P L D 1960 W (PLP)

Muhammad Naqi f or Petitioner. Nazir Ahmad Bajwa for Respondents. Revision Nos. 15 and 16 may be taken up together, as they are of similar nature. The case against Ali Akbar son of Jewan, one of the respon dents, who was absent despite service was taken up expert. 81 kanals and 8 marlas of land in dispute in village Malike Tahsil Pasrur, is Shamilat deh. The petitioner is the major land owner of this land. This land was held by certain non‑Muslims as occupancy tenants. These non‑Muslims evacuee tenants mortgaged the land in dispute by an oral agreement on 6‑1‑

45. The mutation was sanctioned on 5‑4‑

45. On 18‑4‑50 the petitioner‑plaintiff instituted a suit in the Court of the Assistant Collector, 1st Grade, for obtaining possession of the land by setting aside the mortgage transaction. The main plea advanced by the plaintiff in the suit was that occupancy rights were mortgaged without the previous consent of the land‑owners and that the` transaction was void able. The suit was dismissed on the ground that by the enforcement of the Punjab Tenancy (Amendment) Act, 1952, the occupancy tenancy was extinguished on the payment of compensation and that the plaintiff had no cause of action. The petitioner filed an appeal before the Collector, but it was rejected. A revision petition was filed before the Commissioner, but it was also rejected. According to section 53 of the Tenancy Act occupancy right under section 5 cannot be transferred unless certain formalities are observed. The respondents did admittedly not observe these formalities, but the petitioner did not take any action before 15‑8‑1947, to have the tenancy rights extinguished. On? 54.47 the property became evacuee property and by virtue of section 16 of the Administration of Evacuee Property Act, 1957 orders in respect of it cannot be passed, except under the Administration of Evacuee Property Act. The contention of the respondents is that as usufructuary mortgagees they exercised the right under section 114 of the Punjab Tenancy (Amendment) Act, 1952, and they became owners. Admittedly this alleged right was exercised by them by making a deposit after 1953. At that time the occupancy right had already become evacuee property and all orders in respect of it must be passed by an authority empowered under the Administration of Evacuee Property Act. No such order has been passed. The position, therefore, is that' neither the petitioner has obtained a valid order extinguishing the occupancy rights and securing the property to him without encumbrance nor at the time of alleged extinguishments the occupancy tenants secured the property as owners. In view of these findings the petition is allowed in part and the result is that the occupancy rights, which are the subject‑matter of these proceedings, became evacuee property on 15‑8‑47 and any one desiring to obtain any order in respect of these rights has to go to the appropriate authority for a decision. K. M. A. Petition allowed in part.