1987 PLP 1571 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave against the judgment of the Lahore High Court, dated 25‑2‑1975, whereby the constitutional petition filed by the appellants was dismissed.

2. The facts are that land, measuring 7 kanals 12 marlas bearing Khasra No.2601, situate within Tehsil and District Gujranwala, alongwith some other land was allotted jointly in the name of the appellants and one Fazal Elahi on the 27th of October, 1960. ~On partition of the joint land, Khasra No. 2601 exclusively fell to the share of the appellants. Appellant No.1 was given 4 kanals while appellants 2 to 7 got 3 kanals 12 marlas. The land in other Khasra numbers fell to the share of Fazal Elahi. The partition mutation was sanctioned on 1‑6‑1966. The land bearing Khasra No.2601 stands in the Jamabandi for the years 1946‑47 as "well irrigated garden" to the extent of 6 kanals 12 marlas and 1 kanal "ghair mumkin ihata". The Settlement authorities considered the four kacha rooms as being constructed on 1 kanal in Khasra No. 2601 as urban residential property and transferred it through open auction in favour of respondents 2 and

3. The Deputy Settlement Commissioner (Urban), Gujranwala, submitted a report on 23‑5‑1970 to the Settlement Commissioner (Policy) observing that the whole property measuring 6 kanals 12 marlas was urban property being situated within the limits of Gujranwala Town and as such could not have been transferred under the Displaced Persons (Land Settlement) Act. He recommended that the transfer made in the name of the appellants be cancelled and the property disposed of through public auction. The Settlement Commissioner (Policy), in turn, forwarded the same to the Settlement Commissioner (Land), Punjab, who, after examining the case, upheld the allotment to the extent of 6 kanals 12 marlas in the name of the appellants and cancelled the allotment in respect of 1 kanal as it was recorded as "ghair mumkin ihata" having four rooms/quarters on it. He further observed that these quarters be transferred to the persons in occupation. This order was challenged by the appellants in the High Court but the same was dismissed on 25‑2‑1975.

3. Leave was granted in this case to consider whether the "Ahata Chahi" is subservient to agriculture and if so, it being partly a garden could be disposed of as urban property under the Displaced Persons (Compensation and Rehabilitation) Act of 1958.

4. We have heard the learned counsel for the appellants. The dispute in this appeal pertains to land measuring 16 marlas only which is described as "ghair mumkin ahata chahi". This was allotted to the appellants in 1960 under the Displaced Persons (Land Settlement) Act. The appellants do not dispute the transfer of the constructed portions to their occupants. Their contention that the garden was allotted to them by the Settlement authorities on the land side on 27‑10‑1960 and no appeal or revision having been filed against the said order, the same has attained finality, has force in it and this appeal can succeed on this score alone. Even otherwise obviously the disputed portion (16 marlas) "Ahata Chahi" is subservient to agricultural land in that the land allotted to the appellants is irrigated through the well. Further, since there is no contestant from the other side, we accept this appeal but with no order as to costs. S.Q. /A‑78/S Appeal accepted