P L D 1968 Karachi 189 (PLP)

(7) To what relief, if any, are the plaintiffs entitled?

5. Subsequently, by an application under Order VII, rule 11, C. P. C. the defendant contended that the suit of the plaintiffs merited dismissal as the suit was in respect of evacuee property and under section 16 of Act XII of 195 , no order of any kind could be passed and that Custodian alone was competent to decide as to what right and interest the plaintiffs had in respect of the property in suit and that the suit was barred under section 41 of the Act No. XII of 1957. It was further contended that the orders in respect of property in suit, of Custodian and Rehabilitation Authorities could not be chal lenged under section 43(7) of Act XII of 1957 and under section 18 of the Act XLII of 1956.

6. On the pleas raised in this application the learned Sub -Judge framed the following additional issues: (1) Whether the tenancy rights in dispute were created before 1‑3‑1947? Are those rights evacuee property or have been treated as evacuee property? If so, its effect? (2) Is the suit barred by section 16 of Act XII of 1957, sections 18 and 41 and 43 of that Act and section 18 of Act XLII of 1956? (3) Has the Court got no jurisdiction? On 23‑7‑60 the Sub‑Judge issued ad interim injunction in favour of the plaintiffs against defendants and on 9th of February 1961 the ad interim injunction was confirmed by the Sub‑Judge. The appellant kept appearing in the suit of the respondents but towards the close of the proceedings the appellant failed to appear, and therefore, on 9‑7‑62 the proceedings were ordered to be ex pane against him and the case was fixed for ex parte proof for 10‑7‑

62. On 10‑7‑62 a decree in terms of the prayer made by the plaintiff was passed by S. H. Kazmi, Sub‑Judge, 1st Class, Karachi, on the strength of the affidavit furnished by the plaintiffs. The defendant No. 1 appealed against the judgment and decree of the Sub‑Judge as mentioned above and the appeal of defendant No. 1 was dismissed by Additional District Judge, Karachi, who by his judgment dated 8th of February 1963, affirmed the judgment and decree of the Sub‑Judge, 1st Class, Karachi.

7. Learned counsel for the appellant has contended before me that since the land in suit admittedly belonged to Hindu evacuees the Civil Court was not competent to giant the relief prayed for by the respondents‑plaintiffs and, therefore, the ques tion of the orders of the Rehabilitation Authorities being ultravires does not arise. In this connection the learned counsel referred to sections 16, 22 and 41 of Pakistan Administration of Evacuee Pro perty Act 1957 and to sections 7(2) (b) and section 18 of Pakistan Rehabilitation Act. There can be no manner of doubt that the plaintiffs were in possession of the land in suit as tenants and Sher Muhammad, defendant No. 1, had transferred his joint tenancy rights of these plots to the plaintiffs in consideration of Rs. 1,

800. A photostat copy of the receipt as Annexure 1 has been produced by the plaintiffs in the course of the trial of the suit. This receipt shows that the land in suit was in possession of Sher Muhammad defendant along with Saleh Muhammad plaintiff since 1920 and that on receipt of Rs. 1,8C0 by way of earnest money Sher Muhammad had surrendered his rights of possession in favour of the two brothers Saleh Muhammad and Siddique, plaintiffs. Indeed the fact that defendant No. 1 had executed above‑mentioned receipt in favour of the two brothers was admitted b7 the appellant in his written statement but he pleased that it had been executed under coercion and undue influence, He produced no proof in support of this contention. Also, in the suit that defendant No.1 had instituted against the plaintiffs when on the report of the Agricultural Inspector the dispossession of the plaintiffs from the land in suit was stayed, the defendant had admitted the execution of the receipt dated 29th of November 1957. In the absence of proof by the defendant that the receipt was executed under coercion and undue influence, the claim of the plaintiffs that Saleh Muhammad plaintiff was in joint posses sion with Sher Muhammad before 1947 and that on 29th of November 1957 the appellant had transferred his tenancy rights in favour of the two plaintiffs would pass muster. Furthermore, the two orders of the Assistant Custodian dated 6th July, 1959 and 13th July 1959 (copies Annexures 5 and 6) also go to support the contention of the plaintiff that they bad been in possession of these plots since before the partition, as tenants of Hindu owners. According to these" orders of the Assistant Custodian Saleh Muhammad plaintiff was in possession of Survey Nos. 247 and 248 and was directed to render account to the Deputy Rehabilitation Commissioner. The question, however, remains whether the Civil Court has jurisdiction to deal with the tenancy rights in the property in suit and whether they were exempt from the jurisdiction of the Civil Court?

8. I do not think that with respect to the plaintiffs respondents' suit the jurisdiction of the Civil Court was barred either under section 41 of Act XII of 1957 or section 16 of that Act or under section 18 of the Act XLII of 1956. The fact that the plaintiffs and defendant No. 1 have claimed in their res pective pleadings the right to possess the property as tenants implies that there is no real and actual controversy between the parties regarding the non‑evacuee nature of the interest and right in the property, which admittedly belonged to Hindu evacuees. The evacuee character of the ownership of the land was pronounced upon in the orders of the Assistant Custodian dated 6th of July 1959 and 13th of July 1959 (Annexures 5 and 6) and nobody has challenged the correctness of that pro nouncement. Section 41 of the Act XII of 1957 reads as follows:‑

(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit; appeal, application or other proceedings as td whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; (b) to question the legality of anything done under this Act by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Court, or before any other authority, the Court or authority 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.

9. It will be seen that in the present case none of the parties to the suit is at issue as regards the evacuee ownership of the land or the non‑evacuee character of the possessory right in the property in suit. The controversy between the parties is with regard to the right of possession of this property. I do not, therefore, see how, when no evacuee interest is involved in the controversy between the parties the provisions referred to above can be attracted to the controversy. Nor can it be said that the case is covered by section 16 of Act XII of 1957; for, in terms of this section all that had vested in the Custodian was the owner ship rights in the land in suit which nobody is denying. The possession of the land was 'not with the Custodian but was with the plaintiffs and defendant No. 1 before the partition. It never went to the Custodian. The legal process sought by the suit was not designed to divest the Custodian of the rights of ownership in the property, nor was he, obviously, being sought to be divested of his possession of the property because the possession by way of tenancy was either with the plaintiffs or with defendant No.

1. The controversy was only with regard to the possession of the property and not with regard to the non‑evacuee character of the tenancy rights or the evacuee character of the ownership of the property. Nor has section 22 of the Act XII of 1957 any relevance to the matter at issue in the present case. None of the parties to the suit was claiming any right or interest in property treated by the Custodian or Rehabilitation Authority as evacuee property. When had been treated as the evacuee rights in the property by the Assistant Custodian was the ownership rights in the land in dispute' and nobody apparently was interested in challenging the correctness of that position. Therefore, no occasion arose for preferring any claim under section 22 of Act XII of 1957. Besides, it is significant that section 22 is 1 not mandatory in its tenor. It merely gives an option to a person claiming a right or interest in any property treated by the Custodian or Rehabilitation Authority as evacuee property to prefer a claim to the Custodian on the ground that the pro perty is not evacuee property or his interest in the property has not been affected by the provisions of this Act. It has also to be noted that even the Deputy Rehabilitation Commissioner in his order dated 28‑I1‑1959 had described the rights in, the property as non‑evacuee tenancy rights. Nor does the suit ‑appear to me to be barred under section 18 of the Act XLII of 1956 because the impugned orders passed by the Rehabilitation Authorities were apparently not passed pursuant to the provisions of the Act. For, the impugned orders of the Rehabilitation Authorities did not fall under any of the categories set out in section 7 of Act XLII of 1956.

10. Learned counsel for the respondents has cited Dr. S. M. Asghar Ali Jafri v. Custodian of Evacuee Property, Karachi (P L D 1957 Kar. 342) in support of his contention that when tenancy right came into existence in favour of non‑evacuees before the 1st of March 1947 they could not be considered as evacuee property and the Rehabilitation Authorities or the Custodian of Evacuee Property, under the prevalent law had no right or authority to allot it to any other, person. The circumstances giving rise to that judgment have been briefly set out in the head‑note as follows: "The Sind Government had certain premises on lease from 1945 from a Hindu owner who later became an evacuee. On the amalgation of Sind in the Province of West Pakistan, Government vacated this building but did not surrender their tenancy rights to the Rehabilitation Authorities. The Executive Engineer, P. W. D. and the Housing Committee, who controlled the building on behalf of the Sind Government allotted it to the petitioner a medical officer in Government Service. Meanwhile, the Rehabilitation Authorities, coming to know that Government was vacating the premises, allotted the same to respondent No. 3, sub‑editor of a newspaper. This allotment was confirmed by the Custodian of Evacuee Property. It was held, that in view of section 11, Transfer of Property Act neither in law nor in fact, had the Sind Government or its successor the West Pakistan Government . . . surrendered the tenancy rights of the property to the Rehabilitation Authorities or to the Custodian of Evacuee Property. The possession of the property in dispute always remained with the Sind Government or with its successor the West Pakistan Government and in law the tenancy of the property in dispute had not come to an end."

11. In the present case also it is obvious from the material on the record that the land was in possession of the plaintiffs and defendant No. 1 since 1926 and that after Partition vide receipt dated 29‑11‑57 the defendant No.1 surrendered his tenancy rights in the property to the plaintiffs. At no time were the tenancy rights in the property surrendered to the. Rehabilitation Authorities or to the Custodian of Evacuee Pro perty. Although defendant No. I contended that the receipt in question was executed by him under coercion and undue influence, he led no proof to substantiate his plea. It would seem, therefore, that the plaintiffs remained in continuous possession of the property from before Partition and at no time had surrendered their possession to either the Rehabilitation Authorities or the Custodian. Therefore, in the light of the aforesaid judgment, neither the Rehabilitation Authorities nor the Custodian of Evacuee Property had any right or authority to make any orders regarding the tenancy rights. The jurisdiction of the Civil Court had, therefore, been correctly invoked by the plaintiffs. It is significant that at one stage even defendant by a suit invoked the jurisdiction of the Civil Court and it was only after the plaintiffs had instituted the present suit that defendant No. 1 having failed to secure an injunction against the plaintiffs withdrew from his suit.

12. The result is that I see no good ground for interfering with the judgment and decree of the lower appellate Court and maintaining them dismiss the appeal. In the circumstances of the case I make no order as to costs. A. H. Appeal dismissed.