' MUHAMMAD ASLAM MIAN, J.-This appeal under clause 10 of the Letters Patent has been brought against a judgment dated 18-4-1968 of a learned Single Judge of this Court delivered in Writ Petition No, 1200-R-65 entitled Sh. Muhammad Nazir v. Amina Begum and others, whereby the writ petition was dismissed with costs.
2. The facts giving rise to this appeal briefly are that the appellant being a refugee was allotted on 3-9-1951 by the Deputy Rehabilitation Commissioner, Rawalpindi a brick kiln in the land of Hari Singh, Partap Singh etc. Comprised in Khasra Nos. 152/168, 491/608 situated at Murrin Hassan Rawalpindi according to Annex. 'A' with the writ petition by virtue of which he was to contact the Ward Officer IT Rawalpindi to take the possession. On his application dated 2-3-1960 for the transfer of the brick kiln on payment of the prevailing market value, he was found on 16-7-62 by the Additional Settlement Commissioner, Rawalpindi (Annex A-1) as eligible under sub-para. 3 of paragraph 15 of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for the transfer of brick kiln Hari Singh Partap Singh at market value to be determined in due course, meanwhile he was permitted to run the concern on behalf of the Chief Settlement Commissioner on the usual conditions of the allotment. The appellant was further required by the Deputy Settlement Commissioner vide his order dated 8-7-1963 (Annex. B) to provide blue print, Fard Jamabandi Aks Shajra and as to the total area of the kiln in his possession to enable the office to work out the transfer price of the brick kiln. The appellant on procuring the revenue papers allegedly learnt that out of the total area of 22 kanals and 1 marla proposed to be transferred to him an area of 16 kanals had been transferred to respondents Nos. 1 and 2 by the Additional Settlement Commissioner (Land) and the same stood as confirmed vide order dated 15-5-1961.
The appellant challenged the abovesaid confirmation by way of an appeal to the Settlement Commissioner (Land), Rawalpindi.
3. The Settlement Commissioner dismissed the appeal vide his order dated 5-6-1965 observing that the appeal was time barred and that was true that a brick kiln of an area of 22 kanals was temporarily allotted to the appellant on 27-8-1951. The land might have been described in the revenue papers as brick kiln, but the correspondence on the file of the lower Court showed that the appellant had to start a brick kiln on that. After consultation with Municipal Health Officer it was decided by the Rehabilitation Department that the appellant could start the brick kiln at a distance of 500 feet from the place where he wanted to start it which showed that there was no brick kiln anywhere on the land at the time of the temporary allotment, the appellant had to start one himself. The brick kiln was transferred to the appellant in 1962. Unfortunately the area of the brick kiln so transferred was not detailed in the P. T.
0. Nor demarcated. Sixteen kanals of land had been allotted to the respondents which was obviously culturable land and in those circumstances it could not be held that the entire area of 22 kanals had been transferred to the appellant. The area under the brick kiln which should have been 22 kanals minus 16 kanals stood transferred to him.
4. The appellant thereafter questioned the validity of the abovesaid order in Writ Petition No, 1200/R/65. In writ petition before the learned Single Judge it was maintained that the Additional Settlement Commissioner (Land) had no authority to allot the property to the respondents and the Settlement Commissioner (Land) who heard the appeal had no jurisdiction because the property in dispute comprised an industrial concern so could not be dealt with by him. The learned Single Judge repelled the objection so raised by observing that the appellant had himself invoked that jurisdiction so could not be heard attacking the same. As to the merits the learned Single Judge observed that the matter proceeded on the basis of a finding of fact that the land in dispute was culturable land so he could not sit in judgment over that. He found that the Settlement Commissioner went through the record of the case and heard the parties. Since the Provisional Transfer Order issued to the petitioner appellant did not give the total area therefore there was no substance in the argument that 22 kanals of land was transferred. In the result the petition was dismissed with costs.
5. The learned counsel for the appellant in the present Letters Patent Appeal has contended that the appellant had submitted his application for the transfer of the brick kiln as an industrial concern on 2-3-60 during the pendency of which no allotment could have been made to respondents Nos. 1 and 2. The entire land had been shown in the revenue papers as ghair mumkin bhatta right from 1942 uptil date. There was nothing to show that the land in question was put to agricultural purposes since 1947. That being part and parcel of an industrial concern could not be allotted by the Settlement Authority (Land) as culturable land. The land comprised so did not fall under the definition of land as contemplated by section 2(3) of the Displaced Persons (Land Settlement) Act, 1958. The appellant was the allottee of 22 kanals and 1 marla of land which fact stood fully proved on record by Annex. A; that at the time of allotment the Industrial concern had a total area of 22 kanals and 1 marla of which the appellant remained in possession running the brick kiln investing a huge sum. Before reducing the allotment of -the appellant to the extent of 16 kanals no notice had been served upon the appellant so he had been condemned unheard. During the pendency of the application of the appellant for the transfer of the Industrial concern no allotment could be made in favour of respondents Nos. 1 and 2. The Settlement Commissioner had no jurisdiction to treat the land in dispute as an agricultural land since the land in dispute had been acquired by the Central Government on 21st August, 1959 by notification.
6. The learned counsel for respondents Nos. 1 and 2 now represented by their legal heirs has in reply submitted-that the question raised appertained to a disputed question of fact so the writ petition subject matter of this appeal was not competent. The basic order i. e. Annex A did not mention the area alleged to have been allotted to the appellant. The appellant was never in possession of the land allotted to respondents Nos. 1 and 2. The respondents were in actual possession of the land and the same was under their cultivation. Copies of revenue receipts R/1 to R/3 stood to that effect.
Copies of R. L. 11 attached as Annexes R/4 and R/5 did show that the land allotted to respondents Nos. I and 2 was cultivable and was put to that use. The appellant was neither running any kiln nor that was into existence there. The transfer of the land in favour of respondents Nos. 1 and 2 was within the knowledge of the appellant, but he slept for a long time over that. The land was transferable under the Displaced Persons (Land Settlement) Act, 1958 so that was competently transferred being covered by the definition of land in section 2(3). The land transferred to respondents Nos. 1 and 2 was clearly outside the scope of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned counsel has in support of his submission vis-a-vis the land transferable as agricultural land relied upon Abdul Jabbar v. Settlement Commissioner, Sheikhupura (1). In this case the dispute related to three rooms attached to an industrial concern, a flour mill. The rooms were transferred by the Settlement Authority as shops to other persons than the petitioner. The Supreme Court while refusing leave to appeal observed that according to the evidence the three rooms were from before Partition being used as separate shop rooms not for any of the purposes of flour mill so the finding of the Settlement Authorities that those rooms did not fall within the Industrial concern could not be regarded as wrong. Syed shoukat Hussain Rizvi v.
K. B. Dr. Yar Muhammad Khan and others (2). In this case the dispute related to the land measuring 40 kanals 5 marlas and 195 sq. Ft. Which land formed part of Shorey Studio on Multan Road, Lahore, Mr. R. K. Shorey a film industrialist had purchased 136 kanals 12 marlas and 86 sq. Ft. Of land to set up a well-equipped modern studio. A portion of the studio was completed when Partition took place. The appellant was allotted the studio. A portion of land purchased for the studio was allotted to Dr. Yar Muhammad as agricultural land. In the second appeal the dispute was in respect of 13 kanals 6 marlas and 181 sq. Ft. Of land which was given to Niaz Muhammad as agricultural land after the allotment of the Shorey pictures to the appellant. The appellant claimed the entire Shorey Studio comprising 136 kanals 12 marlas and 86 sq., feet. It was observed while dismissing the appeals by the learned Supreme Court that the land in dispute was being put to use at the time of Partition as agricultural land therefore Pir Ahsan-ud-Din, the Chief Settlement Commissioner was perfectly justified in holding that Mr. Hasham was not competent to exclude it from agricultural land and to transfer it to the appellant. Mst. Zahira and others v. Abdul Hakeem Patel (3). In this case the dispute related to the transfer of an evacuee property consisting of 27 acres of land in the vicinity of Quetta Town. In 27 acres there was also situated a brick kiln and a well. The kiln was allotted to Taj Muhammad the predecessor in interest of the petitioners in the first petition and respondents Nos. 1 to 5 in the second petition in the year, 1950. The Assistant Rehabilitation Commissioner Quetta on 30th September, 195g, allotted 59 acres of agricultural land to one Abdul Hakim Patel the petitioner in the second petition and respondent in the first. The land so allotted included disputed 27 acres. On 11th November, 1959 Taj Muhammad was given a P. T. O. In respect of the brick kiln as an industrial concern together with 27 acres of land. Taj Muhammad applied to the Additional Settlement Commissioner on 31st August, 1961, for {{FOOT NOTE}}
(1) 1969 SCMRI14 (2) PLD 1974 SC 276
(3) 1976 SCM R 57 {{FOOT NOTE}} ' excluding the area from the category of agricultural land, an order to that effect was passed in his favour on 4th July, 1962. Abdul Hakeem Patel went in revision to the Settlement Commissioner. On remand the Additional Settlement Commissioner dismissed the application of Taj Muhammad holding that the disputed property was land as defined in the Land Settlement Act so could not, be transferred as an Industrial concern. The heirs of Taj Muhammad challenged the order in second revision. The original order was restored in their favour. In writ petition filed by Abdul Hakeern Patel in West Pakistan High Court, the learned Single Judge took the view that the entire land could not be regarded as Industrial concern, as according to the relevant records the area of brick kiln was only 3i acres. Allowing 3* acres to Taj Muhammad he upheld the transfer of the rest of the area as land in favour of Abdul Hakeem Patel. Both the parties preferred Letters Patent Appeals which were dismissed. The claim of the heirs of Taj Muhammad before the Supreme Court was that the area adjoining the brick kiln was being used for extracting earth therefrom for the purpose of making bricks, the whole area was being utilized for the purpose of brick kiln so should have been treated as an industrial concern. It was observed by the learned Supreme Court that the earth for manufacturing bricks could be extracted from any land anywhere, but the mere fact that the earth was being extracted for the purposes of manufacturing bricks would not convert the land into an Industrial concern or a brick kiln. As to the contention of the learned counsel for Abdul Hakeem Patel that 3* acres treated as a brick kiln were not really a brick kiln, according to the revenue records were only ghair mumkin godhi or Khushk Abad land. It was further observed that Fard Jamabandi which gave further details showed that in Khasra Nos. 154 and 155 there was a Bhatta or brick kiln standing on 3* acres in the circumstances it could not be said the, entire area was land. (As to the other aspect) the High Court was right in taking the view that the land described as Gbair Mumkin Godhi was not land which could never be cultivated. The land adjoining the kiln had rightly been treated as land within the meaning of the Land Settlement Act and allotted as such, similarly, the 3* acres in which the brick kiln was situated had also been rightly treated as an Industrial concern. Abdul Hakim Patel v. Mst. Zahira and others (1). This decision was the subject matter of the above-cited decision of the Supreme Court.
7. Now in the present case the learned Single Judge mainly denied the relief prayed for on the ground in substance that there was involved a finding of fact arrived at by the Settlement Commissioner (Land) that the land in dispute was culturable land. According to the learned Single Judge it was not open to him to subject that to his own judgment when the learned Settlement Commissioner had gone through the record and heard the parties and since the order issued to the appellant was silent as to the area covered so there the appellant could not claim that he was transferred 22 kanals 1 marla of land. Had the learned Settlement Commissioner (Land) arrived at his finding in a legally becoming manner and had he gone through the record in the real sense the matter would have ended there in agreement with the learned Single Judge. Since that is not the case, therefore, the order of the learned Settlement Commissioner requires examination. Before it is entered upon it is desirable to observe that a finding of fact which is not A justified on the record is not sacrosanct. Any judgment or order which proceeds on a wrongful assumption as to a material fact over which is to be raised a legal connotation it necessarily impairs the very exercise of jurisdiction {{FOOT NOTE}}
(1) PLD 1969 Quetta 64 {{FOOT NOTE}} ' whereby such a judgment or an order cannot be accepted as legal and with lawful authority. No doubt a wrong conclusion of fact will not attract the Constitutional jurisdiction of this Court, but a manifest disregard of a fact and to bring out a result from the very hotchpotch of considerations inconsistent and derogatory to the record defeating the law will throw open the finality of a judgment or an order to the Constitutional jurisdiction so as to pass a well-warranted order.
8. As to the point of limitation respondent No, 3 did not discuss that fully in view of the ground taken in appeal that the appellant had no knowledge of the allotment to respondents Nos. 1 and 2 nor passed any order on the application under section 5 of the Limitation Act. In respect with the approach of the learned Settlement Commissioner (respondent No, 3) the infirmity lay in ignoring the revenue record after observing, "The land might have been described in the revenue papers as Brick Kiln" and in going for the correspondence stated to be on the file of the lower Court. The so- called correspondence stated to be on the file, was off the point. What was necessary in the case was to examine the revenue record in order to ascertain the area because in allotment- order in favour of the appellant there was mentioned brick kiln in the land of Hari Singh, Partap Singh etc. Comprised in Khasra Nos. (in fact Khatta No,) 152/168, 491/608 and a mention as to the nature of the land. Subsequent change of the khasra numbers could not alter the location of the land. The learned Additional Settlement Commissioner (Land) who allotted and confirmed 16 kanals of land to respondents Nos. 1 and 2 as culturable land appears to have been moved by an observation that most' of the area described as ghair mumkin bhatta was brought under cultivation and was entered as such in the khasra girdawari. A note in the register R. L. 11 in the hand of the Tehsildar revealed that the land was culturable and could be allotted as such.
9. The examination of jamabandi for the years 1941-42, 1946-47, 1952-53 and onward apprises that in Khata Nos. 152/168 and 491/508 owned by Hari Singh, Partab Singh there are shown two Khasra Nos. 543 and 542 comprising of area 10 kanals 17 marlas and 11 kanals 4 marlas expressed as ghair mumkin bhatta which expression certainly means that the area so recorded is not under cultivation instead there exists a kiln. If this was the situation which prevailed at the time the appellant was issued with an allotment, then the legal position availing and decisive of the question would be that since the land in dispute at the time of partition was being occupied as a kiln, therefore, any part of that could not be treated as agricultural land and allotted and confirmed to respondents Nos. 1 and 2 as such and specifically so when the entire area of 22 kanals and 1 marla denoted khata numbers and as to its nature stood allotted to the appellant and was in the process of being transferred to the appellant. This aspect of the case stands supported by the abovesaid decision of the Supreme Court in Syed shoukat Hussain Rizvi v. K. B. Dr. Yar Muhammad Khan and others ID, in which the use to which the land was put at the time of partition %MIS regarded as decisive of the nature of the land. In the present case it is admitted by respondent No, 4, as alleged, that most of the area described as ghair mumkin bhatta was brought under cultivation even if it is taken so subsequent exploitation of the land or its likelihood to be exploited as culturable land could not give jurisdiction to respondent No, 4 to allot the land in dispute as such in derogation to an allotment already into existence under Displaced Persons (Compensation and Rehabilitation) Act, 1958 which was in consonance with the use to which the land was put at the time of {{FOOT NOTE}}
(1) PLD 1974 SC 276 {{FOOT NOTE}} ' partition. The noting in the register R. L. H by the Tehsildar was of no significance, because it was inconsistent with the position recorded at the time of Partition or allotment as a brick kiln. The note of the Halqa Pat wari in register R. L. It that the land could be made cultivable, shows that even upto that time it was not under cultivation. On such a note one cannot assume the jurisdiction, everything must be consistent with the revenue record incorporating a true fact at the time it is of decisive role. Thus there is substance in the submissions of the learned counsel for the appellant that the entire land was part and parcel of an industrial concern so it could not be allotted by respondent No, 4 since it did not fall within section 2(3) of Displaced Persons (Land Settlement) Act, 1958 and in doing so no notice was given to the appellant.
10. It is funtastic to say or hold that the brick kiln stood established on 6 kanals and 1 marla. The common experience shows that a brick kiln is installed or established at least on six Bighas or 24 kanals of land excluding the area from which earth is excavated and used as a base for laying down katcha bricks. Tht learned counsel for the legal representatives of respondents Nos. 1 and 2 has laid much stress upon Quetta decision cited above. The Quetta decision has facts of its own, there the land was excluded and allotted as agricultural land because the land so excluded was denoted in jamanbandi as ghair mumkin godhi which means a land out of which earth is raised for laying down the bricks and is made as a base for katcha bricks while area measuring 3i acres was treated as occupied by Bhatta because it was described in the jamabandi as ghair mumkin bhatta. The relevant observation appearing in the decision is, "This also shows that the area described in the jamabandi as ghair mumkin godhi is not such as to taken out of the definition of land. It remains land held for agricultural purpose but only earth is removed there from for the purpose of preparing bricks and when this is being done from particular fields those fields becomelo ghair mumkin godhi for the time being. Therefore, in my view even the areal under ghair mumkin godhi falls under the definition of land.
' There is another circumstance which supports the above view and that is the treatment of brick kiln (bhatta) separately in the revenue record from godhi.. In the copy of jamabandi at page 34 of file Vol. 1 (D. S. C.) both the items are mentioned separately and separate areas are given as being thereunder which would show that even if both areas are a ghair mumkin the one mentioned as godhi cannot be treated as bhatta itself. Had it been so the entire area would have been treated as entered as ghair mumkin bhatta. The fact that some of it is mentioned as ghair mumkin Bhatta and the other as ghair mumkin godhi shows that the quality and potentiality of both the lands is different". The facts obtaining in the present case are different. Here is given the entire area as bhatta ghair mumkin and no part of it as ghair mumkin godhi hence it is to be treated as occupied solely by Bhatta. At least the above-cited decision in addition gives an idea as to the area which is usually occupied by a brick kiln as an establishment. The area so given comes to 28 kanals which is though more yet comes near to the area given in the present case. The arguments raised by the learned counsel for the legal heirs of respondents Nos. 1 and 2 do not avail him any strength as to his case for the reason that the area in dispute was not recorded in the revenue papers at the time of partition as well as at the time of allotment to the appellant as culturable area as such did not fall within the definition of land as given in section 2(3) of the Displaced Persons (Land Settlement)
Act, 1958 and any subsequent alteration improved not the position.
11. In view of all that has been said above this appeal is accepted and the judgment of the learned Single Judge is set aside, in issuance of the writ prayed for the allotment and confirmation of 16 kanals of land in dispute to respondents Nos. 1 and 2 by respondent No, 4 is declared as without lawful authority and of no legal effect, the order dated 5-6-1965 of respondent No, 3 is also declared as without lawful authority with the result that the appellant is entitled to the transfer of 16 kanals of land withheld from him on the market value prevailing at the time of allotment and his eligibility to transfer. Since misconception as to the facts as well as law resulted in allotment and confirmation of the land in dispute to respondents Nos. 1 and 2, therefore, in the circumstances of this case there is no order as to costs.
' ABDUL SHAKURUL SALAM, J.-The net result of the order of the Settlement Commissioner dated 5-6- 1965 as upheld by the learned Single Judge vide order dated 18.4-1968 challenged in this Letters Patent Appeal has been that out of the total land measuring 22 kanals 1 marla excluding 16 kanals of land allotted to the two respondents Nos. 1 and 2, 8 kanals each, the appellant was left with 6 kanals and 1 marla of land. Since all the contesting parties got something, I was of the view that after so many years no interference was called for in this Letters Patent Appeal. In support thereof there were two reasons, firstly, that the appeal of the appellant before the Settlement Commissioner against the allotments in favour of the two contesting respondents was barred by time and secondly the land had been found culturable at the time of its allotment to the said respondents. However, after going through the judgment of my learned brother and further reflection I did not feel satisfied that my conclusion was in accordance with the relevant facts and the law. The brick kiln was allotted to the appellant and its area was shown in the Special jamabandi for the year 1946-47 as 22 kanals 1 marla. The allotment is dated 3-9-1951. Since brick kiln was not land, it was not. Available for acquisition under the Displaced Persons (Land Settlement) Act, 1958 and could not, therefore, been allotted as agricultural land to the respondents on 15-5-1961. Since the allotment was void and the appellant came to know thereof when he obtained copy of the Fard jamabandi for purposes of submission to the Deputy Settlement Commissioner as required for working out the transfer price of the brick kiln which had in the meanwhile been transferred to the appellant on 16-7-1962, he filed the appeal before the Settlement Commissioner without having yet obtained the copy of the allotment orders in favor of the respondents as entered in their R. L. II. The learned Settlement Commissioner though said that the appeal was barred by time, yet he rejected the same on the findings that the appellant was to start a brick kiln on the land and that the same was `obviously cultural'. Now the facts as to whether the appellant was to start the brick kiln or the land was cultural at the time of the allotment in favor of the respondent in 1961 or at the time of the decision of the appeal by the Settlement Commissioner in 1965, are not relevant becau for the purposes of determining the nature of the land it is its use at th relevant time, viz. 14-8-1947 which is. Decisive. In the present case, there I no doubt that at that time, the land was `ghair mumkin bhatta' i,e,. a brick kiln. Any subsequent change in the use of the land will not affect its disposal. Consequently, the land being shown as a brick kiln at the relevant time in 1947 and its allotment as such in favour of the appellant in 1951 would exclude it from the purview of the Displaced Persons (Land Settlement) Act, 1958 and consequently the same will not be available for allotment to the respondents in the year 1961.
Hence, the allotment in favour of the respondents was void altogether. This being so I agree with my learned brother that the appeal is entitled to be accepted. However, as the respondents' claims had been adjusted against the land in dispute in the year 1961 and they are losing that after 21 years in view of the decision of the appeal, their case for allotment will be a 'pending' case in terms of section 2(3) of Act XIV of 1975 and they will be entitled to the satisfaction of their claims.
Therefore, it is directed that the Member, Board of Revenue/Chief Settlement Commissioner shall allot the land to the two contesting respondents in accordance with their claim out of any 'available' land, and this shall be done as soon as possible but in no case later than the end of this year as the litigation has been going on for nearly two decades by now. The appeal is, therefore, accepted with the aforesaid direction to the authority concerned. In the circumstances of the case the parties shall bear their own costs.