' M.S.H. QURAISHI, J.-- The dispute relating to the allotment of three Ahatas, namely, 2, 11 and 100 situate in Chak No,9/14-L, Tehsil and District Sahiwal, between the for brothers, namely, Ghulam Nabi (petitioner No,1), Mustqim (petitioner No, 2), Abdur Rahim (respondent No,1) and Ismail, had come up in revision before the Settlement Commissioner, who on 8-5-1975 remanded the matter to the Additional Settlement Commissioner with the direction that "the case of the Ahata shall be decided on the basis of occupation under the law and scheme with special reference to the fact that one person may not be entitled to more than one Ahata". While remanding the matter,the learned Settlement Commissioner also observed that in Sakni Jamabandi the possession of Rahim Bakhsh and Ghulam Nabi existed in Ahatas Nos, 2 and 100 and not in Ahata No, 11, that Ghulam Nabi was, according to Jamabandi for 1963-64, in occupation of Ahata No. 1, which occupation still existed,that the question of allotment of Ahata No, 100 was pending with the Assistant Settlement Commissioner, that Rahim Bakhsh had manoeuvred the allotment of Ahata No,2 to the exclusion of Ghulam Nabi and that according to Rahim Bakhsh, Ghulam Nabi had sold away his share and left the possession which fact need verification.
2. The Additional Settlement Commissioner, after hearing the parties and examining the record in the presence of the Patwari, proceeded to allot the Ahatas among the for brothers "in an equitable manner but within the law and ambit of the Scheme". He found Ghulam Nabi to be in occupation of Ahata No. 1, which comprised 2 Kanals, and by his consent and that of Mustqim to share that Ahata, allotted the same to them in half and half share. Ismail, who was willing to take Ahata No,100 comprising I Kanal 7 Marlas, was allotted the same. As regards Ahata No,2, measuring 1 Kanal 10 Marlas 2 Sarsais, the Additional Settlement Commissioner found that Rahim Bakhsh had already sold away a considerable portion of it and observing that if any portion of the same was allotted to any of the brothers other than Rahim Bakhsh, they, could have to undergo litigation with the purchasers, allotted Ahata No,2 to Rahim Bakhsh. This is vide order, dated 25-5-1977.
3. This order of the Additional Settlement Commissioner was chal lenged by Rahim Bakhsh and his son Ali Muhammad by a writ petition. A learned Judge of the High Court while accepting their contention that the Additional Settlement Commissioner had not applied his mind to the aspect of physical possession of the parties and had transferred the Ahatas on compassionate or extra- judicial grounds, declared his order, dated 25-5-1977 to be without lawful authority and of no legal effect vide order, dated 13-11-1977 which is challenged by Ghulam Nabi and Mustqim by this petition for leave to appeal.
4. The petition has been heard in the presence of Mr. Anwar Beg, appearing for the petitioners, and Mr. Riaz Kayani for the respondents.
It has been contended on behalf of the petitioners that the High Court has fallen in error in holding that the Additional Settlement Commissioner had not applied his own independent mind to the question of possession of parties. In reply, it is urged that the Additional Settlement Commissioner had been influenced by the Settlement Commissioner's own observation as to the possession of Ghulam Nabi. In this connection, it is pointed out that according io the Jamabandis for 1967-68 and 1971-72, Ahata No. 1 was in five parts, of which Mustqim and Rahim Bakhsh occupied three and All Muhammad son of Rahim Bakhsh two, and no part was in the occupation of Ghulam Nabi. We have gone through the order of the Additional Settlement Commissioner and find that although he had noted the observation made by the Settlement Commissioner in regard to Ghulam Nabi's occupation of Ahata No. 1, but he had also himself verified this fact from the record as he observed "and this fact is also borne out from the revenue record". The revenue record for the purpose, as rightly pointed out by learned counsel for the petitioners, was the one relatable to the crucial date for the purposes of Scheme No, VII, which is 1-1-1961 and the Jamabandi which the Settlement authorities had referred to, was that of 1963-64. It was not denied that according to that Jamabandi, Ghulam Nabi was in occupation of Ahata No. 1. In the circumstance we find that the order of the Additional Settlement Commissioner was not contrary to law. We, therefore, convert this petition into appeal and allow it. The impugned order of the High Court is set aside and that of the Additional Settlement Commissioner dated 25-5-1975 restored.