MUHAMMAD ILYAS, J.-This order will dispose of the L. P. A. In hand (L. P. A. 115 of 1968) as well as a connected L. P. A. Namely, L. P. A: No. 118 of 1968.
2. The facts giving rise to these appeals are that about 25 kanals of land situated in the revenue estate of Ganja Kalan, Tehsil and District Lahore, was owned by Mian Amir-ud-Din and others. In the year 1939, a scheme was prepared by them for building houses and shops on the said land and for that purpose they divided it into 34 plots. The scheme was sanctioned by the Provincial- Government but before it could be implemented, the land was transferred by Mian A.Ir-ud-Din and others in favour of one Devi Dayal Chandhoke by means of a sale-deed, dated the 11th January 1946. On the eve of Independence, the said Devi Dayal Chandhoke left Pakistan and, therefore, the land was treated a5 evacuee property. Strangely enough, the Additional Settlement and Rehabilitation Commissioner dealing with the transfer of evacuee lands treated it as land and out of it confirmed 3 kanals, 12 marlas and 19 squares feet of the land in the name of Mst. Iftikhar Begum. The Deputy Settlement Commissioner dealing with transfer of urban immovable property, however, took it as building site and transferred it to various persons including Mirza Muhammad Hanif, Muhammad Ifham Ullah Khan and Haji Sanaullah by Treans of an open auction. They were transferred the disputed property in the shape of plots. . Plot No. 2 was allocated to Mirza Muhammad Hanif, plot No. 3 to Muhammad Ifham Ullah Khan and plots Nos. 4 to 8 to Haji Sanaullah. Haji Sanaullah sold plot No. 4 in favour of Mian Muhammad Aslam and plots Nos. 5 and 6 in favour of Muhammad Tariq and Muhammad Shahid. Mian Muhammad Aslam also did not retain plot No. 4 with him and transferred the same to Kh. Saeed Ahmad.
3. Feeling aggrieved by the transfer of the land as building site, Mst. Iftikhar Begum filed a revision petition before the Deputy Rehabilitation Commissioner, CT referred the matter to the Settlement and Rehabilitation Commissioner, Ch. Ali Ahmad. It was held by Ch. Ali Ahmad that the disputed property was land. Its transfer as building site was, therefore, set aside by him.
4. Mirza Muhammad Hanif and Muhammad Ifham Ullah Khan challenged the order of the learned Settlement and Rehabilitation Commis--sioner by filing Writ Petition No. 1141/R of 1964 while Haji Sanaullah, Kh. Saeed Ahmad, Muhammad Aslam, Muhammad Tariq and Muhammad Shahid made a separate constitutional petition, that is, Writ Petition No. 18/R of 1964, for the purpose. Both these writ petitions were dismissed by a learned Single Judge of this Court. Mirza Muhammad.
Hanif and Muhammad Ifham Ullah Khan, therefore, filed L. P. A. No. 115 of 1968. The other writ petitioners preferred a separate appeal which is L. P. A. No. 118 of 1968.
5. During the pendency of the appeals under consideration, the appellants made a miscellaneous petition (C. M. No. 6 (if 1981) for permission to produce additional evidence in the shape of the copies of the revenue record. The petition was opposed by the contesting respondent, that is, Mst.Iftikhar Begum referred to above. We have heard learned counsel for the parties on the appeals as well as the miscellaneous petition.
6. While setting aside the transfer of the disputed property as building site, it was noted by the learned Settlement and Rehabilitation Commissioner that according to the revenue record it was land inasmuch as in the said record it was shown as ghair tughyani banjar qadim. His finding in this behalf was challenged by the appellants, b; fore the learned Judge in Chambers, but without success as he was of the view that the finding of the Settlement and Rehabilitation Commissioner being a finding on a question of fact could not be interfered with in writ jurisdiction.. Even otherwise, the learned Single Judge did not find anything . Wrong with the conclusion arrived at by the Settlement and Rehabilitation Commissioner.
7. Assailing the order of the Settlement and Rehabilitation Commis--sioner and the order of the learned Single Judge, it was urged by learned counsel for the appellants that there was no revenue record showing the disputed property as "ghair tughyani banjar qadim". According to them it was ghair mumkin toya and since it was not under cultivation it was rightly treated as urban immovable property and auctioned as such. For this proposition; they relied on the copies of the revenue record sought to be produced as additional evidence and the scheme for building of houses and shops which had been got approved by Mian Amir-ud-Din and others. They also cited Malik Ahmad Din and another v. Khawaja Mahmud Sadiq and another (1), to contend that a piece of land, which is not cultivated and is located in built area, cannot be treated land for the purpose of the Displaced Persons (Land Settlement) Act, 1958.
8. In reply, it was urged by learned counsel for the contesting respon--dent, hereinafter referred to as the respondent, that the revenue record on which reliance had been placed by learned counsel for the appellants was not produced before the learned Settlement and Rehabilitation Commissioner or the learned Judge in Chambers and, therefore, the same could not be taken into consideration. It was also submitted by him that even if the disputed land was taken as ghair mumkin toya it did not cease to be land for the purpose of being transferred under the Displaced Persons (Land Settlement) Act. He cited Abdul Hakim Patel v. Mst. Zahira and others (2), to support his contention. As for the scheme for raising of houses and shops, it was maintained by learned counsel for the respondent that since this scheme had not been implemented by the makers thereof, till the transfer of the land in favour of the evacuee nor by the evacuee till he had left Pakistan I~ it did not alter the character of the land.
9. While commenting on the arguments addressed by learned counsel for the respondent, the plea raised by learned counsel for the appellants was that the view expressed in the case of Abdul Hakim Patel had been overruled by the Supreme Court while deciding the case of Malik Ahmad Din and another v. Kh. Mahmud Sadiq and another (C. P. S. L. A. No. 654 of 1975). They also relied on paragraph 2 of the Settlement Manual by Douie to maintain that when a piece of land is described as ghair mumkin it ceases to be land.
(1) PLD 1976 Lah. 475(2) P LD 1969 Quetta 60
10. Whether the disputed property was land or building site at the time when it was abandoned by the evacuee is a question of fact. Normally, the High Court does not go into such questions while exercising it constitutional jurisdiction. However, even if, in the circumstances of the present case, an examination of the above question is undertaken it will be of little avail to the appellants.
According to the revenue record, relied upon by the learned Settlement and Rehabilitation Commissioner, the property in question was land shown as "ghair tughyani banjar qadim". It ` was not the case of learned counsel for the appellants that there was no such record before the learned Settlement and Rehabilitation Commissioner when he had recorded a finding in this behalf. It was also not their plea that they had produced before him revenue record or other documents indicating that the property in dispute was surrounded by buildings, roads, et.-., and was, therefore, to be treated as building site. They also took things lightly when the matter was agitated before this Court by means of constitutional petitions. It was at the belated stage of the present appeals that they made a petition to place on record 'some documents to show that the disputed land was ghair mumkin toya when it was abandoned by the evacuee. As indicated above, the placement of these documents on the record was objected to by learned counsel for the respondent and according to him even if they are taken into consideration they do not advance the case of the appellants.
11. In view of what has been stated above, the appellant's case, at best, is that the disputed property was ghair mumkin loya at the time when it became an evacuee property. Toya means a pit or depression. The land with depression or a pit can be brought under cultivation by filling up the depressions or, as the case may be, the pit. The land involved in the case of Abdul Hakim Patel, relied upon by learned counsel for the respondent was also a land of similar character inasmuch as it had been dug out for preparing bricks. Nevertheless it was ruled by M. A. Zullah, J. (as Judge or the erstwhile High Court of West Pakistan) that the said land was land within the meaning of clause
(3) of section 2 of the Displaced Persons (Land Settlement) Act and could be transferred thereunder. In paragraph 8 of his judgment, he gave elaborate and convincing reasons in support of his view that even ghair mumkin land was land for the purpose of the said Act. The argument raised before him that purely agricultural land fell within the ambit of the said Act was repelled. The facts of the present case are identical to those of the case of Abdul Hakim Patel and, therefore, with respect, we are inclined to follow the view taken in the said case.
12. As for the case of Malik Ahmad Din and another, referred to by learned counsel for the appellants, it was decided by a learned Single Judge of this Court vide judgment reported as PLD 1976 Lah. 475. Special leave to appeal against that judgment was sought by means of C. P. S. L. A.
No. 654 of 1975 but the same was refused by the Supreme Court while speaking through M. A.
Zullah, J., who by then had been elevated to the Supreme Court. In that case a piece of land was excluded from the purview of the Displaced Persons (Land Settlement) Act for the following reasons appearing in the judgment of this Court :- "7. As regards the nature of the land, it is to be noted that the property is situate within the Municipal Limits, Jhelum and lies between the Old G. T. Road and the Islamia School Road and was used for stacking timber. The entire area around it is a built-up area and the property was never used as agricultural land. It may also be mentioned that the relevant special jamabandi (copy attached as Annexure R-II with the written statement) describes the nature of the land as Banjar Qadeem. It is now established law that the nature of the property, as to whether it is land or not, depends upon the direct purpose for which the property was occupied by the owner at the time of Independence, i.e. before 15-8-1947. See Nafeesa Bano and others v. Chief Settlement Commissioner PLD 1969 Lah. 480. 1n the relevant special jamabandi it is mentioned that the property was Banjar Qadeem. It is quite clear that before the Partition the Khasra number in question was not land within the meaning of section 2(3) of the Displaced Persons (Land Settlement) Act, 1958 and hence it could not be allotted to Muhammad Zaheer Siddiqui, petitioner No. 2."
As pointed out above, in the present case, no evidence was produced by the appellants to demonstrate that the land in dispute was located within municipal limits or was surrounded by buildings, etc. Even evidence wit regard to the use to which it was being put was not produced. The appellants, cannot, therefore, take benefit of the case of Malik Ahrnad Din anal another.
13. When decision of this Court in the case of Malik Ahmad Din and another was challenged before the Supreme Court, reliance was placed on Abdul Hakim Patel's case to contend "that the mere fact that entry in the revenue record is banjar qadeem and for that matter it was being used for stacking timber ; will not be enough to take it out of the connotation of the word 'land' as used in the relevant law". It was, however, pointed out by the Supreme Court that the case of Malik Ahmad Din and another was distinguishable on facts and the order of the High Court in that case did not call for any interference. The observations of the Supreme Court in this behalf read as follows : "The case, cited by the learned counsel, is distinguishable. The property in that case was treated in two parts ; one which was being used for brick kiln (proper) and the other being used for digging earth to feed the brick-kiln. While the brick-kiln (proper) was treated as industrial concern, the land from which earth was being dug for feeding the brick-kiln was treated as good and was found pot to have been excluded from the connotation of 'land'. In the present case, the learned Judge in the High Court has given a vivid picture of thesituation of the property in dispute. It was being used for stacking timber. There was no question or possibility of its being used for agriculture. In the cited case of Abdul Hakim one of the Khasra numbers was under wheat crop even in 1958-59. There is no such claim with regard to the property in dispute in this case. The decision of the learned Single Judge in the High Court is unexceptionable."
There is, however, nothing in the judgment of the Supreme Court to show that the view taken in the case of Abdul Hakim Patel was not approved of by the Supreme Court.
14. The law as declared in the case of Abdul Hakim Patel is that the land to which the Displaced Persons (Land Settlement) Act applies may not necessarily be agricultural land and that even banjar qadeem land and ghair mumkin land can be treated as land for the purpose of the said Act. In view of this dictum, the land involved in the present case cannot be excluded from the purview of the said Act simply for the reason that it was described in the revenue record as ghair mumkin toya or ghair tughyani banjar qadeem.
15. As for paragraph 267 of the Settlement Manual by Douie, which was also relied upon by learned counsel for the appellants, it reads as follows :- "267. Classification of uncultivated land.-So far we have been dealing only with cultivated land. For assessm ent purposes all land is regarded as cultivated which is under crop or fruit trees, or has been under crop or fruit trees in the three previous harvests. Uncultivated land as classed as banjar jadid, banjar qadeem, and ghair mumkin. If for four successive harvests land which once was cultivated has not been sown it is classed in the last of the series jadid or new fallow. If it continues to be uncultivated this entry should be maintained for the next four harvests after which the land will pass into the category of qadeem or old fallow. But qadeem also includes all culturable waste whether it has ever been under the plough or not, and it is proper to class all grazing land of fair quality as qadeem, even though existing conditions of rainfall and sub-soil water level preclude its cultivation unless canal irrigation can be, and is, introduced. The term ghair mumkin is reserved for barren land. It is necessary to instruct Patwari carefully as to the distinction between qadeem and ghair mumkin otherwise they are apt to record land which is useless either for tillage, or pasture as kadim because it yields for a brief period in the rains a scanty supply of poor grass. Lands under buildings, roads, streams, canals, tanks etc. And barren sand (ret) or kalar should be entered as ghair mumkin, any further description which seems necessary being added. e.g., ghasr mumkin abadi, ghair mumkin sarak ghair mumkin ret. However, for the classification of land affected by thur or sem or in villages under thur and sem girdawari the instructions contained in paragraph 9.3
(x) (i), Land Records Manual; should be followed. For the colours and signs used in field maps to distinguish the different kinds of uncultivated land the specimen map given in the Patwaris' Manual of Land Measurement may be consulted. Copies of a sheet of conventional signs to be used in cadastral maps for depicting natural and artificial features, as approved by the Survey Department of India, are supplied to Settlement Officers."
This paragraph merely spells out different classes of ghair mumkin land but it does not say that any piece of land which is shown as ghair mumkin ceases to be land. The above quotation from the Settlement Manual is, therefore, of no avail to the appellants.
16. Much stress was laid by learned counsel for the appellants on the sanction of the development scheme in regard to the disputed property. As stated at the- outset, the scheme was sanctioned in 1939 when the land was held by Mian Amir-ud-Din and others. It was, however, not implemented till 1946 when they transferred the land to a non-Muslim. The non-Muslim also did not do any thing in respect of the scheme till he had left this country. Thus, for all intents and purposes, the scheme in respect of the disputed land had been abandoned before it was treated as evacuee property. The mere sanctioning of the scheme has, therefore, little bearing on the pointy in issue.
17. The appellants had lost before the Settlement and Rehabilitation Commissioner as he had found that the disputed property was land. They did not make any serious effort to produce documentary evidence before hire or before this Court to show that by the time it became an evacuee property, the land had assumed the character of building site. It is,, therefore, not possible for us to take exception to the order of the learned Judge in Chambers whereby be had upheld the order of the learned Settlement and Rehabilitation Commissioner. The appeals, accordingly fail and are dismissed with costs.