P (PLP)

Khata No. 15, which consisted of several khasra numbers, including Nos. 240 and 255, was owned by Muhammad Akram Khan, son of Halim and several ether persons. Muhammad Akram Khan had 3/5th share in the total area of this land, which lit had mortgaged in favour of one Devi Ditta Mal. It was also previously mortgaged with one Farid, but for the purpose of the decision of this case it is not necessary to refer to that mortgage all. In 1919 or 1920, the well‑known Hijrat Movement was started which was meant to drive away the Muslims out of India. Muhammad Akram Khan fell an easy prey to this movement. He sold away his entire property in favour of one Devi Ditta Mall by a registered‑deed dated 29th July, 1920, and migrated to Afghanistan. The movement failed and Muhammad Akram Khan came back to India. It appears that he either by force or with the consent of Devi Ditta Mal occupied the land, which he had sold away .to the later. Sometime later Devi Ditta Mal seems to have instituted a civil suit for the possession of this land against Muhammad Akram Khan. He was granted a decree on the 25th of August 1924. In August 1925 , Devi Ditta Mal instituted a complaint against Muhammad Akram khan and one Taus under section 447, Indian Penal Code, alleging that the two accused persons had committed criminal trespass into the land. This complaint was dismissed on the ground that Muhammad Akram Khan had entered into the possession of the land lawfully, and had occupied it as such. On the basis of the earlier civil decree however mutation No. 30 was attested on the 29th of March 1929, as a consequence of which Muhammad Akram Khan's name was removed from the revenue papers and that of Devi Ditta Mal substituted therefore. Later on partition proceedings were taken in the Court of the Revenue Officer. Devi Ditta Mal in these proceedings was allotted khasra No. 2401, measuring .7 kanals 19 marlas, and khasra No. 255, measuring 16 kanals 3 marlas. On the basis of this partition mutation No. 87 was attested on the 9th of May 1935. Proceedings for possession were then, taken by Devi Ditta Mal in the Court of the Revenue Officer. On the 15th of June 1935, the girdawar went to the spot, and handed over the possession of khasra No. 240 to Devi Ditta Mal. He also delivered to him the possession of some of the land in khasra No.

255. With regard to the remaining land in khasra No. 255, the girdawar noted down that Muhammad Akram Khan had been directed to give a share of the produce to Devi Ditta Mal. Sometime later it appears that Devi Ditta Mal was murdered. He was issueless and his property, was, therefore, mutated by mutation No. 108, attested on the 8th of January 1938, in favour of his widow Mst. Bago. On the 13th of January 1938, Muhammad Akram Khan made an application to the Revenue Officer that mutation No. 108 be corrected in as much as his name should be entered in the revenue papers instead of Mst. Bago's because the property belonged to him and was not that of Ditta Mal. On this application mutation No. 144 .was entered, but was rejected on the 18th of March 1939. On the 9th of July 1946, by a registered lease‑deed Mst. Bago, leased out khasra Nos. 916/2‑10 and 255, measuring 24 kanals 2 marlas in favour of Painda Khan, son of Miar Khan, in lieu of Rs. 500 for a period of forty years. This period was to commence from the date when the lessee got the possession of the` land. It may be noted that the copy of the lease‑deed which has been placed on the file does not mention khasra No. 255 as also having been leased out to Painda Khan, but that omission seems to be acci dential, because otherwise the area of the land cannot come to 24 kanals 2 marlas, as stated in the deed. Painda Khan has now instituted a suit for the possession of the above land on the ground that it ‑has been leased out to him, and that Muhammad Akram Khan is in its possession illegally and without any title. Muhammad. Akram Khan in his written statement admitted that he had sold the property in favour of Devi Ditta Mal in 1920, because he had migrated to Afghanistan in pursuance of the Hijrat Movement, but on his return from that country the Chief Commis sioner N.‑W. F. P. had ordered that the property of all those persons, who had migrated to Afghanistan, would be restored to them, and he consequently, was also given back the property in suit. He alleged in the alternative that he was in possession of the land for more than twelve years, and was, therefore, an owner of it by efflux of time. The suit was decreed by the Sub‑Judge, 1st Class on 21st February 1948. There was an appeal against this decree, which was heard by Raja Muhammad Nazir Khan Additional Judge Peshawar, who by his order dated 5th July 1948, accepted the appeal, set aside the decree of the trial Court and acting under section 151, Civil Procedure Code remanded the case back to the trial Court for trial de novo. In the meanwhile the partition of India came into being, which was followed by mass‑murder throughout the country and exodus of the Muslims to the newly created country of Pakistan and of the Hindus to the newly formed India. Mst. Bago as a Hindu also migrated to India, and thus admittedly became an evacuee. On the 18th of October 1948, the Pakistan (Protection of. Evacuee Property) Ordinance XVIII of 1948 came into operation. By its section 14, the Civil Courts were debarred to entertain or adjudicate on any claim in any suit, appeal, execution, application or other proceeding in respect to whether any property was or was not an evacuee property, or whether an evacuee had or had not an interest therein, except of course in the case where a person had been referred to the Civil Court under section 20 of the same Ordinance. On the 20th of December 1948, the Sub‑Judge, Charsadda rejected the plaint under O. VII rule 11, Civil Procedure Code, because as he put it, he was debarred by the above law to go into the question whether the property in suit was or was not that of lust. Bago, and consequently an evacuee property. On appeal the learned Senior Sub‑Judge, Peshawar by his order dated 26th February 1949, concurred in the finding of the trial Court that the Civil Courts were barred to entertain the suit, but be held that the learned trial Court could not reject the plaint. According to him the trial judge should have returned the plaint to the plaintiff for presentation to the proper authority. He accepted the appeal to this extent that he remanded the case with the direction that the plaint be returned to the plaintiff to present it to' the proper authority. Painda Khan has come up on revision against this order to this Court, He has, however, in the meanwhile taken back the plaint and presented it to the Custodian, where it awaits decision. The revision petition originally came up for bearing before the Hon'ble Judicial Commissioner, who referred the case to the Bench; because an important and novel question of law had arisen therein, namely, whether the property in dispute was evacuee property and as such a claim thereto was not cognizable by a Civil Court, but was to be decided exclusively by the Custodian under section 11 of the Pakistan (Protection of Evacuee Property) 'Ordinance of 1948. Under the above Ordinance the Hon'ble Judicial Commis sioner of this Court has been appointed the Custodian of the Evacuee Property in this Province. He has in ibis capacity got to decide whether the property in suit is or is not an evacuee property in the case pending before him. Under the circumstances he considered it improper to first sit as a Civil Court and decide whether it has jurisdiction in the matter or not, and then as a Custodian declare whether the property in suit is an evacuee property or not. I agree with His Lordship that it would not be only improper but also embarrassing for him to ‑perform the dual duty with respect to the same property. It is on account of this reason that I have to sit alone to decide this case, and am deprived of taking advantage of the long experience and vast knowledge of law of my Honourable colleague. Both the learned counsel, who appeared before me for the opposite parties, submitted that the Civil Court had jurisdiction to go into the question whether the property in suit was or was not an evacuee property. In face of the agreement of the learned counsel between themselves on the sole point involved in the case, I find myself in rather a difficult position. The agreement, however, of the two Counsel on the question involved will not confer jurisdiction on a Civil Court, which otherwise is absent. It may be noted here that in the meanwhile His Excellency the Governor‑General, Pakistan hag promulgated the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), which has repealed the previous Ordinance XVIII of 1948. Under section 34, subsection (1) (a) of this latter Ordinance save as expressly provided in the Ordinance, no Civil or Revenue Court has the jurisdiction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceeding as to whether any property is or is not evacuee property, or whether an evacuee has or has not any right or interest in such property. According to the plain meaning of this section, a Civil Court is completely debarred to go into the question whether a certain property is or is not evacuee property, or whether an evacuee has or has not any right or interest in such property. It comes to this that no sooner in any Civil or Revenue Court a question of the type mentioned above arises, the Court should take its bands off it and act under subsection (2) of section 34, which runs as under:‑

"Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Civil or Revenue Court, the Court shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the pro ceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. The learned counsel for the petitioner has advanced a very novel argument, that a Civil Court should first decide whether the property is an evacuee property within the meaning of section 2, subsection (3) of the Ordinance, and when it decides that it is evacuee property then act under subsection 2 of section

34. Section 2, subsection (3), gives the definition of evacuee property, and it is "evacuee property means any property in which an evacuee has any right or interest, or which is held by or for him in trust, and includes (a) any right of interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or (b) property obtained from an evacuee after the twenty-eighth day of February, 1947, until confirmed by the Custodian, but does not include (i) any movable property in the immediate physical possession of any evacuee, or (ii) any property belonging to a joint stock company, the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India, and continues to be so situated after the said date". The argument of the learned counsel for the petitioner amounts to putting the cart before the horse. If once the Civil Court decides that a certain property is evacuee property, and then send the case on to the Custodian, there is nothing left for the latter to decide. It is obvious that no sooner in any nit, appeal or application or other proceeding any question as to whether any property is or is not evacuee property, or whether any evacuee has or has not any right or interest in any such property arises, the jurisdiction of the Civil or the Revenue Court is completely ousted, and it is not within their province to give any decision one way or the other. They must stop there and act under subsection (2) of section 34 of the Ordinance. The learned counsel for the respondent has advanced an argument, which to say the least is most ridiculous. He submits that as the Ordinance came into force after this suit was instituted it shall not have any application to this suit, and the questions involved in it, therefore can be decided by the Civil Court. This argument is in defiance of the very wording of section 34 of the Ordinance, wherein it is stated that no Civil or Revenue Court shall have jurisdiction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceeding. It is an elementary principle of law that a statute dealing with procedure only, shall come into force at once, arid apply to all actions brought before or after its passing. That section 34 of the Ordinance deals with procedure only is apparent on the face of it. The very words are so plain that they do not admit of any other interpretation except this that the law applies to all actions irrespective of the fact whether they were brought before the Ordinance was passed, or after it. The intention of the Legislature that it applies to all actions is made clear from the enactment of subsection (3) of section 34 of the Ordinance, which lays down that "No decision of any Court on any question such as is referred to in clause (a) of subsection (1) given between the fourteenth day of August, 1947, and the commencement of this Ordinance, shall be binding on the Custodian or affect any right or interest of any evacuee in any property affected by such decision". It will be assured to presume that although an order given by a Civil Court after the 14th day of August 1947, and before the com mencement of the Ordinance would be ineffective, yet an order given after the commencement of the Ordinance in any pending action would be valid, even though it is against its specific provisions. In my view, the language of section 34 makes it perfectly clear that it was the intention of the Legislature to give this Ordinance a retrospective effect. In the case before me the Civil Courts have to decide whether 141st. Bago has or has no interest in the property, and it is only after this question is decided that the petitioner would come in. If, it is decided that Mst. Bago had no interest in the property, it would necessarily follow that her lease in favour of Painda Khan was bad in law, and consequently he cannot maintain any action in Court. The case, therefore, directly involves a question viz., whether Mst. Bago, an evacuee, .has or has no interest in the property in suit. This question in my view, cannot be decided by a Civil Court. The procedure, however, followed b both the Courts below is opposed to the provisions of section 34 sub section (3) of the Ordinance. This they did not in defiance of law, but because this Ordinance bad come into force after they had passed those orders. I consequently formally accept this revision petition, set aside the judgments and decrees of the two Courts below, and remand the case back to the trial Court under section 151, Civil Procedure Code, with the direction that it shall state the question involved in the case with relevant particulars and remit it to Hon'ble the Custodian for decision, and adjourn the proceedings until the decision of the Hon'ble Custodian is given. Since the point involved in the case was a novel and difficult one, I leave the parties to bear their own costs. K. M. A. Petition accepted.