' NASIM HASAN SHAH, J.---This appeal, by leave of this Court, is directed against the judgment of the Lahore High Court dated 1-7-1979 whereby the case was remitted to the Settlement Commissioner to pass a fresh order of transfer with respect to an evacuee house situated in Doughlaspura, Faisalabad.
2. The relevant facts briefly stated are that the dispute relates to a single storeyed house in Doughlaspura, Faisalabad, which is in the possession of Sh. Fazal Hussain appellant and the heirs of Haji Habib Bakhsh (deceased). Both displaced persons and applied for its transfer.
3. Protracted litigation ensued between the parties in the course of which both the parties agreed that the house was indivisible and had to go the party in prior possession. The case was remanded to the Settlement Commissioner by the High "Court to determine this question. The learned Settlement Commissioner vide his order dated 21-12-1973 found the appellant to be in prior possession and ordered the transfer of the whole house in his favour.
' The respondents, therefore, again approached the High Court by a writ petition and a learned Judge thereof again remanded the case for considering the question of divisibility observing inter alia-- "Leaving aside the tenuous finding that the respondent No,1 has been in prior possession the question which squarely arises in the case is that the petitioners and respondent who are claimant displaced persons and are in possession of the house in dispute since after the creation of the country, why should they not continue to live in the same house?"... ..."Be that as it may the house having been divided by the Additional Settlement Commissioner (on 18-7-1960) and this finding having not been validly set aside in proper proceedings, and the fact that both parties are claimant displaced persons and are inter-related, the respondent No,1 being the son-in-law of Nabi Bakhsh, the predecessor-in-interest of the petitioners and their own brother-in-law, neither party appeared to have any right to throw the other out of the house, in which they have been settled since long. The learned Settlement Commissioner has failed to take into account these relevant considerations. His order, in the circumstances, is without lawful authority and of no legal effect."
' On this view of the matter the case was remitted to the Settlement Commissioner to pass fresh orders of transfer in accordance with law. The appellant being dissatisfied with the said order of the High Court has now come before this Court by this appeal.
5. On examination of the case we expressed the opinion vide our order dated 9-10-1990 that this was a fit case in which the parties should settle their differences by mutual adjustment rather than try to eliminate each other from the premises wherein they have been residing since over four decades. The appeal was, accordingly, adjourned to today with a view to ascertaining their views on this aspect of the matter. Accordingly, the appellant Sh. Fazal Hussain is present in person before us as also some of the respondents alongwith their learned counsel Mr. S.M. Tayyab. We have discussed this aspect of the case with the parties as well as their learned counsel and ultimately persuaded them to agree that the house may be divided and transferred to the respective parties in the terms ordered by the Additional Settlement Commissioner in his order dated 18-7-1960 passed more than 30 years ago.
6. We are fully satisfied and consider this to be a very fair and equitable determination of this old and protracted litigation between two close relatives. We would, accordingly, accept this appeal to the 'extent that all orders passed after the order dated 18-7-1960 passed by Lt.-Col. Khushi Muhammad, Additional Settlement and Rehabilitation Commissioner, Lyallpur (now Faisalabad) shall be set aside and his order dated 18-7-1960 restored whereby the appellant Sh. Fazal Hussain was transferred the ground-floor and the respondents transferred the rest of the house. The Deori, as directed by him, to remain in the common use of both the parties. The Settlement authorities will issue Permanent Transfer Orders to the parties accordingly. No costs.
' RUSTAM S. SIDHWA, J.---I agree with the judgment of my learned brother Muhamad Afzal Lone, J.
' MUHAMMAD AFZAL LONE, J.---I agree with the conclusion reached by my learned brother as to the restoration of the Additional Settlement Commissioner's order dated 18-7-1960 but I am adding my own separate note.
' The dispute between the parties relates to a double storey house No,P-65, Ward No,9, Doughlaspura, Faisalabad. Since the year 1948, the petitioner is residing in its ground floor and likewise, the first floor has been in possession of the respondents. Both the parties are claimant displaced persons and aspirant for transfer of the whole house. The petitioner as well as the respondents filed Forms C.H. The Assistant Settlement Commissioner vide his order dated 23-10- 1959 treated the respondents in prior possession and transferred the whole house to them. This transfer was confirmed by the Deputy Settlement Commissioner.His order is dated 12-11-1959. On appeal the Additional Settlenient Commissioner by order dated 18-7-1960 transferred the ground floor to the petitioner and first floor to the respondents. The Deori was declared to be the common property of both the sides. The Settlement Commissioner in revision did not agree with the horizontal division of the house and on 29-12-1962 remanded the case to the Deputy Settlement Commissioner. The latter under his order dated 22-8-1963 held that the petitioner was in prior possession and transferred the entire house to him. The respondents' appeal and revision failed, but they successfully invoked the Constitutional jurisdiction of the High Court and their Writ Petition No,487- R/65 was accepted on 10-12-1972, Settlement Commisioner's order dated 223-1965 quashed and the case sent back to him for its decision afresh in accordance with law.
2. As a result of the post-remand hearing, the Settlement Commissioner rendered order dated 21- 12-1973 and recorded a finding that the petitioner occupied the house prior in time and thus, transferred the whole house in his favour. The respondents then again came to the High Court under Article 199 of the Constitution. Their Writ Petition No,455-R/74 was accepted by a learned Single Judge by his judgment dated 1-7-1979, the operative part whereof is reproduced below:-- "Leaving aside the tenuous finding that the respondent No,1 has been in prior possession, the question which squarely arises in the case is that the petitioners and respondent who are claimant displaced persons and are in possession of the house in dispute since after the creation of the country, why should they not continue to live in the same house? The house had been divided by the Additional Settlement Commissioner in the first round of litigation vide order dated 18-7-1960. If the petitioners had not felt avaricious and challenged the order, both sides would have been settled in the house, as the respondent had not challenged that order by means of any revision petition. However, the petitioners challenged this order by means of a revision petition which was allowed and case remanded. In the remand proceedings, the petitioners were non-suited on the ground that they had come into possession later than the respondent No,1. Be that as it may, the house having been divided by the Additional Settlement Commissioner and this finding having not been validly set aside in proper proceedings, and the fact that both parties are claimant displaced persons and are inter-related, the respondent No,1 being the son-in-law of Nabi Bakhsh, the predecessor-in-interest of the petitioners and their own brother-in-law, neither party appeared to have any right to throw the other out of the house, in which they have been settled since long. The learned Settlement Commissioner has failed to take into account these relevant considerations.
His order, in the circumstances, is without lawful authority and of no legal effect. It is so declared."
' The validity of this order is under challenge in this appeal by leave to appeal.
3. After hearing the learned counsel for the parties and examining the entire record, we do not feel pursuaded to differ with the view taken by the High Court. As stated earlier, it is a double storey house. It is on the record that there are six rooms and a Deori on the ground floor and the first floor consists of 5 rooms and an inter-floor. Both the sides have been residing in their respective portions for the last about 40 years. Thus, notwithstanding the urge of each one of them to grab the entire property, practically the house consists of two residential units which since the year 1947/1948 are being used as two self-contained houses. In this respect, we observe that the approach of the Additional Settlement Commissioner who passed order dated 18-7-1960 is correct and conducive to the object for which the settlement laws were designed. We entirely agree with the view expressed by the learned Single Judge but feel, that no useful purpose would be served in remanding the case to the Settlement authorities. The parties are litigating with one and another for the last over 30 years and the remand of the case would further prolong their agony. In our opinion it will meet the ends of justice if the Additional Settlement Commissioner's order aforesaid is restored and we . The appeal is disposed of leaving the parties to bear their own costs.