P L D 1962 (W (PLP)

5. Mr. H. A. Rizvi, the learned counsel for the petitioners, has contended before us that the initial order of the Assistant Custodian treating the property as evacuee, suffers from an error patent on the face of it, for the reason that the Hindu owner of the land died as long ago as the 16th of March 1937, and he could not therefore have become an evacuee in 1947 by migrating to India. 7 here is substance in this contention, as it is clear that a person who died 10 years before the Partition of India could not have become an evacuee within the meaning of that term as defined in section 2 (2) of the Pakistan (Administration of Evacuee Property) Act, 1957. But the matter does not end there. In the first place, it is pointed out by Mr. Saeed A. Shaikh, the learned counsel appearing for the Custodian, that there is no averment on the part of the petitioners that the Hindu owner did not leave behind any heirs who may have migrated to India due to 1947 disturbances. In the second place, it is clear from the facts stated by the petitioners themselves that they did not acquire proprietary title In the land in question, as full consideration had not been paid by them and no sale‑deed was executed by the vendor in their favour. The result, therefore, is that the petitioners could not get a declaration that the land was non‑evacuee.

6. There is, however, the further question of the effect of section 53‑A of the Transfer of Property Act, which has not been considered by the learned Custodian while dismissing the claim of the petitioners. It is clear, on the facts stated by the learned Additional Custodian, that there was an agreement to sell between the petitioners and the Hindu owner of the land, that in part performance of this contract the petitioners took possession of the property and have continued in that possession up‑to‑date, and that they bad done an act in furtherance of the contract by paying Rs. 485 towards the sale price. It is also clear that they are willing to pay the remaining sale price as well. Under these circumstances, the transferor or any person claiming under him stands debarred from enforcing against the transferees and persons claiming under them any right in respect of this property, other than the right expressly provided by the terms of the contract. In other words, it appears to us that the Hindu owner, if alive in 1947, or his heirs, could not, to respect of this property, enforce any right against the petitioners, except the right to receive the balance of the sale price. Such being the case, the question arises whether the Custodian can be regarded to be in any better position than the evacuee whose rights have vested in him by operation of law.

7. Mr. Saeed A. Shaikh has contended before us that section 5 of Act XII of 1957 over‑rides all other provisions of law which may be inconsistent with this Act, and that under section 10 the petitioners are to be deemed to hold the property on behalf of the Custodian after the 28th day of February 1947. Finally, he has referred us to section 12 of the Act which gives power to the Custodian to take possession of evacuee property by force, if necessary. The argument of the learned counsel for the Custodian is that the Hindu owner retained the proprietary title in the land, although under section 53‑A of the Transfer of Property Act he was debarred from enforcing any rights against the petitioners through a Civil Court, but the Custodian, having independent powers of taking over possession of evacuee property, suffers under no such disability ; and he can, therefore, throw out the petitioners by force, if necessary, at any time.

8. We are of the view that this is not the correct position in law. The term "evacuee property" is defined in clause (3) of section 2 of Act XII of 1957 in the following words: "Evacuee Property' means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity) . . . . ." The term "property" is defined in clause (5) as meaning property of any kind, and including any right or interest in such property and any debt or actionable claim, but not mere right to sue. It will thus be seen that the term "property" as used in Act XII of 1957 is not limited in Its meaning to property in the physical sense, but also includes any right or interest in such property. This being the case, the property which would vest in the Custodian in any particular case would be the bundle of rights and interests which the evacuee concerned enjoyed on the 1st day of March 1947. The intention of the evacuee legislation Is~' clearly to provide for the administration of evacuee property, and not for the improvement and enlargement of the rights of evacuees. In the present case, the only right which the evacuee heirs of the vendor possess in the land in question was the right to receive the balance of the sale price, and not the right to dispossess the petitioners. It is only this right that must be deemed to have vested in the Custodian under section 7 of the Act and no more. Viewed in this light there is no conflict between section 53‑A of the Transfer of Property Act and the relevant provisions of Act XII of 1957.

9. A similar view was taken by a former Custodian, the late Mr. Justice A. M. Jan, in Rehabilitation Authority v. G. M. Abdul Aziz (P L D 1954 Cust. (Pb.) 31), when he observed that‑

"the Custodian in this case was a person claiming under the transferor and as such was debarred from enforcing any right against the transferee in respect of the property of which the transferee had taken or continued in possession other than the right expressly provided by the terms of the contract. The only right expressly provided by tie terms of the contract is that the vendor shall he entitled to receive the balance of the price for the sale." Mr. Shaikh made an attempt to distinguish that case from the present one before us by arguing that the law applicable in the Punjab at that time was different, but a perusal of the judgment of the learned Custodian in that case shows that the proposition deduced by him was not dependant on the provisions of the particular evacuee law applicable in that case. We are in respectful agreement with the views expressed by the late Mr. Justice A. M. Jan.

10. The position thus clearly emerges that in the present case the right or interest or the evacuee is of a limited nature, and the petitioners have a right to remain on the property as contemplated by section 53‑A of the Transfer of Property Act. It seems to us that such an interest in the property is not outside the purview of section 22 of Act XII of 1957, and in fact seems to be included in clause (b) of subsection (1) of section 22 of the Act. This will become clear from a perusal of the language used in the section itself which may be reproduced here for facility of reference: "

22. Claims by interested persons.‑(1) Any person claiming any right or interest In any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that‑ (a) the property is not evacuee property, or (b) his interest in the property has not been affected by the provisions of this Act."

11. Unfortunately, however, in this case the petitioners made an application in terms of clause (a) only of subsection (1) of section 22 of the Act, praying for a declaration that the land is not evacuee property. In view of the fact that the proprietary title still vested in the heirs of the Hindu owner such a declaration could not obviously be granted to the petitioners. There was, however, no bar to a declaration being granted to the petitioners in terms of clause (b) of subsection (1) of section 22 of the Act regarding their right to remain on the property under section 53‑A of the Transfer of Property Act. A reference to subsection (3) of section 22 shows that it is in the discretion of the Custodian to allow the application "wholly or in part on such terms and conditions as he thinks fit to impose."

12. For all these reasons, we have come to the conclusion that, while no case is made out for our interference by issuing a writ of certiorari to quash the impugned order, there does seem to exist justification for a review of the impugned order by the learned Custodian himself, so as to grant the petitioners the limited declaration contemplated by clause (b) of subsection (1) of section 22 of Act XII of 1957. With these observations we would dismiss the petition, but leave the parties to bear their own costs. K. B. A. Petition dismissed.