1975 PLP 39 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment and order of a learned Single Judge of the High Court of Sine & Baluchistan dismissing in limine a constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan to call in question an order of the Custodian of Evacuee Property Sind, Hyderabad, holding that the property in dispute is not evacuee property and was never treated as evacuee property before the 1st of January 1957. The property in dispute consists of Plots of land bearing Nos. DS 1 and 2 situated in Ward "D" of Badah Town, Taluka Dokri, District Larkana. Originally the lands comprised in these plots formed an agricultural tenure and bore Survey Nos. 645, 804 and 806 in Deh Badah, Taluka Dokri ; but subsequently, they were converted into sikni lands for purposes of running kharies or rice husking mills. It appears that the survey numbers in dispute along with survey Nos. 15, 16/3 and 19 were jointly purchased by Sunder Das and Chatromal by a registered sale deed executed on the 26th of August 1931, for Rs. 19,

500. Chatromal had a 9 annas 7 pies share while Sunder Das, the grandfather of the 4th respondent herein, had a 6 annas 3 pies share. Sunder Das died in 1938 leaving him surviving his son Hashmat Rai and his grandson Jian Das. Hashmat Rai died in 1944 leaving him surviving his widow Mst. Ambibai and his son Jian Das. Entries of inheritance of Hashmat Rai and Jian Das were made in the record of Mukhtiarkar Dokri ; but, unfor tunately, the survey numbers were not entered in the record. Chatromal, the co‑sharer, migrated to India in 1947 and his share was declared evacuee property. Jian Das, who remained behind, leased out the property in 1948 to Muhammad Sadiq and Muhammad Umar for a period of five years under a lease deed executed on the 30th of August 1548, at Rs. 75 per manta. The lessees installed a factory known as "Hilal Rice Mills" and carried on business there for three years whereafter they let it out to one Abdul Hamid and Muhammad Zakaria. The new sub‑lessees changed the name of the business to "National Rice Mills". There was some dispute between them and Jian Das as regards the payment of rent. Jian Das approached the Civil Court, Larkana, for a decree for rent when a compromise was arrived at and rent was paid to Jian Das up to 31st of January 1964. The share of Ran Das was auctioned by the Settlement Department and knocked down to Muhammad Anwar, the respondent No. 3 herein, on the 4th of April 1964, and the latter sold the same on the 29th of September 1964, to the present petitioner who was already in occupation of the Mill as a sub‑tenant under Abdul Hamid and Zakaria. The petitioner stopped payment of rent to Jian Das who filed another suit for the realisation of rent and eviction in the Court of the Civil Judge and Rent Controller, Larkana, being Civil Suit No. 101, of 1965 and Rent Application No. 91 of 1964. The Rent Controller, finding that there is a dispute as to the status of the property, made a reference under section 41 of the Administration of Evacuee Property Act XII of 1957 to the Deputy Custodian, Evacuee Property, Khairpur & Kalat. The latter came to the con clusion that the disputed survey Nos. 645, 804 and 806 were evacuee property and had been rightly transferred by the Settlement Department. In revision, however, the Custodian found that, since Hashmat Rai had died in Badah in 1944 and was succeeded by Jian Das and his mother Mst. Ambibai who had remained behind in Pakistan, the property could not be evacuee property and that it had been proved by the lease deed and the compromise decree of the Civil Court passed in 1964 that the property had not been treated as evacuee property before 1‑1‑

57. The petitioner then sought to challenge this order by constitutional petition in the High Court of Sind & Baluchistan, but the High Court upheld the order of the Custodian. The petitioner now seeks special leave to appeal. Learned counsel appearing in support of the petition for special leave has re‑agitated the same points on which he sought to challenge the order of the Custodian in the High Court. The first point is that the order of the Custodian was without jurisdiction, since the survey numbers in dispute had been acquired by the Central Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and trans ferred by auction to Muhammad Anwar in 1963 and the P. T. Os. and P. T. Ds. were issued in his favour in April 1964 ; secondly that the order of the Custodian, Evacuee Property was against the weight of evidence in the case, a,: there was no evidence to support ; is finding, at all. The finality of the permanent transfer deed cannot be questioned only if the transfer deed has been issued in respect of an evacuee property. The issuance of a transfer deed in respect of property which is not evacuee will not convert the property into evacuee property. In any event, the issuance of the permanent transfer deed ousts the jurisdiction of the Settlement Authorities but not the jurisdiction of the Custodian, should a dispute with regard to the evacuee nature of the property subsequently arise in other proceedings. This contention hag, therefore, been rightly rejected by the High Court. The next question that the order of the Custodian is based on no evidence, is clearly misconceived. On going through the record, we find that Jian Das gave oral evidence himself, and the mukhtiarkar and Muhammad Bux, the Tapedar Badah of Taluka Dokri, produced the land register and the village form register and with reference to entries, therein he pointed out that Sunder Das died in 1940 and his share was inherited by Hashmat Rai, the father of Jian Das, and that Jian Das was the son of Hashmat Rai. The oral evidence of Jian Das established that he is the son and heir of Hashmat Rai and he inherited the properties of Hashmat Bai along with his mother Mst. Ambibai. Mst. Ambibai, being a Hindu widow, inherited a life estate and after her death he became the sole heir. This oral evidence was not contro verted. Thus, the lacuna in the record of the entry with regard to the inherit ance of Hashmat Rai was made up by this oral evidence. This oral evidence was also corroborated by the lease deeds executed in respect of this land in favour of the lessees. The compromise decree passed against Abdul Hamid and Zakaria also supports the claim of Jian Das. In west circumstances, since it was never disputed that Jian Das was a Pakistani national and a non‑evacuee, there was abundant evidence on which the findings of the Custodian could have been based. Whether this evidence should have been believed or not is an entirely different matter. The Custodian having believed the evidence, the High Court could not go behind that finding of fact in a constitutional petition. Both the points canvassed by the learned counsel are without substance. This petition is accordingly dismissed. Petition dismissed.