' SH. IJAZ NISAR, J.---This appeal with the leave of the Court is directed against the judgment of the Lahore High Court, dated 22-10-1975, passed in Writ Petition No,927-R of 1966.
2. The facts, in brief, are that Bungalow No,94-Upper Mall, Lahore, was owned by Sardar Ujjal Singh.
On his migration, on the partition of the subcontinent, it was declared an evacuee property. On the request of the Ministry of Interior, the Central Government accorded approval to its sale in favour of the Intelligence Bureau, Government of Pakistan, under section 10(b) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 "on payment of the prevailing market price" to be determined by the Chief Settlement Commissioner. In the year 1964, the Accountant-General, Pakistan Revenue, Karachi, conveyed sanction of the President for the purchase of said property comprising Khasra Nos.2059, 2060, 2061 and 2062, measuring 28 Kanals, 10 Marlas and 183 sq. Ft.
For the office accommodation of Deputy Director Intelligence, Lahore, at a cost not exceeding Rs,2,21,904.
3. Before payment of price by the Intelligence Bureau to the Settlement Authorities, they on 28-11- 1960 allotted land measuring 4 Kanals, 18 Marlas and 98 sq. Ft. Bearing Khasra No,2061 to Sikandar and Wali Muhammad, respondents Nos.1 and 2 herein. The latter applied to the Assistant Settlement and Rehabilitation Commissioner Lahore, for ejectment of Manzoor Ahmad, Superintendent, Muhammad Yasin, Clerk, Muhammad Yaqoob Sub-Inspector and Mr. Qureshi Sub- Inspector, Intelligence Bureau, Government of Pakistan, from the land allotted to them, as according to them, they were unauthoritsedly occupying it. Manzoor Ahmad etc. Contested the application and contended that the land in .Dispute was a part of the property bearing No,94- Upper Mall, Lahore, which had been transferred to the Intelligence Bureau. The Assistant Settlement Commissioner sent for a report from Tehsildar concerned. Who reported on 22-4-1963 that the land in dispute was not a part of bungalow situated at 94-Upper Mall, Lahore, and that the Intelligence Department was occupying the same without any authority. Consequently, the Assistant Settlement Commissioner (Lands) issued a notice to the Deputy Director Intelligence Department to direct Manzoor Ahmad etc. Either to vacate the land in question or to produce any proof of its allotment to the Intelligence Bureau. Manzoor Ahmad etc. In their personal capacity denied the claim of Sikandar and Wall Muhammad respondents over the land in dispute and stated that it had been acquired by the Government of Pakistan for Intelligence Department. The Assistant Settlement Commissioner (Lands) dismissed the plea raised by Manzoor Ahmad etc. And ordered their ejectment. The operative part of his order, dated 17-7-1963, reads as under:-- "I sent for the relevant file from the Chief Settlement and Rehabilitation Commissioner Office and found that the land in dispute was never transferred to the said Department, but it was another property. This point was clearly elucidated in the D.O.No,No,2389/AQN/LHR/103, dated the 14th September, 1961, issued from the office of the Chief Settlement and Rehabilitation Commissioner's office. Moreover, the respondents do not assert any claim in their own right qua the land in dispute.
Therefore, they must be non-suited on this short ground. Their plea. Therefore, fails and they have no title to remain in occupation of the land in question. The learned counsel for the respondents stressed that the present action is not contemplated by the provision of Rehabilitation Laws, as the property in question had lost its evacuee character in the event of its transfer by allotment to a displaced person. The Rehabilitation Act, 1956, together with the rules framed thereunder, is yet in force and unauthorized occupiers can be summarily ejected under section 7(2)(c) of the said Act.
In this connection there is a finding of Mr. Justice Shabbir Ahmed (PLD 1960 Lah. 203).
' Now I am left with the petitioners's claim alone. The land in dispute was duly transferred them on 28-11-1960 by a competent Rehabilitation Authority, and there has been no appeal against this order. The allotment order is on the file. This leaves no doubt that the petitioners are the transferees of the land in dispute and are entitled to be put in possession of the same. Sikandar etc., the petitioners have alienated the property in dispute to Mian Chiragh Din and Mrs. Rafi. For the purpose of disposal of these applications the alliances are impleaded as petitioner as laid down in Order I, rule 10, C.P.C.
' For the foregoing reasons I accept the petition and order the ejectment of the respondents from the land in question. Necessary ejectment order shall be issued forthwith."
4. Manzoor Ahmad etc., preferred an appeal against the said order which was dismissed by the Deputy Settlement and Rehabilitation Commissioner, Lahore, by order dated 7-3-1964, with the following observations:-- "It is proved on record and the position on the spot also so reveals that the land in dispute is not a part of the House No,94 Upper Mall, which has ben reserved for the Central Government. This fact is also admitted by the learned counsel for the appellants. From this it will, therefore, be clear that the appellants are not residing in the property in dispute as licencees of the Central Government, because the Central Government have nothing to do with this property."
5. Feeling aggrieved, Manzoor Ahmad etc. Filed a revision petition in the Court of Additional Settlement Commissioner (Lands) Lahore, who accepted the same and set aside the order passed by the Deputy Settlement and Rehabilitation Commissioner (Lands) vide order dated 29-3-1965. He observed that the premises in dispute could not be allotted to Sikandar and Wali Muhammad respondents as an agricultural land and held the order of allotment in their favour as void and without jurisdiction and further observed that no ejectment proceedings could be taken place in pursuance of a void order.
6. Sikandar and Wali Muhammad respondents challenged the said order by filing a revision petition in the Court of Settlement and Rehabilitation Commissioner, who accepted the same vide order dated 24-12-1965 and set aside the order passed by the Additional Settlement and Rehabilitation Commissioner, and restored the orders passed by the Assistant Settlement and Rehabilitation Commissioner and the Deputy Settlement Commissioner. The operative part of his order reads as under:- "Now assuming again for the sake of arguments that the allotment of premises in dispute as agricultural land was void, the question is whether the learned Additional Settlement Commissioner had the jurisdiction to hold it as such. After all even the wrong orders are to be set at naughty by one who is competent to do so and not by one who per chance happens to discover the incorrectness thereof. As I have discussed it already that the Additional Settlement Commissioner had not got the jurisdiction to adjudicate upon the matter after 28th December, 1964, therefore, it was not his province to declare the order as void. He in fact, ceased to have jurisdiction in the matter after the above quoted date. Another contention raised by the respondents during the course of arguments was that the land in question falls part of property situated at 94-Upper Mall, Lahore, which stands transferred to the Intelligence Department, Government of Pakistan, as the same has been acquired by the latter. This contention as to whether the land in question forms part of 94-Upper Mall, Lahore, or not is the question of fact pure and simple and there is a concurrent finding of fact by the two Courts below (Assistant Settlement and Rehabilitation Commissioner and Deputy Settlement and Rehabilitation Commissioner) that the disputed premises do not form part of 94-Upper Mall and are independent therefrom.
' In fact the finding of the Assistant Settlement and Rehabilitation Commissioner was based upon the report of Tehsildar who had inspected the spot and the finding of the Deputy Settlement and Rehabilitation Commissioner was based upon his personal inspection. I am clear in my mind that in the exercise of the revisional jurisdiction there is no jurisdiction for setting aside this finding of fact by the Courts below."
7. The Director Intelligence Bureau, Government of Pakistan and Manzoor Ahmad etc., challenged the order of the Settlement and Rehabilitation Commissioner, dated 24-12-1965 in the High Court by filing a Constitutional petition (W.P.No,927-R/1966). The learned Single Judge in Chambers dismissed it vide judgment dated 22-10-1975. The relevant paragraphs of the judgment of the High Court are re-produced as under:- "I have heard both the learned counsel at full length on merits. This petition could be disposed of on the legal objection of misjoinder of parties, because that is not without force. The property had been sold to the Ministry of Interior for use of sub-offices of the Intelligence Bureau. Petitioners Nos.3 to 6 as such have no personal right or interest. They did not figure anywhere in the transaction and the mere fact that they happened to be the officials of this Directorate would not give them a vested right. As such, they have no right to invoke the Constitutional jurisdiction.
' I may further observe that neither petitioner No,1 nor the rest of the petitioners ever challenged the order of confirmation in favour of the respondents, dated 28th November, 1960. All that was done was that petitioners 3 to 6 challenged that order of ejectment against them and the submission of the learned counsel for the petitioners that the confirmation in favour of the respondents was without notice to the petitioners is without any substance because petitioners 3 to 6 have failed to establish before me their right to retain the property in dispute. Petitioner No,1 did not participate in the proceedings against the co-petitioners before the Settlement Authorities. It could, thus, be safely inferred that he was not serious about Khasra No,2061 but was contended with the action taken by the Settlement Authorities. Had he been genuinely aggrieved then he would not have kept quite?
' The Assistant Settlement Commissioner in his order, dated 15th July 1963, referred to a demo- official letter, dated 14th September, 1961, alleged to have been issued from the office of the Chief Settlement Commissioner. He also examined the record and then came to the conclusion that petitioner No,1 had no right over Khasra No,2061. When the matter came before the Deputy Settlement and Rehabilitation Commissioner, he not only perused the record but also verified from the spot and then .Gave a finding that the property in dispute was not part and parcel of Bungalow No,94-Upper Mall, Lahore. Although these two orders were set aside by the Additional Settlement Commissioner but finally the Settlement Commissioner by his order, dated 24th December, 1965, restored the orders of the Assistant Settlement Commissioner and Deputy Settlement and Rehabilitation Commissioner. In my view, the Settlement Commissioner while doing so did not in any manner act without lawful authority or committed an error of law. The finding that the property in dispute did not form part and parcel of bungalow No,94-Upper Mall, Lahore, is a finding of fact and as such it is final. I, therefore, do not find any merit in this petition which is dismissed with no order as to costs."
8. The aforesaid judgment of the learned High Court was challenged by the Director Intelligence Bureau, Government of Pakistan and others in this Court. Leave was granted to determine the nature and mode of transfer of the property in dispute. The appeal came up for hearing before a Bench comprising Saad Saood Jan, J. And A.S. Salam, J. A.S. Salam, J. Expressed the opinion that the Director Intelligence Bureau and others (the appellants) had no case and the appeal filed by them merited dismissal. While, Saad Saood Jan, J. Disagreed with A.S. Salam, J and wrote a separate note accepting the appeal and declaring theorder of the Settlement Commissioner dated 24-12-1965 to be without lawful authority and of no legal effect Mr. A.S. Salam, J. Observed: "Reliance by the learned counsel for the appellant on the proposed plan for construction by Ujjal Singh Upper Mall, Lahore is of no avail. It is not a sanctioned plan. Survey of 1940-41, relief upon, rather goes against the appellants. Khasra No,2061 is shown as Banjar Qadim, a kind of land, with measurement in land, with measurement in land revenue numericals as against the measurement of the bungalow on 2062, in English numercials. In any case, there was a finding of fact based on the report of the Tehsildar, spot inspection by the Assistant Commissioner and the Deputy Settlement Commissioner that the disputed Khasra No,2061 was not a part of 94-Upper Mall, Lahore. It was affirmed by the Settlement Commissioner and the High Court has upheld it. It is hardly possible to take the controversy at this stage. Secondly, it is important to notice that it was 94-Upper Mall, Lahore which was allotted to the Director, Intelligence Bureau for office use.
' No Khasra numbers were mentioned in that order dated 17-1-1959. According to the record of Excise and Taxation the area of 94-Upper Mall is 10 Kanals and not 28 Kanals and 10 Marlas, 183 sq.
Ft. As asserted. There is no proof to this effect. No doubt, in the sanction for purchase dated 2-12- 1964 of 94-Upper Mall, Lahore, Khasras numbers including the one in dispute, i.e,, 2061, are mentioned. But this was after the order of ejectment passed by the Assistant Commissioner on 15- 7-1963 and behind the back of the allottees or their successors. Then the price sanctioned to be paid is, as shown by the learned counsel for the contesting respondents, with reference to 94- Upper Mall, Lahore over an aea of 10 Kanals only. In these circumstances it is apparent that the appellants were allotted 94-Upper Mall, Lahore and it was sanctioned to be purchased on 'market value' as would appears from the relevant memorandum dated 19-10-1959. The price sanctioned to purchase is also not in conformity with this memorandum. It is with reference to 'evaluation' basis applicable for transfer under Settlement Law and Scheme. The appellants better sort out the payment for 94-Upper Mall, Lahore ' approved' to be sold on 'market value', rather than stretch their hands on what was never in its allotment nor approved for sale."
' Saad Saood Jan, J.., disagreeing with the above reasoning observed:- "No doubt, the jamabandis relied upon by the respondents do give the impression that the Khasra in dispute was agricultural land at the time of independence, but then the same record also shows that it had remained uncultivated for a long time before independence. It will be noticed that in the site plan submitted by Sardar Ujjal Singh to the Municipal Committee the Khsara in dispute was to be the site of a lawn and a garden of the bungalow. In the circumstances if the Revenue Record described Khasra No,2061 as Nehri, the entry could not be regarded as entirely erroneous. But even then, as it was included in the bungalow it could not be regarded as agricultural land available for disposal under the Displaced Persons (Land Settlement) Act. On the other hand, it was to be treated as part of the bungalow by virtue of the definition of the word 'house' as given in section 2(4) Displaced Persons (Compensation and Rehabilitation) Act. Consequently, the order of its transfer to the respondents as agricultural land was clearly illegal.
' I am not sure if the price to be paid to the Settlement Department as mentioned in the President's Order 2-12-1964 could be regarded as evidence of the fact that the bungalow covering an area of 10 Kanals had been transferred to the Intelligence Bureau Apart from the fact that the same order expressly mentions Khasra No,2061 as included in the property being sold to the Intelligence Bureau, a garden forming part of a house could not be treated as agricultural land for the purposes of disposal under the Displaced Persons (Land Settlement) Act."
9. In the above circumstances, the appeal was placed before us.
10. It is contended by the learned counsel for the appellants that the learned High Court erred in not interfering with the finding of the Settlement Commissioner that the property in dispute i.e, Khasra No,2061 did not form part and parcel of Bungalow No,94-Upper Mall, Lahore, on the ground that being a finding of fact it was final and not liable to be interfered with in the Constitutional jurisdiction. According to the learned counsel, the learned High Court ignored that the site plan submitted by Sardar Ujjal Singh to the Municipal Committee showed Khasra number in dispute to be a site of lawn and garden of the bungalow. Further, it could not be treated as agricultural land available for disposal under the Displaced Persons (Land Settlement) Act, 1958.
11. Conversely, learned counsel for the respondents states that the Special Jamabandi for the year 1946-47 showed that the disputed Khasra No,2061 was Nehri agricultural land, that record of the Excise and Taxation Department showed that the entire area of 94-Upper Mall, Lahore, was 10 Kanals and the price paid by the Intelligence Bureau was also for that much area.
' The important question that falls for.Consideration is as to what was the nature of the land falling in Khasra No,2061. The jamabandis for the years 1941-42, 1944-45 and special jamabandi of 1946-47 shows it to be Nehri agricultural land.
For the determination of question as to whether land was agricultural or building site the important thing to be seen is its actual use to which it was put at the time of Partition and how it was recorded in the Special Jamabandi of that period. In this context Capt. Asmat Hayat Khan and others v. Yousaf Masih and others (1994 SCMR 456) may be cited wherein it was observed that for determination of the question as to whether the land in question was allotable under the provisions of Displaced Persons (Land Settlement) Act, 1958, the classification of land as entered in Special Jamabandi had to be taken into consideration. Anwar Khan and another v. Mst. Hashmate and others 1986 SCMR. 517) also enunciates this principle. In Syed Shaukat Hussain Rizvi v. K.B. Dr. Yar Muhammad Khan and others (PLD 1974 SC 276) it was held that the use to which the land is actually put determines the nature of property and the land at the time of Partition used as agricultural land could not be excluded from the agricultural land. Nafeesa Bairn and others v.
Chief Settlement Commissioner, West Pakistan, Lahore and another (PLD 1969 Lahore 480) goes a step further wherein it was observed that the land does not cease to be agricultural merely because at the relevant time it was not bearing any crop, for agriculture lands are often allowed to remain fallow in the ordinary course of agricultural. It was further held in this case that the High Court could not substitute its own judgment on questions of fact.
13. The extract from the Excise and Taxation Department shows the entire area of 94-Upper Mall, Lahore, as 10 Kanals with annual rental value of Rs,4,800. The Chief Settlement Commissioner, vide order dated 2-11-1960, determined the price of 94-Upper Mall, Lahore, as Rs,2,21,904 on that basis (see page 3-A of Paper Book Part-III). This was exactly the amount sanctioned for the purchase of the said premises as per memorandum dated 2-12-1964, from the Government of Pakistan to the Accountant-General, Pakistan Revenue, Karachi. The letter dated 11-10-1965 issued by the Office of the Chief Settlement and Rehabilitation Commissioner, Pakistan, clearly indicates that the area of property falling in Khasra No,2062 was 10 Kanals only.
' The Intelligence Bureau had deposited that much transfer price on 16-8-1965, for the land measuring 10 Kanals after the land falling in Khasra No,2061 had already been allotted to the respondents by the competent Rehabilitation Authority vide order dated 28-11-1960 which had not been challenged either by the intelligence Bureau or anyone else. It was for the first time that on 29-3-1975 the learned Additional Settlement and Rehabilitation Commissioner (Lands), Lahore, while disposing of the revision petition filed by Manzoor Ahmad etc., officials of the Intelligence Bureau, directed against their ejectment from Khasra No,2061, declared the allotment of the land in dispute in favour of the respondents to be void. How could he while dealing with ejectment matter declare the allotment in favour of the respondents to be void particularly when the Settlement Authorities had after thorough examination of the relevant record and spot inspection come to the conclusion that the land in dispute falling in Khasra No,2061 was not part of 94-Upper Mall, Lahore, and had been rightly transferred to the respondents.
14. It would not be out of place to mention that no Khasra numbers were mentioned in the order dated 17-1-1959 conveying the allotment of evacuee House No,94-Upper Mall, Lahore, to the Director Central Intelligence Bureau, Lahore. It was for the first time that in the letter dated 2-12- 1964 converying sanction of the President to the purchase of the said bungalow that Khasra numbers including the Khasra in dispute No,2061 was mentioned, and that too after the land in dispute had been duly transferred to the respondents vide order dated 28-11-1960. The price sanctioned and paid for Bungalow No,94-Upper Mall, Lahore; unambiguously shows that it was for 10 Kanals comprising Khasra No,2062 only.
' Land is defined under the Displaced Persons (Land Settlement) Act, 1958, as under-- ' 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 The Settlement Laws are very clear on the point that the agricultural lands are to be dealt with under the provisions of Displaced Persons (Land Settlement) Act, 1958, and the other property within the limits of urban areas is to be dealt with under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
' Paragraphs 29 and 42, Chapter 1, Part II, of the West Pakistan Rehabilitation Settlement Scheme, 1956, provide that the classification of evacuee land should be taken into account according to the entries in the Special Jamabandis prepared for exchange with India. According to Paragraph-42, when a piece of "culturable' land is allotted to a claimant under this Scheme, all trees and buildings standing on that land will go to the allottee concerned.
In this view of the matter, the quarters/out-houses existing on the land comprised in Khasra No,2061 would also be deemed to have been transferred to the respondents and their existence would not change the nature of the land and it would remain as agricultural land as defined by the Displaced Persons (Land Settlement) Act, 1958. Resultantly, we hold that out of the Khasras mentioned in the Memo., dated 2nd December, 1964, issued by the Government of Pakistan.
Cabinet Division (President's Secretariat), land falling in Khasra No,2061 measuring 4 Kanals, 18 Marlas and 98 sq. Ft. Had been transferred to Sikandar and other respondents, while the land falling in Khasra No,2062, measuring 10 Kanals, had been transferred to the Intelligence Bureau, Government of Pakistan (the appellants). There is absolutely no ambiguity in the transfer letters issued by the Settlement Authorities to the parties with regard to the areas allotted/transferred to them.
15. In view of the above discussion, we find no substance in the appeal and dismiss the same, leaving the parties to bear their own costs.