1. QAISAR KHAN, J.-This appeal was filed under the following circumstances. A double-storey building bearing No. 129/1 situated in Ward No. 7 of Montgomery Bazar, Lyallpur, was evacuee property and various portions of .t were in possession of various persons. On the applications of the persons in possession the Deputy Settlement Commissioner by his order dated the 24th of January 1960 transferred this property to the various persons in possession as follows :----
(A) One room on ground floorto Muhammad Yadub
(B) One room on the first floor with kitchen on the ground floorto MuhammadHanif and Muhammad Latif
(C) A garage on ground floorto Muhammad Sharif
(D) One room with a bath room, a store room and passage on the ground floorto Abdul Majid and Abdul Hamid
(E) Shop one room on ground floorto Master Muhammad Hanif
(F) Shop one room adjacent to stair-case on ground floorto Eida son of Natha.
2. It was also ordered that the easement right and the use of the stair-case will be common for all the occupants concerned.
3. Muhammad Latif and Muhammad Hanif respondents Nos. 2 and 3 in this appeal allegedly went up in appeal and revision against the aforesaid order but without any success.
4. On the 24th of July 1963 Muhammad Latif and Muhammad Hanif submitted an application against the heirs of Eida who in the meantime had died to the Deputy Settlement Commissioner praying for clarification of his order dated the 24th of January 1960 on the ground that the room on the first floor had been transferred to them whereas in the P. T. O. Of Eida a room had also been shown transferred to him along with the shop on the ground floor adjacent to the stair-case which was not mentioned in the original order. On this application the Deputy Settlement Commissioner on the 22nd of August 1963 passed the following order :- "The P. T. Os. Are in conformity with the transfer order.' No changes in the P. T. Os. Are called for. The application is filed."
5. Muhammad Latif and Muhammad Hanif went up in appeal against this order to the Court of the Addl. Settlement Commissioner. On the application of Abdul Hamid and Abdul Majid appellants in this case they were also implicated as respondents in that appeal. The learned Additional Settlement Commissioner by his order dated the 16th of September 1963 upheld the order dated the 22nd of August 1961 and dismissed the appeal. In the body of the order it was however remarked that there was no construc--petition on the first floor over portion `D' which had beer transferred to Abdul Majid and Abdul Hamid and that they were thus entitled to the exclusive use of the roof of portion `D'.
6. Muhammad Hanif and Muhammad Latif filed a revision petition against the aforesaid order dated the 16th of September 1963 in the Court of the Settlement and Rehabilitation Commissioner. The heirs of Eida also filed a revision petition against the aforesaid order alleging that the entire upper storey consisting of a room and roof on the whole ground floor had been transferred to them along with the shop adjoining the stair-case on the ground floor, The revision petition of Muhammad Hanif and Muhammad Latif was dismissed in default on the 30th of October 1963, but it appears that it was later on restored and disposed of by the Settlement Commissioner with the revision petition filed by the heirs of Eida by an order dated the 27 of June 1964. The learned Settlement Commissioner held that the room on the first floor had been transferred to Eida along with the shop on the ground floor adjacent to the stair-case which had been kept common for use by all the occupants. The contention of the heirs of Eida that they were the transferees of the entire roof of the ground floor was rejected and it was held that the open roof of the property shall be deemed to have been transferred to the transferees of the corresponding portions of the ground floor. The transferees of the first floor were however given a right to pass over the roof to the room on the first floor Abdul Majid and Abdul Hamid filed a writ petition in the High Court against the heirs of Eida praying for a declaration that the order of the Settlement Commissioner dated the 27th of June 1964 authorising the heirs of Eida to the roof of the ground floor of portion `D' transferred to them was unlawful and of no legal effect. The Settlement Commissioner and Muhammad Latif and Muhammad Hanif were also impleaded as respondents. The High Court however by its order dated the 17th of February 1965 dismissed the writ petition in limine. The petitioners filed a review petition in the High Court but that too was dismissed on the 2nd of March 1966.
7. Abdul Majid and Abdul Hamid filed a petition for special leave to appeal against both the orders dated the 17th of February 1965 and 7th of March 1966 of the High Court and leave to appeal was granted to them by this Court on the 29th of June 1966.
8. After hearing the learned counsel for the parties and carefully perusing the plan placed on the file we have come to the conclusion that there is no force in the contention of the learned counsel for respondents Nos.4 and 5 the heirs of Rich that the whole of the roof over portion `D' has been transferred to them. It is evident from the order of the Settlement Commissioner dated the 27 ofth th June 1964 that the open roof in the property has-been transferred to the transfers of the corresponding portion on the ground floor and that was reasonable too because the transferee of the only room on the first floor could not have been given the open roof of the whole building. There is also no force in the contention of the learned counsel for the appellants that respondents Nos.4 and 5 should have no right of access to the room on the first floor over any portion of the roof of portion `D' transferred to them, for in that case it would no at all be possible for respondents Nos.4 and 5 to approach the room on the first floor transferred to them. The order of the Settlement Commissioner that respondents Nos.4 and 5 the heirs of Eida would have the right to pass over the open roof for approaching the room on the first floor w therefore reasonable and justified. However to obviate the recurrence of any dispute between the parties in future we amend the order of the Settle--ment Commissioner to the extent that the Settlement Authorities concerned should demarcate the passage over the roof of portion `D' transferred to the appellants which respondents Nos.4 and 5 the heirs of Eida transferees of portion `B' on the first floor could find access to it. The passage should be demarcated in such a way as to cause least inconvenience to the appellants.
9. The appeal is therefore allowed to that extent with no order as to costs.