' ASIF SAEED KHAN KHOSA, J.---Imtiaz Ahmed, Ejaz Ahmed, Mushtaq Ahmed and Sakhi Muhammad sons of Haji Ahmed have preferred this appeal by leave of the Court against the judgment dated 12-10-1998 rendered by a learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Writ Petition No. 74-R of 1981 filed by Them against the order, dated 30-6-1981 passed by the Chief Settlement Commissioner was dismissed.
2. The relevant background of the case is that the property described below situated in Mauza Pira Ghaib, Tehsil and District Jhelum was allotted under section 15(3) of the Displaced Persons (Land Settlement) Act XLVII of 1958 as agricultural land (urban): RL-II No.58 4-11-1963 Allottec Ashiq Ali. Khasra No. 2742-3 marla Khasra No.2743-5' Kanal-2 marlaGhair Mumkin Khotha.
Banjar Qadeem Godown RL-II No.60 14-1-1964 Allottee Abdul MajidKhasra No.2744-5 Kanal 13 marla, Khasra No.2750/2/1-2 kanal 16 marla Khasra No.2745-4 marlaBanjar Qadeem Godown Banjar Qadeem Godown Ghair , Mumkin Chah
3. The above mentioned allottee namely Abdul Majid sold the property in favour of the appellants vide registered sale deed dated 14-10-1963. The other allottee namely Ashiq Ali sold his property to one Habibullah from whom it was purchased by the appellants through registered sale-deed dated 27-8-1965. The allotments were not only complete in all respects but the same had also been acted upon, the allottees had sold the relevant properties in the years 1963 and 1965 and since then the appellants had throughout remained in possession thereof as bona fide purchasers for consideration without notice of the title of any one else.
4. About ten years after selling the relevant property in favour of the appellants it dawned upon the allottee namely Abdul Majid that the said property stood transferred in the name of one Muhammad Nazir as building site through issuance of PTO and PTD vide order dated 18-2-1961.
Abdul Majid and the present appellants filed a revision petition before the Settlement Commissioner who held an inquiry into the matter and then held through his order dated 30-6-1981 that the allotment in favour of Muhammad Nazir was fake, bogus and ante-dated. The so-called allotment dated 18-2-1961 in favour of Muhammad Nazir was, therefore, cancelled but at the same time, to the detriment of the appellants, it was also held that the land in question was a building site and it could not have been allotted to the predecessor-in-interest of the appellants as urban agricultural land. As a consequence of that declaration the allotments made through RL-II No. 58 and RL-II No. 60 were cancelled and the property was directed to be put to auction. That order passed by the Settlement Commissioner was assailed by the appellants through a writ petition but the learned Judge-in-Chamber of the High Court maintained the same. Hence, the present appeal before this Court.
5. After hearing the learned counsel for the parties at some length and after going through the record of this case with their assistance we have observed that the property in question, being available for allotment, was so allotted through RL-II No.58 dated 14-11-1963 and RL-II No.60 dated 14-1-1964 in the names of Ashiq Ali and Abdul Majid respectively. Physical possession of the said property was obtained by the allottees against their valid claims. Abdul Majid sold the property to the appellants on. 14-10-1963 while Ashiq Ali sold the property to Habibullah who, in turn, sold the same to the appellants on 27-8-1965 the allottees and then the subsequent purchasers had been enjoying their complete usufruct and title over the land eversince. These admitted facts show, and show quite clearly, that such property was never available for allotment till the repeal of the Settlement laws in the year 1975 and by then the matter had clearly become final.
6. After repeal of the Settlement laws in the year 1975 and at a time when no evacuee property was available for allotment the Settlement Commissioner had no jurisdiction whatsoever on 30-6-1981, after 18 years of such allotments, to cancel RL-H No.58 and RL-II No.60, particularly when neither- the property was available nor the validity or otherwise of those allotments was disputed or pending before him. What was disputed before him was the allotment order dated 18-2-1961 whereby the property had been shown to have been transferred in the name of one Muhammad Nazir and that order could be and was rightly declared by the Settlement Commissioner to be fake, bogus and ante-dated. Once the said order of allotment was declared bogus RL-II No.58 and RL-II No.60 remained intact as ever, particularly when the allotment made through such RL-IIs was never challenged or disputed. The Settlement Commissioner, therefore, had no jurisdiction on 30-6-1981 to reopen a finalized matter 18 years after the allotment, especially when the Settlement laws stood repealed long before. In this view of the matter the impugned order dated 30-6-1981 passed by him with regard to RL-II No.58 and RL-lI No.60, is void ab inito, without jurisdiction and coram non judice.
7. Even on the merits of the matter the order aforesaid is not sustainable at all because the property in dispute was never a building site. Khasra No.2742 measuring 3 marlas is a Ghair Mumkin Khotha which normally exists on an agricultural land. Khasra No.2745 is Ghairmumkin Chah which again denotes an agricultural land and not a building site. The remaining Khasras Nos.2743, 2744 and 2750/2/1 measuring 13 kanals and 11 marlas are Banjar Qadeem and Banjar Qadeem Godown as described in the relevant Special Jamabandi and such description of that property exists on the record since .The years 1944-45.
8. There cannot be two opinions about the notion that Banjar Qadeem always refers to agricultural land with the only difference that it is not put to cultivation for some time. The apparent confusion in the present case was generated by the term Godown, creating an impression that .a Godown must be a constructed property with four walls and a roof and, therefore, it must be a building site.
Such an impression was, however, nothing but presumptuous and the presumption so raised ought to have been dispelled by the material available on the record establishing that the relevant property was located on the bank of river Jhelum and it was used for stacking timber and logs collected from the river. At times the collected volume may appear sizeable but when the collection is sold or transported it leaves the property vacant and Banjar Qadeem as before. It is not understandable as to how it struck the Settlement Commissioner that a parcel of land used for temporary stacking of logs and timber (colloquially known as Godam acquires the status of a building site and loses that of an urban agricultural land. We have, thus, felt convinced that the Settlement Commissioner had gone utterly wrong even on the facts of the case.
9. We find that the issues of fact relevant to the present case are identical to those in the case of Sufi Muhammad Din v. Additional Commissioner (Revenue) (1991 SCM R 905). The property subject matter of the dispute in the said case was identical to the property in dispute in the present case.
We are told that the property in the precedent case and the property in the present case also happen to be contiguous lands bearing similar classification of Banjar Qadeem Godown and both the properties are situated in the same revenue estate namely Pira Ghaib; Tehsil and District Jhelum and both of those properties were allotted as urban agricultural land. In the said precedent case this Court had categorically held that the classification of Banjar Qadeem Godown is a classification of agricultural land and it did not matter if some Godown was available there for stacking logs and timber collected from a nearby river. In that precedent case the Settlement Commissioner had determined the status of the relevant property as urban agricultural land and this Court had found that classification to be correct.
10. For what has been discussed above we have no hesitation in holding that the property in dispute classified as Banjar Qadeem Godown, which has been so described in the revenue record since the years 1945-46 and also in the Special Jamabandi, maintains the character of agricultural property and, for being located in the urban area, it is classified as urban agricultural land. The Settlement Commissioner was, therefore, palpably wrong in determining the status of the property in issue as building site. We have concluded that besides having no jurisdiction in the matter the Settlement Commissioner had wrongly determined even the critical question of fact involved in this case and even the learned Judge-in-Chamber of the High Court had failed to correctly appreciate the legal and factual aspects of the case. Consequently, this appeal is accepted, the judgment dated 12-10-1998 handed down by the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi and the impugned order dated 30-6-1981 passed by the Settlement Commissioner are set aside. Both RL-II No.58 dated 4-11-1963 and RL-II No.60 dated 14-1- 1964 are hereby restored and maintained as valid and genuine.