1. SAJJAD AHMAD, J.-The subject-matter of this appeal, by special leave, is a piece of land measuring 24 kanals and 10 marlas comprised in Killas Nos. 3, 4/1, 7/1 and 8/2 in square No. -1 of Chak No. 122/J. B. In Tehsil Lyallpur. The appellants were operating a tannery on this land since before 1933, when it was provisionally allotted to them. It was transferred in their favour in May 1961, by the then Additional Settlement Commissioner, Mr. Abdul Majid Khan, vide his orders dated the 22nd of May, 1961 (Copy Annexure 'H') under the Displaced Persons (Com--pensation and Rehabilitation) Act of 1958, in lieu of their verified claim for a tannery abandoned by them in Bharat.
2. However, a few months earlier in January 1961, the same land having been treated as agricultural land was confirmed in favour of respondents 2 to 4 by an Assistant Rehabilitation Commissioner.
3. The appellants challenged this order in appeal and revision before the Settlement authorities, which were unsuccessful. A writ petition filed by them in the High Court has also failed, leading to the present appeal by special leave.
4. The learned Judges of the High Court have taken the view that the property in dispute was agricultural land, which has been rightly disposed of in favour of the respondents as such under the Displaced Persons (Land Settlement) Act, and, therefore, its subsequent transfer as an industrial concern in favour of the appellants under the Displaced Persons (Com--pensation and Rehabilitation) Act of 1958, was incompetent The dispute between the parties converged on the question whether the property was agricultural land as contended by the respondents, or it was an industrial concern, as alleged by the appellants. On the settlement side, as opposed to the decision of Mr. Abdul Majid Khan in favour of the appellants, referred to above, Mr. Mukarab Khan, Additional Settle--ment and Rehabilitation Commissioner, in disposing of the revision petition filed by the appellants, found that "the property in dispute was agricultural land and that its use by the appellants as a tannery was in contravention of provisions of section 15, Chapter 2, Part 1 of the Rehabilitation Settlement Scheme as well as Memorandum No. 988-54/ 5226-R(L), dated the 27th of May 1954, issued by the Rehabilitation Commissioner, under which rural agricultural land could not have been allotted for non-agricultural purposes without reference to the Rehabilita--petition Commissioner (Land)". As noted in his order, Mr. Mukarab Khan had inspected the spot and saw only two or three small narrow pits at a few places which the appellants were using for soaking skins. He did not see any building on the spot except a small kotha. He did not find any tanning machinery installed in the land. The learned Judges of the Division Bench in the High Court, in deciding the appellants' writ petition, have confirmed the view of Mr. Mukarab Khan that the land in dispute was being used for agricultural purposes since 1946-47, and that the existence of a kotha on it does not alter its character. They have based this finding on the relevant revenue entries examined by them.
5. The respondents have not put in appearance in this appeal in spite of service and were thus placed ex parte. During the hearing of the appeal, we considered it necessary to issue a notice to the Law Officer of the Settlement Department, who has appeared and has made his submissions.
6. The learned counsel for the appellants has contended that the relevant revenue records pertaining to the land in dispute have neither been given proper attention by Mr. Mukarab Khan, nor by the learned Judges of the High Court. Extracts from the Jamabandis from the year 1933-34 up to the year 1959-60 as well as summary of the relevant .Extracts from Khasra Girdawari from Kharif, 1938, to Rabi, 1964 have been annexed with the concise statement filed by the appellants, from which it is argued that more than 10 kanals of the disputed area of 24 kanals is covered by kothas and a chappri (pond) since 1933. It is also shown that the evacuee owners of the land in dispute had obtained sanction of the Canal authorities for supply of water to this land in the year 1944 for the purpose of tanning of hides. It is also submitted by the learned counsel for the appellants that to determine the character of the land as to whether it was agricultural or otherwise, the basic factor was the use to which the land in dispute was being put at the time of Partition, and that this aspect of the matter has not been duly appreciated by Mr. Mukarab Khan nor by the High Court. He has referred us to a judgment of the former High Court of West Pakistan, Lahore seat, reported as Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan and others (PLD 1969 Lah.180), wherein it was held that "for determining the character of the property, the test laid down in section 2(3) of the Displaced Persons (Land Settlement) Act, 1958 and in Part 1, Chapter I, para. I
(i) of the West Pakistan Rehabilitation Settlement Scheme 1956, is the use to which the property was being put at the time on the 15th of August 1947."
7. As already stated above, the disputed land has been the subject of two conflicting orders by two Additional Settlement Commissioners. One has dealt with it and disposed it of in favour of the appellants as an industrial concern, under the Displaced Persons (Compensation and Rehabilitation) Act XXVIII of 1958. The other has treated it as a piece of agricultural land and transferred it under the Displaced Persons (Land Settlement) Act XLVII of 1958 in favour of the respondents.
8. After hearing the learned counsel for the appellants and Sardat Hidayatullah, the learned counsel for the Settlement Department, we have formed the opinion that it is necessary to resolve this conflict between the two competing orders with respect to the same property each made by an Additional Settlement Commissioner possessing co-ordinate jurisdiction. Therefore, we direct that this case shall go back to the Chief Settlement Commissioner, who will decide it afresh after hearing both the parties on the factual and legal position with regard to character of the disputed land for purposes of its transfer under the Settlement law. There shall be no order as to costs.