1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the informer in proceedings under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act) to examine whether the High Court by its judgment dated 12-2-1981 in Intro-Court Appeal was justified in law in affirming the setting aside of the order of the Settlement Commissioner (Land), Chief Settlement Commissioner, Punjab, based on the finding of fact that "none of the area in which Abadan (the vendor of the respondents) was a co-sharer in Mauza Garbagh stood protected under the Punjab Land Preservation Act, 1900 and the notification issued there under".
2. Abadan a refugee right-holder filed claim form No.1876 for the land abandoned in Garh Bagh, Hadbast No.522 Tehsil Unna, District Hoshiarpur. His claim was verified from the Central Record Office, Lahore and a Fard Haqiat showing land worth 809 P.I. Units abandoned by him was issued.
3. His claim was substantially settled in Village Uddowali, Tehsil and District Gujranwala by 1954. In 1956 correction slip No.137 was issued whereby it was provided that Ghair Mumkin land abandoned in Tehsil Unna if notified under the Land Preservation Act or notified under Indian Forest Act was to be treated as Barani III. His entitlement was revised in view of this correction slip and his entitlement was increased to 2325 P.I. Units. He sold the land allotted to him for the enhanced verified claim which was allotted to him in Villages Kotli Amarsing, Khotay Shah and Sawanpura all in Tehsil Hafizabad, District Gujranwala The appellant submitted an application laying information that the enhancement in the verified claim of Abadan was unauthorised and the allotments obtained by him were in excess of his entitlement. An inquiry was held, in the first round by the Additional Settlement Commissioner (Land), who then exercised the powers of the Chief Settlement Commissioner, and he by an order dated 22-12-1976 held that the enhancement in the verified claim of Abadan was unauthorised and ordered the resumption of the allotment made against it. A constitutional petition was then filed by the vendees from Abadan (Writ Petition No.88-R of 1977) which was allowed by the High Court with a direction for re-hearing the case after notice to the persons likely to be affected. The re-hearing took place and by an order dated 14-4-1980 the finding was re-affirmed that the increase in entitlement was unauthorised and the allotment made against it had to be resumed. A Constitutional petition was then filed (W.P.No.346-R/80) which was again allowed by the High Court on 3-2-1981 and the Intro-Court Appeal of the appellant against it failed.
4. Shaikh Abdul Aziz, Advocate, the learned counsel for the appellant, contended that finding of fact had been recorded by the Chief Settlement Commissioner after holding a full-fledged inquiry and after recording evidence. Such a finding of fact, according to the learned counsel for the appellant, could not be set-aside in constitutional jurisdiction and no tangible or concrete ground is forthcoming for interference with that finding of fact. The report of the O. S. D., Central Record Office dated 27-5-80 does not either refer to any record or to any notification for treating any part of the holding of Abadan as affected by Land Preservation Act. On the other hand the Chief Settlement Commissioner who recorded the finding of fact had the advantage of having all the relevant record, including the special Jamanbandis, before him and of examining the Patwari by reference to it in the presence of parties. The report could not in such circumstances justify the substitution of the finding of fact recorded by the authority exercising the powers of the Chief Settlement Commissioner.
5. Mr. S. M. Naseem, Advocate, the learned counsel for the respondent-vendee, has contended that all the documents produced on record justify the increase in the entitlement of Abadan and in giving effect to the same, the High Court had not recorded a finding of fact of its own but only gave effect to the entries of the record.
6. The Authority exercising the powers of the Chief Settlement Commissioner denied the benefit of the enhanced entitlement to Abadan, the claimant on the grounds which are as hereunder:--
1. "Muhammad Ayub Patwari Central Record Office produced the special Jamabandis of Mauza Garh Bagh Hadbast No. 522 Assessment Circle Ghar Tehsil and District Hoshiarpur. According to him Abadan owned land in Khewats Nos. 31, 33, 35, 39, 78, 79 and 105 but this area did not fall in the Choas Act. Khewat No. 117 related to Shamlat Deh comprising Khatunis Nos. 547, 550, 552, 553 and 554 came to 33 Kanals 3 Marlas but this area also did not fall under Choas Act. The statement from record sets the contention of Mubarak A.I at rest that the share of claimant in Shamlat Deh was wrongly computed to his disadvantage.
7. From the statement of Muhammad Ayub Patwari Central Record Office, it is established beyond doubt that none of the area in which Abadan was co-sharer in Mauza Garbagh stood protected under the Punjab Land Preservation (Chows) Act, 1900, whereas the correction Slip No.137 which becomes the basis for the revision of the entitlement certificate clearly provided that the Ghair Mumkan land if notified under the Punjab Preservation Act 1900 shall be treated as Barani."
2. "The conduct of the claimant, Abadan, during these proceedings is also relevant factor to be considered. He never made any application for re-verification or re-calculation of his entitlement certificate. He made categorical statement before the Additional Settlement Commissioner that he had obtained land in village Udduwali in full satisfaction of his claim and disowned any allotment in villages Kathey Shah, Sawanpura or Kotli Amar Singh.
8. Even in the learned Lahore High Court, Lahore, when he came to know that somebody had tried to participate in proceedings on his behalf he moved an application to disown it and had his name deleted from those proceedings. From these facts it is very clear that the correction Slip No.137 was issued on the move of somebody else in the name of the claimant Abadan.
9. 3.Even otherwise correction Slip No. 137, dated 23-2-1956 and footnote No.2 there under do not support this proposition. The slip provides as under:-- "area notified and regulated or restricted or prohibited under section 5 of the Punjab Land Preservation (Chows) Act, 1900, or notified under Forest Act, 1927, which are recorded as Ghair Mumkan in Hoshiarpur District should be treated as Barani III."
10. According to correction Slip No. 39, dated 11-2-52 incorporated in the produce index book let D.O.M.
11. Fasli classification land in the assessment circles of Tehsil Unna is to be treated as Barani. In these circumstances Yak Fasli-II for all intents and purposes had to be treated as Barani-III at 12 P.I. Us."
12. A reference to the statement of Muhammad Ayub Patwari, Central Record Office,, establishes that he appeared at least on four dates before the Inquiring authority and at no stage he made a statement after consulting the special Jamabandis that any part of the land, either proprietary or Shamlat left by Abadan, had been affected by Notification under the Land Preservation Act or the Forest Act. The statement or charts that he prepared did, however, show that some area of the Shamlat which was Ghair Mumkan and in which Abadan had admittedly a share was affected by the Land Preservation Act. Now in his statement recorded on 31-12-78 he admitted that in the statements so prepared he had shown it to be so affected and made it liable to revision and increase and in fact revised it at the oral bidding of the Officer-in-Charge of the Record Office. This would show that the statement made by Muhammad Ayub, Patwari, on oath which was subjected to cross-examination has not yielded any such conclusion or meaning as to sustain the revision or enhancement of the verified claim of Abadan. The oral instructions of the Officer-in-Charge Central Record Office could have value if it had its foundation either in law or in any one of the Notifications referred to.
13. The Notification placed on record, the one dated 2-6-47 published in the Punjab Gazette of June 13, 1947 shows that 2019 Acres of land in Garhbagh, Hadbast No.522 was brought under the Land Preservation Act. It was a notification under section 3 of Land Preservation Act. By another notification published on the same page of the Gazette under section 4 of the Land Preservation Act certain specified Khasra numbers were placed under prohibitory order and by another notification under section 5 land to the extent of 1,006 Acres of this village was brought within the purview of the notification. It was not shown by any document that the land which was abandoned by Abadan was affected by these notifications. When the special Jamabandis of that village were produced by Muhammad Ayub, Patwari, he made a positive statement which was open to verification with the contents of the special Jamabandis that no portion of the land held by Abadan either proprietary or Shamlat was affected by these notifications. The oral directions of the O.S.D., Central Record Office on the basis of which he prepared the tables and statement would not be of avail and was rightly not allowed to interfere with the statement of Ayub Patwari.
14. The learned Judge in Chambers had obtained a report from the O.S.D. Record wherein without any authority he had mentioned the fact that the Ghair Mumkan Shamlat land in which Abadan had a share was affected by the notification under the Land Preservation Act. The result of a detailed factual inquiry, held in the presence of the parties, when all the relevant record had been produced before the authority exercising the powers of the Chief Settlement Commissioner, could not be brushed aside on such a fragmentary report of the O.S.D. Which did not indicate the basis nor refer to the notification in the field. The finding of fact recorded by the Chief Settlement Commissioner suffered from no defect in law and it was not open to interference in the constitutional jurisdiction by the High Court. The appeal is, therefore, allowed with costs, the judgments impugned in the appeal are set aside with the result that the Constitutional Petition filed by the respondents stands dismissed.