P L D 1958 Custodian (Lah (PLP)

A. M. JAN.

‑ Kh. Nazir Ahmad made an application in the Court of the Deputy Custodian, Evacuee Property, Lahore, on 6th March 1957, asking for the registration of his claim amounting to Rs. 1,95,17'2 against Col. V. R. Mirajkar, F. R. C. S., I. M. S., (Retd), formerly of Lahore and now residing at Malabar Hill, Bombay. He also prayed for a declaration that bungalow No. 128, The Mall, Lahore, had been equitably mortgaged to him by the aforesaid Col. Mirajkar in lieu of Rs. 1,50,000 which was to carry interest @ 3% per annum. The loan was advanced on a promissory note dated 21st February 1947, (P. 1) and the equitable mortgage was created by deposit of Title Deeds on the same day and was confirmed in writing (P. 2). The loan and the equitable mortgage were admitted and acknowledged in several sub sequent letters mentioned in the petition and produced in Court. An affidavit of Col. Mirajkar dated 27th February 1957, was also filed in Court in which the loan and the equitable mortgage were admitted with the liability to pay interest @ 3% per annum. On 16th March 1957, Col. Mirajkar filed a written statement in the Court of the Deputy Custodian through his counsel Mr. Muhammad Sharif. The statement was duly signed and verified by Col. Mirajkar and, admitted the claim of the Petitioner in full. Mr. Muhammad Sharif, counsel for Col. Mirajkar, made a statement from the Bar also admitting the claim of the Petitioner and the documents produced by him in support thereof. Then Kh. Nazir Ahmad put himself in 4 the witness box and gave detailed evidence in support of his claim. He was cross‑examined by the Rehabilitation Authority and questioned at length by the Court who, after examining him, ordered the counsel for Col. Mirajkar to get information on the points noted in his order dated 16th March 1957. This information was supplied by Col. Mirajkar in the form of an affidavit dated 28th March 1957, the gist of which is that he had left Lahore in April 1947, that he did not deposit the money received by him in his Bank because he was indebted to the Bank, that the Bank had seized some 500 ceiling fans belonging to him and he did not want to pay them the money which he had received from Kh. Nazir Ahmad. He wanted to set up a Nursing Home in this house and spent about Rs. 50,000 on additions and alterations therein. He had also to pay Rs. 1,00,000 to R. B. Ishar Dass from whom he had borrowed the money to buy this house. Subsequent to this another affidavit dated 23rd April 1957, was filed by Col. Mirajkar saying that in the claim preferred by him in India for compensation in respect of his property left in Pakistan he had stated that the house in question was mortgaged to Kh. Nazir Ahmad and he had received no compensation or allotment in consideration of this property. On 2nd April 1.957, Kh. Nazir Ahmad produced Hafiz Abdul Majid, Member Revenue Board, as a witness. He said that he was the Chief Secretary to the West Punjab Government from May to July 1948, that the house in question was requisitioned by the Government by order dated 16th June 1948, that Kh. Nazir Ahmad saw him about it and told him that the house had been mortgaged to him by Col. Mirajkar and showed him some documents signed by Col, hlirajkar in that respect. The learned Deputy Custodian, Ch. Aziz Ahmad, now District and Sessions Judge, Lyallpur, then wrote a very careful and cautious judgment dated 14th May 1957 in which, after discussing various questions of law and fact, he came to the conclusion that the Petitioner's claim and the equitable mortgage in his favour must be admitted. The order came up for confirmation before the Additional Custodian who, after hearing Kh. Nazir Ahmad, Petitioner, Mr. Muhammad Sharif, Advocate for Col. Mirajkar and Mr. Hamid Ali, R. O. (Legal) for the Rehabilitation Authority confirmed the order on 22nd June 1957. On 29th July 1957, the R. O. (Legal) filed a petition for revision against that order alleging that the Additional Custodian had not given due consideration to the objections raised by the Rehabilitation Authority which were as follows :‑ (1) That the Deputy Custodian could have admitted the Petitioner's claim but had no authority to "Put the defendant evacuee's property under the encumbrance of equitable mortgage with the Petitioner in consideration of the claim admitted by the Court". (2) That the application of the Petitioner was time‑barred. (3) That no equitable mortgage could be created by depositing a copy of the Title Deed. (4) That the Deputy Custodian had some doubts about the genuineness of the Petitioner's claim and by admitting it, in spite of those doubts, he had caused great loss to the Rehabilita tion Department. (5) That the Deputy Custodian was never convinced about the genuineness of the Petitioner's claim, which was admitted for unknown reasons, and the claim appeared to be the result of collusion between Kh. Nazir Ahmad and Col. Mirajkar It is incorrect to say that the learned Deputy Custodian had put the property under equitable mortgage. This was admittedly done by the evacuee himself. The learned Deputy Custodian after discussing the law on the subject in his order held that the equitable mortgage could be legally created in the way it was done. He also considered the question of limitation and found that the petition of Kh. Nazir Ahmad was not time‑barred. The doubts entertained by the learned Deputy Custodian at one time were dispelled by the material placed on record and in view of Col. Mirajkar's admissions and affidavits and in the absence of any evidence to show collusion between him A and Kh. Nazir Ahmad the Petitioner's claim cannot be rejected nor` can the equitable mortgage be denied. Col. Mirajkar was represented by Mr. Muhammad Sharif, Advocate, and in answer to my questions he assured me that he has personally known, Col. Mirajkar for a very long time and that he has been instructed by him again and again to see that Kh. Nazir Ahmad does not suffer any loss for giving him a loan when he was in need of it. In these circumstances there is no justification for me to set aside the abovementioned order of the Deputy Custodian confirmed by the Additional Custodian on 22nd June 1957. The petition for revision is dismissed. K. M. A. Petition dismissed.