P L D 1965 (W (PLP)

S. A. MAHMOOD, J.--This writ petition arises out of an application made by Wadera Allah Diwaya Khan petitioner to the Custodian, Evacuee Property, West Pakistan, Lahore, on the 30th or 31st of January 1950, under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) for a declaration that land measuring 820 kanals, entered in khata No. 1/1, khatuni No. 11, according to Jamabandi for the year 1943‑44, situate in Mauza Khairpur, Tehsil Hasilpur of Bahawalpur District, given to evacuee respondents for building houses thereon for residential purposes long before Partition, on the condition that when the evacuees leave, the lands and the superstructures thereon would become the property of the petitioner, had become his property on their departure from the village. He further alleged that he became owner of the lands in dispute under the terms embodied in the wajib‑ul‑arz whereby the land reverted to the landlord on abandonment by the persons who had constructed houses on his land with his permission: The Deputy Custodian, by his order dated 30th September 1959, came to the conclusion that though it was established that the land on which the houses were built belonged to the petitioner, and presuming it to be correct that according to the terms and conditions of wajib‑ul‑arz the superstructures became the property of the landlord, the evacuee respondents did not leave the village in this case of their own sweet will, but were forced to leave for India in order to save their lives at the time of Partition, and that as this was a situation not envisaged by the wajib‑ul‑arz, it was not justified to 'give the entire valuable property to the petitioner free. He felt that as according to the agreements the petitioner had a prior right over the buildings, he should pay the prevalent market‑price of the superstructures in question, and ordered that when this had 'been done, he would acquire full proprietary rights in them. He left the market‑price of the super-struture to be determined by the Rehabilitation Department or the Settlement Authorities. It may be mentioned that though the agreements related to a few kanals of land, the declaration was given by the Deputy Custodian about 820 kanals of land. This order was reviewed by the learned Custodian under section 43 (1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) after notice to the petitioner and after hearing him. The learned Custodian vacated the order of the Deputy Custodian holding that the wajib‑ul‑arz did not embody in it the right claimed in favour of the landlord, who owned proprietary rights in the land, but that all that it mentioned was that the ashindgan, other than those who had executed agreements or writings in favour of the landlords, shall be entitled to reconstruct the houses and to rent them out or to sell them. The admission of the petitioner that the houses were constructed by the non-Muslims, definitely proved that they had a right of permanent residence in those houses, which was saved, in spite of their abandonment, by section 8 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957). The learned counsel for the petitioner relied before the learned Custodian on six agreements which were executed in favour of the petitioner by some of the respondents in respect of six houses. In respect of these, the learned Custodian ordered that the petitioner may, if so advised, separately press his claim on the basis of the agreements, and the Settlement Department was directed to examine the claim .of the petitioner, if it was preferred. It was observed that if any of the evacuee‑respondents was under a stipulation or liability of any kind undertaken by him in any agreement in favour of the ground landlord, it shall have to be upheld, if duly proved, as against the persons who had now succeeded to those rights, i.e. the persons to whom those houses had been allotted or transferred by the Settlement or Rehabilitation Department. Dissatisfied with this order of the learned Custodian dated the 19th of February 1962 the petitioner has moved this Court under Article 98 of the Constitution of the Islamic Republic of Pakistan and has prayed that the order of the learned Custodian declaring the property to be evacuee, be held to be of no legal effect, being without lawful authority. 2. Before the admitting Bench, the learned counsel for the petitioner relied on the decision in Malik Amir Muhammad Khan v. The Custodian, West Pakistan (P L D 1963 Lah. 189) but the learned Judges felt that the question of whether an evacuee who left the country "under the force of circumstances" could be said to leave "voluntarily", required re‑consideration, since it appeared, prima facie, that the very word "force" constituted a negation of voluntary action. Consequently, this Full Bench has been constituted. 3. Before dealing with the questions which fall for determination by us, it is necessary to first examine the agreements which have been executed by the respondents in favour of the ground landlord and to mention that from amongst the respondents, Ram Narain Dass, Lachman Dass. Piara Lal, Parsa Mal, Kewal son of Mangu Mal, Uda Ram and Adu Ram have not executed any agreement. Out of the remaining respondents, the agreements entered into by Thakar Dass son of Udha Dass on 26th August 1946 in respect of 800 sq. ft. and on 4th November 1941 in respect of 238 sq. ft. and 900 sq. ft., by Khilanda Ram respondent on 4th April 1946 in respect of 384 sq. ft., by Asa Ram alias Juma Ram on 5th October 1944 in respect of 600 sq. ft., by Ram Narain Dass and Roshan Dass on 6th March 1946 in respect of 9,600 sq. ft. by Ram Narain on 9th May 1946 in respect of 2,000 sq. ft., and on 26th August 1946 in respect of 1,200 sq. ft. by Mst. Jiwani Mai on 24th January 1928 in respect of 332 sq. ft., are all agreements of sale of the lands, evidencing payment of a part (mostly one‑fourth) of the consideration, leaving the remainder in the bands of the vendees, which sum had to be paid by them before the land and the houses constructed thereon could be sold, mortgaged or leased out by these persons. Whether the balance of the consideration had been paid off or not has not been determined by the Custodian, but if it has not been paid by the above vendees of the sites, the petitioner can, claim a declaration from the Custodian to that effect and have the balance, but he can have no right to the reversion of the sites on their evacuation or leaving the country. 4. Thakar Dass respondent executed an agreement on 8th April 1933 in respect of land measuring 10 hath x 10 hash for a house to be constructed on it within the stipulated period, to be resided in. He had the right to alienate, mortgage and lease out the house with the permission of the ground landlord, in which case the consideration for the sale, mortgage or the lease had to be shared equally between Wadhera Allah Diwaya and him. Similar are the terms of the agreements executed by Shankar Dass and Paira Mal dated 27th Ramzan‑ul‑Mubarik. 1329, by Shankar Dass son of Jhanda, Takan Mal and Jaisa Mal on 29th Ramzan‑ul‑Mubarik, 1329, by Tara Ram executed on 6th Ramzan‑ul‑Mubarik 1329; by Hakumat Mal and Kewal Ram on 27th Ramzan‑ul‑Mubarik 1329, by Kewal Ram and Wadhawa Ram executed on 22nd Ramzan‑ul‑Mubarik, 1329, by Mst. Esari Mai on 3rd April 1934, by Ram Chand and Lachman Dass on 7th January 1917, by Tirath Mal and Piyara. Ram on 29th Ramzan‑ul‑Mubarik, 1329, and by Chaman Lal on 17th July 1907. In these agreements it is stipulated that the landlord of the sites is entitled to half of the share of the consideration, of sale, mortgage or lease entered into with his permission and the executant of the agreements the remaining half. It is also stated in some of the agreements that the land, and its ownership will remain vested in the Wadera owner and of the house in the execution, i.e. the person who constructs the house. In most of the agreements the owner of the site has been given the right to resume possession of the site in case of breach of the terms of the agreement. There is no express stipulation in any agreement except the one by Khilanda Ram, that the site will revert to the owner if the grantee of the site abandons the house. Even in the case of the agreement by Khilanda Ram, the recital as to the right of resumption of the site is a clear interpolation in a different ink. These persons had rights, evidenced by agreements in writing which are substantial in nature. As stated in wajib‑ul‑arz of 1920‑21, these agreements govern their rights. It was not the petitioner's case before the learned Custodian that they have committed any breach of their agreements to confer on the land lord any right of resumption of the sites. 5. In the agreement executed by Kewal Ram on 5th March 1917, no conditions are stated. It is merely recited that the house had been constructed with the permission of the landlord. In the agreement by Ranjit Rai, dated 8th April 1922, there is no right in him to alienate the land, but he had a right to sell the superstructure, of which the value could be fixed up to Rs. 200. 6. In the case of those respondents mentioned above, from whom the petitioner and his father had not obtained any agreement in writing, the petitioner's claim is based on the entry in the wajib‑ul‑arz of the Village Khairpur for the year 1908. The relevant entry is to the effect that the residents of the village have no right to construct a house without the permission of the landlords, and if any resident abandons his residence, he cannot remove the superstructure without the permission of the landlord but if any resident buys his land and constructs a building thereon, he has the right to sell it and to remove the superstructure. This entry does not, by itself, make the landlord owner of the superstructure in case the non‑proprietor, who has built the house, abandons it. The entry underwent a radical change in the year 1920‑21 at the time of the fourth Settlement. The entry recorded in the wajib‑ul‑arz in 1920‑21 ‑ is to the following effect : "Except in the case of those residents from whom the landlords have obtained agreements in writing, the remaining residents are entitled to construct, sell and lease out the houses constructed by them. Iii the case of those owners of houses who have executed agreements in favour of landlords, the sale and alienation of houses will be effected in accordance with the terms and conditions in the documents and agreements." 7. Entries in the wajib‑ul‑arz are a village statement of customs as distinguished from the District statement of customs, which is called the riwaj‑i‑aam. A custom is expression of the will of a very large majority of the people who agree to be and are governed by it. A presumption of correctness attaches to entries of custom in the wajib‑ul‑arz. It will be presumed that an entry in it embodies a custom which existed when it was recorded in the wajib‑ul‑arz. Just as the unanimous, or almost unanimous, will of a community can establish custom, it can also change or abrogate it. Like other entries in the record‑of rights, entries in the wajib‑ul‑arz are open to periodical revision in the light of changes that may have taken place in the outlook and conduct of the residents of the village concerned in respect of customs obtaining among them. The entry of 1908 was not repeated in the wajib‑ul‑arz of 1920‑21, which is the relevant entry. The later entry in the wajib‑ul‑arz is inconsistent with the earlier entry. To it also a presumption of correctness attaches. There is thus clear evidence of a change in the custom since the earlier entry. The earlier entry can no longer be regarded as a record of custom existing in 1920‑21, and it must be deemed to have ceased to operate. It has been held in Chandar Bhan and another v. Mohammad and others (A I R 1936 Lah. 926) that where a new wajib‑ul‑arz has been framed, the old one ceases to be operative. Consequently, the entry in the wajib‑ul‑arz of 1908 is of no avail to the petitioner. 8. The petitioner's counsel' then relied on paragraphs 236, 237 and 238 of the Customary Law by Rattigan. Paragraph 236 states that in the absence of a well‑established custom, a non proprietary resident in a village cannot dispose of a site on which his house is built, or a right of residence' in the house, without the consent of the proprietors of the village. He is ordinarily entitled to sell the materials, and the purchaser must remove the same within a reasonable period. According to paragraph 237, a non‑proprietary resident, who obtains a site for building purposes must build upon it within a 'reasonable time, or surrender it to the proprietors. According to paragraph 238‑and this is the material paragraph relied on by the learned counsel‑if a non‑proprietor abandons his house, the site reverts to the proprietor, and he cannot claim it afterwards on his return to the village. The petitioner claims that as the respondents have abandoned the houses, the sites, including the superstructures, have reverted to him as proprietor of the sites and the Custodian can claim no right or interest in them, because no rights of the evacuees were left even in the superstructures. The custom stated paragraph 238 above is not applicable to the cases in hand, as it is not consistent with the entry in the wajib‑ul‑arz of the village pertaining to ‑the year 1920‑21, whereby, in the absence of an agreement, a proprietor has no right or interest in the site of a building put up by a non‑proprietor, and the person who has constructed a house is its owner with rights of alienation, and where the landlord of the site has obtained an agreement, the terms and, conditions of the agreement bind the parties and therefore the question of the application of the general, custom as recorded in paragraph 238, does not arise. Thus, in the case of those respondents who did not execute any agreement in favour of the landlord, the petitioner has no right, according to the wajib‑ul‑arz, to claim the site or the superstructure. In the case of those who have purchased the sites, the petitioner has no right or interest left in the houses or the sites, except to the extent that the balance of the consideration remains unpaid to him. With regard to the second set of agreements by which sites were granted to the respondents, on which houses have been constructed by them, the landlord still has interest in the sites to the extent that he had to receive one‑half of the consideration in the case of sale, mortgage or lease (which in some cases, could only be entered into with his permission) as landlord of the site, but the persons executing the agreements had also acquired rights in the superstructure put up by them, in lieu of which they were entitled to receive one‑half of the consideration. There are some agreements clearly reciting that ownership of the building shall vest in the persons constructing the houses. They had undoubtedly acquired interest in the sites also. In most of the cases the, rights of the parties are defined by the agreements, and the petitioner cannot claim that the executants of the agreements had no right or interest in the houses and the sites. Their right or interest in the houses and the sites constitutes evacuee property, which is defined in subsection (3) of section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957, (hereinafter referred to as the Act) which replaced Ordinance XX of 1956 as follows :‑ 'Evacuee property' means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity) and includes (a)

(b)

"Property" is further defined in subsection (5) as meaning property of any kind, and includes any right or interest in such property and debt, but does not include a mere right to sue. The respondents are admittedly evacuees as defined in subsection (2) of section 2 of the Act. By virtue of section 7 of the Act, their right or interest in evacuee property vests and shall be deemed always to have vested in the Custodian with effect from 1st day of March 1947. Section 8 (1) of the Act further provides that: "Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupany or tenancy rights, or rights as lessee or grantee, nothing contained in any lave for the time being in force or to any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights on the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property, and neither the Custodian nor the evacuee shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of‑ (a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee, (b) the Custodian."

9. The learned counsel for the petitioner contends, firstly, that the evacuee respondents had no such right or interest in the property as can be described as "evacuee property", and that, secondly, section 8 of the Act has no application to the case as the evacuee respondents did not enjoy any occupancy or tenancy right or rights as lessee or grantee. He relies on Malik Amir Muhammad Khan v. The Custodian, West Pakistan in which Shabir Ahmad, J., held (Mr. Ishaq Muhammad Khan, learned counsel for the department conceding‑but he claimed that he had been misunderstood) that the rights to which the dispute related, namely, the rights of resident of evacuee owners of buildings put up by them on sites granted by the petitioner in the case, were not evacuee property by reason of the fact that they fell under the provisions of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) and the later Ordinances and Acts which replaced it. The learned Judge further held that "the right of residence" did not survive after the non‑proprietor non‑Muslims had left, for the right of residence, which was peculiar to the customary law of Punjab, terminated .the moment a person, who had the right, left the property of his own accord, and that the right was heritable, though not transferable, by the person, on whom it had been conferred, unless the proprietary body agreed. It may be noted that throughout the learned Judge described it as a right and the real reason for denying that it was a right was that it terminated or did not survive after the non‑proprietor non‑Muslims left the properties of their own accord. With the utmost respect, we are unable to agree that the right of the evacuees was not evacuee property. Manzur Qadir, C. J., as he then was, in his judgment, while referring to section 8 of the Acct, has found that the effect of section 8 was that for the purposes of determining rights in or over property, the fact that a person has migrated from Pakistan must be ignored and those rights be determined as if he was still present where he was. While he agreed in principle with the test that the fact that non‑Muslim residents of the land in question had gone away must be ignored, and on the assumption that they are still residing where they were, he concluded that it should be held that their right to continue to reside there is alive and available to the Custodian. With this view we are in agreement with all respect. But he was of the opinion that it was incapable of application to the kind of "right" with which they were concerned, for the "right" was nothing more than a permission giver by a proprietor to certain families in a village community to reside on his land, coupled with an under taking that he will not turn them out or use that land for any other purposes so long as those families continue to reside there. The appearance of "right" flowed from the undertaking not to evict, but that undertaking was of a personal character between the proprietor and the particular family. The proprietor had not parted with any right of his in or over the land. The only right he had parted with was his right to withdraw or revoke the permission he had given to the particular family. As soon as that family was not there to claim or enforce that personal obligation against the proprietor, that obligation must lapse. It seemed to the learned C. J., that the correct way of looking at that kind of transaction was that the families which were allowed to reside on the land, "at no stage acquired the right to reside on that land", but were given an immunity available only to those families from being evicted by the landlord. To hold otherwise would be productive of results that it seemed unreasonable to suppose were intended by the Legislature. Finally, the learned C. J., concluded that the supposed "right to reside in the two cases was not a right at all" and the said section 8 had no application to it. The lines underlined above show that according to the learned C. J. himself the landlord had parted with a right and placed himself under an obligation, and, therefore, his earlier conclusion that he had not parted with any right in or over his land is difficult to accept. It could not be said that the families, who were granted the permission, "at no stage acquired the right to reside on the land and it was no right at all". Whether the obligation lapsed or not is beside the point in this context, but to call it a right and' it has all the necessary concomitents of a right and deny that it is a right is a contradiction in terms. 10. "Evacuee property" means any property in which an evacuee has any right or interest whether personally or as trustee or as a beneficiary or in any other capacity. A right is defined in Salmond's book on Jurisprudence 1957 Edition as an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. The interests which receive recognition and protection from the rules of right are called rights. Every man who has right to anything has an interest in it also, but he may have an interest without having his right. Whether his interest amount to a right depends on whether there exists with respect to it a duty imposed upon any other person. In other words, his right is an interest the violation of which is a wrong. It will be noticed that the definition clause includes not only the word "right" but also "interest". All that is necessary is that there should be a right or interest, that is, there should be property in which an evacuee has any right or interest.

11. The learned Judges, in the case cited above, have termed the right as a "right of residence" in order, evidently, to avoid the conclusion that it was a right in property. Even where a non proprietor has been granted a site to build a house on it for the purposes of his and his family's residence on the condition that he would remove the superstructure if he abandons the village, has he not by building a house on the site granted to him acquired a right or interest in it, besides a clear interest in the building Has he not acquired an interest in the site with a right to hold and possess it to the exclusion of every one else including the owner and as long as he or his family wishes to stay or reside in the house? Is his right not protected by the law? Can it be ignored that the right is conferred not only on one person but on the family, and that it is a heritable right to be enjoyed for generations so long as they choose to avail of it and the grantor of the site, i.e., the landlord has no right to terminate the grant? Can he get the site back even if be wanted it in exercise of the right of ownership without a surrender by the grantee? Has he not, therefore, parted with substantial rights in the land, which was his property? How is it possible, to deny that the owner has parted with and conferred rights on the grantee in the site? He' has unmistakably placed himself and his heirs and successor under an obligation. This situation can only arise if he has parted with some of his rights. The grantee has thus acquired valuable rights in property.

12. There are also two clear distinguishing features between the case of the owner of the sites in Malik Amir Muhammad Khan v. The Custodian, West Pakistan and the present case. In that case the non‑proprietor grantees had no right to alienate the buildings standing on the site and there is no indication that the land was granted in lieu of some consideration or services to be rendered. In the present case, as stated already; the non. proprietors, who have been granted sites, had the right to transfer their rights in the super structure, in some cases on their own, while in others with the permission of the landlord. Secondly, the sites have been granted to the respondents in lieu of services to be rendered and certain periodical payments to be made by them. This satisfies the requirements of section 105 of the Transfer of Property Act, namely, a transfer of a right to enjoy immovable property made for a certain time express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. It is plain, therefore, that some of the respondents have obtained leases in perpetuity of the sites granted to them. .

13. In the view of Shabir Ahmad, J., the non‑proprietor's right of residence terminates the moment a non‑proprietor non- Muslim leaves the property of his own accord, and the right does not survive under custom if the non‑proprietors abandon their houses. The word "abandon" according to New English Dictionary, Volume I, means "to give up absolutely, to surrender, to relinquish all claim to property, to renounce, to leave off, to for sake, to desert." It has the connotation of leaving with an inten tion not to return to it. In most cases, the evacuees, on leaving, did not intend to abandon their houses, but their departure was forced by circumstances, and a ‑east majority of them intended to come back, but have found it not possible to return on account of circumstances beyond their control. It cannot, therefore, be said that they intended to abandon their houses the moment they left; though, it may be said by now that the houses have been abandoned. But by reason of the evacuee laws, their right and interest in the evacuee property has vested in the Custodian, and such property is held on his behalf. The extinguishment of their rights, the moment they left, cannot therefore be inferred.

14. Abandonment implies voluntary surrender or renunciation of the property. Shabir Ahmad, J., in the case of Malik Amir Muhammad Khan has held that the non‑Muslim non‑proprietors left voluntarily although they were forced by circumstances to leave, being afraid of harm coming to them in the communal riots that had broken out near about the birth of Pakistan. His reasons are as follows :‑ "The term `voluntarily' means of one's own accord, and I am clear in, my mind that the fact that departure was under the force of circumstances cannot make it involuntary. If, for example, a person who had a right of residence in a house left the village because he felt that by going to some other place he would get living wages, which he was not getting, it could not be reasonably contended by anyone that the departure was not voluntary. Similarly, if such a person were to leave because he felt that his safety or that of his near and dear ones lay in departure, it would be difficult to assert that the case was not one of voluntary departure. Equally similarly, if a person feels that the village in which he is residing is unsafe by reason of the fact that it is populated by marauders and dacoits who have but little compunction in attacking and looting neighbouring villages, it is obvious that the departure motivated by these considerations could not be said to be involuntary. it, however, the proprietors or some one else turned out the person who resided in the village by means of causing or threatening harm, that departure could not be said to be voluntary. There is no evidence, direct or circumstantial, to establish that any one of the non‑Muslims whose rights the Custodian wants to take possession of, had left the village concerned because an injury had been caused to him or a threat of injury had been held out to him, and though I am not saying that such threats were not held out nor that injuries had not been caused at the time of Partition to some persons, I am clear in my mind that some non‑Muslims left because they felt that their safety or betterment lay in going to the newly‑set‑up Dominion of India." While in the first instance mentioned by the learned Judge it may be conceded that the departure was voluntary, and the second instance may be on the border line, it is, with all respect to him, difficult to agree that the third instance is also a case of voluntary departure. In the circumstances, the person has been forced by circumstances to leave for' reasons of safety 'of himself and his dear ones, and though he may have gone on his own, he has been forced to leave, which cannot be said to be voluntary abandonment. In the first instance the leaving was initially intended to be temporary in view of the tribulent conditions with a desire to return on peaceful conditions being restored, and secondly, it was forced by the circumstances. There was no voluntary abandonment. As observed by the admitting Bench, leaving under the force of circumstances indicates lack of volition, because force constitutes a negation of voluntary action. If the learned Judge has himself s observed that if the proprietor or some‑one else were to turn out a person by means of causing or threatening harm, his departure would not be voluntary, where is the difference where he is turned out by grave apprehension of harm or even of threatened harm? The conditions created in both the parts of the sub‑Continent became so disturbed that there was great apprehension of harm, and in the circumstances most persons were forced to leave, of which fact we can take judicial notice. It is not necessary that there should be evidence that there was threat of harm which led the non‑Muslims to leave the country. It is enough that they have left in the then prevailing conditions, which were unfortunately highly disturbed, as there were riots of communal nature on either side of the border. No one leaves his hearth and home, his place of birth, his business and valuable property unless he is so compelled. We do not think that the non‑Muslims or Muslims left their hearths and homes with the idea of betterment of their future prospects. We are, therefore, unable to agree, with all respect to the learned Judge's, that the non‑Muslim non- proprietors, and in this case the respondents, abandoned their houses voluntarily. In our view they were forced by circumstances to leave as were the Muslims from India, and did not voluntarily, abandon their hearths, homes, business and houses.

15. There remains to consider whether the conclusion of the learned Custodian is not correct that the rights of the respondents were saved by section 8 of the Act. The learned counsel for the petitioner has contended that the rights of the respondents not being occupancy rights or tenancy rights, as defined in the Punjab Tenancy Act, or the rights of grantee under the Colonization of Government Lands (Punjab) Act, 1912, are not covered by section 8 of the Act. In his view the terms "occupancy rights", "tenancy rights" and, "rights as lessee or grantee" are used in the same sense in which they are used in the two enactments referred to above. We are unable to agree with this contention, keeping in view the intent and purpose for which section 8 was enacted. It appears to us that these words have been used in the broader sense of being rights of occupancy, rights of tenancy or rights as grantee. This conclusion is fortified by the succeeding words used in the same section, i.e. "rights of the occupant, tenant, lessee or grantee". These words were intended to cover; the rights which the evacuees had in land or houses and which were intended to be saved from extinguishment or forfeiture for reason of their departure from Pakistan. The learned counsel for the petitioner contended that these words could not cover temporary leases for a year, but it is not an apt example, as they held no subsising rights. The learned counsel for the petitioner was also at pains in arguing that the respondents were no more than licensees, and urged that as licensees they could not be treated as grantees. It is difficult to deny that even as licensees they would be grantees in the wider sense of the term, but in the present case, the respondents' rights had been guaranteed to them by the agreements, which they executed, and the land could only be resumed in the case of breach of conditions of the agreements. But it is not the case of the petitioner that they have committed any breach of these conditions. There can, therefore, be no revocation of the licence, even if it be treated as such, on the ground of a breach of the licence. Constructions of permanent character having been set up on the sites by the evacuee respondents at their own expense, even a licence could not be revoked in view of the principles embodied in section 60 of the Easements Act of 1882.

16. Shabir Ahmad, J. was of the view that if the grant of a site to a non‑proprietor for building a house was a grant, the result would be that the right of residence which a non‑Muslim non‑proprietor had lost, say about six months before the Partition of British India, would get revived, and that is a result which could not be achieved, for it had come to an end. Nor could the learned Judge accept the contention of Major Ishaq Muhammad Khan that because section 5 of the Act would override the provisions contained in any law for the time 'being in force or in any instrument, section 8 would be applicable, because section 5 did not mean that a person who became an evacuee shall be deemed to have left behind more rights than he would have had if he had not become an evacuee. With all respect to the learned Judge, it may be observed that section expressly provides that the Act would override the provisions contained in any other law, and the Courts must give effect to its provisions. Section 8 is intended to be retrospective, and if it clearly is retrospective, it has to be applied retrospectively. Its application cannot be avoided on the ground that it right affect' certain rights, which would have come to an end cry otherwise. By operation of law the rights have not beer extinguished and are still subsisting. The Custodian does not claim, more rights than the evacuee had, and what is intended by section 8 is that the rights of the evacuees shall remain intact and shall not be extinguished. Their right and interest in the superstructures and the sites are intended to remain intact in spite of their departure, and were not to be extinguished despite any agreement to that effect or by force of custom. Section 8 saves the rights of the evacuee respondents.

17. We find no force in this writ petition, which is dismissed with costs. K. B. A. Petition dismissed.