SAYED 2AHID HUSSAIN, J.- Property No. S-36, R-40, Railway Road, Lahore had three shops and a residential portion. The dispute herein does not cover the shops. The residential portion was in possession of number, of persons however, the contest now is restricted to the parties to this petition. On 11.6.1960 the Deputy Settlement Commissioner transferred the whole of residential portion in favour of Mst Hussain Bibi who is now represented by the petitioners. This said order was challenged by Munshi, the father of Abdul Aziz respondent No. 2 herein, which appeal was dismissed by the Additional Settlement Commissioner, Lahore on 4.10.1 962.-He find the revision petition, which was however accepted by the learned Settlement Commissioner on 2.3.1964, remanding the matter to the Deputy Settlement Commissioner for re-examination afresh. Since Mst. Hussain Bibi or Jan Muhammad who had associated with her by the time had not been heard by the Additional Settlement Commissioner or the Settlement Commissioner their writ petition i. e.
(W.P. No. 1168-R/1969) was accepted by this Court on 1.12.1975 with the direction that the "case shall therefore, go to the Settlement Commissioner exercising powers under Section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act,- 1975 to hear the parties, peruse the record and decide the case afresh in accordance with law."
2. In pursuance of this remand order the matter was taken- up by the Additional Settlement Commissioner, Lahore who vide his order dated 4.10.1976 remanded the matter to the Deputy Settlement Commissioner for de novo determination after giving notice to the contesting parties.
This order was again challenged by the petitioners by filing W.P. No. 97-R/1977 but the same was dismissed, It is stated that the matter was agitated by the petitioners before the Hon'ble Supreme Court of Pakistan and C.A. No. 138/1977 was accepted with the direction and modification that the revision petition shall be disposed of by the Notified Officer in accordance with the decision of the High Court in W.P. No. 1168-R/1969. It is thus that respondent No.-l has passed order dated 31.8.1991 whereby he has ordered the transfer of the property to Abdul Aziz respondent No. 2 in toto, It is this order which has now been challenged by the petitioners through this petition. .
3. It is contended by the learned counsel that the possession of Mst. Hussain Bibi was of prior in time than of respondent No. 2 who being claimant could not be non-suited by respondent No. 1. It is contended that report on which respondent No. 1 has placed reliance was an ex parte report, which had little value in law. It is further contended that the view taken by respondent No. 1 as to the belated submission of C.H. Form is contrary to law laid down in Ch. Altaf Hussain and others v. The Chief Settlement Commissioner and others (PLD 1965 Supreme Court 68).
4. The learned counsel for respondent No. 2 contends that Mst. Hussain Bibi was not entitled to transfer as she was not in possession in her own right as per her own statement, and that even her CH form was not legally entertainable.
5. The operative part of the order passed by respondent No. 1 would show that he was influenced by the belated submission of CH form by Mst. Hussain Bibi and that she was not found in actual physical possession as per report of Naib-Tehsildar dated 16.7.1991. In non-suiting Mst. Hussain Bibi in the matter of transfer, the consideration, which weighed with him were legally and factually untenable in view of, Altaf Hussain case (supra). Likewise the report prepared ex parte in the absence a party could not be made basis for the decision. Reference may be made to Raziuddin v.
Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 S.C. 531). Such a conclusion however, would have resulted in remand of the matter to respondent No. 1 for hearing and decision over again. Being conscious of the fact that the parties have fought enough already for about four decades and this being the third round of litigation before this Court I am reluctant to remand it. The document which is undisputed is the survey list which shows Mst. Hussain Bibi as also Abdul Aziz respondent in possession of portions of the residential part of the property. Even the very first spot inspection carried out by the Deputy Settlement Commissioner as per order dated 11.6.1960 goes to verify that both parties were in possession of their respective portions, It is stated by learned counsel that there is no other contestant. Instead of entering into the controversy as to who had preferential claim to the house, I find that both parties could appropriately be accommodated in the premises instead of excluding totally the other, In Mst. Shah Jehan Begum v.
Mst. Shabhir Fatima and another (PLD 1991 S.C. 614) the parties were Ordered to be accommodated according to their possession and it was observed that "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". Similar was the approach adopted in Sh. Faza! Hussain v. Abdul Waheed and others (1992 SCM R 931).
Abdul Aziz respondent had stated before the Deputy Settlement Commissioner on 27.2.1960 that one room was, in his possession, which may be transferred to him. He could not claim the whole of it nor was entitled to the same. I have therefore, in the peculiar facts and circumstances of the case considered it just, fair and appropriate that both parties should be transferred half portion each vertically in the residential premises (excluding three shops), It is ordered accordingly. Let the parties appear before the Notified Officer having jurisdiction in the matter who will demarcate and divide the premises by keeping in view the convenience and easements of the parties and issue title documents for the respective portions.
The petition is disposed of accordingly.