MIAN BURHANUDDIN KHAN, J.-.- Leave was granted by this Court vide order dated 30-4-1973 to consider, amongst others, the question whether the learned single Judge of the High Court has set aside the auction and order dated 29-1-1970 passed by the learned Settlement Commissioner on erroneous grounds; that the said order dated 29-1-1970 was passed after due notice to respondent No.4 and as such the same was a valid order; that the learned High Court Judge should have, in the circumstances of the case, remanded the same to the Settlement Commissioner for decision on merits, after the learned High Court came to the conclusion that the notice of appeal was not served on respondent No.4 and that the appeal filed by the appellants was barred by the.
2. Facts relevant to the case are that residential Plot No.1085 Ward 9 situated in Nawan Shahr, Taraf Ismail, Tehsil Multan was allotted to respondent No.3 through his attorney Mr. Ahmed Yar (first cousin of respondent No.4) by the Additional Settlement Commissioner (lands) by his order dated 17-4-1965. The said attorney then sold the said plot in favour of respondent No.4 allegedly for a sum of Rs.15,000. This property being on urban building site, was included in the Auction List by the Deputy Settlement Commissioner. Respondent No.4 did not object to it. Consequently, this plot was auctioned in am open Auction and was transferred to respondent No.2 against his highest bid of Rs.54,000. He had associated with appellant No. l and later on, transferred his entire interest in the plot in favour of appellant No. l namely Riaz Hussain Quraishi Permanent Transfer Deed was issued in favour of Riaz Hussain Quraishi on 13-2-1970. This plot was then sold by appellant No. l Riaz Hussain Quraishi to appellant No. 2 by a registered deed.
3. In 1968 respondent No.4 had filed an appeal challenging the auction in favour of respondent No.2 and later asked for the transfer of his appeal to some other court. Consequently the appeal was transferred to the Court of Ch. Ali Ahmad and a notice was issued to respondents Nos.2 and 4.
According to the appellants it was from the date of notice that respondent No.2 came to know of the appeal and transfer of the said plot to respondents Nos. 3 and 4. He, therefore, challenged the transfer in their favour in an appeal. Address of respondent No.4 in this appeal was the same as was given in appeal filed by respondent No.4 but it was refused by his attorney, therefore, it was served instead by substituted service by publishing in the daily newspaper Nawa-e-Multan. The learned Settlement Commissioner decided the case and held that the plot in question was Ghair Ntumkin Qabil-e-Tameer and was a potential urban area. He further held that the said plot was excluded from the Rehabilitation and Settlement Scheme under section 4-A of the Land Settlement Act. The Settlement Commissioner, on coming to know of this order, did not pass any order and dismissed the appeal of respondent No.4 by order, dated 7-2-1970. Respondent No.4 challenged this order in Writ Petition No.288/R of 1970 and a learned Single Judge of the High Court accepted the same and ordered the cancellation of the auction held on 25-5-1968; and also set aside the order, dated 29-1-1970 of respondent No.1 the Settlement Commissioner (Lands) as well as order dated 7-2-1970 vide the impugned judgment.
4. Learned counsel for the appellant contended that the learned Single Judge of the High Court declared the impugned order dated. 7-2-1970 passed by the learned Settlement Commissioner with powers of the Chief Settlement Commissioner, Lahore as being without jurisdiction and of no legal effect because neither the Settlement Commissioner Ch. Ali Ahmad was impleaded as party nor was his order challenged by the respondent No.4. The suo motu action by the learned High Court Judge is unlawful and liable to be quashed; that it was held by the learned Judge that it cannot be safely presumed that respondent No.4 had the knowledge of the pendency of the appeal filed against him by respondent No.2 before the Settlement Commissioner Multan and after coming to this conclusion the learned Judge should have remanded the case instead of deciding it himself. It was also argued that the learned Judge had fallen in error in holding that respondent No.4 had not been afforded a reasonable opportunity of being heard as contemplated by section 19 of the Displaced Persons (Land Settlement) Act, 1958. As it was evident that the address of respondent No.4 in this appeal was the same as given by him in his own appeal, filed earlier and decided later than the appeal filed by respondent No.2. The address given in that appeal, however, was never challenged and, therefore, the irresistible conclusion would be that the permanent address of respondent No.4 was the same as was given by him in his appeal rather the address of his village or any place in Karachi, and that substituted service had also been effected through the newspaper Nawa-e-Nlultan after the ordinary methods of service failed. Therefore, it could be presumed that the requirement of law had been complied with. The learned counsel also argued 'that the appeal filed by respondent No.2 was not barred by the for the reason that auction in favour of respondent No.2 was made on 25-5-1968 and on that day all concerned knew that the authorities were holding the auction of the said property. This auction was held after the publication in the Press and no objection had been raised by anyone. There was nothing on record to show that respondent No.2 had the knowledge of the previous allotment in favour of respondent No.3. The respondent No.2 came to know of the allotment only after he received a notice from Ch. Ali Ahmad and filed an appeal without any further delay; that section 5 or section 12 of the limitation Act had not been made applicable to the Displaced Persons (Land Settlement) Act and the entire discussion of the learned Judge is based on omission to note the same.
5. We have examined the contentions raised by the learned counsel for the appellants and have gone through the impugned judgment of the learned High Court. The relevant paragraph of the same reads as follows In the present case Mr. Zakaullah Naik, Settlement Commissioner (Lands) Multan based his finding on the revenue record as Jamabandi for the year 1940-41 and report of Naib-Tehsildar dated 17-6- 1968. This material was not sufficient in order to determine the nature of the land. According to law, entries made in the special Jamabandi will determine the nature and classification of the land. The Settlement Commissioner (Land) erred in law in not relying upon the relevant revenue record for determining the nature of the land. IL was his duty to procure the copy of the special Jamabandi and then decide the matter pending before him in accordance with the requirements of Para. 29 of the Scheme. Moreover, he was not competent as Settlement Commissioner to decide as to whether the land was agricultural or was a building site. It was the Chief Settlement Commissioner who can declare the land in question to be a building site in accordance with the provisions of subsection (2)(b) of section 24 of the Act. The same can also be determined by the Chief Settlement Commissioner under section 11 of the Act."
We consider this case to be one which should have been remanded to the notified officer (i.e. The Settlement authorities) to determine the nature of the land before its allotment in accordance with the special Jamabandi, and the question should not have been decided without perusal of the relevant record. While accepting this appeal we remand the case for decision after perusing the relevant record pertaining to the nature of the site in dispute, and only then the questions should) be decided in accordance with law. No order as to costs.