1. JAVID IQBAL, J.--The dispute pertains to State land measuring 200 Kanals and 2 Marlas situate in Chak No.164/10-R, Tehsil Khanewal, District Multan. In 1942 some persons applied for the allotment of the same under the Well Sinking Scheme. On 14th August, 1942 it was allotted tinder the said Scheme to one Veer Singh. He deposited on 2nd October, 1942 a sum of Rs.100 and subsequently another sum of about Rs.50 on 6th August, 1943 in accordance with the conditions of the grant, but the record does not show that he took possession of the said land with the permission of the Collector as required under section 10(4) of the Colonization of Government Lands Act, 1912 (hereinafter called the Colony Act). Anyway on 1st July, 1946 a report was submitted by the S.D.O., Khanewal respecting the grants of uncommanded land in the L.B.D.C. Under Well Sinking Conditions. The report was to the effect that there were about 65 cases as per list attached in which Dakhals were not issued (i.e. Possession was not delivered), and that these grants were to be cancelled by the Collector. It was pointed out that out of these 65 cases, one case of Chak No.168/10-R was not traceable but the remaining 64 cases were recommended to be sent to the Collector for cancellation. At page 23 of the paper book is photocopy of extract list of well sinking grants in the L. B. D. C. , Khanewal. This extract pertains to the disputed land namely in Chak No.164/10-R in the name of Veer Singh mentioned above at Serial No.66. In column No.8 thereof is stated "Dakhal not issued". Eventually on 16th July, 1946 the Collector cancelled the said grants from the names of the grantees in which Dakhals had not been issued and thus, the disputed land became available for fresh allotment under the Colony Act. It may be noted that according to the record although the land in question was allotted in favour of Veer Singh under the aforesaid Scheme, the possession with the permission of the Collector had not been delivered and consequently for that reason the said allotment stood cancelled vide order of the Collector, dated 16th July, 1946 (page 22 of the paper book). Thereafter, came the Partition and presumably the said Veer Singh left for India as an evacuee. Eventually on 11th July, 1956 the said land was allotted under the Ejected Tenants Scheme to Haji Muhammad predecessor-in-interest of the appellant who was subsequently on 31st December 1963, held entitled to acquire proprietary rights in the said land. A portion thereof was also allotted under the same Scheme to Muhammad Bakhsh who was held entitled to acquire proprietary rights on 13th May, 1966.
2. It is stated by the learned counsel for the appellant that the appellant paid 18 instalments for the price of the said land and only two instalments amounting to about Rs.466 were yet to be paid. In the meantime, in the year 1965, respondents Nos.2 to 10 applied to the Deputy Settlement Commissioner (Lands) for allotment of evacuee land in Chak No.164/10-R and the Deputy Settlement Commissioner (Lands) directed on 18th August, 1965 that if there was any evacuee property for allotment in the said Chak, the Chairman Allotment Committee may confirm it in their favour. As a result on 6th October, 1965 the land in dispute was confirmed in favour of the aforesaid respondents. Aggrieved by the order, dated 18th August, 1965 of the Deputy Settlement Commissioner (Lands), Haji Muhammad and Muhammad Bakhsh filed appeals before the Settlement Commissioner (Lands), Multan. The Settlement Commissioner (Lands) vide his order, dated 30th July, 1966, held, that the land in dispute could not be declared as evacuee property, and consequently the impugned order of the Deputy Settlement Commissioner (Lands) declaring it to be evacuee property and allotting it to the aforesaid respondents was set aside, further ordering that the said land would continue to be held by Haji Muhammad and Muhammad Bakhsh under the Ejected Tenants Scheme as heretofore. His findings of fact recorded in his order are as follows: "The facts of the case are that a major portion of square No.53 situated in Chak No.164/10-R was allotted to Veer Singh non-Muslim evacuee under the Well Sinking Scheme on 14-8-1942. He deposited Rs.100 on 2-10-1942 and Rs.50-1-6 on 6-8-1943 under the conditions of the grant. No possession is recorded in the Roznamcha Waqiati of the Patwari to have been given to Veer Singh .After Independence the entire area allotted to Veer Singh evacuee became State land and continued as such till it was allotted to Muhammad Bakhsh and Haji Muhammad appellants under the Ejected Tenants Scheme on 11-7-1956 . . . . . .. . . .. . . .. . . . . . . . . . . . . The land was continued to be shown as State land in the Jamabandi. The land was continued to be shown as State land in possession of the Deputy Commissioner till it was allotted to the appellants, who were shown as Ghair Dakhilkar under the Provincial Government in the Revenue record. There is overwhelming evidence on the file to show that the land in dispute was never treated as evacuee land. It was, on the other hand, treated as State land andallotted in a regular manner to the appellants under the Ejected Tenants Scheme in the year 1956."
3. Aggrieved by the aforesaid order respondents Nos.2 to 10 alongwith Fateh Muhammad respondent No.1 who had purchased the entire property in dispute from the other respondents filed Writ Petition No. 1398/R of 1966 which was accepted by learned Single Judge of the Lahore High Court, Lahore on 25th April, 1974 holding that the Settlement Commissioner (Lands) did not have the authority to declare a particular property to be evacuee property or otherwise and that it was the exclusive domain of the Custodian of Evacuee Property to do so. Thus, the order of the Settlement Commissioner (Lands) was declared to be without lawful authority and of no legal effect, and the allotment made in Tavour of the respondents in respect of the disputed property was held to be valid and in accordance with law. The aforesaid judgment was challenged by the appellant before this Court and leave to appeal p was granted to consider the question as to whether the property in dispute in the circumstances at all became evacuee property which could be allotted to displaced persons.
4. It was submitted by the learned counsel for the appellant that the learned Single Judge in the High Court misconceived the facts as well as the law applicable to the present case. It was further submitted that the learned Single Judge did not notice that Veer Singh was never delivered possession of the disputed land granted to him under the Well Sinking Scheme and as such he did not acquire any right or title to the land in question. Since he did not take possession, the grant was cancelled from his name on 16th July, 1946 under the order of the Collector before he became an evacuee on the Partition of the country. In that view of the matter, the land in question was resumed by the State before Veer Singh became evacuee or before the Partition. Hence, it never became evacuee property and consequently could not be treated as an evacuee property. It was further submitted by the learned counsel that according to the record and particularly the extract list of Well Sinking Scheme grants (page 23 of the paper book), Dakhal had not been issued to the grantee i.e. Veer Singh, therefore, in accordance with the provisions of section 10(4) of the Colony Act the said Veer Singh could not be considered to be a tenant unless and until he had taken possession of the land in question with the permission of the Collector. Hence when the so called evacuee had never taken possession of the disputed land granted to him under the Well Sinking Scheme and when the grant was cancelled and the land resumed by the State before the grantee had become an evacuee or before the Partition actually took place, the said land did not become evacuee property nor could it be treated as such. Learned counsel placed reliance on Talib Din and others v. Chief Land Commissioner and others PLD 1984 SC 453.
5. Learned counsel for the respondents attempted to argue that the report submitted by the S.D.O., Khanewal on 1st July, 1946 only pertained to 65 cases in which Dakhals were not issued and which grants were to be cancelled by the Collector. Out of these 65 cases, according to the report, one was not traceable and the remaining 64 cases were placed before the Collector for cancellation. It was submitted by the learned counsel for the respondents that the Collector had cancelled on 16th July, 1946 these 64 grants whereas, as indicated at page 23 of the paper book, the serial number of the grant in question in favour of Veer Singh evacuee was 66, and even though it was mentioned in column No.8 that Dakhal was not issued, there was no evidence on the record that this grant had been cancelled. The reasoning of the learned counsel is that Veer Singh after depositing sums of money had taken possession of the grant until he became an evacuee at the time of the Partition.
6. Hence it was rightly considered as evacuee property by the Settlement Department and allotted in favour of respondents Nos.2 to 10 who had subsequently sold it to respondent No. 1.
7. We have heard learned counsel for the parties and carefully perused the record. At this stage the objection raised by the learned counsel for the respondents to the effect that the serial number of the grant in favour of Veer Singh being 66 it was not one of those which had been cancelled, cannot be considered. This objection should have been raised before the Settlement Commissioner (Lands). According to the findings of fact arrived at by the Settlement Commissioner (Lands), in the instant case grantee Veer Singh did not take possession of the disputed land as no possession was recorded in the Roznamcha Waqiati of the Patwari to have been given to Veer Singh. Thus, the land in question was continued to be shown in the Jamabandi in possession of the Deputy Commissioner till it was allotted to the predecessor-in-interest of the appellant under the Ejected Tenants Scheme on 11th July, 1956. In other words, the disputed land even before the Partition was considered as State land and allotted to the grantees under the Ejected Tenants Scheme in the year 1956 in accordance with the provisions of section 10 (4) of the Colony Act, and it had never at any stage been treated as evacuee land. Subsection (4) of section 10 of the Colonly Act reads as follows: "No person shall be deemed to be a tenant or to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector. After possession has been so taken,, the grant shall be held subject to the conditions declared applicable thereto."