1. JAVID IQBAL, J.-- In this appeal is challenged judgment dated 29th January, 1975 passed by a learned Single Judge of the Lahore High Court, Lahore in Writ Petition No. 359-R of 1969. The background is that Nasrullah Khan deceased predecessor-in-interest of the appellants had a verified claim equal to 11,298 PI Units. Consequently he was confirmed land measuring 1,886 Kanals and 9 Marlas on 15th November, 1966 in Mouza Ismail--Pur Tehsil Lodhran District Multan in lieu of 11,307 PI Units (9 units more than his verified claim). He got this allotment as an informant out of the land cancelled from the Khata of one Rehm A.I Shah. After allotment the said Nasrullah Khan submitted an application on 2nd December. 1966 before the Chief Settlement and Rehabilitation Commissioner (Land) raising an objection to the effect that the classification relied upon while allotting the land in question to him was incorrect and not in accordance with the provisions laid down in paras. 29 and 58 (a) of the Rehabilitation Settlement Scheme. According to him the classification of the said land stood substantially changed in Rabi 1947 and that therefore he was allotted land less than his true entitlement. He contended that the classification as appearing in the special Jamabandi was erroneous and it should be corrected in the light of the classification as entered in Khasra Girdawari for Rabi 1947. On this basis he claimed that his entitlement was 2,430 surplus PI Units. The application of Nasrullah Khan was forwarded by the Chief Settlement and Rehabilitation Commissioner to the Additional Settlement Commissioner (L)/D.C. Multan on 3rd December 1966 with the following direction: "Your attention is invited to para. 58 (a) Chapter I, Part II of the West Pakistan Rehabilitation Settlement Scheme. The special Jamabandi prepared for exchange with India was required to show the rights of evacuees in land as they existed on 15-8-1947. To determine the classification of soil on this prescribed date entries in the Khasra Girdawari for Rabi 1947 were important and were to be incorporated in the special Jamabandi. Contention of the applicant is that in his case, classification of land as entered in the special Jamabandi and Khasra Girdawari for Rabi 1947 differ. If the contention is correct you are requested to please get the special Jamabandi checked with Khasra Girdawari for Rabi 1947 and correction made if necessary."
2. "From the perusal of the record it appears that the entries of the Khasra Girdawari Rabi 1947 have not been incorporated in the special Jamabandis. The S.D.O. Should, please, see the reasons of variation and get the entries in the special Jamabandis corrected by the Revenue Officers as required in para. 58-A, Chapter I. Part II of the West Pakistan Rehabilitation and Settlement Scheme.
3. After making the necessary corrections in the special Jamabandis and checking thereof, the surplus units i.e., 2426 of Nasrullah Khan should be satisfied in both the villages accordingly."
4. This order was implemented on 4th September 1967 and land measuring 549 Kanals and 5 Marlas in lieu of 2,426 surplus PI Units was allotted to Nasrullah Khan. Thereupon three revision petitions were separately filed by Maqbool respondent No.1, Hafiz Malik Muhammad respondent No.2 and Muhammad Balal respondent No. 3. These revision petitions were heard by the Settlement Commissioner who by his order dated 11th April, 1969 accepted the same and directed that the surplus land given to Nasrullah Khan should be cancelled and instead it be allotted to the three respondents in accordance with the directions given in his order. The order dated 11th April, 1969 passed by Settlement Commissioner was challenged by the present appellants as successors-in- interest of Nasrullah Khan who had since died by way of Writ Petition No. 359-R of 1969 on the ground that the Settlement Commissioner was wrong in setting aside the allotment in favour of their predecessor-in-interest in pursuance of the directions of the Chief Settlement and Rehabilitation Commissioner issued under paras. 29 and 58 (a) of the Rehabilitation Settlement Scheme. The said writ petition was dismissed by the learned Single Judge of the Lahore High Court, Lahore on 29th January, 1975.
5. The learned Single Judge while examining the provisions laid down in paras. 29 and 58 (a) of the Rehabilitation Settlement Scheme as well as paras. 7.49 and 7.51 of the Land Record Manual arrived at the conclusion that ordinarily the classification of land made in the special Jamabandi should prevail in all cases and that only in case of hardship the matter could be referred to the Chief Settlement and Rehabilitation Commissioner. So far as the aforesaid paras. Of the Land Record Manual were concerned under them the classification could be changed when the change is permanent and not of the seasonal character. The learned Single Judge observed that the appellants had placed on the record a statement showing variation of classification of land in the special Jamabandi and Khasra Girdawari of Rabi, 1947. In regard to some crops the classification of land was indicated as Chahi-Nehri and in the case of other it was shown as Nehri only or Chahi only; that under para. 29 of the Rehabilitation Settlement Scheme a reference could be made to the Chief Settlement and Rehabilitation Commissioner only in a case of hardship but that so far as the case of the predecessor-in-interest of the appellants was concerned no hardship had been created as it could be created only if the classification of the land had substantially undergone a change but it was held that in the instant case the Khasra Girdawari of Rabi 1947 did not indicate any change in the classification of the soil but only indicated a change in the mode of the irrigation for a particular crop. In other words the classification of the land was indicated as Chahi-Nehri because the crop in question had been irrigated both by well and canal water. Thus splitting up the source of irrigation in the case of a particular crop would not imply changing the classification of the soil itself. According to the learned Single Judge since there had been no change in the classification of the soil as such there was no reason for making a reference to the Chief Settlement and Rehabilitation Commissioner.
6. Aggrieved by the order dated 29th January, 1975 passed in Writ Petition No.359-R of 1969 the present appellants as successors-in---interest of Nasrullah Khan moved a petition for leave to appeal which was granted on 22nd March, 1976 in order to determine the question as to what is the effect of the application of paras. 7.49 and 7.51 of the 44 Land Record Manual and para. 29 of the Rehabilitation Settlement Scheme to the facts of the present case.
7. While we were hearing the arguments of the learned counsel for appellants Nos.1 to 4, learned counsel appearing for appellants Nos.5 and 6 brought to our notice an order passed in this case by the Chief Settlement and Rehabilitation Commissioner on 5th November, 1968 directing the Additional Settlement Commissioner (L)/D.C. Multan as follows "Your attention is invited to this office memorandums Nos. 2442-M-66/6133-R(L) and No. 3024/M/67/2952-R (L), dated 3rd December, 1966 and 22nd August, 1967, respectively, in which the instructions contained in para. 58 (a) of the West Pakistan Rehabilitation Settlement Scheme were clarified. The Chief Settlement and Rehabilitation Commissioner. West Pakistan, under para. 29 Chapter I, Part II of the West Pakistan Rehabilitation Scheme, has, therefore, ordered in this particular case that the entries in the special Jamabandi should be brought in consonance with the entries of Khasra Girdawaris of Kharif 1946 and Rabi 1947."
8. According to the learned counsel in the instant case since the Chief Settlement and Rehabilitation Commissioner had passed the aforesaid order in favour of the appellants it should not have been interfered with by the Settlement Commissioner when he accepted the revision petitions in the instant case against the predecessor-in-interest of the appellants on 11th April, 1969 nor it should have been interfered with by the learned Single Judge who dismissed the writ petition of the appellants on 29th January, 1975. We note that the aforesaid order of the Chief Settlement and Rehabilitation Commissioner which is at pages 93-94 of the printed paper book (Part I) must have constituted part of the Settlement record, but it finds no mention in the order of the Settlement Commissioner dated 11th April, 1969. Similarly we also note that the said order was attached to the writ petition of the appellants as an annexure but it appears that while considering the writ petition the learned Single Judge did not advert to it. In other words the aforesaid order had not been considered at any stage while the matter was pending before the Settlement and Rehabilitation Authorities or when it was pending before the learned Single Judge of the Lahore High Court by way of a Constitution Petition.