1980 PLP 46 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑This petition for leave to appeal arises out of the dismissal of a constitutional petition under Article 199 of the Constitution by a learned single Judge ‑ of the High Court of Sind, refusing to set aside orders passed by Custodian of Evacuee Property, Sind (respondent No. 1) whereby it was held that the property claimed to have been purchased by the petitioners was not evacuee. The land in dispute belonged to Khatumal of district Dadu, non- Muslim. He did not leave Pakistan in 1953. The land according to the findings of fact remained in the possession of Khatumal and his successors, and was not treated as evacuee till 1970 when one Qamaruddin, predecessor -in‑interest of the petitioner got its allotment under the displaced Persons (Land Settlement) Act on the pretext that it was an evacuee property and he was entitled to its allotment as a claimant. The mutation was effected in his favour on 26th of February, 1970. The petitioners claimed to have purchased it from said Qamaruddin on 28th of February, 1970, through a registered sale deed. Megh Raj son of Khatumal deceased and father of respondents 2 and 3 on coming to know of the said allotment challenged the same before the Settlement authorities in various proceedings. . Ultimately he was advised by the said authorities to mope the Custodian under the Pakistan Administration of Evacuee Property Act, 1957 for relief. An application under section 22 thereof was filed before a Deputy Custodian which ultimately was allowed by the learned Custodian on 13th June, 1974. The petitioners challenged the said decision before the High Court in a constitutional petition, the same having been dismissed by a learned Single judge they filed this petition for leave to appeal. The learned counsel has contended that the application filed under section 22 of the Pakistan Administration of Evacuee Property Act, 1957, was hopelessly barred by time, therefore, the same should have been rejected lie has also contended that one of the sons of Khatumal had migrated to India, therefore, to the extent of his share, the property in dispute had become evacuee and the same could not have been declared otherwise. The question of limitation was raised in the High Court also. The learned Judge while dealing with the same observed as follows :‑ "The land in dispute, as stated herein above, was for the first time allotted on 14th February, 1970. As soon as Menghraj and others came to know of it, they moved settlement authorities for its deletion from evacuee pool. The Assistant Commissioner and Deputy Settlement Commissioner (Land), Dadu, who had earlier by his order dated 13‑1‑1970 excluded the land in dispute from compensation pool, on remand declined to do so and advised them to seek non‑evacuee declaration from Respondent No.

1. They therefore, filed an appeal against this order before the Deputy Commissioner and Additional Settlement Commissioner (Land), Dadu. During pendency of this appeal, certain other urban properties belonging to them, were also included in evacuee pool whereupon they again moved the Deputy Settlement Commissioner (Land), who by his order No. D. S. C./D./495 dated 18‑4‑1972 advised them to get non‑evacuee certificate under section 22 of Act XII of 1957. This order was received by them' on 24‑4‑1972 whereas the application under section 22 of Act XII of 1957 Annexure `R‑5' was filed on 25‑5‑1972 wherein declaration as non- evacuee properties was sought not only in respect of urban properties but also the land in dispute. Thus it is clear, that Meghraj and others filed application under section 22 of Act XII of 1957, out of abundant caution even before the appeal filed by them in respect of the land in dispute before Deputy Commissioner and Additional Settlement Commissioner (Land) was decided and which was later on decided by order Annexure `H', dated 29th May, 1973, whereby the allotment of land in dispute in favour of claimant Qama ruddin was cancelled. Since the matter relating to the declaration of the land in dispute was already sub judice before the respondent No. 1, the Deputy Commissioner and Additional Settlement Commissioner (Land) further ordered that Meghraj should first get necessary declaration from the Court of Custodian and then, make a fresh prayer for exclusion of the above survey numbers from evacuee pool. It clear that the owners diligently pursued the remedies open to them firstly before the Settlement authorities and secondly before the Custodian, final result whereof as stated hereinabove is in their favour. Consequently I hold that the application under section 221 of Act XII of 1957 is not time‑barred." The above treatment of the question of limitation raised in the High Court as also reiterated before us, is not only fair, but also unexceptionable. The learned counsel has not been able to point out any infirmity legal otherwise in this behalf. Further we have noticed that this point was no raised before the learned Custodian despite an opportunity of hearing having been afforded to Qamaruddin as also to the alleged purchasers of the property. In the light of the above circumstances, we do not consider it necessary to grant leave on the question of limitation raised by the learned counsel. The other point raised in support of this petition is also without any force. It has been ignored by the learned counsel that the property in dispute had not been treated as evacuee before 1‑1‑1957, the target date specified in Act XII of 1957. And according to the findings of fact, it was never treated as evacuee property till its allotment to Qamaruddin. That act of a Settlement authority by itself, in the circumstances of the case, cannot be considered as enough for `treating' the property in dispute as evacuee. That being so even if it be presumed that one of the sons Meghraj had migrated to India, it will not be of any help to the petitioners. There is another aspect of the matter. Neither the owner nor the property were decelerated as evacuee, it never formed part of compensation pool and that being so the allotment in favour of Qamaruddin under the wrong a assumption that the property was evacuee, was without any such legal effect as to have clothed Qamaruddin with right and competence to pass on valid title to the petitioner. The impugned orders are unexceptionable. There is no force in this petition and is hereby dismissed. Petition dismissed.