' The dispute in this petition pertains to a residential portion of property No,SW-94-R-66, commonly known as 66-Multan Road, Lahore. The Deputy Settlement Commissioner vide order dated 8-8- 1966 divided this property into two residential portions, 8 shops and 12 residential quarters. One of the residential portions was transferred in favour of Mst. Jamshed Begum, respondent, and the other in favour of Altaf Hussain and Shaukat Hussain jointly. The dispute with regard to this latter portion between Mst. Jamshed Begum and Altaf Hussain came to an end with the dismissal of Writ Petiton No,886-R-65, filed by Mst. Jamshed Begum vide judgment dated 2nd June, 1969 passed by Mr. Justice Waheed-ud-Din, the then Chief Justice of the High Court of West Pakistan, Lahore. The basic reason given was that Mst. Jamshed Begum had been transferred the other portion and as such she cannot claim a separate portion (the residential unit transferred to Altaf Hussain etc.) which is quite independent unit.
2. The other residential portion which was in occupation of Mst. Jamshed Begum and Mst. Akhtarun Nissa was transferred to Mst. Jamshed Begum, describing that portion as portion 'B'. The Deputy Settlement Commissioner had rejected the claim of Mst. Akhtarun Nissa, the present petitioner, on the ground that the form filed by her was time-barred. The appeal of the petitioner, Mst. Akhtarun Nissa, was however, accepted by the Additional Settlement Commissioner vide order dated 17th February 1961, by remanding the case regarding portion 'B' to the Deputy Settlement Commissioner for fresh decision after ascertaining the dates of occupation of both the occupants. It was observed that 'CH form' was submitted by the petitoner on 4-3-1960 at diary No,749 whereas the decision of the Deputy Settlement Commissioner was dated 8-81960. This led to the filing of a revision by Mst. Jamshed Begum before the Settlement Commissioner who vide his order dated 28th February, 1963, set aside the order of the Additional Settlement Commissioner dated 17-2-1961 and thus restored the order of the Deputy Settlement Commissioner, transferring portion A `B' to Mst. Jamshed Begum, respondent. The petitioner filed Constitution Petition (W.P. 2596-R-63) challenging the order of the Settlement Commissioner. This petition was accepted by a learned Judge of this Court vide judgment dated 26th April, 1966 whereby the order of the Settlement Commissioner dated 28-21963 was set aside and it was declared that the order of the Additional Settlement Commissioner dated 17-2-1961 remanding the case shall hold the field and that the case shall stand remanded to the Deputy Settlement Commissioner for decision of the same afresh in view of the observations of the Additional Settlement Commissioner incorporated in his order.
3. The matter was then taken up by the Deputy Settlement Commissioner who vide order dated 8- 7-1970 again transferred the disputed portion to Mst. Jamshed Begum against her CH form after recording the observation that Mst. Akhtarun Nissa, the petitioner, could not prove to have filed any form for transfer and that no entry exists in the name of Mst. Akhtarun Nissa in C SC-II Register. He further observed that the record of the survey had also been consulted wherein the names of husbands of both the ladies existed and date of possession of both is shown as 24-12-1947. The Deputy Settlement Commissioner also visited the spot and the ;portion was found incapable of division. This order was challenged by the petitioner and the Settlement Commissioner vide order dated 19-10-1976, endorsing the finding of the Deputy Settlement Commissioner confirmed the transfer in favour of Mst. Jamshed Begum, respondent, of the portion in dispute. This led to the filing of the present Constitution petition.
4. Learned counsel for the petitioner argued that the Additional Settlement Commissioner having found that the petitioner had filed the form vide his order dated 17-2-1961, and the said order having been upheld by the High Court, the Deputy Settlement Commissioner as well as the Settlement Commissioner acted illegally in reopening the question of filing of the form and in holding that the petitioner had not been able to prove that she had filed the form. He argued that the question of prior possession was only to be gone into and the Deputy Settlement Commissioner having himself observed that the names of husbands of both the ladies appeared in the survey list with one and the same date of possession, the petitioner could not have been non-suited.
5. Learned counsel for the respondent argued that Mst. Akhtar-un-Nissa, the petitoner, is not in possession of the property and is living in a house in Samanabad long before the transfer order passed by the Deputy Settlement Commissioner, that the answering respondent has spent a substantial amount on the repairs and renovation of the house which was in a dilapidated condition and that the entries in the tax register for the year 1966 are in the name of the respondent only which would show that the petitioner had abandoned much earlier the house in which she was temporarily accommodated by the respondent. It was added that the respondent came to occupy the house on the 24th December, 1947, but the petitioner was temporarily accommodated by the respondent at much later date and on the basis of such temporary accommodation, possession of the same cannot be claimed by her in her own right. These assertions made in the written statement were not controverted by 'filing a rejoinder or a counter-affidavit. The husband of the petitioner, who during the arguments was present, varbally submitted that the residential unit in dispute is a small independent unit and that the petitioner alongwith him was in possession of two rooms towards the back of the portion and that they were forcibly ousted from these two rooms. He added that these two rooms had fallen down and have been repaired/reconstructed by the respondent more than once. It was also conceded that one, out of the two rooms which were at one time in their occupation, is still without a roof. This position had to be admitted as during the pendency of this petition Mr. Altaf Muhammad Khan, Advocate, was deputed vide order dated 1-2- 1989 to accompany the learned counsel for the parties for the purpose of visiting the spot in their presence and to report as to who is in possession of the property in dispute and who is actually residing therein or is it an abandoned property. Mr. Altaf Muhammad Khan filed his report dated 6- 2-1989 according to which the unit in dispute described as a flat was found in exclusive possession of Mst. Jamshed Begum and her daughter Mst. Parveen Akhtar, who both were living in it together with Mst. Parveen Akhtar's family and no part of it appeared to have been abandoned. This flat consists of four rooms and a kitchen with passage and a deurhi; one room is without a roof. The petitioner's husband submitted that the two rooms on the back side, one which is without roof and the other on the side of the kitchen, was in their possession. The barsati on the top floor is admittedly in possession of the respondent. During arguments it also emerged that both the parties who are otherwise closely related have developed animosity due to the litigation over the house in dispute. They do not appear to be even on talking terms. Learned counsel for the respondent further argued that the house being small indivisible unit and the relations between the parties being strained this unit can neither be divided nor can be jointly transferred to the parties.
He submitted that the petitioner has already utilised her claim and as such her claim does not require satisfaction but if any interference is made in the transfer order the respondent shall suffer as her claim would remain unsatisfied and that in any case interference is not called for as the respondent has maintained this house by making huge investment as otherwise it would have fallen down and nothing would have remained for transfer to any party.
6. I have given serious consideration to the pleas of both the parties and have also gone through the impugned orders minutely. It is correct that this Court had upheld the order dated 17-2-1961, of the Additional Settlement Commissioner in which he had held that the petitioner had filed the form and as such the said question could not be reopened in remand proceedings which were restricted to the question of prior possession. It is also correct that the Deputy Settlement Commissioner in remand proceedings did observe that in the survey list the names of husbands of both the ladies did appear with date of possession as 24-12-1947. These factors would thus at best make out a case of remand but II the question is whether in the facts and circumstances of the present case it would be appropriate and in the interest of justice to intervene in exercise of extraordinary Constitutional jurisdiction. The portion in dispute is a small flat which is admittedly indivisible and as such only one of the two parties can be transferred this small indivisible unit.
Assuming that both the parties are in possession in their own right since 24-12-1947, which is at best the case of the petitioner, still she, at one time being, on her own showing, in possession of a lesser portion, has to give way to the respondent who was in possession of the major portion and now continues to be in possession of the entire portion. The respondent has admittedly maintained the unit by effecting repeated repairs as otherwise these rooms would have fallen down leaving nothing to be transferred to anyone of them. One of the rooms is still without a roof. The plea that the petitioner has got her claim satisfied elsewhere was also not controverted before me.
Moreover, it is to be noted that the learned Judge of the erstwhile High Court of West Pakistan while dismissing the constitution petition (W.P.886-R-65) filed by Mst. Jamshed Begum noted the fact that she had been transferred this portion and that was one of the reasons for repelling her claim as against Altaf Hussain etc. It would be, therefore, against the interest of justice to deny her this portion as well at this stage. It is also pertinent to point out that as the relations between the parties are strained the portion in dispute cannot be even jointly transferred to them. In any case transfer of two rooms to the petitioner which were at one time in her occupation would amount to resettling both the parties and also to sow seed of enmity and endless friction for the parties.
7. For all these reasons I am of the considered view that it would be better to bury this dispute as it is by refusing to interfere in the impugned orders in exercise of extraordinary constitutional jurisdiction. This petition is, therefore, dismissed. The parties are, however, left to bear their own cost.