1. SALAHUDDIN AHMED, J.-This petition for special leave is from the order of a learned Single Judge of the High Court dismissing the writ petition of the petitioners and refusing to interfere with the order of the Settlement Commissioner dated the 10th of June 1972, transferring the entire residential portion to respondent No. 1.
2. The dispute between the parties relates to the residential part of a composite building. Abdul Haq, predecessor-in-interest of the petitioners, and Fazal Haq, respondent No. 1, had both put in a C. H.
3. Form each for the transfer of the residential portion. Both the claimants were in possession of different portions of the residential part. The Deputy Settlement Commis--sioner by his order dated the 26th of May 1960, had transferred the entire residential part to the predecessor-in-interest of the petitioners on the ground that he had been in possession of the major portion of the property in dispute.
4. The appeal preferred by respondent No. 1 from the order of the Deputy Settlement Commissioner was dismissed by the Additional Settlement Commissioner on the 17th of July 1964. A revision petition filed by respondent No. 1 was, however, accepted by the Settlement Commissioner, who by his order dated the 23rd of October 1960, remanded the case to the Deputy Settlement Commissioner for considering the question of the divisibility of the property in dispute.
5. The Deputy Settlement Commissioner by his order dated the 9th of September 1970, held that the property consisted of two residential units and be accordingly accommodated both the parties but ordered for construction of the staircase by the petitioners.
6. The petitioners as well as respondent No. 1 filed appeals and they were disposed of by the Additional Settlement Commissioner by his order dated the 15th of June 1971. The Additional Settlement Commissioner modified the division and transferred to the two parties the portion in the physical possession of each of them, and also ordered that the Deohari and the stair--case would remain in common use of the parties.
7. Respondent No. 1 filed a revision before Mr. A. A. Wasti, Settlement Commissioner. The Settlement Commissioner accepted the revision by his order dated the 10th of June 1972, and held that the division of the house in two portions did not appear to be at all feasible. Consequently, the Settlement Commissioner ordered the transfer of the disputed property as one residential unit to respondent No. 1 alone on the ground that he was in prior possession of the property.
8. The petitioner being aggrieved by this order approached the High Court on a Constitution petition but it was dismissed as stated already.
9. It was contended before the High Court firstly, that inasmuch as it appears from the order of the Deputy Settlement Commissioner dated the 9th of September 1970, as well as from the respondent's revision petition (Annexure 'H') that the parties had admitted that the residential portion] of the parties were self-contained and divisible, the Settlement Commissioner was not competent to hold subsequently that the premises was indivisible. Secondly, that the Settlement Commissioner, having already observed in his order dated the 23rd of October 1969, remanding the case to the Deputy Settlement Commissioner that it would be in the interest of justice that the question of the division of the house be considered for the purpose of accommodating them both, he became functus officio so far as the division of the property was concerned and his order dated the 10th of June 1972, was, therefore, without lawful authority.
10. Both these contentions were rightly rejected by the learned Single Judge of the High Court, and we see no reason to interfere with his order.
11. The first contention was dismissed on the ground that it was manifest from the order of the Deputy Settlement Commissioner dated the 9th of September 1970, that respondent No. 1 had not taken an absolute position that the house was divisible. On the contrary, it was observed in the said order: "during the arguments, the learned counsel for Fazal Haq particularly stressed that as the house is having single staircase and single Deohri, there--fore, it is not divisible." Even in paragraph 6 of his aforesaid revision, respondent No. 1 stated thus: "If the property is not to be divided it should go to the petitioner, and in no case to the respondent." It is thus evident that respondent No. 1 had never taken a categorical stand that the property was in fact divisible.
12. The second contention was rejected on the ground that the Settlement Commissioner in his order dated the 23rd of October 1969, had never held that the property was divisible. On the contrary he had remanded the case to the Deputy Settlement Commissioner to consider the divisibility of the property, and had recommended that in case the property was not found divisible it would be fair to transfer the entire property to respondent No.1.
13. The question of divisibility of the property being one in the exclusive jurisdiction of the Settlement authorities, and the Settlement Commissioner having held that the property was indivisible the High Court in the exercise a of its extraordinary jurisdiction under the Constitution was right in not interfering with such order.
14. The petition is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.