1988 PLP 1108 (SCMR)

‑‑‑S.22‑‑Transfer of evacuee property‑‑Status and identification of property purchased by non‑Muslim‑respondent in 1943 and declared by custodian as non‑evacuee‑‑Appellant claiming ownership on basis of possession since 1948 and its transfer to him by Settlement authorities‑‑High Court's order allowing appellant's writ petition and remanding case to Deputy Custodian for re‑hearing of respondent's application under S.22 of Act (XII of 1957) and determining status and identification of property, set aside by a Letters PE tent Bench‑ Order impugned‑‑Question arising whether suit property had been transferred to appellant‑‑Appellant having admitted in proceedings before Civil Court and Rent Controller the ownership of the suit property vesting in respondent and having paid rent to him for more than three years without disputing relationship of landlord and tenant between himself and the respondent in respect of suit property, was not permitted to make out a new case for himself‑‑Remand order, held, was uncalled for and rightly set aside. Akhtar Mahmud, Advocate‑on‑Record for Appellant. R.A.Qureshi, Advocate‑on‑Record for Respondent No.1. Date of hearing: 14th January, 1988. ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave from the order of a learned Division Bench of the Sind High Court, dated 21‑5‑1980, passed in Letters Patent Appeal No.122 of 1971.

2. The dispute in this case relates to the status and identity of a shop bearing No.11‑A‑281, City Survey No.301, Ward 'B', situate in Shahdadpur, District Sanghar. Its ownership is claimed by Saleemuddin, the appellant, the Teoomal, respondent No.1. The case of respondent No.1 is that he did not migrate to India on partition, had purchased this property through a registered sale‑deed on 4‑11‑1943 and had been receiving the rent of the same since then. It was on 8‑1‑1954 when the predecessor‑in‑interest of the respondent received a notice from the Deputy Custodian of Evacuee Property. Nawabshah, demanding the rent of the said property. This led his predecessor to move the Deputy Custodian of Evacuee Property under section 22 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) for a declaration that the property was not an evacuee property and should be declared as such and respondent No.1 succeeded in getting this property declared as non‑evacuee on 13‑6‑1960. This declaration was subsequently confirmed by the Custodian of Evacuee Property on 19‑8‑1960.

3. On the other hand, the case of the appellant is that he was in possession of the suit property since 1948 and being a claimant applied for its transfer. After the scrutiny of his entitlement the property was transferred to him and Appendix IX was issued on 18‑2‑1960 and was followed by a PTO on 22‑6‑1960. When he came to know that respondent No.1 had obtained a declaration from the Custodian in respect of ownership of the shop, he moved the Custodian for review of his order under section 43(6) of Act XII of 1957 but the same was dismissed on 19‑11‑1960. It was on the basis of the order of Custodian that subsequently the Assistant Settlement Commissioner vide his order dated 27‑1‑1961 recalled the order of transfer in favour of the appellant. On appeal, however, the Deputy Settlement Commissioner set aside the above order on 11‑11‑1963 for the reason that the Assistant Settlement Commissioner had no jurisdiction to cancel the transfer once mace by him. Respondent No.1 then moved the Settlement Commissioner in revision which was allowed vide order dated 2‑12‑1964. The order dated 2‑12‑1964 was then challenged by the appellant in the High Court through a constitutional petition on 8‑3‑1965. In between the above periods the appellant moved the Civil Court in respect of ownership and identity of the property but failed. The ejectment proceedings initiated against the appellant are stated to be pending.

4. The writ petition came up for hearing before a learned Single Judge of the Sind High Court on 17th May, 1971, who vide his order of even date, allowed the writ petition filed by the appellant and while finding the difficulty in locating the identity of the suit property set aside the order of the Assistant Settlement Commissioner dated 27‑1‑1961 and that of the Settlement Commissioner dated 2‑12‑1964 and remanded the case to the Deputy Custodian with the direction that the application of the first respondent under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, shall be re‑heard by the Deputy Custodian to examine whether the shop claimed by respondent No.1 was the same which had been transferred to the appellant. This time the above order was made a subject‑matter of Letters Patent Appeal by respondent No.1 who succeeded in securing a favourable decision through the impugned judgment.

5. Leave in this case was granted to consider whether there was enough justification for recalling the order of remand and also to resolve the conflict of authority on and controversy about the right of hearing before the Deputy Custodian of Evacuee Property.

6. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the appellant has candidly conceded before us that he would not challenge the ownership of the first respondent qua the suit property provided it is established that this property had not been transferred to the appellant. This question has been thoroughly examined by the learned Judges of the Division Bench and they came to the conclusion that the appellant was claiming the transfer of the property which was purchased by respondent before Independence. In this respect reference was pointedly made by the learned Judges to the suit filed by the appellant in the Civil Court and the petition filed by the first respondent against the appellant under section 13 of the Rent Restriction Ordinance. In all these proceedings the subject‑matter was the shop in dispute, that is, the one purchased by respondent No.1 in 1943. In the suit filed by the appellant there was clear admission on the part of the appellant in respect of the ownership of the suit property by respondent No.

1. He had admitted that respondent No.1 was the landlord of the suit property and that he had paid rent to him for over three years. Similarly, before the Rent Controller where the appellant had been proceeded against for his ejectment, the appellant did not dispute the relationship of landlord and tenant between himself and respondent No‑1 in respect of the suit property. When the attention of the learned counsel for the appellant was invite to these clear admissions on the part of the appellant in respect of the identity of the suit property, he could not give any convincing reply. Therefore, in view of these admissions the appellant cannot be permitted to make up a new case for himself. The remand order was uncalled for and rightly set aside.

7. Thus, finding no force in his appeal the same is dismissed with no order as to costs. M.I./S‑114/S Appeal dismissed.