' QADEERUDDIN AHMAD, C.J.-This Letters Patent Appeal is directed against the order of a learned Single Judge of this Court, dated 23rd of April, 1970 by which he accepted the writ petition of the appellant bearing No, 385-R of 1966 and declared the order of the Settlement Commissioner dated 1st of February, 1966 to be without lawful authority and of no legal effect and further declared that the result of his declaration was "that the allotment made in favour of the petitioner (Rehmat Ullah) by the Assistant Rehabilitation Commissioner stands intact".
2. This appeal was brought before us on the 8th of May, 1970 and was admitted to regular hearing.
At that time, counsel for the appellant pressed for status quo and expressed his apprehension that in the event of our refusal to grant the prayer the appellant might be deprived of the possession of the property. We were not convinced at that time that the apprehension was real, therefore, we ordered notice of that application to the opposite side. The result was that respondent No, 3 obtained the possession of the property on the 11th of May 1970. An application was, therefore, made on behalf of the appellant pointing out the situation. We thought that the decision of this dispute involved the decision of the amen questions on which appeal could be disposed of, therefore, we expressed this view in our order and the matter then came up before us or the decision of the interlocutory application as well as the appeal.
3. We had ordered the presence of the Naib-Tehsildar, who had delivered possession of the property to the respondent, in order to ascertain the true facts. He appeared before us yesterday and has produced elegant copies of the proceedings. They show that an application as made on behalf of respondent No, 3 containing an allegation that possession was to be delivered to him in pursuance of the order of the right Court. The Assistant Commissioner at once made an order on the application for the delivery of possession and passed it on to the Tehsildar. The Tehsildar passed it on to the Naib-Tehsildar. There as, on the same day, a report that the premises were locked and an rider was made by the Assistant Commissioner immediately for breaking pen the locks and delivering the possession. The consequence was that cakes were broken and the possession of the premises was delivered to the respondent.
4, We have heard counsel for the parties against the above back-round of facts. Counsel for the appellant addressed his arguments yesterday and we have noted in our order of the 3rd of June, 1970 the our arguments which he advanced. Counsel for respondent No, 3 anted time to submit his reply. Today, he has referred to the orders f the Additional Settlement Commissioner and the Settlement Commissioner but the main question which we called upon him to answer was as whether the true consequence of the conclusion at which the learned angle Judge arrived, namely, that the Settlement Commissioner had lied to consider the objection of limitation, was that the case should ye been remanded to the Settlement Commissioner for considering the objection of limitation or the true consequence was that his jurisdiction be ignored and the order of the next officer, namely, the Additional Settlement Commissioner be considered to be final. Counsel for the appellant intended that since the order of the Settlement Commissioner was cindered to be defective because of his omission to consider the legal aspect the matter, the right course was to direct him to remove at defect by considering the objection of limitation and coming to own conclusion in exercise of his own jurisdiction. The reason, which according to counsel, led the learned Single Judge to the decision that it was unnecessary to remand the case apparently was that he considered the appeal to be so hopelessly barred by time that there was no possibility of successfully raising the contention that the delay condoned. This view, counsel for the appellant explained, was not correct because there was delay of service of notice on Atta Muhammad was considered to be good service on Taj Muhammad the appellant, otherwise not. The case of the appellant was that no notice was served on him and that he had no knowledge of the order which he desired to question b preferring an appeal against it. We express no opinion about the strength or weakness of this argument but feel that in these circumstances the consequence of the declaration that the order of the Settlement Commissioned is without lawful authority and of no legal effect, should be that the case be sent back to the Settlement Commissioner particularly for deciding the objection of limitation. Counsel for respondent No, 3 thinks that this course involves no harm to him but insists that possession of the premises should be left with his client until the Settlement Commissioner redefines the case. Counsel for the appellant has emphasised that leaving possession of the. Premises with respondent No, 3 would amount to encouraging the adoption of wrong method of obtaining possession. He has pointed out that respondent No, 3 obtained possession by alleging that he was entitled to get it in terms of the order of the High Court which was not correct. Moreover, the manner in which his application was dealt with is also not convincing. We agree with him in this respect and consider it proper that possession which has been delivered to respondent No, 3 should be restored to the party from whom it was taken.
5. Counsel for respondent No, 3 says that at the time at which possession was taken by respondent No, 3 the premises was in the possession of Atta Muhammad whereas counsel for the appellant says that it was with Taj Muhammad. The Naib-Tehsildar's report is that order for breaking open the locks was obtained because there nobody was present at the premises. In order to put an end to this controversy we inquired from counsel for the parties whether they would for the present drop their dispute on this point if possession is jointly given to Taj Muhammad and Atta Muhammad.
They have agreed to this proposal. We, therefore, order that possession of the premises be restored jointly to Taj Muhammad and Atta Muhammad. This however, does not mean that there is an decision on the merits of the case in this respect. When the case goes back to the Settlement Commissioner, the parties will be at liberty to agitate their contentions in accordance with law before him and to obtain such relief as the officer may on due consideration of fact and law gran them.
6. This case has already taken a long time, therefore, we hope that the Settlement Commissioner will decide the second revision petition within a month's time from the date of the receipt of the record by him.
7. The Naib-Tehsildar is present. The above order has been dictate in his presence. He is to keep it in mind when the application for restoration of possession is made.