1981 PLP 1209 (SCMR)

S. 12 & 25(2)(w) - Declaration as evacuee property Person claiming for declaration as to entire property being not evacuee property but succeeding in getting declaration as to only a portion of such property being non-evacuee property, remaining property, held, by implication treated as evacuee property. Hakam Quresh, Advocate Supreme Court with Rana Maqbool Ahmad. Qadri, Advocate-on-Record for Petitioner. Nemo for Respondents. Date of hearing: 13th October 1981. M. S. H. QURESHI, J.-This is a petition for leave to appeal from the judgment dated 6-8-1979 of a Division Bench of the Lahore High Court whereby the petitioners' Writ Petition No. 802-R of 1979 was dismissed in limine. 2.The writ petition had been filed to challenge the order of the Custodian dated 30-6-1979 whereby he maintained the order passed by the Deputy Custodian dated 5-3-1976 to the effect that only 7/70 share in the disputed land situate in village Jaboke, Tahsil Okara, District Sahiwal, was non-evacuee and the rest evacuee property. The Deputy Custodian had passed the order on an application made before him on 17-4-1974 by Muhammad Ismail, etc. respondents under section 12 read with sec tion 25(2)(w) of the Pakistan (Administration of Evacuee Property) Act, 1957, urging that by virtue of a declaration made by the then Deputy Custodian on 7-2-1949 the petitioners were owners only of 7/70 share in the property but had been in possession of the entire land and as such the respective shares should be partitioned. The petitioners' case was that the disputed land which had originally belonged to Sardar Bahadur Singh had been during his lifetime given to his son Ghulam Rasool, the predecessor-in-interest of the petitioners, who remained in possession of the area from 25 years before the Partition, which fact was evidenced by Mutation No. 147 sanctioned on 14-11-1957. They also disputed the jurisdiction of the Custodian authorities in the matter on the ground that the property had never been treated as evacuee property on or before 1st of January, 1957. The Deputy Custodian found that the said Ghulam Rasool had himself made an application under section 8 of Act VII of 1948 (The West Punjab Protection of Evacuee Property Act) claiming that the area measuring 5163 kanals situate in village Jahoke was not evacuee property and that on this application, the then Deputy Custodian had granted a declaration on 7-2-1949 to the effect that only 7/70 share of the property, belonging to Ghulam Rasool, was not evasive property. He further held that the disputed land had remained in possession of the petitioners as hidden property and that the mutation dated 14-11-1957 had been recorded without evidence and as such was of no legal effect. On the basis of this material, which had been accepted by the learned Custodian also, the High Court had no difficulty in rejecting the two contentions raised before it, that is, (i) the property in dispute bad never been treated as evacuee property before 1-1-1957 and (ii) the vendees among the petitioners being bona-fide purchasers were protected under section 41 of the Transfer of Property Act. 3. In the petition before us the same contentions have again been raised, which obviously have little weight in view of the declaration having actually been granted by the Deputy Custodian on 7-2-1949, copy of which can be seen at page 47 of the paper-book. Learned counsel, however, raises a new point that the Custodian authorities could only declare as to what property was non-evacuee but had no jurisdiction to grant a declaration about the rest of the property and that, therefore, the Deputy Custodian was wrong in holding that the share of the property other than 7/70 was evacuee. The contention must be rejected for the simple reason that it had not been raised in such precise term any time before. Even Otherwise the contention has no merit because when Ghulam Rasool he claimed that the entire property measuring 5163 Kanals was not even Property but bad succeeded in getting a declaration that only 7/70 share of the property was non-evacuee, the remaining property was by implication treated as evacuee. The declaration had acquired finality qua Ghul Rasool and it is no longer open to his successors-in-interest to question it, 4. The petition is dismissed. Petition dismissed.