1989 PLP 738 (SCMR)

Ch. Fazal‑i‑Hussain, Advocate Supreme Court for Appellant. Respondents Nos‑1 and 2: Ex parte. Ejaz Ahmad Khan, Advocate‑on‑Record for Respondent No.3. Date of hearing: 6th December, 1988. MU14AMMAD HALEEM, CJ.‑‑The dispute in this appeal is with regard to four kanals of land situate at Sundardas Road in the revenue estate of Mian Mir, Tehsil and District Lahore. It was gifted to the appellant by her late husband Mian Iftikharuddin who had purchased it from Khan Bahadur Saadat Ali Khan on 17th of August, 1934 as per registered sale‑deed of that date, and the latter had purchased this land from Rai Bahadur Sohan Lal on 27th of June, 1934. In November, 1967, a proposal was made to allot this land to Khawaja Habibullah, respondent No.3, a displaced person from the State of Jammu and Kashmir. The appellant on coming to know of it represented to the Allotment Committee that it was not an evacuee property and that it belonged to her. The Allotment Committee excepted the representation and held that the land could not be allotted. Respondent No.3 thereupon went in appeal against this order which was accepted by the Settlement Commissioner by order, dated 27th of June, 1968. In ordering so, the Settlement Commissioner relied on the successive Jamabandis of the land in dispute wherein it was shown as the property of Sohan Lal but occupied by Mian Iftikharuddin as Ghair Dakhil Kar without payment of any "Lagan Bawajja Taswar Bay", and also on the mutation of sale in favour of Mian Iftikharuddin which was not sanctioned, and the consequent rejection of the mutation of gift in favour of the appellant. The Settlement Commissioner having held so further stated that he had to go by the revenue record and was not required to deal with the intricate questions of law and fact which are to be presented and decided by the Civil Court or any other competent authority. In his view, therefore, the property was available for transfer against the claim of respondent No.3. Against this order the appellant invoked the writ jurisdiction of the Lahore High Court and her writ petition was partly accepted by order dated 23‑12‑1975 as the matter was remanded to the Settlement Commissioner with the direction that he should decide the questions of law and fact which were to be raised before him by the appellant. It was further observed in the order that the Settlement Commissioner was fully competent to determine as to whether the property was available for allotment or not and this he could do without usurping the jurisdiction of the Custodian. In the petition for leave to appeal, several questions of law and fact were raised before this Court but leave was only granted to consider whether the High Court was in error in thinking that the controversy as to the true nature of the property could be resolved by the Settlement Commissioner as that jurisdiction is vested by law in the Custodian of Evacuee Property, and, in this context, whether it should be remanded to the Custodian of Evacuee Property or the Settlement Commissioner for the purpose of determining the status of .the property and its consequent ownership. Upon hearing the counsel for the parties as to the nature of the questions involved and the authority which can resolve them, we are of the view that the questions raised could only be decided by the Custodian of Evacuee Property. But as after the repeal of the laws, it is now the Notified Officer who is competent to deal with such questions, we would accordingly modify the order of the High Court and remand the case to the Notified Officer in substitution of the Custodian of Evacuee Property. The appeal is thus allowed to this extent, but with no order as to costs. A.A./I‑61/S Appeal allowed.