WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in Writ Petition No. 199/11 of 1964, dated the 14th February 1968. By this judgment, a Division Bench of the said High Court accepted the petition in part.
The dispute between the parties is in respect of property No. 28-29-30/B-VII, situated in Montgomery. This property was owned by nine evacuee owners. It is situated on about 30 kanals of land and it has got large number of servant quarters. A part of Unit No. 28 was used as Government Office and was occupied. By the Chief Cotton Inspector. A portion of Unit No. 30 was used as an office by the District Food Controller. Unit No. 29 was an Annexe. The appellant is a claimant displaced person and was allotted a portion of Unit No. 30-B/VII, which previously was occupied by Mr. Ghulam Jilani, Excise and Taxation Officer, Montgomery, who was a local. Mr. Ghulam Jilani tried to get this property as a local but his claim was rejected by the Settlement authorities. Unit No. 29 went to Mr. Rohilla. There is no dispute about this portion and about the servant quarters. The dispute is about Units Nos. 28 and 30.
The parties filed C. H. Forms in respect of the property in dispute and the Deputy Settlement Commissioner, Montgomery vide his order dated the 29th February 1968, divided the property into the following units, and transferred it to the persons mentioned against it :----
1. Unit No. 28 was divided into two portions :-
(a) One portion allotted and transferred to Sardar Abdul Aleem respondent No. 1.
(b) The other portion was occupied by the Chief Cotton Inspector and used as an office.
2. Unit No. 29 was declared as an independent Unit.
3. Unit No. 30 was divided into two parts:-
(a) One portion allotted and transferred to appellant Ch. Abdur Rahim.
(b) The portion occupied and used as an office by the District Food Controller.
4. All the quarters were considered as independent units occupied by different persons. A part of Unit No. 28, occupied by the Chief Cotton Inspector. Unit No. 29 Annexe and a part of Unit No. 30 used by the District Food Controller were to go to earmarking pool.
This order was challenged in appeal by respondent No. 1 before the Additional Settlement Commissioner, who, by his order dated the 28th May 1960, dismissed the same except that he ordered one room and a porch to be transferred to respondent No. 1 out of the portion occupied by the Chief Cotton Inspector. All the parties took the matter before the Settlement Commis--sioner in revision who remanded the case .On the 4th May 1961, to the Additional Settlement Commissioner for a fresh decision after affording an opportunity to the parties to substantiate their claims.
While this litigation was going on, the Government issued instructions regarding the disposal of property occupied by Government offices under earmarking scheme. Accordingly, Unit No. 29 was given in earmarking scheme to Mr. Rohilla. A part of Sub-Unit No. 30 previously occupied by the Chief Cotton Inspector, was transferred to Ch. Taj Din respondent No. 2 and the portion of Sub-Unit No. 30 occupied by the District Food Controller, was transferred to Mr. Zaman.
On remand the case was taken up by the Additional Settle--ment Commissioner, who, by his order dated the 13th December 1962, transferred the property in the following manner :-
(a) Whole of Sub-Unit No. 28 including the portion previously transferred to Sh. Taj Din was transferred in favour of respondent No. 1 Sardar Abdul Aleem.
(b) Sub-Unit No. 29 was transferred to Mr. Rohilla.
(c) Out of Sub-Unit No. 30 the portion in possession of the appellant was transferred to him. The remaining portion which was originally in possession of District Food Controller was transferred in favour of Sh. Taj Din who was successful in earmarking scheme, and previously got portion of Unit No. 28 which was occupied by the Chief Cotton Inspector.
This order was challenged by the parties before the Settlement Commissioner, who, by his order dated the 6th December 1963, transferred the property in the following manner:-
(a) Out of Sub-Unit No. 29, respondent Abdul Aleem was transferred only that portion which. Was - in his possession.
(b) The remaining portion of Unit No. 28, which was previously in occupation of Chief Cotton Inspector was restored to Sh. Taj Din respondent who was successful under the ear--marking scheme.
(c) Sub-Unit No. 29 was confirmed in favour of Mr. Rohilla as an Annexe.
(d) The whole of Sub-Unit No. 30 including the portion which was in occupation of the District Food Controller was trans--feered in favour of the appellant on the ground that one Zaman who was successful under the earmarking scheme was not traceable and, therefore, the entire portion was declared as one Unit.
Sardar Abdul Aleem challenged the order of the Settlement Commissioner in Writ Petition No. 199/R of 1964. In the writ petition, he claimed the entire property on the basis of his C. H. Form. The High Court accepted the writ petition and directed that whole of Sub-Unit No. 29 be transferred to Sardar Abdul Aleem respondent No. 1 and the portion which was originally given to Sh. Taj Din respondent No. 2 under the earmarking scheme was also given to him. Out of Sub-Unit No. 30 which was transferred to the appellant, the High Court directed that the portion in his possession be transferred to him and the remaining portion which was originally occupied by the District Food Controller should be transferred to Sh. Taj Din respondent No. 2. The appellant is aggrieved by this order and has challenged it in this appeal by special leave before us.
Special leave was granted in this case to consider the question why the same principle should not be applied in the case of Unit No. 30 which has been applied to Unit No. 28.
Mr. Mahmood A.I Kasuri, learned counsel for the appellant, has contended that the High Court was not competent to divide the property itself and to transfer it to the various parties. According to the learned counsel, as the appellant was in posses--sion of a portion of Unit No. 30 he should have been transferred the remaining portion of that property. On the other hand, Sardar Abdul Aleem respondent No. 1 has contended that if the order of Settlement Commissioner is upheld, there will be no passage to his portion of the property and a division of the property will be most inequitable.
After hearing the learned counsel for the parties, we are satisfied that the Settlement authority has not applied its mind properly so far as the divisibility of the property in dispute is concerned. It has not taken into consideration that the portion given to respondent No. 1 by the Settlement authority will be with--out any passage and no provision has been made for it. It is also for consideration whether the Settlement authority can transfer to Sh. Taj Din the portion of the property which was not obtained) by him in earmarking proceedings. In our opinion, the High Court committed an error in dividing itself. It should have left it to the Settlement authorities. Apparently the disputes between the parties require re-consideration. We would, therefore, set aside the order of the High Court and the Settlement Authorities and send back the case to the Settlement Commissioner, Montgomery for considering the question whether the property in dispute is divisible and if so, into how many portions. The parties are directed to place their difficulties before the Settlements Authorities.