1983 PLP 2663 (CLC)

Date of hearing : 9th February, 1983. The appellants assail the Judgments and decrees passed by the learned Additional District Judge, and the trial Court respectively, on 19th June, 1972, and 13th February. 1970, whereby the suit filed by respondent No. I was allowed and it was declared that property comprising Khasra No. 2256 measuring 7 Marlas 183 sq. ft. situate in Mohallah Ram Garhian, Khairati Ram Street. Lahore, bearing corporation No. S. 1.39‑S.‑16, is exclusively owned by him, in view of his purchase in public auction held on 16tb April. 1960. It was further held that the declaration dated 17th July, 1960 of the Deputy Custodian and the order dated 2nd December, 1960, of the Custodian. confirming the same in favour of Karam Ilahi, predecessor‑in‑interest of the appellants was obtained by fraud and is invalid.

2. Briefly, the facts of the case are that Karam Ilahi, predecessor‑in -interest of the appellants. presented an application dated 24th July, 1957, under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, for a declaration to the effect that property No. S. 1.39‑S. 16‑A, Mohallah Ram Garhian, was not an evacuee property and that he was its owner. He alleged that the property was inherited by him from his father about 50 years back. The Deputy Custodian vide his order dated 7th July, 1960, granted the declaration prayed for, after considering the evi dence brought before him. His order was confirmed by the Custodian on 2nd December, 1960.

3. After the enforcement of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, property No. S. 1.39‑S.‑16, situate in the same Mohallah Ram Garhian, was put to auction by the Settlement Department. It was purchased by the present respondent No.

1. He then filed an application for ejectment of the appellants but the same was dismissed by the Rent Controller on 6th October, 1967. He filed a review petition' before the Custodian which also failed vide order dated 8th November, 1967, for the reason that there was no power in law to review the order, of his predecessor, already passed in 1960. It was because of that situation that respondent No. I filed the suit in the Civil Court.

4. It is contended by the learned counsel that the Civil Court had no jurisdiction to sit in judgment on the orders passed by the Custodian and the Deputy Custodian and, therefore, the total exercise is without lawful authority. It is further stated that the Deputy Custodian as well as the Custodian knew fully well that the predecessor‑in‑interest of the appel lants was asking for a declaration in respect of property No. 16‑A and that a reference to the other property No. 16 was also made there.

5. The learned counsel for respondent No. 1, while contesting the appeal, stated that the predecessor‑in‑interest of the appellants obtained the declaration from the Custodian by fraud and misrepresentation and, therefore, it was a fit case in which the Civil Court could intervene. He has gone through the orders passed by the trial Court as well as the lower appellate Court but has not been able to show as to wherefrom was any case of misrepresentation or fraud made out.

6. It will be seen that the two Courts below have considered more or less the same documents, which were before the Deputy Custodian. The contention of the learned counsel that some dates were different, will not make any difference whatever. He has not been able to show that if the date of Exh. P. W. 4/A is‑ 1st April, 1946 and not 1st April, 1944, as stated therein, what material difference would have been made. Both the docu ments are of a date prior to March, 1947. If on any of those . dates the property in question was being shown as non‑evacuee, the Custodian and the Deputy Custodian had to accept the same. In that view of the matter, the property No. 16‑A was never acquired, under the Displaced Person (Compensation and Rehabilitation) Act and never became a part of the compensation pool, enabling the settlement authorities to dispose of the same by way of auction.

7. The learned Additional District Judge has remarked in paras. I and 11 of the judgment that the appellants bad obtained, the declaration from the Custodian by way of fraud. The trial Court also decided that way in issue No.

5. This finding has been given not on the basis of proved misrepresentation or fraud but only on the ground that the evidence on record, as interpreted by them. It will be useful to reproduce a portion of the order of the Deputy Custodian to show that the same controversy dealt with by the Courts below, was there also :‑ The documentary evidence coupled with the oral evidence satis factorily proves that the property in dispute was owned by Karam Ilahi and the notice issued by the Rehabilitation Department relates to property No. S. 1.39‑S‑16 and not the property in dispute. As the property in dispute adjoins to property No. S. 1.39‑S‑I6 and the Rehabilitation Department might have also included the property in dispute No. S. 1.39‑S‑16‑A in that property which is a separate one which gave rise to the petitioner to 'file this petition .

8. It may further be noted that the evidence brought before the trial Court did not conclusively prove that the property in question was evacuee. While discussing this controversy at page 5 of his order, the trial Court referred to a document Exh. P‑2 which is a report of the Property Surveyor and order of the Chief Officer of the Lahore Municipal Corporation passed in 1963. The Surveyor had reported that pro perty No. 16 consisted of Khasra No. 2256 and was owned by Bhola Singh and others. This being of the year 1963, must be based on some other documents, 'rhe learned Civil Judge mentions Exh. P‑5 (P A list of 1944) which showed that property No. 16‑A was owned by Karam Ilahi and the construction over it was one 'Chhappar'. Same is the position with regard to a set of other documents. Consequently, what the Courts below had decided is the case on merit as if they were sitting in judg ment on the order of the Custodian.

9. In view of the above it is quite clear that the two Courts below have not correctly considered the question of jurisdiction. They hay not pointed out any fraud or misrepresentation perpetrated by Karam Ilahi. The order of the Deputy Custodian shows that the predecessor- in‑interest of the appellants had produced before him the relevant documents from the record. The Rehabilitation Officer or other counsel of the Custodian must also have assisted. In any case The Deputy Custo than and the Custodian had some record before them and also knew what other record would have been needed. It is, therefore, presumed o that it was after consideration of the same that the Deputy Custodian passed his order. He was never misled by anyone. The Custodian did .not entertain the respondent's application for review even though the question of fraud was brought to notice. The two Courts, therefore ought to have stayed their hands off the case in view of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957. Rather, they were obliged under section 41 (2) to remit the case to the Custo dian and stay proceedings till a decision was given by him. For the reasons given above, the appeal is allowed and the orders passed by the two Courts below are declared to be without jurisdiction) They are, therefore, set aside Consequently, the suit filed by respondent No. I is dismissed The parties shall bear their own costs. M. Y. H. Appeal allowed.