' Dispute in this case relates to the nature of an area measuring three Kanals comprised in Khasra No, 1146 in village Rakh Bangali, Tehsil and District Lahore. The said Khasra number which measured 31 Kanals 16 Marlas was originally owned by Durgadas, a non-Muslim evacuee who had purchased it before the partition of the sub-continent. After the partition, petitioners came to occupy the entire Khasra number. According to them, some area had already been built upon by the said Durgadas and they had also constructed houses, shops and mosque on a part of the land.
2. On 31-5-1962, land measuring 31 Kanals 16 Marlas comprised in the aforesaid Khasra number was allotted/confirmed to Muhammad Nazir, predecessor-in-interest of respondents Nos. 1 and 2, as agricultural land. Respondents Nos. 1 and 2 sold the said land to respondents Nos. 3 and 4 in the year 1968. Petitioners challenged the allotment/ confirmation of the land in dispute in a revision petition filed before the Settlement Commissioner (L) on the ground that the land in dispute was not available as agricultural land. Settlement Commissioner by order, dated 10-2-1969 dismissed the revision petition holding that the petitioners had failed to show that the land in dispute was outside the purview of the Rehabilitation Settlement Scheme. It was, however, observed that even according to the Jamabandi for the year 1945-46 produced by the petitioners, only 3 KaneIs were shown as 'chair Mumkin Abadi.
3. Feeling .Aggrieved with the order of the Settlement Commissioner, petitioners approached this Court through W.P. No, 183-R of 1969 challenging the allotment of the land in dispute as agricultural land. The learned Judge who decided that writ petition found, on consideration of the Jamabandi for the year 1945-46 and Khasra Girdawari for Kharif 1968, that "in the ambient circumstances, one can only prima facie hold that only 3 Kanals of land in question were covered by 'Chair Mumkin Abadi' and could not have been allotted as agricultural land unless the same were subservient to agriculture." With this finding, the impugned order of allotment was declared to be without lawful authority only to the extent of 3 Kanals of land shown as 'Ghair Mumkin Abadi' in the Jamabandi for the year 1945-46. Writ Petition was accordingly disposed of by order, dated 28-5-1975 and the case was sent back to the Additional Commissioner exercising powers under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975" to hear the parties concerned and give his decision about the nature of this area." It was further observed that if the officer "comes to the conclusion that the construction on these three Kanals of area is subservient to agriculture, the allotment in favour of the predecessor-in-interest of respondents Nos. 1 and 2 shall be maintained, otherwise, he shall consider the entitlement of the persons concerned with regard to its transfer to them."
5. After the remand both the parties appeared before the Settlement Commissioner (L) and produced only oral evidence. The officer also inspected the site and perused the revenue record.
He observed that according to the Jamabandi for the year 1945-46, only 3 Kanals out of an area of 31 Kanals 16 Marlas comprised in Khasra No, 1146 were shown as 'Ghair Mumkin Abadi'. He found that Durgadas evacuee had constructed 8 shops on the site before partition and those shops covered only an area of 10 Marlas. An inference was, therefore, drawn that the remaining area of 2 Kanals and 10 Marlas out of 3 Kanals shown as 'Ghair Mumkin Abadi' in the Jamabandi for the year 1945-46 must have been built up for the purposes subservient to agriculture. With this finding, learned Settlement Commissioner, by order, dated 31-12-1978 excluded only 10 Marlas from the allotment of the respondents as according to him, only these 10 Marlas were built up at the time of the partition for non-agricultural purposes. As regards the contention of the petitioners that they have constructed houses on the site, it was observed by the learned Settlement Commissioner that he had no jurisdiction in the matter which should be resolved by the parties mutually or through a competent Court.
5. Petitioners challenged the aforementioned order of the Settlement Commissioner dated 31-12- 1978 through the present constitutional petition.
6. Learned counsel appearing in support of this petition has contended that the impugned order is based on misreading of evidence on the record and that the learned Settlement Commissioner, in treating 2 Kanals 10 Marlas as having been built up for the purposes subservient to agriculture, proceeded on mere conjectures. According to the learned counsel, the entire area of 3 Kanals was 'Ghair Mumkin Abadi' since before the partition as shown in the Jamabandi for the year 1945-46 and as such it should have been excluded from the allotment of the respondents. Precise submission of the learned counsel was that there was no basis for the inference/conclusion drawn by the Settlement Commissioner that 2 Kanals 2 Marlas out of 3 Kanals were used for agricultural purposes.
7. I have given my considered thought to the submissions made by the learned counsel for the petitioners. It is no doubt true that the area measuring 3 Kanals was shown as 'Ghair Mumkin Abadi' in the year 1945-46 but that per se was not considered enough by this Court to exclude it from the allotment of the respondents and the case was remanded to the notified officer to give a fresh decision about the nature of this area after hearing the parties. This Court in its order of remand quite clearly accepted that the area in question was built up but it required the notified officer to determine whether the construction on these 3 Kanals was subservient to agriculture or not. The impugned order shows that the learned Settlement Commissioner duly addressed himself to this question but the evidence led before him was deficient in the relevant aspect. Parties did not lead evidence specifically on the issue which the learned Settlement Commissioner was required to decide. Evidence led by the parties copies whereof have placed on the present record by the petitioners as Annexure 'H' to 'P' and which I have perused, shows that the witnesses produced by either party did not confine themselves to the area of 3 Kanals in dispute. They instead deposed generally about the entire area owned by Durgadas. The evidence of the petitioner is to the effect that Durgadas had constructed the shops on a part of the land before Partition of the sub- continent, land was not under cultivation and that the petitioners and some others had come to occupy some of the land and constructed houses thereon after the Partition. Now in the remand order of this Court, it was accepted that the area other than 3 Kanals in dispute was agricultural at the relevant time and was, therefore, righly allotted to the respondents and to that extent, the petitioners earlier writ petition was dismissed. That being so, it was not the province of the Settlement Commissioner to give any finding regarding other area which was no more in dispute.
Thus, most of the evidence led particularly by the petitioner which tended to show that the whole of the land purchased by Durgadas was not cultivated even before Partition and that the petitioners and others had raised construction on a major portion thereof after the Partition was, to say the least, of no relevance to the issue before the Settlement Commissioner and was beyond the scope of his inquiry. Learned Settlement Commissioner, therefore, on spot inspection found that the shops constructed by the evacuee owner covered only 10 Marlas. It may be pointed out that this was admitted position that Durgadas had constructed some shops on the site though none of the witnesses appearing before the Settlement Commissioner specified the exact area on which Durgadas had constructed the shops. Having found that the shops were constructed on an area of 10 Marlas, learned Settlement Commissioner drew inference that the remaining area of 2 Kanals 10 Marlas was used for agricultural purposes. In view of the accepted position that the area of 3 Kanals in dispute (shown as 'Chair Mumkin Abadi' in 1945-46) was built up, and in the absence of any clear evidence that the structures other than the shops existing thereon were not used or meant to be used for agricultural purposes, the conclusion drawn by the learned Settlement Commissioner was quit plausible and reasonable. In any case, the impugned finding/inferenc cannot be said to be arbitrary or perverse or the result of any misreadin of evidence.
8. Apart from what has been held above, it was for the Settlement Commissioner to determine the nature of the area in dispute. He has recorded the finding after inspection of the spot and after considering all the relevant aspects of the matter. Even if his decision be erroneous, it would not be rendered without jurisdiction so as to attract interference of this Court in extraordinary Constitutional jurisdiction. It was held in "Faqir Muhammad v. Muhammad Ismail" PLD 1983 C 451 "the question of jurisdiction of the High Courts under Article 199, has come under consideration in a number of cases before this Court and it has been repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, or is not one at which the High Court would 'have arrived, does not render the decision without jurisdiction".
9. As regards the petitioners' contention that they had built houses on the site after the Partition of the sub-continent, it has been rightly observed by the learned Settlement Commissioner that this matter was not within his jurisdiction and that the parties could resolve it either mutually or through a competent Court.
10. In view of the foregoing discussion, the impugned order of the learned Settlement Commissioner does not call for any interference. This petition, therefore, fails and the same is dismissed but there' shall be no order as to costs.