favour under para. 16-C of the Schedule. He, therefore, by his order dated 16-1-1967 dismissed the appellants' appeal. As this order of the Additional Settlement Commissioner and all other orders in this regard were set aside in revision by the Settlement Commissioner, respondents 2 and 3 brought Constitutional Petition No. 388 of 1968, in the result of which the matter was on 5-6-1973, remanded to the Settlement Commissioner for deciding the revision before him afresh "according to law", though elsewhere in the order, the High Court had brought out the points of controversy including that of indivisibility of the bungalow which had to be decided by the Settlement Commissioner in the remand. The Settlement Commissioner, unfortunately, without adverting to the question of indivisibility; set aside the order of the Additional Settle--ment Commissioner dated 16-1-1967 for the reason that the 1/3rd evacuee share, having already been finally transferred under a P. T. D. Was not available and, therefore, maintained the transfer of the evacuee share of the property in favour of the appellants vide his order dated 31-10- 1973. But in the Constitutional Petition No. 106 of 1974, which was brought by respon--dents 2 and 3, the order of the Settlement Commissioner dated 31-10-1973 was set aside and the P. T. D. In respect of the evacuee share issued in favour of the appellants was cancelled by a learned Single Judge of the Sind High Court on 28-11-1878. The learned Judge expressed the view that the finding of the Additional Settlement Commissioner on the question of indivisibility would stand as there was no finding to the contrary reached by the Settlement Commissioner.
2. Para. 16-C of the Schedule reads: ---- "Where a property is indivisible and his owned partly by a displaced person or a local, the Chief Settlement Commissioner may transfer the property to such person if his share in the property exceeds such limit as may be specified by the Central Government."
The Central Government by Notification No. F. 5(20)/59-SI, dated the 20th October, 1959, prescribed the minimum limit of 1/3rd share in the property. It is clear that the indivisible status of the property is the starting point for asserting any right to transfer under para. 16-C. Unfortunately, the learned Settlement Commissioner did not decide the same, although he was under a duty to have done so in terms of the order of remand. The point had been, highlighted as one requiring determination by the Settlement Commissioner in the remand order of the High Court dated 5-4-1973 in the following words: - "I have expressly referred to this controversy because the fate of the P. T. D's to the parties will, I think, turn on the question whether the said property is divisible or not."
The Settlement Commissioner, therefore, had clearly failed to comply, with the requirements of the remand order in respect of the very crucial point in the controversy and as such the proper course for the High Court in the sub--sequent constitutional petition was to remit the matter to him again.
The High Court and we say so with respect, was not justified in assuming, in the circumstance of the case, that upon the failure of the Settlement Commissioner to determine the question of indivisibility, the finding of the Additional Settlement Commissioner would stand.
3. It is unfortunate that the litigation has consumed a long period but as the basic point has not been resolved by the Settlement Authorities in accordance with law in spite of remand, we see no other way except to remit the matter once again to the Settlement Commissioner. We, accordingly, allow this' appeal, set aside the impugned judgment of the High Court dated 28-11-1975 and remit the case to the learned Settlement Commissioner to record his own finding on the question of indivisibility or otherwise, of the bungalow and to decide the application of respondents 2 and 3 under para. 16-C of the Schedule in the light of such finding. In view of the background of the long litigation; we expect the learned Settlement Commissioner to decide the matter at an early date.