I propose to dispose of W.P. No.1246-R of 1976 and W.P. 1896-R of 1976 by a common judgment as both the cases relate to the same question of law and facts and are between the same parties.
2. The disputed property is 4-1/2 marlas bearing Khasra number 148 situated in Revenue Estate Kot Daska, District Sialkot. The dispute relates to the questions whether the property' in dispute is potential building site in possession of Khalil Ahmad petitioner who has raised permanent construction thereon or is an agricultural land forming the part of agricultural land allotted to Sher Ahmad Khan Lodhi (herein respondent No.2) in 1953.
3. The facts in the background of this petition are chequered one. On 18--11-1964 Khalil Ahmad made an application to the Additional Settlement Commissioner (Lands) under Settlement Scheme No.VI read with para. No-13 in Schedule to Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958) for the transfer of the disputed property on the ground that the disputed property was an evacuee land situated within the Municipal Limits of Daska Town Committee, whereon he has raised permanent construction over the plot in dispute.
4.The learned Additional Settlement Commissioner (Lands) called for the report from the Deputy Settlement Commissioner, who vide a report dated 19-1--1965 reported that the property in dispute was situated within the Municipal Limits of Daska; that the petitioner has raised permanent construction over the plot. The learned Additional Settlement Commissioner acting upon the said report condoned the delay in filing application and allowed the application to be registered. Accordingly the application was registered under the Scheme No.VI and the Deputy Settlement Commissioner issued the Provisional Transfer Order on 15-2-1965. The Permanent Transfer Deed was issued on 15-5-1965 after the deposit of the transfer price hereon started the litigation between the petitioner and respondent No.2.
5. Sher Ahmad respondent No.2 filed appeal on 28-3-1966 against order dated 13-1-1965. The learned Additional Settlement Commissioner vide an order dated 25-2-1967 accepted the appeal and cancelled the transfer of documents in favour of Khalil Ahmad. The revision petition by Khalil Ahmad failed before the learned Settlement Commissioner. This happened vide an order dated 25-3-1967. The petitioner filed constitution petition No.470-R of 1967 before the High Court which succeeded and the case was remanded to the Settlement Commissioner for reconsideration and adjudication in accordance with law.
6. The petition was accepted by his Lordship Mr. Justice Ghulam Mujaddid Mirza vide order dated 1- 2-1973. The learned Settlement Commissioner remitted the case to the Deputy Settlement Commissioner in pursuance of the order of remand. The respondent un-successfully challenged the jurisdiction of the Deputy Settlement Commissioner to hear the matter.
7. In result the Deputy Settlement Commissioner in pursuance of the order of remand of the High Court dated 1-2-1973 passed the order, whereby the transfer documents issued in favour of present petitioner were cancelled and it was held that the disputed property was agricultural in nature and formed part of allotment in favour of respondent No.2. This order is the subject-matter of this constitutional petition.
8.Learned counsel for the petitioner raised two points.
9. Firstly it was contended that the property was situated within the Urban Limits of Town Committee Daska, was a vacant evacuee plot whereon the petitioner had raised permanent construction in 1947. On the basis of this argument, it was contended that the property was not agricultural in nature; was a potential building site, which was immune from allotment under sub- clause (i.e) of Section 2 of the Displaced Persons (Land Settlement) (Act XLVII of 1958), and was available under Scheme No.VI, issued under the provisions of Displaced Persons (Compensation and Rehabilitation) Act XXVIll of 1958. Reliance was placed upon Nafeesa Bano and others v. Chief Settlement Commissioner and another (PLD 1969 Lahore 480), Malik Ahmad Din and another v.
Khawaja Mahmud Sadiq and another PLD 1976 Lahore 475. Reliance was also placed on unreported judgments of his Lordship Mr. Justice Saad Saood Jan in Abdul Sattar and others v.
Hassan Din and others (dated 15-4-1974) and decision of his Lordship Mr. Justice Zaki-ud-Din P.1, in W.P.No. 748-R/70 (dated 17-12-1974).
10. Secondly that the Khasra Girdawari from the year 1948 to 1952 established that the disputed property was a Banjar Qadeem , was so potential building site.
11. On the other hand the learned counsel for the respondent supported the impugned decision. A preliminary objection was taken that the petitioner has come to Court with unclean hands and with tortious conduct and the petition merited to be dismissed on this ground alone. Following circumstances were pointed out to suggest that the conduct of the petitioner was tainted with unclean hands: (a)That the petitioner has appended with the petition copy of Khasra Girdawari, which was forged and procured in collusion with the Patwari in 1976. The matter was reported to Collector, who vide an order dated 6-11-1976 held that the entries in Khasra Girdawari were the outcome of manipulative conduct of the Patwari.
(b)That Khalil Ahmad had made a misrepresentation to Settlement Authorities to the effect that the disputed property was a vacant evacuee plot and fell within the Limits of Town Committee Daska. As a matter of fact the disputed property was part of agricultural land allotted to respondent No.2 and was outside the Municipal Limits.
(c)That the same question was agitated before the Deputy Settlement Commissioner under Section 10/11 of the Displaced Persons Land Settlement Act (XLVII of 1958) to obviate the proceedings pending adjudication before the Court of learned Rent Controller. The Deputy Settlement Commissioner had come to the conclusion that the property in dispute was outside the Municipal Limits and was allotted to respondent in 1953.
12. 1 have carefully considered the arguments of the parties and have perused the record. I proceed to determine the respective contentions in seriatem.
13. The contention of the learned counsel for the petitioner that the property in dispute was a potential building site at the time of transfer in his favour in 1965 is completely without force.
Neither the petitioner placed special Jamabandi before the Settlement Authorities nor placed it on the record of this petition. In order to determine the nature of the property it is the use of the property at the time of partition, which is to be looked into.
14. The Displaced Persons (Land Settlement) Act, 1958 was enforced on 23-9-1958 with object to provide for the permanent settlement of displaced persons on land in order to compensate them for losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and for matters incidental thereto or connected therewith.
15. The land forming the subject-matter of operation under this Act was defined in sub-clause (i.e) of Section 2 ibid, which reads as follows:- "Land" means evacuee property consisting of land held for agricultural purposes or for purposes subservient to, agriculture or for pasture, including gardens, unsurveyed land and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land, but does not include:- (a)'property as defined in Sub-clause (b) of Clause (2) of Section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956) or in Sub-Clause (d) thereof, or (b)such evacuee land as may be declared by the Chief Settlement Commissioner as a building site.
16. On 26-3-1958 Displaced Persons (Compensation and Rehabilitation) Act XXVITI of 1958 was enforced to provide for the payment of compensation to certain displaced persons for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and the rehabilitation of others and for matters incidental thereto or connected therewith. Under Sections 3 and 4 a compensation pool was constituted except agricultural land to carry out the purpose of the Act.
1'7. From the plain reference to these Acts, it becomes clear that the agricultural land was to be dealt with under the provisions of Displaced Persons (Land Settlement) Act (XLVII of 1958) and the other property within the limits of Urban Areas was to be dealt with under the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958).
18. From the survey of the relevant law it is clear that the nature of the property had to be determined from the use the property was subject to at the g time of partition by reference to special Jamabandi relating to the year 1947. This proposition had come under examination in Muhammad Hussain v. Chief Settlement & Rehabilitation Commissioner and another (PLD 1966 Lahore 204), wherein it was held that the nature of the property was to be determined with reference to its use in the context of special Jamabandi relating to the year 1947.
(19). The same principle was re-examined in Nafeesa Bano and others v. Chief Settlement Commissioner and another (P L' D 1969 Lahore 480), in which his Lordship Mr. Justice Muhammad Akram while speaking for the bench observed as follows: "From all these different provisions, it follows that nature of the evacuee property has to be ascertained with reference to the conditions prevailing at the time of partition of the subcontinent, on 15-8-1947. The test laid down in section 2 (3) of the Displaced Persons (Land Settlement)
Act,1958 and in Part I, Chapter I, Para. 1 (i) of the West Pakistan Rehabilitation Settlement Scheme, 1956, is the use to which the land was being put at the time on 15-8-1947.
20.The same principle was highlighted in M. Muzaffar-ud-Din Industries Ltd. v.Chief Settlement and Rehabilitation Commissioner Lahore and another k(PLD 1967 Lahore 452).
21. The ratio emerging from the aforesaid analysis of applicable law and the authorities cited above, is that the yardstick for determining the nature of "land" is the direct purpose for which the property was put by the owner at the time of partition. The land does not cease to be agricultural merely because before the relevant time it was not bearing any crop. Agricultural lands are often allowed to remain fallow in the ordinary course of agriculture. Conversely a plot of land assessed to land revenue is not the land for the purpose of settlement under the ' Land Settlement Act unless it is proved that it was occupied or let for agricultural purposes or for purposes subservient to agriculture and this exercise can be done in the context of entries made in special Jamabandi and relevant revenue papers relating to partition.
22. Applying these principles to the facts of the case it is quite clear that the petitioner was born on 12-6-1942; that he was admitted in school in class 6th in the year 1953. The copies of Khasra Girdawry which arc Exhs, R-9, R-10 and R-11 conclusively demonstrate that the petitioner was not in possession of the plot in dispute upto 1950. The Khasra Girdawari annexed by the petitioners has been found to be a document containing forged entries, therefore, is of no help to the case of the petitioner. The disputed property is included in the allotment of respondent. Therefore, I have no hesitation in coming to the conclusion that the property in dispute formed the part of allotment made in favour of respondent in the year 1953.
23. There is yet another circumstance of dicisive significance. The property in dispute was not included within the limits of Urban Area in 1947. It is clear that the property in dispute was included in the year 1957 in the limits of Municipal Committee, Daska. This circumstance is very clear from the order of the learned Additional Settlement Commissioner who dismissed the application under Section 10/11 of the Displaced Persons (Land Settlement) Act, 1958, filed by the petitioner dated 20- 12-1963. The learned Additional Settlement Commissioner gave a categorical observation that the property in dispute was agricultural in nature, was outside urban area and was part of allotment in favour of respondent. The said order was. Not questioned by the petitioner before any higher forum and has attained finality.
24. The last contention of the petitioner, that he raised construction, is hardly tenable and is contrary to the record. The authorities cited by the learned counsel for the petitioner proceed on distinguishable facts and are not applicable to the peculiar facts of this case.25. The ratio in Malik Ahmad Din case is of no help to the petitioner because in this case the property in dispute.. Was situated within the Municipal limits of Jhelum and was used at the time of partition for commercial purposes.
26. In the light of aforesaid analysis of law and facts, I have come to the conclusion that the order of the Deputy Settlement Commissioner is not open to any exception. The petition even merits to fail on account of unclean conduct of the petitioner as well. Accordingly I find no merit in this petition, which is dismissed with costs.