1. ' The dispute relates to Survey No, 335 measuring 24 ghuntas in Deh Garhi Khairpur which was allotted to the petitioner on 26-10-1960 and possession is also claimed to have been transferred to him on 9-11-1960. The petitioner paid the Rehabilitation and Settlement Fees also and he has produced 13 agreements by which he gave leases of that land from 1960 to 1973 to different persons and also produced 8 Dhal receipts for the land in question which payments have been made on behalf of the petitioner by his Hails or agents. The petitioner has also produced an Ajazatnama of 9-9-1952 whereby Rehabilitation Mukhtiarkar, Khairpur granted the disputed land for the purposes of one crop to Naseer Ahmed. The name of the evacuee was shown as Jatoo Mal.
2. This document has been filed to show that the land in question was treated as an Evacuee Property before 1-1-1957.
3. The respondents Nos. 4 and 5 Sadhoo Mal and Jagan Mal claimed that the disputed land is their ancestral property and belonged jointly to their respective fathers Matoo Mal and Khanoo Mat before Partition and after Partition it has remained in their ownership and they have all along been in possession of the same. Respondents Nos. 4 and 5 made an application on 22-2-1973 to Settlement Authorities under sections 10 and 11 of Displaced Persons (Land Settlement) Act of 1958 for cancellation of the allotment of Survey No, 335 which was allotted to the petitioners and Survey No, 556 which had been allotted to one Mukhtiar Fatima. On 14-9-1973cthe application of respondents Nos. 4 and 5 was allowed by Additional Settlement Commissioner (Land) Khairpur after he had obtained a report from the Mukhtiarkar. The petitioner, therefore, filed revision before Settlement CoMmissioner which was dismissed on 7-10-1970. Thereafter, this petition was filed.
4. ' Mr. Ghulam Dastagir, learned counsel for the petitioner and Mr. Joshi, learned counsel for respondents Nos. 4 and 5 had advanced their arguments. The Settlement Department did not defend the petition. Mr. Dastagir has contended that the property having been permanently settled in his favour it could not be cancelled and he has relied upon a number of rulings in support of his case namely 1968 Law Notes 205, PLD 1973 SC 451. I am however of the view that these rulings are not applicable to the facts of this case and the Settlement Authorities had the jurisdiction to cancel the allotment under section 11 of the Act if they came to the conclusion that the property had never been treated as an evacuee property and therefore it did not become a part of the compensation pool. If authority is needed then PLD 1965 SC 356, 1969 SCMR 299 and PLD 1970 Lah. 780 may be referred to where the Settlement Authorities have been held to have jurisdiction to decide whether the property had come to the compensation pool or not and that land permanently settled can be cancelled under sections 10 and 11 of the Act. In any case if the property was not an evacuee property then no Settlement Authority could transfer the same as the basis of the allotment would be illegal and once the basis of the allotment is illegal then no permanent settlement could be made in respect of that property.
5. However, that does not conclude the matter as I find that the order of the Additional Settlement Commissioner has hardly dealt with the facts of Survey No, 335 except to the extent that mutation in favour of respondent Nos. 4 & .5 had been made. The discussion in that order about the possession of respondents Nos. 4 and (5) is in respect of Survey Nos. 290, 555, 554, 1183 and 279, but not in respect of Survey Nos.
335. According to me the question of possession was of paramount importance in this case as petitioners claim possession from 1960 while the respondents Nos. 4 and 5 claimed possession since 1947. If the petitioners had really got possession of the disputed land in 1960 as they claimed then obviously it was necessary that the respondents Nos. 4 and 5, immediately thereafter should have initiated proceedings either for cancellation of the land or for having the same declared as a non-Evacuee Property. But, if the possession had remained all along with respondents Nos. 4 and 5 then of course they could initiate the proceedings after they came to know of the allotment as they claimed. Therefore, the question of possession-was very significant and it has not been considered by the Additional Settlement Commissioner as such although he has given a finding that the land had remained in possession of the respondents Nos. 4 and 5, but this appears to be an arbitrary finding as the Additional Settlement Commissioner has not taken into consideration the allotment of the petitioner in 1960 nor the factum of the possession in favour of the petitioner which is noted on the allotment bearing a date of 1960, nor still he has considered Dhal receipts which must have been issued either in favour of the one or other, or Khasra Girdawari report in respect of this Surved number and nor even the water share list or any other relevant document. In fact in the said order the Additional Settlement Commissioner has considered the case in respect of the survey 556 in great detail and if the same treatment has been meted out by him to this survey number as well then there would have been no necessity of remand of this case. Then again Ajazatnama of 1952 in respect of this land has not been taken into consideration either by the Additional Settlement Commissioner when he passed this order dated 7-10-1973. The same is a very relevant and material document and if the same be correct then it would show that the property was treated as Evacuee Property as far back as 1952. Mr. Joshi has contended that, the document is not really relevant as it shows the name of a different owner. But Mr. Dastagir's contention is that it at least shows that Survey No, 335 had been treated as Evacuee Property in 1952. Since, I am sending the case back I do not want to close this issue by giving finding in respect of the same as I feel that the said document should be first commented upon and interpreted by the Settlement Authorities. I find that the order of the Settlement Commissioner dated 7-10-1977 is really mostly based upon the order of the Additional Settlement Commissioner dated 14-9-1973 and the Settlement Commissioner has confined himself to saying that there is overwhelming evidence in favour of the respondent as detailed by the Lower Court in the impugned order. He has therefore hardly applied his mind to the facts of the case and has based judgment only on the legal aspect without reference to material facts and came to the conclusion that the property, if mistakenly allotted it cannot form part of the Compensation pool. But there is no finding of mistake. I would therefore declare, both the orders of 14-9-1973 passed by Additional Settlement Commissioner and of 7-10- 1973 passed by Settlement Commissioner to be without lawful authority as they have been passed without consideration of the material question of possession in respect of Survey No, 335, and therefore, they are hereby set aside and the case is remanded to the Authorised Officer under section 2 (2) of Act 14 of 1975 for fresh decision of the application of respondents Nos. 4 and 5 after notice to parties and giving them the opportunity of substantiating their contentions.
6. ' Petition is thus disposed of.