P L D 1957 (W (PLP)

MUNSHI, J.

Abdul Jabbar, uncle of respondent No. 3, on coming to Pakistan after partition, obtained possession of tenement No. G/3 in the building bearing No. S. B. 6/38, situated in Clarke Street, Karachi, from one Dayalal in the year 1947. Sometime after getting into possession, he went to Bharat to settle his affairs, leaving respondent No. 3 in occupa tion of the premises. The latter remained in possession till 8th November 1955, when the Rehabilitation Commissioner allotted its front portion to the petitioner. Against this order of allotment, respondent (No. 3 filed a revision application under section 13-A. of the Pakistan Rehabilitation Ordinance XIX of 1949, before the Additional Custodian (Judicial), who, by his order dated 22nd December 1955, cancelled the order of allot ment and maintained the possession of respondent No.

3. It is against this order that the present petition has been filed. The grounds on which the petition is based are practically the same on which the Rehabilitation Commissioner had based his order, 'namely (1) that the respondent No. 3 is an unauthorised occupant, (2) that he is unsuitable person as (a) he has converted the premises from commercial into residential one (b) he has rented out the same shop to' others (c) the shop being essentially a commercial premises, could not be allotted to him as he is a Government servant (d) the portion allotted is in excess of the requirements of respondent No.

3. Against this petition the respondent No. 3 has filed a counter-affidavit refuting the allegations of the petitioner. He has stated that the shop in dispute is as held by the Custo dian (Akhtar Hussain), an undivided property belonging to two Hindus Mulji Khatau and Lalji Khatau of whom the former is non-evacuee, and the latter an evacuee. He has further stated that Dayalal who was the occupant of the dis puted premises, had sold his movables to his uncle Abdul Jabbar and surrendered the premises before he left for Bharat. He has stated that Abdul Jabbar then went to Bharat to wind up his affairs, and that in his absence he was safeguarding his interest. He has further stated that the said property was wrongly declared by the Assistant Custodian as evacuee, and that that order of the Assistant Custodian was thereafter superseded by the Custodian's order dated 6th March 1951, which was final and hence the Rehabilitation Commissioner had no jurisdiction to interfere with it. He denies that he is an unauthorised occupant as he says he had been regularly paying rent to Mulji Khatau who had been appointed by the Custodian as Manager for the entire property on 6th March 1951, and that after he ceased to be Manager, he has been pay ing rent to the Custodian. He states that his wife carries on tailoring and embroidery work in the shop during the day while in the night they have been using it for residential purposes as his family consists of as many as 7 members. He denies the allegation that he has sublet the premises to anyone. We have heard the learned counsel on behalf of the peti tioner and the respondents at length. In my opinion the petitioner has completely failed to make out any case for the exercise of the extraordinary, jurisdiction by this Court. The order of the Additional Custodian is neither without nor in excess of jurisdiction nor is there any error of law apparent on the face of the record which can be said to have vitiated his order. In my view the Additional Custodian was perfectly justified in cancelling the order of the Rehabilitation Commis sioner by which he had allotted the premises to the petitioner. He has dealt with each one of the grounds on which the order of the Rehabilitation Commissioner was based and he finally came to the conclusion that there was no substance in any of them. Moreover, the point raised before the Additional Custodian involved appreciation of facts, and this Court has no jurisdiction to interfere with the conclusion arrived at by him on these facts. It is not denied that the shop in question is an undivided property of Mulji and Lalji, and it is also not denied that after Lalji was declared evacuee, the Custodian appointed Mulji as the Manager of the entire property. It is also not denied that respondent No. 3 paid rent to Mulji as long as he managed the property, and thereafter to the Custodian. It is obvious that the property jointly owned by MaIji and Lalji, not having been divided, it could not be said which part was available for allotment, for only that part could be available for allot ment which would fall to the share of the evacuee. The Rehabilitation Commissioner, by his order, has allotted not only the share of Lalji but also of Mulji who was admittedly a non-evacuee. This he obviously had no jurisdiction to do. The Additional Custodian was therefore right in setting aside the order, for so long as the property remained undivided, no part of it much less the whole, could be said to have vested in the Custodian. Besides, the Rehabilitation Commissioner can allot only that property which has been declared or treated by the Custodian as evacuee property. The property in dis pute has admittedly not been declared as evacuee property. He was therefore not competent to pass orders of allotment in respect of it, for the jurisdiction of the Rehabilitation Com missioner comes in only after the property has been declare3 or treated as evacuee property. As regards the allegation of unsuitability of respondent No. 3 the answer is that since respondent No. 3 was not an allottee of an evacuee property, the Rehabilitation Commis sioner had no jurisdiction to go into the question of his Suit ability or otherwise. Similarly since the property had not been declared an evacuee property, it was not for the Rehabilitation Commis sioner to decide whether the respondent No. 3 was authorised or unauthorised occupant, for the Rehabilitation authorities are merely concerned with evacuee property and with no other. Mr. Jafri for respondent No. 3 contended that in fact his client could not be described as an unauthorised person, for even Mulji who had been appointed by the Custodian to act as Manager had permitted him to remain in possession and had in fact accepted rent from him, and that after Mulji ceased to be the Manager, the Custodian accepted rent from him and thus recognised him as an authorised occupant. But, as said above, all these are questions of fact with which this Court has no jurisdiction to deal, It was also argued that the Additional Custodian was right in deciding that the Rehabili tation Commissioner was wrong in holding that the disputed premises was in excess of the requirements of respondent No.

3. In my view, even if the premises was in excess of his requirements that fact furnished no valid ground for his ejectment as there is no law authorising the Rehabilitation Commissioner to deprive a person of possession on this ground. The Additional Custodian has therefore acted within his jurisdiction to set aside the order on that ground also. The learned counsel for the petitioner finding it difficult to meet the reasoning of the Additional Custodian that the premises not having been divided, it was not available for allotment, argued in the alternative that if the premises in dis pute is not held to be an evacuee property, at least the tenancy right to the premises was of an evacuee namely of Dayalal, and therefore available for allotment. As this was a new point neither raised in the application for allotment nor even in this petition, it having been mentioned for the first time in the course of arguments, the learned counsel for the respondents strongly protested and urged that the learned counsel for the petitioner should not be allowed to go beyond the pleadings. In my opinion, there is considerable force in this contention and it must be upheld. It is obvious that this point that the tenancy right of an evacuee had been allotted, was neither raised in the application for allotment nor in this petition. The fact that there is no reference to this point either in the order of the Rehabilitation Commissioner or in that of the Additional Custodian raised a strong presumption that the point was not raised even before them. The petitioner cannot be allowed to go beyond his pleadings and spring a surprise on the other side. This is so far as the legal aspect of it is concerned, but even on facts this point has no basis, for Dayalal was at no time declared or treated as an evacuee nor his tenancy right as evacuee property. It is therefore obvious that the Additional Custodian has neither acted without nor in excess of jurisdiction nor has the learned counsel for the petitioner pointed out anything to show that the order is vitiated by an error apparent on the face of it. For all these reasons I would dismiss the petition. MUHAMMAD BAKHSH, J.

I regret to differ. In my opinion the petition should be allowed because there is a clear error of law apparent on the face of the record, and also because there has been a failure on the part of the learned Additional Custodian (Judicial) to exercise his jurisdiction. These can be no doubt that the property rights in the building on the plot in suit are half evacuee property and half non-evacuee property. Mulji and Lalji are the owners of this building and while Lalji migrated to India Mulji remained here. In this case we are concerned with two tenements of this building viz. G-3 and G-6. G-6 is in the possession of respon dent No. 3. while the Rehabilitation Commissioner allotted the front room of G-3 to the petitioner. There can be no doubt also that one Dayal was the original lessee of both these tenements dent G-3 and G-6. He left for India and became an evacuee. It can never be disputed even for a minute that the tenancy rights in G-3 and G-6 are evacuee property. The learned Additional Custodian (Judicial) has not at all applied his mind to this aspect of the case. Abdul Jabbar the uncle of respon dent No. 3 purchased Dayal's tenancy rights along with the stock-in-trade for Rs. 3,000 and he took over the possession of both these tenements. He never applied to the Custodian for confirmation of this transaction under section 16 of the Evacuee Property Ordinance. Having taken over possession of the said premises, Abdul Jabbar also left for India and has never returned thereafter. Respondent No. 3 quietly occupied the said premises without getting any allotment order in his favour. He was claiming to occupy the premises on behalf of his uncle. Abdul Jabbar. The petitioner and one Muhammad ullah then applied to the Rehabilitation Commissioner for allot ment of the front portion of G-3. The learned Rehabilitation Commissioner considered the cases of the two applicants and respondent No. 3 on merits and he allotted the front portion of G-3 to the present petitioner. It also cannot be denied that this front portion is intended for commercial purposes and the respondent No. 3, who is a Government servant, has con verted it into residential premises., The pertinent portion of the order of the learned Additional Custodian, which shows a clear' error of law on the very face of it, runs as follows: "Tenement No. G/3 is owned jointly by two real brothers Mulji Khatau who is not. an evacuee, and Lalji Khatau who is an evacuee in equal shares. On 6th March 1951, Mr. Akbar Hussain, Custodian held that Mulji Khatau being not an evacuee he is entitled to the management of the entire property, only half share of the property being evacuee property. Accordingly he was appointed manager of his brother's half evacuee undivided share in premises No. G/3. In view of this order the position is that every inch of tenement No. G/3 is owned jointly by a non-evacuee and evacuee in equal shares and that in the absence of a parti tion it is impossible to say which half portion of the disputed shop is owned by Mulji Khatau non-evacuee and which portion is owned by Lalji Khatau evacuee. It is also clear that it is only the half share of Lalji Khatau evacuee which can be allotted. As long as there has been no partition and separation of the evacuee half share from the non-evacuee half share it is impossible to allot any specific portion of the disputed shop because Mulji Khatau non-evacuee has a right to say that his undivided half non-evacuee share cannot be allotted by the Rehabilitation Authority. In short, the position is that Akhtar Hussain cannot be ejected from the disputed shop or any specific portion thereof nor can it be allotted to any person until there has been a partition demarcating the evacuee's half share from the non-evacuee half share". The learned Additional Custodian fell into grave error of law when he did not even consider that the tenancy rights in the whole building were evacuee property and that there was no question of the allotment of the proprietary rights in the said building to anybody. In fact, the ownership of no evacuee property has yet been permanently allotted to anybody and the scheme is yet underway. What the learned Rehabilitation Commissioner allotted to the petitioner was also the evacuee tenancy rights and not the proprietary rights. This is a very serious error of law on the very face of the record which must vitiate the order passed by the learned Additional Custodian. It has been said that since the property had not been declared evacuee property, there was nothing for the Rehabilitation Commissioner to allot to anybody or even to consider the question whether respondent No. 3 was a suitable person or otherwise. There is no provision in the whole Evacuee Property Ordinance for declaring a property to be evacuee property. Evacuee property is defined in section 2(3) and if any property comes within the four corners of this definition it is to be treated as evacuee property, and then the Rehabilitation Authorities can allot the same to a suitable person. Evacuee property has been defined, among other things to mean any property in which an evacuee has any right or interest, personally or as a trustee or beneficiary or any other capacity and includes the property of an evacuee obtained by transfer on or after the first day of March 1947 until the transfer is confirmed by the Custodian. The tenancy rights of Dayalal fall clearly within the definition of "evacuee property", and when an application was made to the Rehabilitation Commissioner by two applicants for allotment of these tenancy rights, the Rehabilitation Commis sioner was fully justified in dealing with the matter. The learned Additional Cuktodian fell into a grave error, I would not like to say wilfully, of completely ignoring the tenancy rights in the two tenements and thinking in terms of property rights alone. The learned Additional Custodian admitted in his order that respondent No. 3 was an unautho rised occupant in the disputed premises but he said that it was against the policy of the Central Government to eject refugees who have remained in occupation of evacuee properties for a long period. The difficulty was that if he were to eject respondent No. 3, it would create a great problem for the Central Government. The learned Additional Custodian also admitted in his order that respond ent No. 3 could not be ejected on the ground that he had converted commercial premises into residential premises. In my opinion this conclusion is not correct because respondent No. 3 by doing this has certainly rendered himself an unsuitable person. Respondent No. 3 is a Government servant and if he commits a breach of the conduct rules he further becomes an unsuitable tenant. It was argued before the learned Additional Custodian that respondent No. 3 was under orders of transfer to Rawalpindi. On this the advocate informed the Additional Custodian that respondent No. 3 did not propose to leave Karachi under any circumstances. I think the whole order of the learned Additional Custodian is a sort of special pleading for respondent No.

3. It has been argued that the question regarding the tenancy rights was a surprise sprung on the respondent No. 3 at the time of arguments and for that he was not prepared. I do not think there is any substance whatsoever in this argument. Para 5 of the amended writ petition clearly mentions the fact that Dayalal, the original lessee of G/3 and G/6, was an evacuee and from him Abdul Jabbar the uncle of respondent No. 3 had purchased the premises and the stock-in-trade for Rs. 3,

000. In his counter affidavit respondent No. 3 stated as follows with regard to Para 5 of the amended writ petition :- "As regards Para 5 of the writ petition it is submitted that the former occupant Dayalal had surrendered the disputed premises before he became an' evacuee. He had also sold his movables for a consideration of Rs. 3,000 to the objector's uncle Abdul Jabbar. Abdul Jabbar is stranded in India in connection with the winding up of his large business there. The objector had been safe-guarding his uncle Abdul Jabbar's interest as referred to in the order of Assistant Custodian passed on 12th September 19.51 marked 'D'. The said property was wrongly treated as evacuee property on 3rd March 1951 which order was superseded by the Custodian's order dated 6th March 1951 marked 'B'. Not only this, but if we look into the order dated 5th November 1949 passed by the Assistant Custodian (Hibatullah) he states as follows: "No application under section 16 of the present Ordinance seems to have been made by the objector for confirmation of the purchase from the Hindu Dayalal, but in view of this and the long absence of the objector in India, the property of the objector purchased by him under Exh. A, falls under the definition of evacuee property." It is crystal clear that all along it was the tenancy rights of Dayalal that were being talked of. At no time was it ever alleged that the proprietary rights of Lalji or Mulji bad ever been purchased by anybody. There is no validity therefore in the argument of the learned advocate for respond ent No. 3 that the question of tenancy rights had been sprung upon him by surprise. In fact, there can be no possible answer to the allegation that the tenancy rights of Dayalal in the two tenements G-3 and G-6 are evacuee property and the Rehabilitation Commissioner was fully justified in allotting them. The learned Additional Custodian has not cared to consider this aspect of the case and he has decided the whole matter by reference to the proprietary rights. This is an error apparent on the face of the record which has unfortuna tely resulted in the failure of the Additional Custodian to exercise the jurisdiction vested in him by law. In these circumstances the writ petition must be allowed and respondent No. 3 must bear the costs of the petitioner. Respondents 1 and 2 bear their own costs. WAHIDUDDIN AHMED. J.

By consent the order of Mr. Riazuddin dated 22th. December 1955 is quashed. He, or in his absence the authority exercising power under Section 13A of Rehabilitation Ordinance 1948 is directed to rehear the two revision petitions on the assumption that Abdul Jabbar was an evacuee and his tenancy right in the property in dispute were subject to allotment by Rehabilitation Authorities. Parties to bear their own costs. A. H. Petition allowed.