P L D 1964 Azad J & K 1 (PLP)

(4) Amendment of section 43, Act XII of 1957.‑In section 43 of the said Act,‑ (a) in subsection (6), the proviso shall be omitted ; and (b) in subsection (7), after the words " foregoing provisions of this section" the words " and the other provisions of this Act" shall be inserted. (5) Insertion of new sections 43‑A and 43‑B, Act XII of 1957.‑In the said Act, after section 43 the following sec tions 43‑A and 43‑B shall be inserted, namely:‑" It was argued by the learned Government Advocate that in view of section 3‑A of the Administration of Evacuee Property Act, the learned Custodian had no jurisdiction to declare the property in dispute as non‑evacuee property since the same had been treated as evacuee property before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958 by which section 3‑A had been inserted into the Act of 1957 which the Azad Government of the State of Jammu and Kashmir had adapted on 12‑1‑1959 vide the Adaptation of Laws Act, 1959. The order of the Custodian declaring the property to be non‑evacuee property is dated 9‑7‑

62. On the other hand the learned counsel for the respondent referred to section 3 of the Administration of Evacuee Property Act, 1957 which is reproduced below and argued that no property not treated as evacuee property immediately before the 1st day of January, 1957 shall be treated as evacuee property on or after the said date Section 3.--"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 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date." We have now to determine whether the property in dispute (land Khasra Nos. 102 and 103 measuring 40 kanals 17 marlas) had been treated as evacuee property or not immediately before the Ist day of January 1957. The learned Government Advocate had referred to certain material on record to show that the land had been treated as evacuee property while the learned counsel for the respondent had pointed towards certain material to show that the land had been treated as non‑evacuee property immedia tely before the 1st day of January 1957. The learned Government Advocate had referred to the copy Exh. D. A. of certain orders passed by Khan Abdul Hamid Khan Deputy Commissioner, Muzaffarabad, which is on page 19 of file No. 50 Civil of the Court of the Additional Sub‑Judge, Muzaffarabad, date of institution 9‑11‑56, date of decision 16‑6‑58 entitled "Sayed Omar Shah v. Giyan Chand alias Sh. Abdullah" suit for restitution of possession of land. On 21‑7‑49 the learned Deputy Commissioner passed an order addressed to the Tehsildar Muzaffarabad that some portion of the land which is entered in the names of the brothers of the applicant (Giyan Chand alias Sh. Abdullah) be given to the applicant for his maintenance. The learned Deputy Commis sioner again passed an order on 25‑8‑49 asking the Naib‑Tehsildar to explain why land had not been given to the applicant so far when he had passed an order that the land be given to the appli cant for his maintenance. The learned Deputy Commissioner again made an order on 28‑8‑49 reiterating that he had ordered that the land of the applicant's brothers be given to him for maintenance. If the same had not been given to him it should be done so within a week and report submitted. It may be mentioned here that the land was entered in the names of Lach pian Dass and Bishan Dass evacuees who were brothers of Giyan Chand alias Sh. Abdullah and the land was the land in dispute. The learned Government Advocate had also referred to the copy Exh. D. B. passed by Mr. M. Y. Khand Commissioner on 12‑8‑52 which is on page 20 of the same file. This order was made in an appeal case entitled "Sayed Omar Shah v. Sh. Abdullah." The order of the learned Commissioner is reproduced below:‑ "Order.‑ The parties were heard. The respondent raised objection that the Appeal was time‑barred and, therefore, it should not be entertained. The Collector, Muzaffarabad, passed order on December 27, 1949, which was conveyed to the appellant on May 27, 1950. The appellant came to know of this order earlier and applied to the Deputy Commissioner for the grant of a copy of the order on April 24, 1950. Although it is clear that the appellant received information much earlier but I don't think this case should be summarily dismissed on the ground of limitation. Fields Nos. 103, 102 and 117 were the property of Lachhman Dass and Bishan Dass, real brothers of the respondent. The appellant has alleged that Lachhman Dass and Bishan Dass purchased this land from another party and the appellant (Sayed Omar Shah) lodged a Civil Suit of pre‑emption and that he succeeded in this suit, deposited the consideration money and that a warrant of possession was issued by the Court. Meanwhile, the War of Liberation broke out and the records were destroyed. Khasra Girdawari shows that the appellant was in possession of this property in Rabbi, 2005 corresponding with Rabbi, 1948 which shows that he took possession of the land after the inception of the Azad Kashmir Government. How and under what orders the appellant took possession is a mystery and the appellant did not give any proof that he took possession of the land before the War of Liberation as a result of the execution of the decree, alleged to have been passed by the Civil Court in his favour. In accordance with the Azad Jammu and Kashmir Protection of Evacuee Property Act of 1950, the land under dispute should be treated as an evacuee property. I accordingly agree with the Collector, Muzaffarabad and reject the Appeal. The appellant should get his claims determined by the Custodian of Evacuee Property under the said Act. With regard to the claim of the respondent, I see no reason why should he remain in possession of the property of his brothers, who are evacuees. He claims to get this property on the basis of being a member of the joint Hindu family. This is not correct. If he wants to establish his rights on this land, he should also seek remedy from the Custodian of Evacuee Property. As the land has remained in possession of the appellant and the respondent, I think, it would be in the fitness of things if the land remains in possession of Syed Omar Shah and Abdullah, as tenants‑at‑will till the case is decided by the Custodian of Evacuee Property. During this period half of the land should be allotted to Sayed Omar Shah and half to Abdullah, on payment of rent fixed by the Azad Kashmir Government. If they agree to the payment of fixed rent, they should be given possession, failing which the land should be allotted to some other deserving refugees. Sayed Omar Shah and Abdullah present. The Order announced. Dated 12‑8‑52 (Sd.) (M. Y. Khand) Commissioner." The learned Government Advocate had also referred to the copy Exh. P. B. of the Allotment Register of the year 1949 which is on page 9 of file No. 5 Miscellaneous of the Court of the Sub -Judge, Muzaffarabad, date of institution 8th July 1952, date of decision 12th January 1953, entitled "Abdullah Sheikh s/o Thakar Dass v. Sayed Omar Shah" an application under Order XXI, rule 100, C. P. C. Copy Exh. P. B. shows that land Khasra No. 102 which was the property of Lachhman Dass had been allotted in the names of Bashir‑ud‑din son of Hakim Din and Allah Ditta Khan son of Mobabbat Khan resident of Poonch and the possession of the same was ordered to be restored to Giyan Chand by order of the Revenue Assistant dated 16‑10‑49 and the order of allotment was cancelled by the Revenue Assistant vide his order dated 27‑12‑

50. It may be mentioned here that Sayed Omar Shah instituted execution proceedings for possession of the land in dispute alleging that he had obtained a pre‑emption decree during the Dogra Regime and that a warrant of possession had also been issued by the Civil Court. Giyan Chand alias Sh. Abdullah who is the brother of the evacuee owners made an application under Order XXI, rule 100 for restoration of the possession of the land. The Sub -Judge vide his order dated 12‑1‑1953 passed on file No. 5 ordered the restoration of the possession of land Khasra No. 102 to Giyan Chand. Sayed Omar Shah went up in appeal and further appeal to the High Court but it was ruled by the High Court that the remedy of Sayed Omar Shah was to institute a suit under Order XXI, rule 103, C. P. C. He accordingly instituted the suit under Order XXI, rule 103, C. P. C. which is filed No. 50 of the Court of the Additional Sub‑Judge, Muzaffarabad. In this file Giyan Chand in his written statement which is on page 9 of the said file took the plea in para. 7 of his written statement that the land had been treated as evacuee, therefore, the plaintiff had no right to institute any proceedings in the Civil Court; and that the Civil Court had no jurisdiction. Mr. B. A. Farooqi the then Sub‑Judge trying the suit vide his order dated 31st January 1956, which is on page 27 of the file discussed and decided the following 2 issues:‑ (1) Had the land in dispute been declared wholly or partially to be as evacuee property? (O. P. D). (2) In case issue No. 1 is proved in the affirmative has the Civil Court no jurisdiction in the matter? (O. P. D.) The learned Sub‑Judge wrote in this order that the Rehabili tation Department or the Revenue Department may treat the land as evacuee property but such finding cannot be said to be one according to law and that such finding cannot stand in the way of the jurisdiction of the Civil Court. He was of the opinion that the Revenue Department or the Rehabilitation De partment may have been treating the land as evacuee but it cannot be said to be a finding. It is curious that the learned Sub‑Judge in spite of being cognizant of the fact, as he has written in his order that if any property can be declared to be evacuee property it is only under the Adminis tration of Evacuee Property Act, proceeded to rule that the Civil Court has jurisdiction to proceed in the matter. Then Mr. Bhatti took over and he decided the remaining issues. He decided that Sayed Omar Shah had failed to prove that he had obtained any pre‑emption decree or obtained a warrant for possession in accordance with the pre‑emption decree. He, therefore, dismissed the suit. Sayed Omar Shah then went up in appeal before the District Judge and Mirza Nazir Hussain, the then District Judge by his judgment and decree dated 19th December 1959, reversed the finding of the Sub Judge on issue No. 2 "whether the plaintiff had obtained a pre‑emption decree about the land in dispute during the Dogra Regime" and held that the plaintiff had obtained the pre‑emption decree during the Dogra Regime but he dismissed the plaintiff's suit as time‑barred. The learned counsel for the respondent had referred to a map of the disputed land which is on page 4 of file No. 163 of the A. R. C., Muzaffarabad, date of institution 7‑6‑57, date of decision 19‑7‑

57. In this plan the land is shown to be the property of Lachhman Dass and Bishan Dass sons of Thakar Dass but there is a note in red ink that vide Mutation No. 560 entered by the order of the Civil Court dated 22‑3‑55 the name of Sayed Omar Shah is entered in place of Lachhman Dass and Bishan Dass. He has also referred to a report of the Tehsildar dated 22‑5‑57 which is on page 7 of this file in which the land in dispute has been shown as the property of a Muslim. He has also referred a notice issued in the name of the public during the course of the acquisition proceedings from the office of the Collector, Muzaffarabad, which is on page 31 of this file where also the pro perty in dispute has been shown in the names of Lachhman Dass and Bishan Das and then in the name of Sayed‑ Omar Shah vide Mutation No.

560. He has also referred to the statement of Giyan Chand which is recorded on the reverse of page 34 of this file wherein he has stated that the land in dispute was the property of his brothers Lachhman Dass and Bishan Dass who had evacuated during the revolution of 1947. He has referred to the protracted litigation between himself and Sayed Omar Shah and has stated that the possession is now with Sayed Omar Shah. The learned counsel had also referred to a plan of the land in dispute on page 41 of this file wherein the land has been shown to be the property of Sayed Omar Shah vide Mutation No. 560 and to a statement of the Patwari on page 53 of the same file wherein he has stated that vide Mutation No. 560 the land is now the property of Sayed Omar Shah. A copy of Mutation No. 560 is on page 23 of file No. 50 of the Court of the Additional Sub- Judge Muzaffarabad. Mutation No. 560 was entered and attested on the strength of an order of the Sub‑Judge, Muzaffarabad, dated 17‑6‑51 which has been wrongly described as a decree of the Civil Court whereas it was, in fact, an order of delivery of possession. This mutation was attested on 22‑3‑

55. The order of the Civil Court by which delivery of possession to Sayed Omar Shah was ordered was emended and the restoration of possession of Khasra 3 No. 102 in favour of Giyan Chand was made. The learned Government Advocate had argued that in view of the plea taken by Giyan Chand in para. 7 of his written state ment which is on page 9 of file No. 50 of the Court of the Additional Sub‑Judge, Muzaffarabad, the jurisdiction of the Civil Court had come to an end. Giyan Chand had raised the question that the property was evacuee property, therefore, the Civil Court should have stayed its hands forthwith and thereafter it was the Court of the Deputy Custodian which alone was competent to decide the question that the property was evacuee property or not. The Azad Kashmir Protection of Evacuee Property Act, 1950 was in force till 12‑1‑1959 when by the Azad Kashmir Adaptation of Laws Act of 1959 the Pakistan Administration of Evacuee Property Act, 1957 was enforced in Azad Kashmir. Section 11 of the Azad Kashmir Protection of Evacuee Property Act, 1950 which was in force when the Civil Courts passed the various orders relied upon by the respondent provides that no Court shall enter or adjudicate on a claim in any suit, appeal, execution application or other proceedings as to whether any property is or is not evacuee property or as to what interest, if any, an evacuee has in such property except in the case of a claimant who has been referred to the Civil Court under section 17 of this Act, for establish ment of his title. Subsection (2) of section 11 provides that no decision of any Court on a claim such as referred to in sub section (1) given between the 24th of October 1947, and the coming into force of this Act, (and it came into force in the year 1950) shall be binding on the Custodian or shall affect the right or interest of any evacuee in the property in question. Section 3 provides that all property of which the Custodian has assumed possession or control under section 4 of this Act, shall be exempted from attachment or sale in execu tion of a decree of a civil Court or in pursuance of an order issued by any Court. The question had been raised whether the property was evacuee property or not, and it was for the Court of the Deputy Custodian to decide this question. The jurisdic tion of the civil Court was barred under section 11 of the Azad Kashmir Administration of Evacuee Property Act of 1950 which was in force. Mr. Farooqi the learned Sub‑Judge, as already remarked, in spite of writing in his order that it was only under the Administration of Evacuee Property Act that a property could be declared to be evacuee property, proceeded to hold that the Civil Court had jurisdiction to proceed in the matter. Perhaps he forgot the distinction between the Court of a Sub. Judge and the Court of a Deputy Custodian. The 2 jurisdictions may be exercised by the same Presiding Officer but they are quite distinct and separate. The declaration of a Civil Court that the property is not evacuee property is one without jurisdic tion and is not binding on the Custodian. The Rehabilitation Authorities had clearly treated the land in dispute as evacuee (property as is quite clear from the orders of the learned Deputy Commissioner and the order of the learned Commissioner which have been cited above. It was argued by the learned counsel for the respondent that immediately before the 1st day of January 1957, the land in dispute had been treated as non‑evacuee property in support of which he has referred to Mutation No. 560 and the various orders made by the Revenue Department thereafter during the course of the acquisition proceedings. The basis of all these proceedings treating the land in dispute as the property of Muslim is Mutation No. 560 which was entered on the strength of an order of a Civil Court which had no jurisdiction to proceed in the matter. The case of the respondent as disclosed by his counsel at the Bar is that during the Dogra Regime he had obtained a pre‑emption decree about the land in dispute and in execution of the decree he had obtained possession also during the Dogra Regime. If this be a fact we fail to understand how could he have instituted execution pro ceedings again. With the delivery of possession to the decree‑holder the execution proceedings had come to an end and if thereafter somebody dispossesses him as he alleges to have been dispossessed by Giyan Chand when he had evacuated to Manschard during the War of Liberation, his remedy lies under section 9 of the Specific Relief Act if he comes within the period prescribed by this section or by way of a regular possession suit. It was argued by the learned counsel for the respondent that Omar Shah had instituted proceedings under Order XXI, rule 103 which were proceedings for the restoration of possession; and that no question of the property being evacuee property arose in that case but we do not agree with him. Even in the suit brought by Sayed Omar Shah under Order XXI, rule 103 the question whether the property was evacuee property or not did arise. He claimed that he had obtained a pre‑emption decree and that in execution of the pre‑emption decree a warrant of possession had been issued and that he had obtained possession but this allegation was denied by Giyan Chand. The land in dispute was entered in the Revenue Record under the ownership of Lachhman Dass and Bishan Dass, the evacuees. In order to succeed in his suit Sayed Omar Shah had to establish the allegations made by him. If he established these facts then the property could not be said to be evacuee property other wise the property was evacuee property. So the questions of the property being evacuee property or not was clearly involved even in the suit brought by Sayed Omar Shah under Order XXI, rule 103, C. P. C. Therefore, in view of the plea raised by Giyan Chand the jurisdiction of the Civil Court was barred and any declaration given by the Civil Court would be null and void in the eyes of law and would be treated as non‑existent. The learned counsel for the respondent had cited P L D 1960 Lah. 862 wherein M. R. Kayani, C. J. and J. H. Rizvi, J. laid down that the words "immediately before the 1st day of January 1957" occurring in section 3(1), (2), (a) and (b) of Pakistan Administration of Evacuee Property Act, 1957 means:‑ "On 31st December 1956" We are of the opinion that the words "immediately before the 1st day of January 1957" occurring in section 3 means that the property which has not been treated as evacuee property up‑till the 31st of December 1956, shall not be declared to be evacuee, property after such date. The learned counsel had also cit

60. The reference made by the District Judge which bears no date was received in the Court of the Custodian on 27‑4‑62 and notices were issued to the parties. The order of the Custodian declaring the property to be non- evacuee property was passed on 9‑7‑

62. It is clear as anything that during the course of proceedings before the learned Custodian the original certified copy of the warrant of possession issued during the Dogra Regime did not form part of the record as the same had been taken back by Sayed Omar Shah vide his receipt dated 22‑4‑

60. Now 2 things are possible either the learned Custodian saw the copy of the warrant of possession which bears the signature of Mr. G. H. Gagroo or the original certified copy was produced by Sayed Omar Shah from his pocket and taken back by him. In any case the order of the learned Custodian is based on some evidence which does not form part of the record and is, therefore, bad in law. The much trumpeted certified copy of the warrant of possession which has been relied on in declaring the land to be non‑evacuee property is being withheld by the respondent and we are con strained to make the inference that the certified copy of the warrant of possession if produced before us would not support the case of the respondent. We hold that the land in dispute, having been treated as evacuee property before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958 could not be declared to be non‑evacuee property in view of section 3‑A of the Pakistan Administration of Evacuee Property Act, 1957. We, therefore, set aside the order of the learned Custodian dated 9‑7‑62 and declare that Sayed Omar Shah is not entitled to receive the compensation of the land acquired by the, Government for the Animal Husbandry Department. Petition accepted.