1984 PLP 1932 (CLC)

‑‑ S. 3 (1)‑Evacuee property, declaration of ‑ Purport of S. 3, Exceptions : (i) Proceedings pending or action commenced before 1‑1‑1957 in respect of a property ; (ii) property occupied, supervised or managed by a person whose authority or right is not accepted or approv ed by Custodian‑Such properties, held, can be declared as evacuee property after 1‑1‑1957. P L D 1964 S C 58 and P L D 1964 (W. P.) Lah. 274 ref.

S. 3‑Declaration of property as evacuee‑Property remained concealed in hands of an agent of evacuee or even a trespasser and has not been treated as evacuee or not shown in records as evacuee property, held, can be treated as evacuee property after 1‑1‑1957 if found that same had a character of evacuee property and some unauthorized person was enjoying its benefits. P L D 1964 Lab. 274 ; P L D 1969 Kar. 586 ; P L D 1964 Lah. 274 and P L D 1968 Lab. 1050 ref. ‑‑ S. 11 (2)‑Land, taking over of‑Land in possession of person, not entitled to possession of such land whether allottee or not‑Held, Settle ment Authorities authorised to take over such land under S. 1 l (2). JUDGMENT MUHAMMAD ZAHOORUL HAQ, J.‑This appeal is directed against the order of an Honourable Judge of this Court, dated 16th March, 1970 in Petition No. 142 of 1970. The relevant facts are that the appellant purchased 36‑1 Acres of land in Deb 342, Taluka Digri, District Tharparkar from Syed Inamullah Shah, respondent No. 4 on 1‑10‑1962 by a registered sale‑deed. In 1965 the appellant received a notice from the Deputy Settlement Commissioner to show cause as to why the possession of the disputed land should not be taken from him. The appellant appeared before the Deputy Settlement Commissioner and after hearing the appellant the Deputy Settlement Commissioner ordered on 27‑6‑1966 that the possession of land in dispute may be taken over from the appellant under section 1 , (2) of the Displaced Persons (Land Settlement) Act, 1958. The said order was based on the finding that the same property had been sold by respondent No. 4 on 2nd July, 1946 for Rs. 8,000 in favour of evacuees Chanan Singh and Surjan Singh by a registered sale‑deed and there was an entry to that effect in the records of the village Form 7 at Serial No. 90. It was further found by the Deputy Settlement Commissioner that respondent No. 4 Inamullah Shah by fraud and false representation had resold the land to the present appellant. The Deputy Settlement Commissioner also held that the appellant was in unauthorised possession, management or supervision of the said land and that the said land was in the position of concealed evacuee property within the meaning of section 3 of 1958 Act. He had relied upon P L D 1964 S C 58 and P L D 1964 (W. P.) Lab. 274. The appellant did not pursue any remedy before the Settlement or Custodian authorities after an adverse order had been passed against him on 22nd June, 1966 but he filed a suit in the civil Court for declaration and injunction which was dismissed on 10‑5‑1968 for want of jurisdiction. An appeal against this said decree and suit was also dismissed as withdrawn. Thereafter on 28‑10‑1969 the appellant filed application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 seeking a declaration for the land in question was not an evacuee property. The said application was dismissed on 1‑11‑1969 by the Deputy Custodian Evacuee Property and Additional Settlement Commissioner on the ground that the applicant had filed the application after more than three years from the date when the cause of action had accrued to him and the application under section 5 of the Limitation Act on the ground that the applicant had been pursuing his case in wrong forums was not a sufficient cause for condoning the long delay of more than three years. The Deputy Custodian further held that the order of the Deputy Settlement Commissioner dated 27‑6‑1966 had been passed after elaborate inquiry where it had been held that the properties in question stood acquired under section 4 of the Lands Settlement Act, being evacuee properties. The appellant thereafter filed an appeal before the Additional Custodian of Evacuee Property but the same was also dismissed on the ground that the appellant had acted negligently and certainly not as a prudent man of ordinary common sense and the appellant had, therefore, no legal or equitable rights for the declaration, which he had sought under section 22 of the Act XII of 1957. The appellant thereafter filed Petition No. 142 of 1970 in the High Court which was dismissed on 16‑3‑1970. The Honourable Single Judge of the High Court had held that since the lower Tribunals had rejected the application of the appellant made under section 5 of the Limitation Act they have exercised a discretionary power which they could have exercised and the reason of the Deputy Custodian in not entertaining the application of the appellant under section 22 of the Act XII of 1957 was that he had pursued his misconceived remedy in the civil Courts by way of Suit and Appeals and it was only after they were dismissed that he sought relief under Act XII of 1957. The Single Judge came to the conclusion that the Deputy Custodian had not passed a perverse order. Another reason which prevailed with the learned Single Judge in dismis sing the petition summarily was that the appellant had not acquired any interest in the property because the same property had already been sold by the same person namely Inamullah Shah, respondent No. 4 to evacuee Chanan Singh on 2‑7‑1946. The counsel for the appellant has contended that the land in question never having treated as evacuee property before 1‑1‑1957 the same could not be treated as evacuee property thereafter and hence the order of Deputy Settlement Commissioner dated 27‑6‑1966 was a nullity in law and the con sequent orders of other authorities which are based upon the same order are themselves a nullity. "Property not to be treated as evacuee property on or after 1st January, 1957.‑(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1967, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property ; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty‑eighth day of February, 1947, has not been accepted or approved by the Custodian." His contention is that since his property before 1‑1‑1957 was not treated as evacuee property, therefore, it cannot be treated as evacuee property. He asserted that it is essential that the property should be treated consciously as evacuee property by some overt act and not by more incidence of law. The learned counsel however, has ignored the provisions of subsection (2) (b) of the same section where it is provided that any property which is occupied, supervised or managed by a person whose authority or right so to do after 28‑2‑1947 has not been accepted or approved by the Custodian nothing in subsection (1) shall apply to the same. The clear purport of the whole sec tion 3 reproduced above is that a property cannot be treated as evacuee property after 1‑1‑1957 and there are two exceptions to this rule. One exception is that if any proceedings are pending or any action has commenced before 1‑1‑1957 in respect of a property then the bar contained in sub section (1) of section 3 will not apply and that property can be treated as evacuee property even after 1‑1‑1957. The second exception to the rule of section 3 (1) is that a property which is occupied, supervised or managed by l a person whose authority or right is not accepted or approved by the Custodian can be as evacuee property after 1‑1‑1957 in spite of the fact that it was not treated as such before 1‑1‑1957. To our mind the purport of section 3 of Act XII of 1957 is very clear and if a property has remained concealed in the hand of an agent of evacuee s or even a trespasser and has not been treated as an evacuee property or even not shown in the records as evacuee property then it can be treated as evacuee after 1‑1‑1957 if after enquiry it was found that it had a character of evacuee property and some unauthorised persons were enjoying its benefits. In the present case the appellant's predecessor Inamullah Shah who had sold this property to evacuee Chanan Singh on 2‑7‑1947 had lost all rights in respect of that property and since Chandn Sirgh had gone to India therefore, the property had become an evacuee property but it had remained concealed and respondent No. 4 Inamullah Shah was therefore, enjoying all concealed evacuee property which he sold to the appellant in 1962. The case of Inamullah Shah was fully covered by section 3 (2) (b) of Act XII of 1957 and the property in his hands could be treated as evacuee property at any time. Since Inamullah Shah bad no right in respect of that property he could not transfer any right to the appellant in 1962. "Clause (b) of subsection (2) of section 3 covers the cases of unauthorised possession, management or supervision of certain parties. These persons cannot be treated the owners of the property. Amongst them will fall the cases of agents, transferees claiming their right after the first of March, 1947, through the evacuee. It will also cover the case of a trespasser." It is, therefore, obvious that the contention of the counsel for the appellant is not justified. 1n this respect we may also refer P L D 1969 Kar. 586 where a Single Judge interpreted P L D 1964 Lab. 274 as under :‑ "If a trespasser is found to be in possession of an evacuee property, he will certainly be occupying, managing and supervising it without the approval of the Custodian and his right to hold it can be challenged on the ground of his unauthorised occupation." In P L D 1968 Lah. (1050‑1056) after taking into consideration section 3 of the XII of 1957 it was observed that sub‑clause (b) of subsection (2) of section 3 ibid bars the application of subsection (1) of section 3 to a property which is occupied, supervised or managed by a person whose authority or right so to do after the 28th of February, 1947, has not been accepted or approved by the Custodian. In that case subsection (3) (2) of the Displaced Persons (Land Settlement) Act, 1958 was also considered where it is laid down that "any such property as referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Act XII of 1957, be treated as evacuee property, and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act". It was held in that case that the lands could be treated as evacuee property. With respect we agree with that view and we, therefore, hold that the lands in this case had vested in the Government as Evacuee Property whet, they were in possession of Inamullah Shah and they could be dealt by the authorities as such thereafter. Another arguments of the learned counsel was that section 11 of Land Settlement Act, 1958 under which the Deputy Settlement Commissioner had ordered the land to be taken over from the appellant did not authorised, such action. We do not agree with this submission. Section 1(2) of the said Act clearly authorises Lands Settlement Authorities to take over the land which is in possession of a person who is not entitled to the possession of such land whether he is allottee or not. And hence the order in question was a valid order. In any case the appellant's counsel has not shown to us that there was any deficiency or infirmity in the order passed by the Honourable Single Judge in this case. The appellant has been subjected to fraud by respondent No. 4 who sold the evacuee land to the appellant and, therefore, the appellant may pursue his remedy, if any, against the respondent No. 4. This appeal is therefore, dismissed. M. Y. H. Appeal dismissed.