2008 PLP 854 (CLC)

MAULVI ANWARUL HAQ, J.

On 7-6-1981 the petitioners filed a suit against the respondents Nos.1 and

2. In the plaint, it was stated that the suit House No.S-XX-25-S-22, Canal Park, Lahore, was an evacuee property owned by one Dewan Chand evacuee. Mufti Fahim-ud-Din, the predecessor-in-interest of petitioners Nos.1 to 11, who was a displaced person occupied half portion of this property in 1948 and was allotted to him by the Rehabilitation Authorities. The other half was allotted to Muhammad Mohsin, the predecessor-in-interest of petitioners Nos.11 to

16. On the promulgation of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the house was transferred to the said allottees. Price was paid and a P.T.D. was issued on 1-2-1962 in respect of half the house in favour of the said Mufti Fahim-ud-Din. The other half was transferred to the said Muhammad Mohsin who associated with petitioner No.17 and a P.T.D. was issued on 27-3-1965 in the names of the said two persons. On 16-1-1981 the respondent' No.2 tried to dispossess the petitioners representing that he has obtained an ejectment order on 29-11-1980. Inquiries were made and it revealed that the respondent No.1 has 'obtained a decree on 10-6-1979 to the effect that Mst. Katherine Helen Puttinges was the owner of the said property and upon her death the respondent No.1 has become the owner being her only son. Mutation No.4571 was attested on 12-8-1979 on the basis of the said decree. He then sold the property in favour of respondent No.2 on 3-9-1979 by means of a registered sale-deed whereafter the ejectment petition was filed. The execution was resisted. Later the ejectment petition was withdrawn on 1-6-1981. It was stated that the said Mst. Katherine Helen had sold the property to Dewan Chand before the partition and at the relevant time it was owned by Dewan Chand who became an evacuee and the property was taken over by the Custodian of the Evacuee Property. The decree obtained by respondent No.1 was, thus, stated to be result of fraud and misrepresentation. It was accordingly prayed that the said decree, dated 10-6-1979 be declared to be void along with the consequential mutation and the sale-deed in favour of respondent No.2. The respondents in their respective written statements denied the contents of the plaint. It was stated that the property was never sold by the said lady to the said Dewan Chand. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 20-2-1988. An appeal filed by the petitioners was dismissed on 18-12-1988. I may note here that whereas the learned trial Court had found the suit to be incompetent in view of section 12(2), C.P.C. but the issues on merits were also decided. However, the appeal was dismissed on the sole ground of non-maintainability of the suit. Against this judgment Civil Revision No.416-D of 1989 was filed in this Court. It was allowed on 20-1-1998. The said appellate judgment and decree was set aside and the case was remanded with the direction that the suit is to be treated as an application under section 12(2), C.P.C. while the appeal is to be treated as a revision and to be decided accordingly. Opportunity was also granted for leading additional evidence. The case was accordingly heard by a learned Additional District Judge, Lahore after remand. An application filed by the petitioners to produce copy of a judgment, dated 17-5-1995 was dismissed holding that the judgment does not pertain to the suit property. The revision was dismissed on 29-4-1998.

2. Learned counsel for the petitioners contends that the impugned orders are without lawful authority inasmuch as the mere fact that the P.T.Ds. were issued in favour of the petitioners would raise a presumption that the property was treated as evacuee by the Custodian within the meaning of Pakistan (Administration of Evacuee Property), Act, 1957. He has relied on the cases Mst. Hajiran Sughra v. The District Judge and Settlement Commissioner, Hyderabad and others 1969 SCMR 686 and Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 1993 Lah.

441. According to him, the entries in the PT-1 Form would go to show that the property was in fact, sold by the said Christian lady in favour of Dewan Chand. No one has turned up for the respondent.

3. I have gone through the copies of the records, appended with the writ petition. I have already narrated above the material contents of the pleadings on record. So far as the matter of the treatment of property as an evacuee property is concerned, it is well-settled that the treatment has to be by custodian before the prescribed' date i.e. 1-1-1957 through an overt act. In the said case of Mst. Hajiran Sughra, the Honourable Supreme Court found as a fact that the property was included in the register of evacuee properties and rent was fixed by the Custodian. In the said case of Muhammad Din and 8 others, this Court found that the defendants in the suit had contested the allotment/transfer of the property in the said case with the plea that it was evacuee property and it was after a contest by the said parties upto the Honourable Supreme Court of Pakistan that the property was ultimately transferred by the Settlement Authorities.

4. In the present case, the petitioners although stated that they were allotted the property, however, there are no particulars of any allotment order or even allegation of assessment or payment of rent in the plaint/petition. These allotment orders are not forthcoming on the record. Needless to state that there is neither allegation of any demand of rent by the Settlement Department or the Custodian nor its .payment. There is no proof that the property was ever entered in the register of evacuee properties. On the other hand, P.W.2 who brought the records from the Settlement Department has stated as follows in the cross- examination:

P.W.3 is another Head Clerk from the Settlement Office who brought a Corporation Register and stated that in the said record, the property is entered as ownership of Dr. Dewan Chand. To my mind, the most important witness is P.W. Gulzar Butt who brought the Corporation record on which the entire reliance has been placed by the petitioners. According to him, for the first time, the property was recorded to be in the name of Dr. Dewan Chand in the assessment record for the year 1954-55. In his cross-examination, he stated that no one had applied for the change of entries in the said record. He states that the last bill was issued on 6-8-1946 and there is a report that Mrs. G.T. Pitanga has died. One building is sold to one Dewan Chand. It be asked as to what property was sold to Dewan Chand. His complete address may be intimated. Names and complete address of heirs of deceased "Mrs. G.T. Pitanga may as well be intimated for change of ownership". According to this witness, there is nothing on record to show that the heir of Mrs. G.T. Pitanga had any notice or information and similar is the case with Dewan Chand. None of the said two parties were shown present any where in the record. Further admits that there is no evidence of sale such as a sale-deed or any other document present on record to show that the property has been sold to Dewan Chand and neither any intimation or notice was given to the said lady or her heirs. The amendment was made on 18-12-1946.

3. It is a matter of record that this property was owned by a Muslim and was sold to the said Christian lady by him by means of a registered sale-deed whereupon the records being maintained in respect of the property in question were amended by means of a mutation in favour of the said lady. It has further been proved that in the said record, the property remained in the name of the said lady till such time that records were amended on the basis of the said decree passed in favour of the respondent No.1. There is, thus, no evidence on record that the property was ever sold by the said lady to Dewan Chand and further that it was treated as evacuee property by the Custodian or the Rehabilitation Authority within the meaning of law. In somewhat similar circumstances, the Honourable Supreme Court of Pakistan in the case of Muhammad Ismail v. Abdul Haq and others 2001 SCMR 1350 upheld a judgment of this Court holding that the transfer made by the Settlement Authorities was without lawful authority. The appeal before their Lordships had arisen out of a civil suit.

6. Having, thus, examined the records, the writ petition is found to be without any force and is dismissed but without any orders as to costs. S.A.K./N-6/L Petition dismissed.