1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed against the dismissal of the appellant's Constitutional (Writ) Petition by the High Court. It had arisen out of an urban settlement matter.
2. ' The appellant's side, it is admitted position, occupied the house in dispute prior in time but it seems the head of the family being in service was transferred out. He was, it is stated, paternal- uncle of the husband of the appellant. It is also not denied that the appellant and her husband, in other words their small family, continued the occupation of the house even after the departure of the original allottee. There was some other occupant as well but it appears that his position is no more controversial at this stage.
3. ' The respondent's side presumably thought and rightly so that the allottee having gone out on transfer, the house was available for fresh allotment. Accordingly they obtained the allotment in February, 1950. The appellant and her husband also made similar attempts for allotment on the basis of their earlier occupation and they were also allotted a small part (two rooms) about a year later.
4. ' Both the parties sought transfer of the house on C.H. Forms. They were equal in rights but the respondent sought prior possession on the basis of the date of allotment while the appellant claimed that they were prior in occupation and the same having been subsequently regularized through allotment order they also became in possession having an edge; namely, through prior occupation. There was protracted litigation. It is not necessary to take note of it in its entirety. It would suffice to mention that in an earlier round of litigation the matter came up to the High Court and it was remanded by the Letters Patent Bench in 1971. It was then at the time of remand that the respondent's side had pleaded that the remand for purpose of possible division of the house in accordance with the respective possessions would be futile because of the superiority of their claim on other points. The argument was repelled with the remark that it is not only permissible but proper for the Settlement Authorities to apply mind to the question of divisibility. Perhaps taking clue from this and similar other observations the Settlement Commissioner who passed the final order in that hierarchy did take note of the question of divisibility. It was held that on the inspection of the spot the officer had observed that "no doubt the house has got two staircases and two exits but it cannot be divided into two independent residential units". No reason was advanced to show why despite staircases and independent exits, the house was treated as not capable of being divided into independent residential units. In addition to these factors we have noticed from the site plan that the house is situate in such a way that at least on its two sides there are two lanes/roads. Thus there was no difficulty of practical division, vis-a-vis, the existence of independent roads in addition to independent stair-cases and independent exits. From the order dated 29-10-1975 of the Settlement Commissioner it is clear that the division was refused because the officer thought that the respondent's side had better claim. The following observations are important in this behalf so as to judge the working of the mind of the Settlement Commissioner.
5. "Mst. Shabbir Fatima has got a preferential right being in possession of much more accommodation than Mst. Shah Jehan Begum. Mst. Shabbir Fatima appears to be prior allottee also."
6. ' On account of these reasons the officer further observed that "I have no alternative but to hold that Mst. Shabbir Fatima has got a preferential claim over Mst. Shah Jehan Begum". While observing so the officer once again repeated his earlier view that the house was indivisible. As analysed above, the power exercisable under the Proviso to section 2(4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it has to be pointed out, was not at all exercised as a consideration, independent of the otherwise "preferential claim" A of the parties. The power exercised under the Proviso is relatable to the physical aspect of the house and not the characteristics of the rights of the applicants for its transfer. Thus it practically amounted to failure of the officer to apply mind to and exercise power under Proviso to section 2(4). As a necessary corollary of his findings otherwise of fact, on inspection, he would have divided the house in accordance with the possession but on wrong principle (looking at the better qualifications of the respondent's side) on extraneous grounds refused to divide the house. Same error with respect has been committed by the High Court in upholding the order of the Settlement Commissioner.
7. ' At this stage it needs to be remarked that leave to appeal in this case was granted to examine, inter alia, the point whether the appellant had a better claim for the transfer of the entire house as against the respondent on the ground that she was prior in possession by linking her occupation with subsequent regularization thereof through an allotment order. But if after examination of that point, it is decided in favour of the appellant, the respondent's side would be deprived of any right to the transfer of the house. It is admitted position that the appellant has only a small part of the house in her possession while the respondent has much bigger part thereof. Therefore, while exercising the jurisdiction in the nature of Writ as is available to the High Court, this Court would also try wherever possible, in the settlement cases, to adjust and accommodate as many displaced persons as possible. We have, therefore, decided to refrain from examining the question on which leave to appeal was granted. Instead as other points including that of divisibility were not excluded from consideration in so far as the language of the leave grant order is concerned, we decide this appeal on the point of divisibility alone as discussed above. As a result thereof it is allowed. The impugned judgment of the High Court as well as the order of the Settlement Commissioner are set aside. The house in dispute shall be deemed to have been divided, in accordance with what the Settlement Commissioner found at the spot, in two parts in exercise of this power under section 2(4) in accordance with the possession of both the parties.
8. ' On the announcement of this order both the parties started dispute on the question regarding extent of possession of the appellant. Appellant's counsel stated that she had also some accommodation on the first floor while the respondent's counsel refuted it. Thus the question arose: whether, two rooms in possession of the appellant should be transferred to her from ground to sky or from ground to ceiling leaving the roof and the upper side to the use of the respondent's side.
9. After some discussion on this issue as well, the parties agreed that the appellant shall be transferred only two rooms from ground to ceiling and that the roof with whatever upper structure thereon shall go to and thus remain with the respondent's side.
10. ' In the above terms this appeal stands partly allowed. There shall be no order as to costs.