Find a Lawyer

Civil Appeal No: 130 of 1981, decided on 6th November, 1985.

(Against the Judgment and Order, dated 3‑11‑1975 of the Lahore High Court, Lahore, in W.P. No. 26/R of 1967).

‑‑‑Art. 185(3)‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 2 (3)‑‑Leave to appeal granted to examine whether appellants were not entitled to transfer of a rural evacuee building of which they were in possession since 1951 and whether High Court had justifiably denied them relief sought for.

‑‑‑S. 2(3)‑‑Transfer of evacuee land‑‑Appellants having failed before Settlement Authorities in getting evacuee land transferred to them, approached Revenue Authorities and got mutation entry with regard to nature of land changed from "agricultural" to "building site"‑‑Order set aside in revision‑‑Constitutional petition against order refusing to give effect to this change in revenue record‑‑High Court declined to interfere with finding of fact by competent authority and also due to finality of previous adjudications against appellants‑‑Appellants, held, could by reference to Revenue Authorities, get earlier decisions nullified by having nature of land altered from "agriculture" to "building" or "building site"‑‑Order upheld in circumstances.

‑‑‑S. 2(3)‑‑Evacuee land‑‑Question as to whether land was agricultural or building site‑‑Held, it was not intention or purpose for which land was, held, that determined its character but the actual use to which it was put at time of Partition‑‑High Court's view that it was primarily a question of fact as to what use land was put at time of Partition and how it was recorded in Special Jamabandi of that period, upheld by Supreme Court.

Shaukat Hussain Rizvi v. Dr. Yar Muhammad P L D 1974 S C 276; Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others 1969 S C M R 114; Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another P L D 1969 Lah. 480 ref.

Muhammad Zainul Abidin, Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record (absent) for Appellants.

Respondent No. 9 in person.

Date of hearing: 6th November, 1985.

Leave to appeal was granted to examine whether the appellants were not entitled to the transfer of a rural evacuee building of which they were in possession since 1951 and whether the Lahore High Court has by its judgment, dated 3‑11‑1975 justifiably denied them the relief sought for.

The admitted factual position is that in the Colony Chak No. 263‑R.B. Faisalabad 14 Marlas of land Killa No. 4/1/1 in Square No. 82 was sold out by auction to one Bishan Singh on 29‑9‑1943 as a building site. The evacuee did not raise construction on the land and migrated. This land was leased out again on 30‑12‑1949 to one Sanaullah for three years for raising construction. The case of the appellants was that Sanaullah raised such a construction and sold the super‑structure to them, and they have been adding to the construction and have been continuously in possession thereof since 1951.

What happened after the Settlement Laws were enforced is actually of interest. This site alongwith the other land in the neighbourhood was allotted and settled against verified claim of Subedar Amir Khan, the predecessor‑in‑interest of the respondents 8 to 23 on 26‑6‑1962. The appeal filed by the appellants before the Deputy Settlement Commissioner against this allotment failed on 11‑7‑1963 and so did a revision petition filed by them, on 31‑8‑1963. They did not pursue the matter further.

There was, it appears, a contest between Subedar Amir Khan and other claimants of the village in respect of the priority of settlement of their claims on this land. The parties litigated in the hierarchy of the Settlement Authorities but ultimately the Settlement Commissioner in revision restored and kept intact by his order, dated 4‑5‑1970 the allotment made to Subedar Amir Khan.

The appellants had another round of litigation against respondents 8 to 23 in the settlement hierarchy ending with the revisional order on 12‑9‑1964 whereby their claim to this property was dismissed.

Yet another round of litigation started at the instance of the appellants when they moved the Assistant Collector IInd Grade to change the entry with regard to the nature of the land Killa No. 4/1/1 measuring 14 Marlas from agricultural to building site. The Assistant Collector on 5‑3‑1963 refused to do so. An appeal was preferred to the Collector who allowed it and allowed the correction to be made observing as follows:‑

"I have consulted the previous record and feel that the particulars of the Ihata indicated in the sale‑deed between the State and Bishan Singh correspond with that given in column No. 6 of the mutation appealed against. In the circumstances, I cannot quite see how the request of the appellant can be turned down. Consequently I accept the appeal, set aside the order of A . C. II, dated 5‑3‑1964 with the direction that Khasra No. 62/4/1/1 should be deemed as an evacuee Ihata Sikni and not as agricultural land."

The matter was taken to the Additional Commissioner in revision. He also had the powers of the Settlement Commissioner (Land). He reversed this order holding as follows:‑

"The learned Additional Settlement and Rehabilitation Commissioner as far back as the year 1963 had declared this disputed piece of land as an agricultural land, the respondents instead of going in for appeal or revision against this order went to the Civil Court. The Civil Judge Lyallpur by his order, dated 18‑7‑1964, rejected the plaint as it was barred by Settlement and Rehabilitation Law. The respondents approached the A.C. II Grade and got a mutation entered to the effect that the area in dispute may be declared as Sikni. The A . C .11 Grade rejected the mutation. The respondents went in appeal before the Collector who by his impugned order declared it to be Sikni land. As already stated the Collector had no jurisdiction to declare this area as Sikni because it was the job of the Settlement Authorities only. The evacuee had not built any house over the disputed area and under the Settlement and Rehabilitation Scheme or Ghair Mumkin land can also be confirmed in lieu of a verified claim. Under the circumstances the revision petition is accepted and the impugned order of the learned Collector is quashed."

It was this order i.e. the refusal of the Revenue authorities to give effect to this change in the revenue record which was made the subject‑matter of a constitutional petition. The learned Judge in the High Court after examining at great length the antecedent litigation and the results thereof held as follows:‑

"I am, therefore, inclined to agree with the learned counsel for the respondents that so far as the case of the petitioners is concerned that stood finally decided by order of the Additional Settlement and Rehabilitation Commissioner, dated 31st August, 1963, whereby their revision had been dismissed. I may further observe that there is no reference of this order in the writ petition at all, neither a copy of this order had been placed on the record. This adversely reflects on the conduct of the petitioners.

Last of all I may observe that as to whether the property in dispute is Sikni Thata or agricultural land is basically a question of fact, such a finding is a finding of fact which is to be interfered only in exceptional cases if it is proved to be in clear violation of a particular provision of the Act or the Scheme framed there under."

The constitutional petition was dismissed.

The learned counsel for the appellants contended before us that the land before its sale to the evacuee was admittedly State land. It had been sold by auction for the specific purpose of raising a building thereon. Admittedly, none was raised by the evacuee. Nevertheless, it remained a building site and did not get converted into agricultural land or land as defined in Displaced Persons (Land Settlement) Act. It was even according to the learned counsel for the appellants subsequent to Independence and vesting of the property in the Custodian that on the basis of a three years' allotment that Sanaullah raised a construction and sold the superstructure to the appellants and they have been in possession of it and under Settlement Scheme No. VII became entitled to its transfer.

The first main objection to the claim of the appellants which has been enforced by the High Court against them is the finality of the previous adjudications which took place by competent authorities in the matter. For example, there is a well‑considered order of the Additional Settlement Commissioner, dated 12‑9‑1964 wherein the specific ground was considered at great length in the following words:‑

"No doubt the documents produced by the petitioners indicate that originally the area was agricultural land uptil Rabi 1951. Afterwards it is being shown as 'Ghair Mumkin Abadi". It is a well‑known principle of law that no presumption of truth attaches to entries in the Khasra Girdawari. The petitioners have not produced any copies from the Jamabandi. Their copy of the registered deed is belied by the entries in the Zarri Jamabandi of 1945‑46 which indicates that Bishan Singh vended held the land as agricultural area which remained as 'Banjar Qadim'. It is possible in the beginning he might have purchased it for residential purposes but might have not been able to put any construction afterward. The position remained as such till Rabi 1951. Subsequently the land seems to have become the bone of contention and one Sana Ullah son of Abdullah occupied it as "Ghair Dakhilkar under some scheme. He himself might have used the land for some time for residential purposes, as a temporary measure. Later on the petitioners stepped in the shoes of Sana Ullah and claimed as the rightful occupants of the disputed land."

The appellants could not, therefore, by reference to the revenue authorities get the earlier decisions nullified by getting the nature of the land altered from 'agricultural' to a 'building' or a 'building site'. The High Court, could not have granted any such relief in proceedings arising out of the adjudication by Revenue authorities over the matter.

The appellants did not pursue their remedy against the decisions of the Settlement Authorities earlier made.

It is a settled law that under the definition of 'land' contained in section 2, subsection (3) of the Act and para. 29 of the Scheme it is not the intention or the purpose for which land is held which determines its character but its actual use and this Court has held so in the case of Shaukat Hussain Rizvi v. Dr. Yar Muhammad P L D 1974 S C 276 in the following words:‑

"Mr. Manzoor Qadir, learned counsel for the appellant, has contended that it is the intention and the purpose for which the property was kept that would determine the nature of the property. In my opinion this contention is not well‑founded. I agree with the learned counsel for the respondents that in 1946 this land was agricultural land. Out of this entire land, a major portion of the land was actively diverted to industrial use and the remaining continued to be agricultural land. The land which continued to be agricultural land is the land in dispute which has been allotted to the respondents in these two cases.

In my opinion, under the Settlement Law, the use to which the land was actually put would determine the nature of its property. This aspect of the case was considered by this Court in Abdul Jabbar v. Settlement Commissioner, Sheikhupura and others 1969 S C M R 114. It was held in that case as under:

"In the present case, the evidence was that these three rooms were from before petition being used as separate shop rooms not for any of the purposes of the flour mill. Hence it cannot be said that these rooms did not fall within the industrial concern transferred to the petitioners was in any way wrong."

In the case of Nafeesa Bano and others v. Chief Settlement Commissioner, West Pakistan, Lahore and another P L D 1969 Lah. 480, it was held as under:

"The test laid down in section 2(3) of the Displaced Persons (Land Settlement) Act, 1958, and in Part 1, Chapter 1, 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 the 15th August, 1947."

I am in agreement with these views. In my opinion, the land in dispute was being put to use at the time of partition as agricultural land and, therefore, Pir Ahsan‑ud‑Din, the Chief Settlement Commissioner was perfectly justified in holding that Mr. Hasham Raza was not competent to exclude it from the agricultural land and to transfer it to the appellant."

The High Court has taken a correct view that it is primarily a question of fact as to what use the land was put at the time of Partition and how it is recorded in the Special Jamabandi of that period. It appears that these facts were taken into consideration by the Settlement Authorities when they adjudicated upon the matter as is clear from the extracts of the order passed by the Additional Settlement Commissioner on 12‑9‑1964. Under Scheme No. VII which concerns rural buildings and transfer thereof, rural buildings have been defined as evacuee residential or business premises. In the submissions made by the learned counsel for the appellants it is not the case that the site itself was a residential premises of the evacuee. It was definitely not and, therefore, he could not, apart from every other consideration, claim its transfer as evacuee residential or business premises.

We find that this appeal has no merit. It is dismissed with costs.

M.I. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.