1. 1 ORDER NASIM HASAN SHAH, J: --The case of the petitioner is that he is a displaced person from Jullundur, East Punjab (India), where he had abandoned inter alia urban agricultural property. He filed a claim for the land abandoned by him, which was verified in due course of time and the land measuring 9 kanals 19 marlas and comprised in Khasra Nos. 889, 890, 892, 893 and 896 of village Taraf Sidhoo Sam was confirmed to him at Khata No.16, RL-II, on 18-3-1965. This land prior to its confirmation to the petitioner had been under his temporary allotment with effect from 20-2-1959.
2. Against the allotment made to the petitioner, no appeal or revision had been filed by any person within the prescribed period and the same, therefore, became final in law, and vested absolutely in the petitioner.
3. According to the petitioner, the contesting respondents on 21-2-1966, filed a belated appeal in the Court of the Settlement C9nlmissioner (Land), Multan against the above allotment. The case of the contesting respondents in this appeal, in brief, was that Ehasra Numbers allotted to the petitioner fell within the boundary wall of House No. 3608, transferred to them; that the land comprised in these Khasra numbers was not agricultural, but residential in nature and that the Settlement Department had auctioned them as such after dividing them into plots. It was averred that they filed a Constitutional Petition (Writ Petition No.847/R of 1963) in the Lahore High Court, against the above action of the Settlement Department. This petition was admitted to hearing, and an order directing maintenance of status quo passed on 10-4-1963. The order of allotment dated 18-3-1965, in favour of the petitioner, according to the contesting respondents, was ab initio void. However, it may be mentioned that when this appeal came up for hearing on 12-8-1967, neither the appellant nor her counsel appeared and the same, therefore, was dismissed for non-prosecution.
4. In the meanwhile, Writ Petition No.847/R of 1963 had been disposed of by order of the Lahore High Court dated 8-12-1966. The petitioner was impleaded as respondent to this writ petition at his own request. This writ petition was disposed of on the basis of the joint statement made by the learned counsel appearing in the case agreeing to the remand of the case of decision afresh according to law after giving a proper hearing to the petitioner concerned. This was by judgment of a learned Single Judge of the Lahore High Court dated 8-12-1966.
5. On remand, the case was taken up by the Settlement and Rehabilitation Commissioner, Multan and Bahawalpur Divisions, on 5-8-1971. Hey in his turn, remanded the case with regard to the measurement of the area attached to Bungalow No.3608 and the entitlement of the transfer to the excess/area to the Deputy Settlement Commissioner, for making a decision afresh. With regard to the controversy regarding the agricultural land allotted to the petitioner, it was observed:- "On behalf of the respondent Tufail Muhammad, it has been stated that the agricultural land comprising Khasra Nos.889 and 892, cannot form subject-matter of transfer by the Settlement Authorities under the provisions of the Displaced Persons Act, 1958, as it stands permanently confirmed in his name and the petitioner already lost her case before the Settlement Commissioner (Lands). I have no hesitation in holding that the allotment of the agricultural land made in favour of Tufail Muhammad has become final and&r the Land Settlement Act and, therefore, any part of it could neither be transferred nor auctioned under the provisions of the Act.
6. The real dispute lies between Mst.Rukeya and the auction-purchasers of plots Nos.1 to 4 namely, Muhammad Zaka-ud-Din, Muhammad Abdullah and Mst.Rabia Begum".
7. The case of the petitioner is that the Settlement Commissioner, in his order dated 5-8-1971, having held that these Khasra Nos. Could not be auctioned as plots because their allotment as agricultural land to the petitioner became final qua the auction-purchasers and the Auction- purchasers not having challenged this order in any further proceedings, these Khasra Nos. Cannot form -the subject-matter of transfer by the Settlement Authorities.
8. While the case with regard to the demarcation of the area covering the Bungalow as remanded by the Settlement Commissioner, by order dated 5-8--1971, was still pending disposal, the contesting respondents, challenged the order of the Settlement Commissioner dated 5-8-1971 through a Constitutional petition (Writ Petition No.53-R of 1972) in the Lahore High-Court mainly to question the above finding of the Settlement Commissioner. By the impugned order of the High Court dated 6-4-1986, the case has once again be remanded to the Member, Board of Revenue (S & R)/CSC for entrustment to the Notified Officer, for deciding the same afresh in accordance with the earlier remand order dated 8-12-1966. Hence this petition for leave to appeal.
9. In support of this petition for leave it is inter alia submitted that plots 5, 6 and 7 were constituted from the land comprised in Khasra Nos.889 and 892. These plots were purchased by respondents Nos.17, 18 and 19. None of those respondents has challenged the order of the Settlement Commissioner dated 5-8-1971. This order, therefore, qua the auction-purchaser had become final.
10. In these circumstances, the allotment of these Khasra Numbers to the petitioner was no more under challenge. The learned Judge in the High Court, it was submitted, has not appreciated this aspect of the matter, while holding that these plots could not be excluded during the demarcation proceedings.
11. In support of his submission the learned counsel has pointed out that the term "Land" is a term of art which has been defined in Section 2(3) of the Displaced Persons (Land Settlement) Act, 1958 to mean evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including garden, unsurveyed land and trees or building and structure standing thereon. Under Para 19 of the Scheme while allotting land to the claimants classification of evacuee land as gown in the Special Jamabandi had to be kept in view and subsequent variation in the classification of soil was to be ignored. Since in the instant case, it was established beyond doubt that the classification of the two khasra numbers according to the Special Jamabandi for the year 1945-46 was Chahi Nehri; therefore the question of treating this land as a building site did not arise.
12. Security Rs.10,000.
13. The appeal shall be made ready on the present record with liberty to the parties to add-further documents, if any, and put up for hearing on a. Very early date.
14. Demarcation proceedings may be continued but will not be given effect during the pendency of the appeal.