SHAFI-UR-REHMANJ.-The petitioner in this case, Masjid Committee, Tagore Park through the Secretary Mr. S. M. Saeed seeks leave to appeal against the judgment of the Lahore High Court dated 12th September 1975 whereby an order of remand passed by the Settlement Commissioner directing an inquiry into claim of the petitioner in respect of a plot of land was set aside as being without lawful authority and of no legal effect.
2. The petitioner's case was that it applied for the transfer of the disputed plot in the year 1959 and had been repeating the applications before the various authorities. Without attending to such applications and without disposing them of, the plot was transferred to Rashid-ul-Haq respondent No. 2 on 6-4-1961. When by an application the petitioner intervened to challenge the transfer by the Deputy Settlement Commissioner to the respondent it was observed that : "The plot has already been transferred to Rashid-ul-Haq respondent, therefore, the question of considering their request does not arise."
The petitioner appealed to the Additional Settlement Commissioner but it was held by the Additional Settlement Commissioner that "There is nothing on the file to show that the appellant had filed an application for the transfer of said plot. As regards Rehmat Ali respondent No. 1 he has not filed any appeal against the order of transfer. He had only been cited as a respondent by the applicant. Moreover, the transfer of the plot was made in year 1961, whereas the appeal has been filed on 12-6-68. No reasonable explanation for the inordinate delay has been furnished by the appellant in the application under section 5 of the Limitation Act. The appeal is hopelessly time- barred."
The matter was then taken up by the petitioner in revision to the Settlement Commissioner who pointedly attended to the question whether the petitioner had filed any application at the proper time and prior to the order transfer in favour of Rashid-ul-Haq. The Settlement Commissioner recorded the follow finding of fact on this question.
"In support of their allegations, the petitioners have produced copies of the various applications moved by them from time to time for the transfer of the said plot for the extension of the said mosque. These applications were moved on 15-11-69, 11-7-60, 22-4-61. The petitioners have also produced copies of the letters exchanged with the Deputy Commissioner, Lahore for issuing a no- objection certificate for the transfer of a plot for the extension of the said mosque. The petitioners hold postal receipts of some of these applications which were sent by registered post."
After holding that the mosque existed in the vicinity and that the congregation utilized a portion of the disputed plot the Settlement Commissioner concluded "It would have been in the fitness of things if the case of the petitioners would have also been considered along with that of respondent No. 1 for the transfer of the said plot."
As regards the nature and extent of the claim of the contesting respondent it was observed that :- "In the present case respondent No. 1 showed himself in possession of only 8 marlas and applied for its :transfer in B. S. Form. It is, therefore, not understood as to how the area of the whole plot assuring 13 marlas 163 sq. Ft. Had been transferred to him. The learned Deputy Settlement Commissioner while passing the said order dated 6-4-60' does not appear to nave examined this aspect of case the all.
In view of these findings the Settlement Commissioner by his order dated 1-9-69 remanded the case to the Deputy Settlement Commissioner (Plots) for fresh decision according to law, after hearing the parties.
3. A constitutional petition was filed by the transferee Rashid-ul-Haq challenging the remand order passed by the Settlement Commissioner. The learned Judge in the High Court while allowing the constitutional petition held that the petitioner had no locus standi, that the plot in dispute had not been converted into mosque, that the petitioner did not apply before filing the appeal on 12-6-68, or before challenging the transfer order in favour of the petitioner passed in 1961 and that his claim suffered from extreme laches.
4. The learned counsel for the petitioner has contended that without adverting to the finding of fact recorded by the Settlement Commissioner which formed the basis of the remand order the learned Judge in the High Court has proceeded to record his own findings of fact in reversal of what the Settlement Commissioner had recorded. Besides, it is contended that an order of remand passed by an authority possessing jurisdiction in the matter could not be attacked on the ground that it lacked lawful authority particularly so when the factual aspect of the case had yet to be examined after remand and decided one way or the other. It could not be said that there was no material on the record which may reasonably have prompted the Settlement Authorities to direct a further inquiry on matters in con--troversy. Finally, it is submitted that determination of questions of laches and limitation were within the exclusive jurisdiction of the Settlement Authorities and without ascertaining the facts such a power could not be exercised by the learned Judge in the High Court in the constitutional jurisdiction.
5. We have thought it proper to convert this petition into an appeal as the respondent was represented before us and we have heard the learned counsel for the parties.
6. There was a positive finding of fact recorded by the Settlement Commissioner that applications had been submitted by the appellant to the concerned authorities prior to date of transfer of the plot in favour of the respondent Rashid-ul-Haq. This finding was recorded by an Officer having jurisdiction in the matter and having free access by the record of hi -Department. The transferee respondent had not contested this finding by reference to any document or otherwise. The learned Judge did not take note of this finding of the Settlement Commissioner. He did not expressly set it aside. He instead proceeded to record his own substitutive finding which was contrary to what was recorded by the authority competent to decide the matter. Such a finding could not be substituted in the Constitu--tional jurisdiction, particularly so when there was no material before the learned Judge. The other findings recorded by the learned Judge in the High Court namely, that the petitioner had no entitlement, that his claim suffered from extreme laches and was barred by limitation were directly relate able to the finding that the appellant intervened in the proceeding for the first time by filing an appeal in the year 1968 and not earlier. On the question of conversion of the plot into a mosque, the concept of conversion, the extent of utilization of the plot, the periodicity with which it was so utilized were all matters which had to be attended to after the remand and an examination or determination of the question could not pre-empted in Constitutional jurisdiction by the High Court. We are, therefore, satisfied that it was eminently a proper case where a factual inquiry, as was directed by the Settlement Commissioner, was called for in order to determine whether the petitioner could claim the benefit of the press-note appearing at p. 632 of the Manual of Settlement Law of Procedure (new edition). We accept this appeal, set aside the order of the High Court impugned before us and restore the remand order passed by the Settlement)
Commissioner. There will be no order as to costs.