1972 PLP 8 (SCMR)

SAJJAD AHMAD, J.‑The brief facts of this appeal by special leave, are as follows: Badar Din, the father of the appellants, leased out 9 kanals and 8 marlas of agricultural land situated in Hadbast 1.26, Village Naulakha, district Lahore, for a period of 200 years to one Sardar Udham Singh at the annual rent of Rs. 235 beginning from the 18th of November 1902: The lease deed was duly registered. The said Udham Singh transferred his rights and interests in the land to Pandit Wazir Chand and Krishan Lal, who, in their turn, transferred them to a firm, Mehr Singh Sampuran Singh. The aforesaid lease deed contained several conditions, providing inter alia, that if after 7 years, the lessees defaulted in the payment of rent for any period of 6 months running, the lessees would be liable to be ejected, and also that at the end of the lease period of 200 years, the land shall be restored to the lessor in a cultivated position clear of any super‑structures that may be put up there by the lessees. In the registered deed, the land is shown to be comprised in Khasra Nos. 224 and 225 in the Hadbast mentioned above. The lessees being non‑Muslims migrated from Pakistan after the 15th of August 1947, and defaulted in the payment of rent for the half year ending the 17th of November 1947. Consequently, the appellants moved the Rent Controller, Lahore, for their ejectment, and obtained an order in that behalf on the 26th of February, 1949. They succeeded in getting symbolic possession of the land by an order of the Court dated the 26th of February 1949, followed by an order of actual possession made on the 6th of April 1949. It may be mentioned here that although the appellants had sought the ejectment of the respondents from Khasra Nos. 224, 225, 574, 575 and 576, as entered in the Jamabandi of 1941‑45, the Rent Controller, by his order, mentioned above, have ordered the eviction of the respondents only from Khasra Nos. 574, 575 and

576. Neither the Custodian nor the Settlement authorities were impleaded as parties to these proceedings. Thereafter, the appellants moved the Revenue authorities for the removal of the names of the respondents from the Khana‑i‑Kasht. The Assistant Collector, Lahore, referred the matter to the Custodian under section 34 of the Pakistan (Administration of Evacuee Property) Ordinance. XV of 1949, corresponding to section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 (hereinafter described as `the Act'). The Deputy Custodian, by his order dated the 17th of November 1960 held that under section 5 of the Act, the lease rights of the evacuees were protected, and that neither the evacuees nor the Custodian, in whom those rights came to be vested under the law, was liable to be ejected on the ground of default of payment of rent committed by the evacuee within a period of one year from tile date of becoming an evacuee. It was further held that the alleged default committed by the evacuees gave no cause of action for the ejectment of the Custodian or the evacuees or those persons who had been legally transferred occupancy or tenancy rights of the evacuees, as laid down under section 9 of the Act. Tile reference was answered accordingly, and it was said that the evacuees' lease rights in the property subsisted for 200 years from the 18th of November 1902, under tile lease deed. The appellants preferred a revision petition to the Custodian, Evacuee Property, Lahore against the order of the Deputy Custodian, which was dismissed oil tire 9th of October 1957. The appellants challenged the order of the Custodian by a writ petition in the former High Court of West Pakistan, Lahore, which was dismissed in limine by a Division Bench oil the 10th of Julie 1964. Tile learned .fudges in the High Court affirmed the view of tile learned Custodian that section 8 was a complete answer to the appellants' claim for the ejectment of the respondents. The appellants then moved a petition for special leave to this Court, and contended that the Settlement department had elected permanent transfers oh the nuts standing oil tile land in dispute, to the prejudice of their ownership rights, thus making it impossible for them to gain possession of the property even after the expiry of the lease. As it was not clear whether any such orders for permanent transfers had been made, this Court, by its order dated the 15th of October 1964, called for a report from the Settlement authorities. This was submitted by the department, which showed that Khasra No. 224 has since been‑ included and used as a public road, and that Kllasra No. 225 covered a building bearing No. 113‑R‑I, situated on Rahim Road, Misri Shah, Lahore, which, according to the record of the Lahore Corporation, was an evacuee trust property owned by the Honorary Secretary, R.B. L. Banwari Dass Charitable Trust Society Limited. The remaining Khasra Nos., i.e. 574, 575 and 576, which contained shops, quarters and residential rooms, had been given over to different persons, in whose favour the permanent transfer deeds had been issued. All these persons have been added as respondents to the present appeal. On receipt of the report from the Chief Settlement Commissioner, leave was granted to the appellants to consider whether the Settlement authorities were legally entitled to issue such permanent transfer deeds in respect of this property, thereby defeating the reversionary ownership rights of the appellants. We have heard the learned counsel for tile appellants and the learned counsel appearing on behalf of the Honorary Secretary, R.B.L. Banwari Dass Charitable Trust Society Limited, as well as the learned counsel for the Custodian, Evacuee Property, and the Chief Settlement Commissioner. The other respondents, i.e., the persons in whose favour permanent transfer deeds have been issued by the Settlement authorities, in respect of the structures standing on parts of this land, have not put in appearance, and were placed ex harte. According to the Jamabandi of the mauza in question for the year 1941‑42 (Annexure `X' on record), both Khasra No. 224 and No. 225 are shown to be in the ownership of the Provincial Government. Khasra No. 224 measuring 30 ft. in area is shown as karkhana, whereas Khasra No. 225 measuring 38 ft. is recorded there as a shop. The name of the kashtkar is shown as Nazul department care of Trust R. B. Banarsi Dass etc. as ghair dakhil karan. No. lagan is payable for these Khasras on account of banna shikni. As for these two Khasra Nos., according to the report of the Chief Settlement Commissioner. Khasra No. 224 is now a road, and Khasra No. 225 is a charitable building, and no ‑transfer deed has been made by the Chief Settlement Commissioner in respect of either. Even the Rent Controller had declined the application of the appellants for the ejectment of the respondents from these Kltasra Nos., as in the final ejectment order, these Khasra Nos. were omitted, and ejectment of tile respondents was ordered only from Khasra kilos. 574, 575 and 576 as entered in the Jamabandl of 1944‑

45. The appellants can have no cause of action against the Custodian or the Settlement department so ‑far as these two Khasra Nos. are concerned. If they have , any claim in respect of the same, they must seek their legal remedy in the civil Courts, if so advised. As regards the land comprised in other Khasra Nos., viz. 574, 575 and 576, containing shops and quarters, in respect of which the Settlement Department has issued permanent deeds in favour of the respondents displaced persons, it seems .to us that the Settlement Department should reconsider the matter talking into account the terms of the original lease deed, which ostensibly conveys only lease rights to tile lessees for a period of 200 years, reserving the reversionary rights of ownership to revert to the lessors and their successors‑in‑interest oil tile expiration of the lease period. The transfer deeds, as issued by the Settlement Department, prima facie, also seek to extinguish these rights without any consideration as to whether these rights do or do not exist under the lease deed executed by the fatlict of the appellants. In view of this situation, we would allow this appeal, and set aside the transfer deeds issued by the Settlement Department in favour of tile respondents in regard to the land comprised in Khasra Nos. 574, 575 and 576, with a direction that the Settlement Commissioner should take a fresh decision in the matter as regards the ownership rights of the appellants, as claimed by them under the lease deed. The parties will bear their own costs. Appeal accepted.