' This unfortunate case has a chequered history and there has been various rounds of litigation between the parties. The dispute relates to a house bearing No,SXX-23-S-4, Canal Park, Lahore, 1/2 of which was allotted to Dr. Ali Muhammad predecessor of the petitioner, while the other half was allotted to Fazal Karim son of Ali Muhammad. The Deputy Settlement Commissioner, by means of his order dated 28th February, 1960 transferred this house to Khalifa Ali Muhammad, respondent No,1. This order was however, set aside by the Additional Settlement Commissioner, who instead transferred this property to Dr. Ali Muhammad. This order was maintained in revision by the Settlement Commissioner vide his order dated 26th April, 1962. However, the matter was remanded to the Deputy Settlement Commissioner by this Court in Writ Petition Rs, 1287-R/62.
2. In the post-remand proceedings, the Deputy Settlement Commissioner held the house to be divisible and transferred one-half to each of the contestants vide his order dated 5th July, 1969.
However, the case was again remanded by the Additional Settlement Commissioner on 28th November, 1973, whereafter the Deputy Settlement Commissioner on 24th July, 1976 transferred the entire house to respondent No,l. This order has been assailed by filing this Constitutional petition.
3. Mr. S.A. Manan, the learned counsel for the petitioner has contended that the predecessor of the petitioner was a direct claimant and allottee of the half portion while respondent No,1 was claiming transfer on the basis of the possession of his son, Fazal Karim, the allottee of the :ether half. It was argued that the finding of the Deputy Settlement Commissioner that the petitioner was not in possession of the property was contrary to record and based on no evidencce. Mr. Maqbool Sadiq, the learned counsel for the respondent, however, submitted that there was sufficient evidence on the record to show that the petitioner was not in possession of the property and had abandoned the same and was rightly held not entitled to transfer.
4. From the record, it is clear that the Additional Settlement and Rehabilitation Commissioner, vide his order dated 28th November, 1973, held the house in question indivisible and remanded the case to the Deputy Settlement Commissioner for transferring it to the party holding better entitlement over the house. This order was not challenged any further and as such attained finality and question of divisibility was no more in issue. In these circumstances, in post-remand proceedings, the Deputy Settlement Commissioner was called upon to determine entitlement of parties which was dependent upon their possession over the property as on 20th December, 1958 or in any case on 3rd August, 1960. In the present case, unfortunately the Deputy Settlement Commissioner failed to record any finding as to which of the parties was in possession of the property on the above dates. His entire attention was focused on the question as to who was in possession of the property at the time when he decided the,: case on 24th July, 1976, which, however, was not conclusive.
There is no denial that the petitioner was the allottee of half of the house. It had, therefore, to be found as a fact that he had abandoned before he could be non-suited. On this crucial question, the parties had led evidence, but unfortunately this aspect of the matter was not examined by the Deputy Settlement Commissioner. He has, after noticing the contentions of the parties, proceeded to dispose of the matter in laconic order.
5. It is also to be seen that according to the petitioner, at the time of inspection of the house by the Deputy Settlement Commissioner, law and order situation was created by the opposite-party , with the result that the inspection could not be completed. To substantiate his contention, learned counsel has referred the report submitted by the Deputy Settlement Commissioner to the Member, Board of Revenue, on 6th May, 1976, in connection with the transfer application, wherein it has been stated that:- "The parties created a fuss in the street in front of the house and I had to abandon the spot inspection.
6. Mr. Maqbool Sadiq, Advocate, on the other hand argued that the spot inspection had been fully carried out by the Settlement Commissioner and it was subsequently that there was some tension.
Reliance in this respect was placed upon the order of the Deputy Settlement Commissioner dated 24th July, 1976. Although there appears to be some force in the contention of the learned counsel for the petitioner, but this aspect of the matter need not be dilated upon inasmuch as already held the Deputy Settlement Commissioner had failed to decide the matter in accordane with law had made no effort to find out the position regarding possession as on 20-121958/3-8-1960.
' The result of the above is that this petition is allowed, the impugned order of the Deputy Settlement Commissioner is declared to be without lawful authority and of no legal effect, and the case is remanded to the Notified Officer for decision afresh in the light of the observations made above, on the basis of the material already on the record and if necessary by inspecting the disputed property. The parties shall appear before the Member, Board of Revenue on 28th September, 1991, who shall entrust the matter to the Notified Officer of the competent jurisdiction.
As the dispute has remained pending in various Courts for the last many years, it is directed that the Notified Officer shall decide the case within two months from today. No order as to costs.