P L D 1969 Karachi 586 (PLP)

(a) Registration Act (XVI of 1908), S. 50 read with Sind Agri culturists Relief Act (XVII of 1879) [formerly called Dekkhan Agriculturists Relief Act, 1878], Ss. 56 & 60 and Chapter VIII--Document affecting agricultural land‑‑Neither written by, or under superintendence of village Registrar, nor attested by him‑Cannot be treated as instrument registered under Registration Act‑Such document cannot take effect against document duly registered under Registration Act‑Document compulsorily registrable, not register ed, but otherwise acted upon‑Objection as to non‑registration loses force‑Principle however, applicable to genuine instrument only

Forged instrument‑Not covered by this principle. Mst. Ghulam Sakina v. Umar Bakhsh and another P L D 1964 5 C 456 distinguished. (b) Pakistan (Administration of Evacuee Property) Act (XII of 1957), Ss. 3 & 22 and Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 3 (2)‑Person having no right or title in land or a transferee from such person‑A trespasser‑Cannot claim protection contemplated in S. 3 (1), Pakistan (Administration of Evacuee Property) Act, 1957

Case of such person covered by S. 3.2 (b)‑B, a member of Hindu joint family remaining ire Pakistan after Partition‑‑Agricultural land owned by joint family partitioned prior to Partition ‑B, however, transferring entire property, includ ing his own share, and that of other joint members who had migrated to India‑Such member and transferee from him, held, trespasser in respect of land falling to share of evacuee joint members of family‑Such land held could be declared as evacuee property even after 1‑1‑1957‑Such property, further held, as concealed evacuee property in terms of S. 3 (2), Displaced Persons (Land Settlement) Act, 1958 and as such vested in Custodian‑Settlement authorities or Custodian, competent to treat such land as evacuee property in terms of S. 22, Pakistan (Administration of Evacuee Property} Act, 1957. Syed Ali Iqtidar Shah Dara and others v. The Custodian of Evacuee Property, West Pakistan P L D 1964 Lah. 274; Abdul Ghafoor and others v. Custodian, Evacuee Property P L D 1968 Lah. 1050; Qutab Ali v. Custodian, Evacuee Property and others P L D 1964 S C 58 and Abdul Khaliq Abdul Razzaq v. Kishanchand P L D 1964 S C 74 rel. Pakistan and others v. R. S. Roopchand and others P L D 1967 S C 479 held not applicable. Haji Suleman v. Settlement Commissioner, Karachi P L D 1967 Kar. 834 distinguished. S. Wasim H. Rizvi for the Settlement Department. Sayeed A. Sh. on notice of High Court. The petitioner has invoked Article 98 of the Constitution to call in question the order dated 22‑8‑1964 made by the Deputy Collector and Deputy Settlement Commissioner (Land), Shahdadpur, by which he treated certain agricultural lands, alleged to have been purchased by the petitioner sometimes in 1949 from one Boolchand as concealed evacuee property, and ordered cancellation of entries of these lands in the petitioner's favour in the record‑of‑rights. The lands in dispute include Survey Nos. 26, 27, 64, 69, 70, 71, 72, 119, 120, 121, 122, 132, 204, 205, 269, 270, 271, 272, 276, 277, 281, 282, 283, 284/1, 2, 285, 2, 286, 320, 321, 322, 332, 627, 768, 771, 772, 773, totalling 193 acres and 28 ghuntas in Deb Kuboyagan, and survey Nos. 53, 55, 56, 57, 58, 60, 61, 62, 71, 756, 1068 and 1069, which total 64 acres 4 ghuntas, situated in Deh Shahdadpur, Taluka Shahdadpur. In all, the lands in dispute measure about 257 acres and 32 ghuntas. These lands belonged to a joint Hindu family, of which one Naraindas was the `karta'. Naraindas had eight sons, namely, Natharlal Gagandas, Boolchand, Lokomal, Vessumal, Dharmomal, Phatumal and Kessumal. Natharlal and Gagandas separated from the joint family under a partition arrived at by an award made by Mahadevmal on 16‑9‑1943, and registered with the Sub‑Registrar at Shahdadpur. Under this partition agricultural lands baring Survey Nos. 272, 276, 277, 204/1, 2 and 695, measuring 30 acres 39 ghuntas, situated in Ward No. 2 in Deh Kuboyagan, together with two houses in the town of Shahdadpur, were given to Natharlal. Agricultural lands bearing Survey Nos. 281, 282, 283, 285 and 286, measuring 30 acres and 20 ghuntas, situated in Ward No. 3 in Deh Kuboyagan, and one house in the town of Shahdadpur, were given to Gagandas. Natharlal and Gagandas leased out these agricultural lands to their father, Naraindas. On 2‑7‑1946 there was a further partition, registered with the registration office, under which Boolchand and Lokomal separated from the joint family. Boolchand was given, as his share, agricultural lands bearing Survey Nos. 53/7, 19, 55/6, 20, 56/6, 15, 57/9, 15 and 1090/1.25, measuring 31.17 acres and situated in Deh Shahdadpur, together with the lease‑hold rights for the unexpired term of the lease of lands taken by Naraindas from his two sons, Natharlal and Gagandas, and together with 1/4th share in house Nos. 616 and 617 in the town of Shahdadpur. Lokomal was given 1/4th share in house No. 616 in Shahdadpur, and agricultural lands bearing Survey Nos. 58/7.26. 60/1.2, 62/1.2 1091/ 1.13, 10 92/1.13 and 1093, measuring in all 25.28 acres and 1/4th share in Survey No. 61/1, 2, 3, these lands being situated in Deh Shahdadpur.

2. With regard to the first and second partitions, that is, partitions effected on 16‑9‑1943 and 2‑7‑1946, there is no dispute between the parties that these partitions were actually effected. The contest is with regard to the cancellation of these partitions, and the execution of a third partition, which is alleged to have been effected on 21‑12‑1946. According to the petitioner, the first and second partition were cancelled with the mutual consent of Naraindas and his sons, and the joint family property was repartitioned under this third partition agreement. This latter partition is written out on stamp of Re. 1 and annas eight only. The original of this document was not produced in any previous proceedings, but its photostat copy was filed by the petitioner with his affidavit in re‑joinder on 28‑8‑1967 in the present proceedings. According to this document, the whole agricultural property of the joint family, including the property which had been given to Natharlal and Gagandas under the first partition, was given to Boolchand, and the urban property was given to the other son; of Naraindas who, however, was himself not given arty share from the joint property. This agreement purports to have been signed by Naraindas on his own behalf on behalf of his minor sons, namely, Vessumal, Dharmomal, Phatumal and Kessumal and by Lokomal and Boolchand. Neither Natharlal nor Gagandas were party to this agreement. The respondent's contention is that this document has been forged and fabricated to enable Boolchand to sell the agricultural property of his brothers, who were admittedly evacuees. Naraindas himself died sometime in August 1947. On 6‑11‑1947 certain entries were made in the record‑of‑right, by which agricultural lands received by Naraindas under the second partition were mutated in the name of his widow and four minor sons, namely, Vessumal, Dharmomal, Photumal and Kessumal. During 1947‑48 all the sons of Naraindas, except Boolchand, as will as Naraindas's widow, migrated to India and thus became evacuees.

3. According to the petitioner, an agreement was entered into between him and Boolchand on 2‑5‑1949, by which the latter agreed to sell for Rs. 36,092.00 to the former the whole agricul tural property of the joint family of Naraindas, allegedly given to Boolchand under the third partition. Neither the original of this agreement, nor its copy, has been produced either in this Court or in any previous proceedings, but it is contended that under this agreement agricultural property which had to be sold to the petitioner included not only the lands given to Boolchand under the second partition, but also lands given to Natharlal and Gagandas under the first partition. No sale‑deed was executed in pursuance of this agreement. However on 21‑7‑1949 Lokomat and Vessumal, the sons of Naraindas, appeared before the Mukhtiarkar, Shandadpur, and gave a statement that the lands entered in their names to the record‑of -rights had been given to Boolchand under a partition‑deed (the reference presumably being to the third partition allegedly on 21‑12‑1946), and that Boolchand had since then been effected in possession of these lands and that these two persons had no abjection if the lands were mutated in the Boolchand's name. It is the admitted position that Lokomal and Vessumal made this statement during one of their visits to Pakistan under a temporary permit issued under the authority of the Government of Pakistan. Under this statement, the whole agricultural lands which are in dispute in the present petition were consequently transferred to Boolchand's name in the record‑in -rights. On the next day, that is, 22‑7‑1949, Boolchaud himself gave a statement before the Mukhtiarkar, under which these lands were mutated in the petitioner's name. However, these entries, that is, entries made on 21‑7‑1949 in Boolchand's favour and entries made on 22‑7‑1949 in the petitioner's favour, were cancelled by the orders of the Special Mukhtiarkar made on 22‑1‑1950 and 25‑2‑1950, on the ground that these entries had been made without the requisite permission of the Custodian of Evacuee Property. On 9th April 1953, the petitioner obtained an order from Mr. S. M. Mir, Deputy Custodian of Evacuee Property, under section 17 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), to the effect that the seller, namely, Boolchand, was not evacuee and accordingly the parties were permitted to get the sale‑deed of the said lands executed and registered in the petitioner's favour under the Registration Act. This order was forwarded for approval to Mr. S. Riazuddin, Additional Custodian, who held that since the seller had been held to be non‑evacuee, his approval was not necessary. However, no sale‑deed was actually executed or registered under the Registration Act. But the petitioner applied to the Deputy Custodian for confirmation of the agreement of sale dated 2‑5‑1949 under section 16 of Ordinance 15 of 1949. This application was heard by another Deputy Custodian namely, Mr. Hibtullah, who, by order dated 31‑8‑1953, rejected the application, holding that the petitioner did not acquire any valid title in the disputed agricultural lands as he bad no registered conveyance in his favour and as he had also tailed to prove that he had paid Rs. 36,09100 as price of this property to Boolchand. It was further held that the petitioner was entitled neither to permission for registration of a sale‑deed under section 17 of Ordinance 15 of 1949, nor to permission to file a suit for specific performance under section 12 (3) of the said Ordinance. In the end, the Deputy Custodian declared that the said properties shall be treated as evacuee properties within the meaning of section 2 (3) (b) of the Ordinance. This order was challenged in appeal before Mr. S. Riazuddin, Additional Custodian who, by order dated 10‑12‑1953, held that: (i) the question of confirmation of the agreement of sale dated 2‑5‑1949 did not arise as the vendor, namely, Boolchand, was till then not an evacuee and, (ii) that no appeal lay against the order of the Deputy Custodian refusing to give permission to sue for specific performance of the agreement of sale under section 12 (3), or permission for registration of the sale‑deed under section 17 of the aforesaid Ordinance. Mr. Riazuddin, in the end, allowed the appeal only with regard to the order refusing confirmation of the agreement of sale, by holding that sine the vendor was not an eva cuee, no confirmation was necessary. On 17‑4‑1954, the petitioner obtained from Mr. Enwer Adil, then Collector, permission under the Sind Rural Credit and Transfer of Lands Act, 1947, to the transfer of the said lands by Boolchand to the petitioner. "Then, on 8‑9‑1954, a Special Deputy Collector, incharge ox the record‑of‑rights, restored the entries which had teen cancelled on 22‑1‑1950 and 25‑2‑1950. There the matter rested until 27‑3‑1964, when the respondent No. 2 applied for allotment and transfer to him of the lands of the joint family of Naraindas, on the ground that these lands were evacuee property. On this application a notice was issued to the petitioner, who immediately came to the High Court in petition No. 464 of 1964. This petition, however, was summarily dismissed on 21‑8‑1964. The petitioner challenged the order of the High Court before the Supreme Court by making a petition for special leave to appeal. The Supreme Court granted an ad interim stay, but before this try could be communicated to the Deputy Collector and Deputy Settlement Commissioner (Land), he had already passed an order on 22‑8‑1964, holding the dispute lands to be hidden evacuee properties and assuming control thereof. Consequently, the petition for special leave before the Supreme Court became infructuous. The petitioner then brought the present petition, in which he has challenged the validity of the order of the Deputy Collector and Deputy Settlement Commissioner (Land) made on 22‑8‑1964.

4. The facts of the case as narrated above raise the following questions for determination: (i) Whether the third partition, allegedly effected on 21‑12‑1946, is a genuine transaction, or the agreement with regard ;hereto has been forged to save the disputed lands from being declared or treated as evacuee property. (ii) Whether the agreement relating to the alleged third partition would take effect against the registered deeds of partition effected on 16‑9‑1943 and 2‑7‑1946. (iii) Whether section 3 (1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) is impediment to the disputed lands being treated as evacuee property. (iv) What is the effect of the order made on 9th April 1953, by Mr. S. M. Mir, Deputy Custodian of Evacuee Property, under section 17 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) and the further order of the Additional Custodian, Mr. S. Riazuddin, with reference to Mr. Mir's order, and the order dated 31‑8‑1953 of Mr. Hibatullah, Deputy Custodian, and the one dated 10‑12‑1953 made by Mr. S. Riazuddin, Additional Custodian. (v) Whether the disputed lands could be treated as evacuee property by the Deputy Settlement Commissioner (Land) in the order impugned in these proceedings.

5. With regard to the first point, on the material which has tome on record before me. it is not possible to hold that Naraindas and his sons cancelled the partitions which were effected on 16‑9‑1943 and 2‑7‑1946, and entered into a third partition allegedly made on 21‑12‑1946. 1n this connection, I would first refer to the statement of Boolchand made before the Mukhtiarkar, Shahdadpur, on 4‑4‑1961 in which, with reference to mutation made in his favour on 21‑7‑1949 of the lands which had been given to his brothers under the partitions dated 16‑9‑1943 and 2‑7‑1946. Boolchand stated that he did not remember whether these lands were purchased or otherwise obtained by him. Boolchand further stated that he could not also remember whether these lands were transferred to him under any partition of the joint family properties. The alleged third partition, according to its photostat copy produced in this Court, is written on a stamp of rupee one and annas eight only. This stamp is shown to have been sold by one Sher Muhammad, a Stamp‑Vendor at Hyderabad. But the Treasury Officer, Hyderabad, in his two letters written to the respondent No. 2 on 30‑9‑1968 and 3‑10‑1968 (at pages 455 and 459 of the record) has stated that there was no licensed stamp‑vendor in Hyderabad by the name of Sher Muhammad during the year 1946, and that a person of this name was appointed stamp‑vendor at Hyderabad on 5‑1‑1953 under licence No. 8 bearing the same date. The agreement relating to the third partition refers to another agreement, by which the partitions effected on 16‑9‑1943 and 2‑7‑1946 were cancelled. But this document has not been produced so far in any proceedings. Even the original of the agreement regarding the third partition has not been produced either in the present proceedings or in the proceedings before the revenue officers or the officers of the Settlement Department and the Department of the Custodian. This document was not produced even at, the time when the mutation entries relating to the disputed lands were made in Boolchand's favour on 21‑7‑1949 on the statement of his two brother; Lokomal and Vessumal. Then, under this alleged partition, Boolchand was given lands bearing Survey Nos. 281, 282, 283, 285 and 286, which lands were given to Gagandas under the first partition made on 16‑9‑1943. Boolchand was also given lands bearing Survey Nos. 272, 276, 277 and 284/1, 2 which were given to Natharlal under this very same partition. But neither Natharlal nor Gagandas were parties to the third partition under which no property whatsoever was given to Naraindas, the head and `Karta' of the joint family, and under which the whole agricultural lands of the joint family were given to Boolchand and the other sons were only given urban immovable property, which are rather curious features of this transaction. Another circumstance which would seen to go against the partition is that Naraindas, as noted above, died sometime in 1947 and on his death the lands, that is, Survey Nos. 61/1, 2 3, 71, 756, 1068, 1069, 1090, 1091, 1092) and 1093 standing in his name in the record‑of‑rights, were mutated in the names of his widow and four sons, namely, Vessumal, Dharmomal Phatumal and Kessumal, who had continued to be the members of the joint family after the separation of four other sons of Naraindas under the partitions made on 1S‑9‑1943 and 2‑7‑1946. If these partitions had at all been cancelled by the mutual consent of the interested parties, and the joint family property had really been re‑partitioned on 21‑12‑1946, theta there was no question of lands standing in the name of Naraindas being mutated on 6‑11‑1947 in the names of his widow and his said four sons. The conduct of Boolchand himself also militates against this third partition. It has been noted the Boolchand was given 1/4th share on house Nos. 616 and 617 at Shahdadpur. This house was transferred to one Fuzle Begum under the Displaced Persons ((Compensation and Rehabilitation) Act, 1958, and this transferee made an application before the Controller for eviction of Boolchand under section 13 of the West Pakistan Urban Cent Restriction Ordinance, 1959. Boolchand, in hits objections (which are at page 463 of the record), claimed 1/4th share in this house, obviously on the strength of the partition made on 2‑7‑1946. He could not have acted in this manner if there had been a third partition giving the whole urban property of the joint family, including this house, to other sons of Naraindas. A further point to be noted is that lands bearing survey Nos. 1090, 1091, 1092 and 1093 given to Boolchand under the third partition have been transferred to Displaced Persons (Land Settlement) Act, 1958. Boolchand has neither protested against, nor Taken any legal action to avoid these transfers. Then, the mutations of the disputed lands were made in Boolchank's name on 21‑7‑1949 only on the statement made by two of his brothers, namely Lokomal and Vessumal, who were admittedly evacuees and were their on a temporary visit to Pakistan. Neither the widow nor any other son of Naraindas was party to this arrangement. All these facts on my opinion, would prima facie go against the plea that there was a third partition on 21‑12‑1946 between the members of the joint family headed by Naraindas. In this view of the matter Boolchand would semi to have no right or title in any of the agricultural lands, except those survey numbers which were given to him under the partition effected on 2‑7‑1946, the particulars whereof have been given in the first paragraph of this judgment.

6. The two partitions made on 16‑9‑1943 and 2‑7‑1946 were effected through registered instruments. The alleged third partition, written on stamp of rupees one and annas eight only is an unregistered document. Under section 50 of the Registration Act, 1908, every document of the kinds mentioned in clauses (a), (b) and (c) of section 17 (1), and every document registered under section 18, in so far as such document affects immovable, property shall, if duly registered, take effect as regards the property comprised therein, against every unregistered document relating to the same property, Mr. Khalid Ishaq, however, contended that under the Sind Agriculturists Relief Act, 1879 (formerly called the Dekkhan Agriculturists Relief Act the agreement relating to the third partition should be treated as a registered document. In this connection reference was made to Chapter VIII of this Act. According to section ( (2) of the Act, only sections 56, 60 and 62 of this chapter were in force at the relevant time in the territory of the former Province of Sind. Section 56 reads as follows: "No instrument which purports to create, modify, transfer, evidence or extinguish an obligation for the payment of money or a charge upon any property, or to be a conveyance or lease, and which is executed after this Act comes into force by an agriculturist residing in any local area for which a Village‑Registrar has been appointed, shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon by any such person or by any public officer unless such instrument is written by, or under the superinten dence of, and is attested by, a Village‑Registrar: Provided that nothing herein contained shall prevent the admission of any instrument in evidence in any criminal proceedings or as a surety, or to any instrument required by section 17 of the Indian Registration Act, 1877 to be registered under that tact." Under section 60, every instrument. executed and registered in accordance with the provisions of Chapter VIII shall be deemed to have been duly registered under the Registration Act. The section in Chapter VIII which makes provisions for registration is sec tion 58 which, however, does not appear to have been made appli cable to the Sind Territory. It is, therefore, doubtful whether an instrument executed under section 56 can be treated as a docu ment registered under the provisions of Chapter VIII of the Act. Assuming, however, that the cumulative effect of section 56 anal section 60 is that every document executed in accordance with section 56 should be treated, by reason of the previsions of section 60, a s having been registered under the Registration Act, then the further requirement, before this rule can be given effect to, is that such document is written by, or under the superintendence of, and is attested by, the Village‑Registrar, and if this course has not been followed, then such document is inadmissible in evidence. Now, the agreement cancelling the first two partitions and the agreement relating to the alleged third partition, were rot written by, or under the superintendence of, the Village‑Registrar, nor have these documents been attested by him. Hence, section 60 of this Act would not apply to these agreements, which cannot therefore be treated as instruments registered under the Registration Act. Mr. Khalid Ishaq then fell back on another argument, to the effect that if a document is compulsorily registrable, and remains unregistered but has been acted upon, then in that case the objection as to registrations" loses force. For this purpose Mr. Ishaq relied upon the decision of the Supreme Court in Mst. Ghulam Sakina v. Umar Bakhsh and another (P L D 1964 S C 456). But this decision was given with regard to section 49 of the Registration Act, 1908, and section 53‑A of the Transfer of Property Act, and not with reference to section 50 of the Registration Act. Even if it were to be held that the principle laid down in this decision would also apply in interpretation of section 50 with regard to an unregistered document which had been acted upon, then it should be shown that this unregistered document is a genuine instrument. An instrument which is forged would not be saved by the rule laid down by their Lordships of the Supreme Court in this case. This rule would apply only to instruments the genuineness of which is not in doubt. As seen in the preceding paragraphs, prima facie, on the material on record, it is not possible to take the view that the agreements relating to the alleged third partition are genuine documents. As a matter of fact, every circumstance would appear to militate against the genuineness of these documents, which would appear to have been forged to save the agricultural lands of Natharial, Gagandas and the joint family headed by Naraindas from being declared or treated as evacuee property.

7. Coming now to the third point, it will be convenient to reproduce section 3 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), which reads as under: "(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property on or after the said date. (2) Nothing in subsection (1) shall apply (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted or approved by the Custodian." Mr. Khalid Ishaq's contention is that since the disputed lands had not been treated as evacuee property immediately before the first day of January 1957, these lands could not be treated as evacuee property by the order dated 22‑8‑1964 of the Deputy Settlement Commissioner (Land). To my mind, this argument carries no force and I am of this view for several reasons. Firstly, this argument does not take into consideration the provisions of subsection (2) of section 3 of the Act, particularly clause (b) of this subsection, which provides that subsection (1) would not apply to any property which is occupied, supervised or managed by a person whose authority or right to do so after the 28th day of February 1947, has not been accepted or approved by the Custodian. In the Full Bench decision of this Court in Syed Ali Iqtidar Shah Dara and others v. The Custodian of Evacuee Property, West Pakistan (P L D 1964 Lah. 274) it has been held that provisions of clause (b) would cover cases of persons who are in occupation of evacuee property without any legal or valid title and would include persons who are trespassers. My Lord the Chief justice, who wrote the full bench judgment, further observed that if a trespasser is found to be in possession of an evacuee property, he will certainly be occupying, managing and supervising it without the approval of the Custodian and his right to hold it can be challenged on the ground of his unauthorised occupation. The learned Chief Justice reiterated this view in a latter decision reported as Abdul Ghafoor and others v. Custodian, Evacuee Property (P L D 1968 Lah. 1050). In this case, some persons claimed to be in possession of agricultural land which was trust land, the beneficiaries having migrated to India. The possession was sought to be justified by an oral gift, allegedly made in 1944, by the trustees who, it was claimed, had remained in Pakistan even after the Partition. The case of gift was rejected by the Custodian, and this finding was upheld by the High Court, and the donees were held to be in possession of the lands without any legal or valid right and consequently disentitled to the protection of section 3 (1) of Act XII of 1957. Now, in the present case, the plea of a third partition made on 21‑12‑1946 having failed to have been accepted, the question is, in what capacity Boolchand or the present petitioner occupied the disputed lands. Boolchand cannot be deemed, on the material on record, to have any valid title to the lands which belonged to Natharlal, Gagandas and Lokomal, and the joint family, of which his father. Naraindas, was the `Karta' before his death. His occupation of these lands was therefore without any legal or valid right. In effect, Boolchand can be said to be a trespasser with regard to these lands. From what has come on record, it can be safely assumed that he could not convey any legal or valid title in these lands to the petitioner, to whom he agreed to sell these lands by an agreement allegedly executed on 2‑5‑1949. The petitioner's own title rests on this alleged transfer by Boolchand. Boolchand himself having been shown to have no right or title in these lands, the petitioner also therefore would be deemed to be in occupation thereof without legal or valid title, and like Boolchand a trespasser on these lands. The petitioner, therefore, cannot claim to be protected by section 3 (1) of Act XII of 1957, as his case comes under clause (b) of subsection (2) of this section. Another answer to Mr. Ishaq's argument is that the effect of section 3 (1) of Act XII of 1957 is completely nullified with regard to agricultural lands by the provisions of section 3 of the Displaced Persons (Land Settlement) Act, 1958, which reads as follows: As soon as may be after the commencement of this Act, but not later than 90 days therefrom, every person who is in possession, supervision or Management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to the Rehabilitation Authority, of the area concerned full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or Management thereof. Any such property as is referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act shall, vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act." It is suggested, and this suggestion is not without force, that the circumstances of this case show that the petitioner either knew or had reason to believe that the lands in question were evacuee property. This character of the land had been concealed from the competent authorities. As such this property could be treated as evacuee property, notwithstanding the bar of section 3 (1) of Act XII of 1957. In this connection, I would refer to the Supreme Court decision in Qutab Ali v. Custodian, Evacuee Property and others (P L D 1964 S C 58). In this case, certain evacuee properties were transferred after 1‑3‑1947, but the transferee failed to have this transaction confirmed in his favour under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and also failed to submit information relating to this property to the competent authorities under section 3 of the Displaced Persons (Land Settlement) Act, 1958. Their Lordships held, on these facts, that the property was concealed evacuee property within the meaning of section 3 of the Displaced Persons (Land Settlement) Act, 1958 and that section 3 (1) of Act XII of 1957 was not a bar to the treatment of this property as evacuee property. This view was followed by Wahiduddin, C. J. in 1968 in the decision referred to above, that is, Abdul Ghafoor and others v. Custodian of Evacuee Property. Mr. Khalid Ishaq placed reliance on the Supreme Court decision in Pakistan and others v. R. S. Roopchand and others (P L D 1967 S C 479). In my opinion, this decision would not apply to the present case. I would think that this decision goes against Mr. Ishaq's contention. Their Lordships in this case first dealt with the effect of section 3 (1) of Act XII of 1957, and held that clause (a) of sub section (2) was not attracted to the case as no proceedings for declaring certain persons or their property as evacuee were pending immediately before the 31st December 1956. However, their Lordships qualified this observation by stating that it could be shown that these persons had migrated to India and thereby became evacuee and their property evacuee property, and that .the person in possession of this property, in the absence of approval by the Custodian, had no authority or right to supervise or manage the property. The next point dealt with by their Lordships related to the contention that certain orders of the Custodian had been obtained by fraudulent representations. This contention was disallowed, on the ground that evidence on this point was not produced either before the Custodian or the High Court. Lastly, their Lordships held that an order obtained by fraud, declaring certain persons and their property as non‑evacuee would remain in effect so long as it is not set aside in proper proceedings. Now, in the instant case, the application of clause (a) of subsection (2) of section 3 of Act XII of 1957 is not in issue. It is clause (b) which has been invoked for the purpose of treating the disputed lands as evacuee property, and according to the view taken by their Lordships this course is permissible in law. Secondly, there has been no order of the Custodian declaring the widow and sons of Naraindas, other than Boolchand, as non‑evacuee and their property as non‑evacuee property. As will be shown later, the order of the various officers of the Custodian's Department remained, in effect, confined only to Boolchand and to his property. Next, the order of the Deputy Settlement Commissioner (Land), impugned before me, has dealt exhaustively with the various pieces of evidence showing that the evacuee character of the disputed lands had been concealed fraudulently from the appropriate authorities. The view cannot be taken in this case that the impugned order is not based on evidence. I am therefore unable to agree with Mr. Khalid Ishaq that this decision of the Supreme Court is of any assistance to the petitioner.

8. As regards the fourth point, the order dated 9th April 1953, of Mr. S. M. Mir the Deputy Custodian, was made under section 17 of the Ordinance XV of 1949 and declared Boolchand to be non‑evacuee and permitted registration of a sale‑deed between him and the petitioner. This order can at best be confined to the property which was rightly of Boolchand, and cannot be extended to property to which Boolchand had no legal or valid title. Mr. Mir's order was referred for approval to Mr. S. Riazuddin, the Additional Custodian, who held that since Boolchand was not evacuee, approval under section 17 of Ordinance XV of 1949 was not necessary. Thus, no order permitting registration of any sale‑deed under section 17 of the said Ordinance was in fact given either to Boolchand or to the petitioner. It will be seen that the proceedings before Mr. Mir were with regard to the alleged agreement executed between Boolchand and the petitioner dated 2‑5‑1949. But this agreement was not followed by execution and registration of any sale‑deed. Still, later on, the petitioner decided to invoke section 16 of Ordinance XII of 1949 for confirmation of the alleged sale of the disputed lands by Boolchand to him. This step is not understandable for two reasons; firstly, there was only an agreement of sale and not a sale‑deed, and therefore no right or interest had been created in the disputed lands in the petitioner's favour, and, secondly, since Boolchand had been held to be non‑evacuee both by Mr. Mir as well as by Mr. S. Riazuddin, there was no necessity of taking any proceedings under section

16. Nevertheless, these proceedings were taken, but Mr. Habatullah, by order dated 31‑8‑1953, rejected petitioners application and also refused to give permission for registration of a sale‑deed under section 17 or permission to file a suit for specific performance under section 12 (3) of the said Ordinance, and in the end declared that the properties in question shall be treated as evacuee property. In appeal before Mr. S. Riazuddin, the Additional Custodian, no order for registration or permission to register the sale‑deed or to file a suit for specific performance was given. The Additional Custodian disposed of the whole case by stating that such permission was not necessary as Boolchand was non -evacuee. Thus, this order also did not deal with the evacuee status of Boolchand's mother and brothers, nor with the evacuee character of their property, and not even with the question whether Boolchand was at all the owner of the disputed lands. The effect of this order has to be confined only to Boolchand and the properties which rightly belonged to him by virtue of the second partition effected on 2‑7‑1946. 1 am of the view, therefore, that the orders of Mr. Mir and of Mr. S. Riazuddin, on which reliance has been placed by the petitioner, are of no consequence in so far as the question of evacuee status of Boolchand's mother and brothers and evacuee character of their properties is concerned.

9. The last question which requires answer is whether the Deputy Settlement Commissioner (Land) could treat the disputed property as evacuee property. Mr. Khalid Ishaq, referred to the decision of this Court in Haji Suleman v. Settlement Commissioner, Karachi (P L D 1967 Kar. 834) in which my learned brother, Farooqi, J., held that property not treated as evacuee by the Custodian could not be treated as evacuee by the Settlement Authorities. But this decision was with reference to the provisions of Displaced Persons (Compensation and Rehabili tation) Act, 1958. In this case before me, it is the Displaced Persons (Land Settlement) Act, 1958 whose provisions have to be taken into consideration. Moreover, in the case before my learned brother the notification dated 1st June 1959, made by the Provincial Government, in exercise of the powers conferred on it by Central Government, was not taken into consideration. This notification declared all the Additional/Deputy/Assistant Settlement Commissioners as Ex‑Officio Additional/Deputy/ Assistant Rehabilitation Commissioner respectively within their jurisdictions. Section 22 of the Pakistan (Administration o Evacuee Property) Act, 1957 recognizes that a property ma be treated as evacuee both by the Custodian as well as by the Rehabilitation Authority. In the Supreme Court decision in Abdul Khaliq Abdul Razzaq v. Kishanchand (P L D 1964 S C 74) the Rehabilitation Authority was recognized as a competent authority to treat a property as evacuee property. I would in this connection also refer to section 3 (2) of the Displaced Persons (Land Settlement) Act, 1958; which provides that concealed evacuee property shall, notwithstanding the provisions of section 3 of Act XII of 1957, be treated as evacuee property and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 or that Act. Under section 22 of this Act, this "treating" may be either by the Custodian or by the Rehabilitation Authority. In so far as the Deputy Settlement Commissioner (Land) is also the Rehabili tation Authority, under the Rehabilitation Act, by virtue of the Provincial Government's notification referred to above, he was competent to make the impugned order, by which he treated the disputed lands as evacuee property.

10. The above discussion will show that the order of the Deputy Settlement Commissioner (Lands), impugned before me, has not been shown to be arbitrary exercise of power, or an order made without evidence, or made without lawful authority. But this order shall not apply to lands which came to the share of Boolchand under the second partition, that is Survey Nos. 53/7‑19, 55/6‑20, 56/6‑15, 57/9‑15 and 1090/ 1‑

25. With this direction, I would hold that the petitioner cannot in these proceedings claim relief as regards lands which belong to Boolchand's mother and his brothers. I would, therefore, dismiss this petition with regard to these lands. But I would add here that this judgment will not preclude the petitioner from taking such steps as he may be advised, under the laws relating to evacuee property, and settlement of displaced persons, to enforce his claim to these lands if he has any such claim at all. In the circumstances of this case I would make no order as to costs. Order accordingly. A. E./K. B. A. Petition dismissed.