MUHAMMAD GUL, J.-The dispute in this leave petition concerns what was once State land measuring 223 kanals 13 marlas situate in Chak No. 8/GB, district Sheikhupura. Prior to Independence it was granted to a non-Muslim on statement of conditions issued under the Colonization of Government Lands (Punjab) Act, 1912, under which the grantee was to become occupancy tenant and ultimately proprietor in the land on making certain periodical payments.
The grantee became an evacuee and the land was re-allotted on temporary basis to incoming refugees. On 18 June 1951 Additional Naib Tehsidar made an order purporting to extinguish the rights of the evacuee grantee owing to the 'failure to deposit Zar-e-Malkyat, and for the resumption of the land. Shortly thereafter, that is to say on the 11th July 1951', the provincial Government issued a memorandum stating that it had been decided to treat the State land abandoned by non-Muslim grantees as evacuee property to be utilised for the re-settlement of refugees. In July 1952 by another memorandum the provincial Government directed all grants of State land whether or not any payment had been made for acquisition of occupancy or proprietary rights therein should be treated as evacuee property for the purposes of Rehabilitation and Settlement Scheme. As a result, the land in dispute continued to be shown in the revenue records to be in possession of the Rehabilitation Commissioner notwithstanding the order dated 18th June 1951 by the Additional Naib Tehsildar purporting to resume the land to the Government.
2. On 18th January 1963, the land was allotted under the Rehabilitation and Settlement Scheme to Mahmud Ahmad, a claimant displaced person (respondent No. 1 herein) in satisfaction of his claim.
He later sold the land to Muhammad Munshi (respondent No. 2 herein) by a registered sale-deedth dated 22nd February 1963 Manzur Hussain Shah (petitioner No. 2 herein) an allottee of portion of the land in dispute under the Ejected Tenants Scheme issued under the 1912 Act filed an appeal against the allotment in favour of respondent No. 1 on the ground that the land in dispute was State land and not evacuee land and, therefore it could not have been allotted to respondent No 1 under the Rehabilitation and Settlement Scheme. The appeal was dismissed by the Deputy Settlement Commissioner vide order dated 29th October 1963. This was followed by separate revision petition before the Additional Settlement Commissioner by each of the petitioners herein, who were allotted different portions of land in dispute under the Ejected Tenants Scheme. These revisions were dismissed by a single order on Ist February, 1964. A further revision by Manzur Hussain Shah, Petitioner No. 2, before the Settlement Com--missioner, however, succeeded. The learned Settlement Commissioner vide order dated 19th January 1965 gave effect to the order of resumption made by the Additional Naib Tehsildar on 18th June 1951 and held that the aforesaid office memoranda of July 1951 and July 1952 directing the State land to be treated as evacuee property in the relevant circumstances could not operate retrospectively so as to nullify the order of resumption dated 18th June 1951, by the Additional Naib-Tehsildar. It was further held, that the land in dispute being State land could not have been allotted to respondent No. 1 under the Rehabilitation and Settlement Scheme. As a result, allotment of the entire land in dispute under the Ejected Tenants Scheme was restored in favour of the petitioners herein.
3. Aggrieved by the above order respondents Nos. 1 and 2 moved Writ Petition No. 287/R of 1965 which was heard by the learned Single Judge of Lahore High Court who vide order dated 24th June 1971 set aside the order of the learned Settlement Commissioner and remanded the case for reference to the Custodian, Evacuee Property, under section 41 of Act XII of 1957, to determine whether in the circumstances of the case the land in dispute could be treated as evacuee property. According to the learned Single Judge, the decisions of the various Settlement Authorities, treating the land in dispute, as evacuee or as the case may be, non-evacuee, were without jurisdiction because under the aforesaid statute the Custodian had the exclusive jurisdiction to determine the evacuee character of a property.
4. Two cross appeals under the Letters Patent were filed against the order of the learned Single Judge. In the appeal by the petitioners, the plea taken was, that the land was resumed by the Naib-Tehsildar under instructions from the Collector and therefore, it had reverted to the Government before the aforesaid two office memoranda were issued and that these memoranda could not operate retrospectively to affect the status of land which has already been resumed. The plea of the respondents on the other hand was, that in the revenue records the land had throughout been shown in possession of the Rehabilitation Commissioner. This demonstrates its evacuee character. Therefore any reference to the Custodian to determine its character was otiose. The learned Judges of the Division Bench accepted the respondents' appeal and rejected that of the petitioners and held that the entries in the revenue records consistently showed the property to be in possession of the Rehabilitation Com--missioner. This amounted to its "treatment" as evacuee property prior to 1st March 1957. They further opined that the order of resumption dated, 18th June 1951 by the Naib-Tehsildar being opposed to the instructions issued by the provincial Government was ultra vires.
5. The petitioners as allottees under the Ejected Tenants scheme, seek leave for appeal against the judgment of the Letter Patent Bench. Their learned counsel repeated the argument which had earlier weighed with the learned Settlement Commissioner to treat land in dispute as non-evacuee property to sustain its allotment to the petitioners under the Ejected Tenants Scheme. It is noteworthy that both before the learned single Judge and the Letters Patent Bench, the main question debated was whether prior to 1st March 1957, the land in dispute was "treated" as evacuee property within the meaning of section 3 of Act X11 of 1957. On this short question, the learned Judges of the Division Bench in our opinion rightly came to the conclusion that entries in the successive revenue records clearly showed that the land was in possession of the Rehabilitation Commissioner which made it manifest that the land was "treated" as evacuee property throughout after the original grantee had' become an evacuee at the time of Independence. This finding is supported by the entries in the revenue record. Another significant fact in the case is that the Government had never asserted its rights as owner since the original non-Muslim grantee abandoned the land in dispute in 1947.
6. We do not find any force in this petition which is hereby dismissed.