P (PLP)

M. R. KAYANI, J.‑The question referred to the Full Bench is whether section 34 of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) applies to all cases where an evacuee is interested in the property which is the subject matter of the proceeding, that is to say, whether his interest is 'direct‑ or indirect. The question does not appear to me now to be clear enough, but my intention when referring it was to ascertain whe ther all matters in which an evacuee's rights or interests are involved in any manner whatsoever should be referred for decision to the Custodian. Section 34, so far as relevant to this question, may be re-produced below: "

34. Jurisdiction of Courts barred.‑(1) Save as expressly provided in this Ordinance, no Civil or Revenue Court shall have jurisdiction :‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceeding as to whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any such property, or (b) to question the legality of anything done under this Ordi nance by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Ordinance to determine. (2) whenever any question such as is referred to in clause (a) of subsection (1) arises in any Civil or Revenue Court, the Court shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. (3) No decision of any Court on any question such as is refer red to in clause (a) of subsection (1), given between the fourteenth day of August 1947, and the commencement of this Ordinance, shall be binding on the Custodian, or effect any right or interest of any evacuee in any property affected by such decision. An "evacuee", for our present purpose, is a person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories

and "evacuee property" means any property in which an evacuee has any right or interest or which is held by or for him in trust, and includes:‑-- (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or (b) property obtained from an evacuee after the twenty‑eighth day of February, 1947, until confirmed by the Custodian. but does not include :‑-- (i) any movable property in the immediate physical possession of any evacuee, or (ii) any property belonging to a joint stack company the head office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India, and continues to be so situated after the said date. Certain other provision of the Ordinance which may have some bearing on the question involved here are contained in sections IS and 20, and may be profitably reproduced here:‑ Section

18. Chinas 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 Ordinance. (2) An application under subsection (1) shall be trade within prescribed period being a period of not less than thirty days from the prescribed date. (3) On receiving an application under subsection (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the persons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose. Section

20. Powers and duties of the Custodian generally. (i) The Custodian may take such measures as be considers neces sary or expedient for the purposes of administering, preserving and managing any evacuee property which has vested in him and may, for any such purpose as aforesaid, do all acts and incur all expen ses necessary or incidental thereto. (2) Without prejudice to the generality of the provisions con tained in subsection (1), the Custodian may, for any of the purposes aforesaid,: ‑ (i) institute, defend or continue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee or refer any dispute between the evacuee and any other person to arbitration or compromise any claims, debts or liabilities on behalf of the evacuee; The present reference to the Full Bench has been made in two cases. In one of these cases, Ghulam Muhammad and Nur Muhammad sold 17 kanals and 13 marlas of land in 1936 to Kishori and others, evacuees under the above definition of the term, and a certain Ghulam Moheyud Din, son of one of the vendors and nephew of the other, brought a suit for a declaration under custom that the sale being without consideration and legal necessity did not bind his reversionary interests. The suit was dismissed on the ground that the alienation in question amounted only to a usufruc tuary mortgage for twenty years inasmuch as the Deputy Commis sioner s sanction, had not been obtained to the sale under the Punjab Alienation of Land Act. A first appeal has been lodged in this Court, and the principle questions in appeal are whether the transaction is a sale or a mortgage and whether a suit for a declara tion of the nature prayed for is not competent in respect of such a mortgage. A subsidiary question would be, either for this Court or for the trial Court to which the case might be remanded, whether the sale or mortgage, as the case maybe, was for conside ration and legal necessity. In the second case, one Nabi Bakhsh mortgaged land in 1929 in favour of Godhar Mal and Sobba Ram, now evacuees, for Rs. 4400. In 1943, Nabi Bakhsh brought an application before a Debt Conciliation Board for the settlement of his debt. In the proceedings before the Board, the creditors did not produce the original deeds of mortgage, with the result that on the 7th of August 1945 the Board declared the debt discharged. On the 13th of August 1945, the mortgagee filed a suit for a declaration that the finding of the Board was wrong and that consequently the mortgage debt subsisted. The suit having been decreed, the question in appeal before this Court is whether the Conciliation Board could declare the debt discharged and thus terminate the evacuees' interested. Section 34 (1) (a) of the Evacuee Property Ordinance bars the jurisdiction of the Court, not in the entire suit or other proceeding, but in any question that may arise in such proceeding in respect of the interest of evacuees. When such a question arises, the Court shall, under subsection (2), "state the question with relevant parti culars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive." Now although it is not stated here what further procedure should be adopted, it is clear enough that the Custodian will send his decision to the trial Court which will incorporate the decision in the proceeding before him. If the question which had arisen in the case was the only question involved, the Court will formally pronounce the decision of the Custodian as its own judgment, with or without an order as to cost, and there will appeantly be no appeal or revision, at least so far as the finding of the Custodian is concerned. Now what are the questions in subsection (1) (a) which, if they arise, should be referred to the Custodian? They are, on the langu age of the section, (1) whether any property is or is not evacuee property and (2) whether an evacuee has or has not any right or interest in any such property. It was contended in the first place that since "evacuee property" according to its definition is property in which an evacuee has a right or interest, the two questions proposed by subsection (1) (a) would be in danger of being treated as identical if the words " such property" occurring in the second question were held to relate back to the words "any property" in the first question, as they ought to be according to a strict gram matical construction. It was, therefore, suggested that the words "such property" should be interpreted to mean "such evacuee pro perty". The second question would then read thus ; Has a certain evacuee any right or interest in certain evacuee property other than his own? (For in his own property he as an obvious interest, and no such question will arise is respect of it). This, according to the learned counsel, would make the matter simple, and only such questions would then be referred by the Court to the Custodian as relate to an evacuee's interest in property admittedly evacuee. But what would happen if the property is not admittedly evacuee? If it is not admittedly evacuee, and an evacuee claims any right or interest in it, then the question obviously would be whether it is evacuee property, (for evacuee property is property in which an evacuee has a right or interest,) and since that is exactly the sub ject‑matter of the first question, the Court will in any case be com pelled to refer the matter to the Custodian. The solution is, therefore, not so simple. Further, it is overlooked in this tautologies approach to simpli city, that evacuee property is not merely property in which an evacuee has a right or interest but is also property which is held by or for him in trust ‑and includes certain other peculiar interests mentioned in clauses (a) and (b) of subsection (3) of section 2, so that the first question, namely, whether certain property is not evacuee property, covers not only the apparent ground of the second question but also several other points arising out of the definition. It seems to me more likely that the words "any right or interest occurring in section 34 were used without any reference to the same words used in the definition clause, and that their use in section 34 was by way of abundant caution, so that the jurisdiction clause should cover any question relating to the right or interest off the evacuee in any possible manner whatsoever. In cases where a reversioner seeks to set aside a transfer in favour of an evacuee, the question which arises directly is whether the transfer is for consideration and legal necessity. Whether it is without consideration or without legal necessity, the effect is that the evacuee's interest ceases after the lifetime of the vendor. In directly, therefore, the decision of the question involves a decision in respect of an evacuee's right or interest. Let us assume that an evacuee had purchased a house from B in 1946, and that, in the same year, B having died, the evacuee filed against B's heir a suit for possession which was pending on the 14th of August 1947. Then, if the sale is not admitted at all, the denial would amount to a denial of the evacuee's right in the property, and the question would clearly be one for the Custodian to decide. What the defendant pleads in such a case is that there was no actual sale at all. If, however, instead of pleading that there was no actual sale, he pleads that there was no legal sale, that is to say, the sale was without consideration and legal necessity, can it be said with any logic that the latter plea does not involve a denial of the evacuee s right, and is, therefore, not a matter for the. Custodian to decide? The converse case on the same facts, where the evacuee would himself be the defendant, would not present a different question. The question would again be whether, the sale being without con sideration or legal necessity, the evacuee has any right to the pro perty. In holding otherwise, we would be merely admiring the cuter clothing of the plaint, refusing to face its naked body, but the naked body can be thrust on us by the plaintiff who inclines more to the Custodian than to the dilatory Civil Court if only he thus winds up the plaint :‑ "It is, therefore, prayed that the sale being without considera tion and necessity, the Court may declare that the vendee has no interest in the property." It is thus idle to say that when the question directly involved is whether the sale in favour of an evacuee is for consideration and legal necessity, it does not, in its turn, directly involve a decision of the question whether the evacuee has a right to the property, for, assuming that the latter question is only indirectly involved, it must be conceded that the indirect question should also be answered at some stage; and since it must be decided by the Custodian the moment it arises, the Civil Court should adjourn the proceedings after finding that the sale is with or without necessity and refer the question of the evacuee's interest to the Custodian. In effect the question referred will be :‑ "I have found that the sale in favour of the evacuee is without legal necessity and consequently void. This should mean that the evacuee has no interest in the property. Simultaneously with this finding, however, I discover that the question of an evacuee's interest is your exclusive jurisdiction, I, therefore, refer the case to you." However innocently worded, the reference will be no more than an analogy for encroachment on another jurisdiction. Or, without deciding the question of legal necessity, the Court may, in anticipation of the question of an evacuee's interest arising, consider it proper to obtain, in the first place, the decision of the Custodian in respect of the evacuee's interest and having done so, find that the question of legal necessity has been automatically decided. A possible argument that the question of the evacuee's interest will not "arise" for decision after the question of legal necessity has been decided has not escaped my attention. It is true that the Civil Court may refuse to refer it to the Custodian because it had already stabbed the question in the back and crushed it before it could rise to its full stature. This would hardly be any consolation to the draftsman if his intention was to safeguard evacuee property in a particular manner, that is, by permitting only the Custodian to adjudicate upon all evacuee rights and interests. Nor should the judge be able to flatter himself for a decision which in its very fulfilment, finds itself entangled in the Custodian's jurisdiction. And if the Ordinance is thus circumvented merely because section 34 omitted the use of the words "directly or in directly", section 18, as I shall show hereafter, will stultify such circumvention. But even without any resort to section 18, an ingenious plaintiff, as I have already indicated, may circumvent the circumvention itself by causing the question of the evacuee's inter est to arise directly, openly and without disguise. Section 34 has expressed the matter in broad and general terms as was only to be expected, and the question that may arise in any particular case would, according to its facts, be naturally in a different form each time. It may arise in the form whether the sale in favour of the evacuee was fictitious or whether it was void by reason of want of registration or the legal incapacity of the vendor to execute it or that .it was contrary to the provisions of the Alienation of Land Act or for a score of other conceivable reasons. But each time the substance of the question would be the evacuee's rights or interest. It was argued that "evacuee property" having been defined as "property in which an evacuee has any right or interest " and not as "property to which an evacuee has preferred claim," all matters which still involve a decision of a claim to any property, whether by one party or the other, must continue to be adjudicated upon by the Civil Court. This would hardly leave any question to be decid ed under section 34, for if the decision is that the property belongs to the evacuee, it would mean that the evacuee has a right or interest in it; and if the decision is to the contrary, it would mean the evacuee has no right or interest in the property. Consequently, thereafter, it is impossible for any question to arise whether the evacuee has any right or interest in the property, for the Civil Court has already decided that question. It might be argued indeed, in reply to this contention that section 18 has already provided for a contingency of this nature. Under that section, any person claiming a right or interest in any property treated by the Custodian an evacuee property may prefer a claim to the Custodian on the grounds that it is not evacuee pro perty. Such person may effectively produce in the inquiry which the Custodian will thereupon hold, a final judgment of the Civil Court belonging to a date beyond the 14th August, 1947, showing that his suit for a declaration of right against the evacuee had been decreed, but it will be of no effect if it belongs to a date which is on our side of the historic day. It will, therefore, be arguable that since an interested person can always come to the Custodian under section 18 and ask him to hold that certain property is not evacuee property, it would be futile for the Civil Court to decide that the sale in favour of the evacuee was valid, for, if the Custodian accepts the contention, the decision of the Civil Court would be rendered impotent. It is possible to argue that if we ultimately hold that in a case of this nature the Civil Court is competent to give a decision, all that the Custodian will do under section 18 would be to inquire if there is in favour of the applicant or against him a decision of a competent Court and to accept that decision. There might never the less be difficulty if he does not accept the decision in a fit case. It would be a fit case for instance, if the decision is by a Subordi nate Court, erroneous on the face of it, and has not been tested in appeal or revision. The non‑evacuee might have deliberately left it untested in order to save Court‑fee or the inconvenience and dilatoriness of an appeal and a second appeal, knowing that a bene volent Government has enacted section 18 also expressly to suit him. The Custodian will then interfere, and there is no remedy against him. (Section 36, subsection (6) ). Once it is conceded that he can interfere, it is idle to argue that he should not interfere, where the decision is by the High Court. And since section 36 contemplates that a decision under section 18 may be made even by a Deputy or Assistant Custodian, it follows that even these officers can, as a matter of law, upset the decision of the Civil Court under section

18. But I feel almost convinced that section 18 was intended to confer upon the Custodian a power untroubled by any co‑ordinate jurisdiction, for all that the section requires as a pre‑requisite for an application is that it should relate to "property treated by the Custodian or a Rehabilitation Authority as evacuee property". Against this view it is possible to say that the words in question are merely equivalent to "property which prima facie was an evacuee's property and was, therefore, taken over by the Custodian etc., not property in which title has already been decided by a Civil Court. What will happen, however, if while proceedings are pending in the Civil Court, the plaintiff or another transferee from the alienor makes an application under this section? In that case, if we have any respect for the finality of judicial decisions, one of the two, either the Civil Court or the Custodian, should stay the proceedings before itself, and clearly it is the Civil Court that should stay its bands, because under section 34 (1) (c), no Civil or Revenue Court shall have jurisdiction "In respect of any matter which the Custodian is empowered by or under this Ordinance to determine", the power being given by section

18. An argument was founded on the provision of section 20 (2) also. That provision empowers the Custodian, for the purpose of administering, preserving and managing any "evacuee property", to institute, defend or continue any legal proceeding in any Civil or Revenue Court on behalf of the evacuee. In such proceedings clearly the question involved is not whether the evacuee has any property, for by the very fact that the property in relation to which such proceedings are taken is evacuee property the question of the evacuee's right or interest is settled. An example of such proceed ings would be a suit for damages against wrongful loss caused to evacuee property by a neighbour or a suit by a neighbour in interest of an easement of necessity. But even here, if in the first kind of suit, the defendant questioned the locus standi of the Custodian to institute the suit on the ground that the property in suit was not evacuee property, it would then be a question under section 34, and the Civil Court will send it for decision to the Custodian. I am conscious of the fact that narrow interpretation should be placed on the language of an enactment which seeks to limit the ordinary powers of Civil Court, but as in the adoption of that course section 18 will present an obvious impasse, I have preferred this comprehensive interpretation. We may now address ourselves to the two appeals before us. In the appeal of Ghulam Mohayud-Din, the question directly involved is whether the alienation is a mortgage or sale, and if it As a mortgage, whether it can be questioned by a customary reversioner. The first part of the question involves determination of the mature of the evacuee's interest, and cannot be treated differently from the question whether an evacuee has any interest in the property. The second part of the question, standing by itself, does not involve are evacuee's interest and should be decided by the Civil Court: The next question which is likely to arise if the decision on the first question is in the affirmative, is whether the sale of mortgage was for consideration and legal necessity and that, as I have already said, is a question for the decision of the Custodian. The second case clearly involves a decision on the question of the evacuee's interest in the mortgage. It is whether the evacuee's interest subsists or has been extinguished by his failure to produce documents of title before the Debt Conciliation Board. It is, therefore, a question such as has been contemplated by section

34. The reference will be answered accordingly. A. H. Reference answered.