1. ' MUHAMMAD HALEEM, C.J.-- Leave was granted to consider whether the High Court was in error in construing the order of the Additional Settlement Commissioner dated 3rd of April, 1963, as directing Khasra Nos. 396 and 398 to be confirmed in favour of Ahmad Zaman Khan and other deserving allottees so as to exclude the question of the transfer of the brick-kiln in Khasra No, 3% as an industrial concern to Muhammad Jamil.
2. ' The dispute related to the allotment of a brick-kiln covering 15 Kanals of land comprised in Khasra No, 3%, situate in village Outabpur, Tehsil Multan, which in all measured 45 Kanals and 9 Marlas. The date of allotment was 9th January,1950, and Muhammad Jamil claimed that he was in possession of it ever since then. The entire Khasra number was allotted as agricultural land to Kamdar Khan and his sons without the cancellation of the allotment made earlier in favour of Muhammad Jamil, who challenged its transfer, and the matter finally came in revision before the Additional Settlement Commissioner, Multan, who by order dated 3rd of April, 1963, dismissed it. The result of this dismissal was that Kamdar Khan in whose favour the land was allotted was unsuccessful in getting the allotment of the land as it was held that the claim of the other deserving allottees had to be satisfied first. The Additional Settlement Commissioner did not record any finding in regard to the brick-kiln as to whether it was situate in Khasra No, 1689/239 and not Khasra No, 3%, as contended by Kamdar Khan, although it was found on spot inspection by the Assistant Rehabilitation Commissioner (Land) on 5th of March, 1961 that there existed a brick-kiln covering 15 Kanals of land in Khasra No, 396. It was, however, observed by the Settlement Commissioner that as regards the case of Muhammad Jamil his application for the transfer of the industrial concern "shall be dealt with in due course of law".
3. ' Kamdar Khan challenged the above order dated 3rd of April, 1963, through Writ Petition No, 1906-R of 1963, but withdrew his claim in respect of Khasra Nos. 3% and 398, as upon the taking of oath by Haji Gul Muhammad Khan, maternal-uncle of Ahmad Zaman Khan, respondent No,1 herein, that he was a joint temporary allottee of the said Khasra numbers and in possession of it from 1953 to 1957.
4. The writ petition qua these survey numbers was, accordingly, dismissed as withdrawn on 28th of October, 1965. Kamdar Khan filed Letters Patent Appeal No, 103 of 1966, but it was dismissed. He took no further action against the dismissal and went out of the picture.
5. ' The Deputy Settlement Commissioner (Land), however, implemented the order of the Additional Settlement Commissioner dated 3rd of April 1963, and confirmed the said Khasra, numbers in favour of the respondent by order dated 22nd of July, 1963, without notice to the appellant. The appellant filed a Writ Petition No, 472-R of 1965, but that was dismissed in limine on 4th of May, 1965, On the ground that it was premature as he had not exhausted other remedies available to him.
6. Muhammad Jamil thereupon filed an appeal against the order of the Deputy Settlement Commissioner (Land) which was accepted by the Additional Settlement Commissioner (Land) on 21-12-1966 on the view taken by him that there existed a brick-kiln on 15 Kanals of land in Khasra No, 396 which stood already allotted to the appellant and that, therefore, its allotment in favour of the respondent had to be cancelled. The respondent No,1 went in revision but did not succeed as it was dismissed on 7th of July, 1967, against which order he filed Writ Petition No, 625-R of 1967 and succeeded as the order passed in revision was set aside as being illegal and without jurisdiction on the ground that the order of the Additional Settlement Commissioner dated 3rd of April, 1963, had assumed finality as it was not challenged by Muhammad Jamil. It is this order of the High Court which was the subject-matter of appeal.
7. ' The appeal was heard on 9th of October, 1985, and the matter was remanded to the Notified Officer for consideration of the following two questions: "(1) Whether an application had already been made by the appellant and had been pending for transfer of the brick-kiln, and
(2) What was the size of the brick-kiln, constituting the industrial concern, allotted to the appellant.
8. ' It was further directed that the Notified Officer should, after hearing the parties, submit his report within two months. In paragraph 7 of the order, it was held as under: "A reading of the order dated 3-4-1963 shows that Khan Saecd-ud-Din Khan had in that order clearly indicated that he would examine the question whether the brick-kiln was situated in Khasra No, 396 and would attend to the claim of Muhammad Jamil to its transfer in his favour when dealing with his application for such transfer. The High Court was in error in treating the direction to allot the land in Khasra No, 396 to sitting allottees to mean the rejection of the appellant's case. The revising authority in its order dated 7-7-1967 was, therefore, right in holding that "this remark meant by implication that he (Khan Saeed-udDin Khan) did not consider it obligatory that the entire Khasra No, 3% should he allotted to the allottees of Qutabpur" This, in our view, is the correct interpretation of the direction."
9. ' It would appear from the above that this Court rejected the interpretation of the order of the Additional Settlement Commissioner dated 3rd April, 1963, by the High Court and upheld the order of the revisional authority dated 7th of July, 1967, that the Additional Settlement Commissioner by his remark did not mean that it was obligatory that the entire Khasra number 396 should be allotted to the allottees of village Qutabpur. However, it was contended on behalf of respondent No,1 that in the new Khasra number 246 carved out of Khasra No, 3%, the area of the brick-kiln shown is 2 Kanals 7 Marlas as per entry "Ghair Mumkin Bhatta" in the register Haqdaran. As against this in the appellate order of the Additional Settlement Commissioner dated 21st December, 1966 it appeared that he had relied on the Jamabandi of 1958-59 wherein the area of brick-kiln is shown as 15 kanals in Khasra No, 3%. Further, there was also the dispute as to whether Muhammad Jamil had applied for the transfer of the industrial concern. As both these questions had to be resolved, the case was remanded to the Notified Officer for the determination of the questions as aforestated. There was also the further concession of both the parties that they would not dispute the finding of the Notified Officer. The remand was, therefore, with the consent of both the parties.
10. ' The report was submitted by the Additional Deputy Settlement Commissioner (General), Multan, on 18th of February, 1985, from which it appears, in answer to the first question, that Muhammad Jamil did file and application on 9th March. 1961, for the transfer of the brick-kiln situate at Chah Thalcywala, Mauza Outabpur, Multan. The delay was condoned on 23rd March, 1961, and his application was retained by the office of the Settlement Commissioner (Industries) for record.
11. There was no further processing of the said application. On the second question as to the area of the brick-kiln, it is stated that at the time of its allotment on 9th of January, 1950, it was shown as 28 Kanals 9 Marlas as per entries in the revenue record. But subsequently as per order of the Additional Commissioner (Land) dated 5th of March, 1960, the area of the brick-kiln was demarcated and shown as 15 Kanals whose possession was delivered to Muhammad Jamil on 21st March, 1960. This area tallies with the area shown in the Jamabandi pertaining to the year 1958-59.
12. But as Khasra No, 396 was split up later into Khasra Nos. 210, 245, 246, 247 and 248 the area of brick-kiln was shown as 2 kanals 17 marlas in Khasra No, 246 as per Jamabandi for the years 1966 and 1976-77. It was further stated in the report that the land comprised in Khasra Nos. 246 and 248 was included in the Katchi Abadi as under the notification dated 21st September, 1973, along with other land comprised in Khasra Nos. 245(min), 122, 123 and 124.
13. As by the order of this Court dated 9th October, 1984, the order of the High Court non-suiting the appellant for the allotment of brick-kiln on its interpretation of the order of the Additional Settlement Commissioner dated 3rd April, 1963, was held to be unsustainable, the appeal was allowed in terms of the remand order for the determination of the questions of fact by the Notified Officer.
14. There cannot be any dispute in regard to this part of the order of this Court. It cannot also be disputed that Muhammad Jamil had filed an application for the transfer of the brick-kiln as an Industrial concern. However, it was contended that the area of the brick-kiln demarcated does not qualify as land for being included in the Katchi Abadi, and, for that matter, it is also not clear as to how much area of Khasra No, 246-Min is included in the notification. Since there was already pending the application for the transfer of the brick-kiln as an industrial concern, it was necessary to determine the entitlement of Muhammad Jamil now represented by his legal representatives in the context of the report and what was urged before us.
15. ' Accordingly, we allow the appeal in the following, terms: , the appeal is allowed on the findings given on the two questions referred to the Notified Officer and the case is remanded to him for the determination of the entitlement of the appellants to the transfer of the brick-kiln, and also for the determination of the question as to whether any portion of the brick-kiln in Khasra No,246 is covered by the notification dated 3rd of May, 1973, issued under section 2(1)(f) of the Transfer of Evacuee Land (Katchi Abadi) Ordinance, 1972 (Act XIII of 1972), as amended by Ordinance 1 of 1977. There will be no order as to costs." revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.