1992 PLP 1494 (CLC)

This unfortunate case has a chequered history and has remained pending in different Courts ever since the partition of the sub‑continent. The matter was earlier twice remanded by this Court, as a consequence of which the impugned order dated 7‑1‑1976 was passed by the Settlement Commissioner which has been challenged by the petitioners in this writ petition.

2. The dispute in this case relates to land comprising Khatas Nos.23, 64 and 81, in village Traggar, District Multan, which is claimed by the petitioners as their ancestral property. According to their case 9/24th of the property was mortgaged by their predecessor‑in‑interest in favour of non‑Muslims, namely, Khushi Ram and others. It appears that this mortgage was redeemed by the predecessor of the petitioners by obtaining a decree from the Collector on 26th of March, 1945, on the basis of which mutation No.733 was attested in his favour. The land was, however, shown as evacuee in the special Jamabandi. On 19th October, 1948 the petitioners applied to the Deputy Custodian for a declaration that the land in question was not evacuee, but was their personal property. The application was accepted by the Deputy Custodian on 20 ‑12‑1948. There is, however, a dispute as to whether this order was confirmed by the Custodian or not.

3. Learned counsel for the petitioners has asserted that the requisite confirmation was made by the Custodian on 8th March, 1949 in connection ` with an application filed by one Abdul Ghaffar, while Mr. S.M. Nasim, learned counsel for the contesting respondents, has pointed out that no such plea was taken in the earlier rounds of litigation and it has already been held by this Court while disposing of W.P. No.1003‑R of 1963 that the order of the Deputy Custodian was. not confirmed and has no legal validity.

4. Be that as it may, on the basis of the order of the Deputy Custodian dated 20th of Decembers, 1948, mutation bearing No.349,was sanctioned in favour of the petitioners on 21st of October, 1951. It is asserted by the learned counsel for the petitioners that an application for cancellation of land was filed by an encroacher; which was, however, rejected by the Collector.

5. Subsequently, on 28‑1‑1961 the Additional Deputy Commissioner; Multan, reviewed mutation No.349 and directed that the revenue record be corrected so as to show that 15/24th share in it was owned. by the non‑Muslim evacuees. This order of the Addl. Deputy Commissioner was challenged by the petitioners by filing an appeal, which was dismissed on 18th April, 1962 by the Addl. Rehabilitation Commissioner. The petitioners went in revision which too met with failure on 30th April, 1963.

6. This necessitated the filing of W.P. 1003‑R of 1963, which was accepted by this Court on. 20th October, 1966 and the case was remanded to the Settlement Commissioner for determination as to whether the land had been treated as evacuee before 1‑1‑1957 in terms of section 3 of the Pakistan (Administration of Evacuee) Property Act (XII of 1957).

7. On remand, the Settlement Commissioner on 7‑11‑1970 held that the land was evacuee and had been treated as such prior to 1‑1‑1957. In coming to this conclusion he relied on Exhs.D.l and D.2, i.e. special Jamabandi and the copy of the register of temporary allotments pertaining to the year 1946 ‑47.

8. This order was challenged by the petitioners by filing W.P. No.383‑R of 1971 which was accepted by this Court on 10‑3‑1S'i~n the ground that the order of 'remand earlier made in W.P. No.1003‑R' of 1963 had not been complied with and the Settlement Commissioner could not, on the basis of two documents alone, hold that the property had been treated as evacuee. The case was once again remanded to the Settlement Commissioner for decision afresh in accordance with the judgment of this Court in W.P. No.1003‑R of 1963.

9. In the post‑remand proceedings, the Settlement Commissioner has once again held the land to be evacuee and has also come to the conclusion that it was treated to be so before the target date, i.e. 1‑1‑1957, and in any case, as the land was hidden evacuee property, the petitioners were not entitled to retain the same. This order dated 7‑1‑1976 has been assailed by the petitioners in this petition.

10. Ch. Moin‑ud‑Din Javed Butter, Advocate, learned counsel for the petitioners, has contended that it stands established by the record that the land had all along remained in the ownership and possession of the petitioners and their predecessor and was their ancestral property and shown as such in all the relevant Jamabandis up to the year 1946‑

47. The learned counsel submitted that surprisingly, in the special Jamabandi an entry was made that the land to the extent of 15/24th share was owned by Khushi Ram and other evacuees. It was emphasised that the impugned order suffers from misreading and non -reading of the record and the entries in the earlier Jamabandis have altogether been ignored. It was also urged that the land, in any case, was never treated by the Rehabilitation Department as evacuee before 1‑1‑1957 and cannot be deemed to be hidden property especially in view A the application filed by the petitioners before the Deputy Custodian on 19th of October, 1948 bringing to his notice that in the special Jamabandi the property had been shown as evacuee, although it belonged to them. The learned counsel also drew the attention of the Court to the written statement filed by respondent No.l (Settlement Commissioner) in‑the petition, wherein the position taken by the Settlement Commissioner was that the property was non‑evacuee in character.

11. This position has been vehemently opposed by Mr. S.M. Nasim, Advocate, who has appeared on behalf of respondents 2 to 9, the allottees of the land in dispute, who emphasised that the order of the Deputy Custodian had been held to be of no legal effect by this Court in W.P. No. 1003‑R of 1963, on the ground that it was never confirmed by the Custodian and that the order of the Custodian now produced has been fabricated. He pointed out that the property was shown as evacuee in the special Jamabandi and, therefore, it cannot be said that it has been treated to be evacuee before 1‑1‑1957. It was also argued that, in any case, the property was hidden evacuee property and, therefore, section 3 of the Pakistan (Administration of Evacuee Property) Act had no application in view of section 3 of the Displaced Persons (Land Settlement) Act, 1958, which has overriding effect. The learned counsel also submitted that the petitioners were convicted by the Martial Law Authorities under M.L.R. 49 for being in possession of hidden evacuee property. He relied upon Jalal Shah v. Custodian PLD 1981 SC 262 in support of his assertion that the land in question was hidden property. Mr. Nasim also argued that in addition to the petitioners there were eleven other co‑sharers who have not challenged the evacuee character of the property and they got their share partitioned and separated from the share of non‑Muslim owners.

12. Mr. Hamid Ali Mirza, learned counsel appearing on behalf of respondent No.l, has, however, supported the case of the petitioners.

13. A perusal of the written statement filed by the Settlement Commissioner (respondent No.1) would show that he. has traced the entire history of the land in question. From the averments contained therein, as also the revenue record filed by the petitioners alongwith the petition, it becomes evident that up .to the year 1936‑37 the land was shown‑ in the Jamabandis as belonging to the petitioners and non‑Muslims were mentioned as mortgagees to the extent of 9/24th share. The Jamabandis to which reference has beer, made by respondent No.l in his written statement are for the years 1924‑25, 1928‑29 and 1932‑

33. Similar entries were repeated in the Jamabandi for the year 1936‑37, but in column No.6 an entry was, made in red ink stating that through mutation of partition Khushi Ram and others have been allocated 15/24th share in the Khata which came to 239 Kanals 1 Maria. There is another entry regarding mutation No.215 of a partition inter se Muslim owners and Khushi Ram etc. are again mentioned as mortgagees of 9/24th share. In view of these entries in the Jamabandi for the year 1946‑47 and in the special Jamabandi Khushi Ram and other non‑Muslims were shown as owners of 15/24th share. According to the stand taken in the written statement by respondent No.l these entries were mischievous and misled the authorities concerned into incorporating in the subsequent Jamabandis that non‑Muslims were owners to the extent of 15/24th share: There is force in the contention of the learned counsel for the petitioners that the entries to column No.6 were not sufficient by themselves especially in the absence of any mutation to show that the non‑Muslims had become the owners to the extent of 15/24th share in the land in question. The learned counsel for the respondents is not in a position to explain as to how the petitioners, who were admittedly owners in the year A 1936‑37 could be divested of their ownership on the basis of the entries in column No.6 which, it is well‑settled, has no presumption attached to them.

14. It was in these circumstances and in view of the entries contained in the Jamabandi for the year 1946‑47 and the special Jamabandi that the petitioners approached the Deputy Custodian for a declaration that they were the owners of the entire land. It is not disputed by the learned counsel for the contesting respondents that such a declaration was granted, though, as held by this Court, it was not confirmed and has, therefore, no legal effect. The fact, however, remains that on the basis of the decision of the Deputy Custodian necessary correction was made in the relevant record. It is highly doubtful as to whether the Addl. Deputy Commissioner could have after the expiry of ten years, ordered the review of mutation No.349 which had been sanctioned on 21st of August, 1951.

15. Be that as it may, as the case was remanded twice by this Court to determine as to whether the property had been treated as evacuee property prior to 1‑1‑1957, the real question which arises is as to whether the Addl. Settlement Commissioner was justified in holding in the affirmative. From the perusal of the order passed by him, it is evident that while coming to this conclusion he has mainly relied upon the conviction of the petitioners by the Martial Law Authorities under MLR

49. Although no date of the said conviction has been mentioned yet the said Martial Law Regulation was promulgated in the year 1959, the conviction obviously would be of subsequent date. The conviction of the petitioners under the Martial Law Regulation, therefore, had no relevance so far as we determination of the question as to whether the property vas treated as non‑evacuee prior to 1‑1‑1957 is concerned. As the Adw. Settlement Commissioner has only gone by this fact which is totally irrelevant in the context of the controversy before him, the order passed by him cannot be sustained.

16. Mr. S.M. Nasim, however, argued that the property had been shown as non‑evacuee in the Jamabandi for the year 1946‑47 as also in the special Jamabandi, therefore, it should be considered to have been treated as evacuee prior to 1‑1‑1957. There is no force in this contention. It is now well‑settled that a mere entry in the revenue record cannot be equated as treatment within the meaning of the Pakistan (Administration of Evacuee) Property Act, 1957. If any authority is needed, reference can be made to the judgment of the Supreme Court in Abdul Khaliq v. Kishanchand PLD 1964 SC 74 wherein it was held that in the absence of any overt act by the authorities the mere entry in the revenue record would not suffice. In the instant case, not only that there is no overt act on the part of the authorities, but on the other hand, the Deputy Custodian had declared the property to be of non‑evacuee character.

17. Coming to the contention of the contesting respondents that as the property was hidden evacuee property, the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act have no applicability in view of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act. The argument, to the extent of legal proposition being canvassed by the learned counsel, is correct, but, in the instant case, there is nothing to show that the property was hidden property. It is to be .seen that the case of the petitioners has all along been that they were the owners in possession of the land in question. After getting the mortgage in favour of the non‑Muslims redeemed through the Collector, they got a mutation sanctioned to that effect in their favour. On the basis of the order of the Deputy Custodian dated 20‑12‑1948, they were justified in considering themselves to be the owners of the land and for them there were no reasons to believe that the property was evacuee in character. It is also to be noticed that the petitioners themselves had apprised the Deputy Custodian of the position obtaining in the record and, therefore, it cannot be said that they had hidden the property from the Rehabilitation Authorities. That being so, the contention of the learned counsel cannot be upheld.

18. The next argument of the learned counsel for the contesting respondents was that as the other co‑sharers had not come forward to challenge the impugned order, the petitioners cannot do so. There is no merit in this contention as well. The fact that the other co‑sharers had accepted the validity of the impugned order cannot, in any way, debar the petitioners from agitating for their own rights in the land.

19. For the reasons aforesaid, the impugned order, qua the petitioners, is declared to be without lawful authority and of no legal effect. The petition is l allowed with no order as to costs. AA./A‑1382/L Petition accepted.