P L D 1964 Supreme Court 648 (PLP)

HAMOODUR RAHMAN, J. These two appeals have been brought before us by the special leave of this Court. The first is directed against the judgment and order of a Division Bench of the High Court of West Pakistan at Karachi dismissing a writ petition filed to challenge a revisional order of the Custodian of Evacuee Property passed on the 28th of January 1960. The second is a direct appeal from the above order of the Custodian himself. The latter was barred by time, but as the questions of law involved were the same as those arising in the appeal from the order of the High Court, the delay was condoned and leave granted in this case also. The Custodian had, by the impugned order, upheld the order of an Additional Custodian declaring the appellant Devraj an evacuee and his share as also the share of his eldest brother, Lachmandas, in their joint family properties, evacuee property. The latter was admittedly an evacuee but it was contended that he had separated from the joint-family and surrendered his share in the joint-fancily properties prior to Partition in the year 1946. The appellant Devraj was the youngest son of one Tahilram who resided at Mirpurkhas and constituted with his wife Srimati Mulibai and his three sons Lachmandas, Mohandas and Devraj a joint Hindu family. This joint Hindu family owned some 3,400 acres of agricultural lands in the districts of Tharparkar and Sanghar in Sind. In addition to these lands Srimati Mulibai, wife of Tahilram, also owned 650 acres of agricultural lands in the district of Sanghar in her own right as she had inherited them from her own father. It is not clear why or for how long the other members of this joint Hindu family had also left Pakistan after the setting up of the Dominions of India and Pakistan but in 1949 the Rehabilitation Department treating some of the agricultural lands of this family as evacuee property allotted them to refugees. Tahilram, however, appealed against this to the Custodian of Evacuee Property under section 36 of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949 claiming that he had never migrated from or left Pakistan in consequence of the partition of the country nor had he acquired any right or interest in any evacuee property in India, and the then Custodian of Evacuee Property by his orders of the 10th June 1950, and the 10th March 1951, held the entire joint-family to be non-evacuee and its property to be non-evacuee property. But soon thereafter the Assistant Custodian of Evacuee Property, Tharparkar, again issued fresh notice to Tahilram under section 23-A of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949 as amended by Act No. VI of 1951 to show cause as to why he and his joint-family should not be treated as intending evacuee. During the pendency of these proceedings Tahilram died sometime in December 1951. Thereupon fresh notices under section 23-A of the above-mentioned Ordinance were again issued to his widow and his three sons. In these proceedings Lachmandas, who had come to Pakistan on a temporary permit from Jodhpur, gave evidence to the effect that he lived permanently at Jodhpur with his wife having separated from the joint-family some 7 months before Partition. According to him, the appellant Devraj, who was then 9 years old, was also living in India with a married sister and was studying there. He maintained, however, that his father, mother and brother Mohandas all along lived in Pakistan. He claimed no share in the joint-family properties in Pakistan, as he had surrendered the same in lieu of Rs. 1,70,000 paid to him in cash by his father. One Dhanraj, the father-in-law of Mohandas, also gave evidence in that case on the 13th of March 1952, but thereafter no one appeared before the Deputy Custodian in spite .of repeated notices having been served on them to do so. The case was, accordingly, heard ex parte and it was held therein that Lachmandas and Devraj were evacuees and their properties were evacuee properties. Mohandas and Srimati Mulibai were declared to be intending evacuees and their properties were also declared evacuee properties on the 13th of March 1953. From this order at first Mohandas alone filed an appeal before the Additional Custodian. In the Memorandum of Appeal filed by Mohandas it had again been averred that Devraj too had migrated to India, but on the 28th of April 1953, Mohandas applied to have the Memorandum of Appeal amended and the appeal to be treated as having been filed by him "on his own behalf and as Karta of the joint-family, on behalf of his mother and brother Devraj". The statement that Devraj had also migrated to India was also sought to be altered on the ground that it had been made due to a misunderstanding on the part of his Advocate of the instructions conveyed to him. It was claimed that Devraj, who was a minor of 11 years of age, had not migrated to India. The amendment also sought to set up the case that Lachmandas had separated from the joint-family and had no share in the joint-family properties. The Additional Custodian only allowed the last amendment regarding the separation of Lachmandas but refused the other two amendments. In the appeal, however, the Additional Custodian came to the conclusion that Mohandas himself could not be treated as an intending evacuee and since the appeal had been filed by Mohandas alone, the finding of the Deputy Custodian as to his status was set aside but the findings with regard to Lachmandas, Devraj and their mother Srimati Mulibai were held to be not liable to interference in that appeal and to be binding, unless set aside in due course of law. The appeal against the finding that they were evacuees was held to be not maintainable, as an appeal lay only from a final order under section 18 of the above-mentioned Ordinance No. XV of 1949. The remedy, it was further said, lay in a substantive application under the said section

18. Accordingly an application under section 18 of Ordinance No. XV of 1949, was filed by Mohandas but this time as Karta of the joint-family con sisting of himself, his brother Devraj and his mother Srimati Mulibai, on the 5th of September 1953, before the Assistant Custodian, Tharparkar. The latter by his order of the 13th of May 1958, held that these three were neither evacuees nor intending evacuees but that they were Pakistan nationals, who had been residing in Pakistan, and hence they were entitled to enjoy their shares in the joint-family properties according to Hindu law. One Amir Muhammad, who was an allottee of some of the lands belonging to this joint-family, then filed an appeal from this order before the Additional Custodian (Judicial) on the 2nd of August 1958. The latter condoned the delay in the filing of the appeal and after reviewing the evidence came to the conclusion that there had been no separation as alleged between Lachmandas and the other members of the joint-family property and that Lachmandas and Devraj were evacuees. Accordingly half of the joint-family properties falling in the shares of the said Lachmandas and Devraj were also evacuee properties. The order of the Assistant Custodian was, accordingly, modified to this extent. It may be stated here that Lachmandas was on his own admission an evacuee. Actually he came to Pakistan on the death of his father on a temporary permit. According to him, at that time also Devraj was in India and did not even come to attend his father's funeral. The evidence as to the separation of Lachmandas, which was furnished by only the oral testimony of Lachmandas himself and Dhanraj Mal, the father-in-law of Mohandas, was not found to be reliable, as it was not supported by any documentary evidence. Two certificates of which one was granted by the Collector, Rehabilitation, Jodhpur, and the other by the Assistant Custodian, Jodhpur, were produced to show that Lachmandas had neither received any rehabilitation benefit nor been allotted any evacuee property nor purchased any such property at Jodhpur in India, but these were rightly held to be insufficient to prove that Lachmandas had actually separated from the joint-family and surrendered his share in the properties. The oral evidence thus being uncorroborated by any reliable documentary evidence was disbelieved as regards the alleged separation of Lachmandas and the payment to him in cash of Rs. 1,70,000 in lieu of his share in the property. So far as the status of Devraj is concerned, the learned Additional Custodian appears to have been influenced by the statement given by Lachmandas himself in 1952 and Mohandas in his original Memorandum of Appeal before the Additional Custodian, as also by the fact that even in the certificate granted by the Headmaster of the Government High School at Mirpurkhas on the 12th of November 1957, (Exh. A-22) Devraj was shown in the register of the school as "Devo son of Tahil Ram resident of Jodhpur." Admission was granted to him on the basis of the certificate (Exh. 21) he brought from the Modern High School, Jodhpur, which again showed him as a resident of Jodhpur who had joined the latter school on the 2nd of May 1952, and studied there till the 15th of September 1953, when he is said to have left in order to go to Pakistan. On this evidence the learned Additional Custodian found that Devraj must have left for India after the orders of the Custodian of the 10th June 1950, and the 10th March 1951, and thereby acquired the status of an evacuee. From this order a revision application was filed before the Custodian himself. The Custodian accepted this revision only to the extent of declaring that 650 acres inherited by Srimati Mulibai from her own father could not be treated as evacuee property, since she herself had been declared a non-evacuee. Except for this modification the other findings of the Additional Custodian were upheld and the revision dismissed. From this order Srimati Mulibai, Mohandas and Devraj all went up to the High Court by way of a writ petition on the 10th of February 1960. The High Court refused to interfere on the ground that the findings of the Custodian Authorities were findings of fact which had been based on sufficient evidence. Leave was granted in this case only to consider whether the finding that Devraj was an evacuee was based on legal evidence. The finding regarding the alleged separation of Lachmandas from the joint-family property was held to have been arrived at upon good and adequate evidence and, as such, leave was not granted for the consideration of this last question. The main ground upon which the learned counsel appearing in support of these appeals has challenged the finding of the Custodian as to the status of Devraj is that all the Custodian Authorities had misdirected themselves as to the essential question of onus of proof. It is contended that under section 22 of Act (MI of 1957) (hereinafter referred to as the Act) the onus is not on the aggrieved person to prove the negative but on the Depart ment and those who are interested in affirmatively asserting that such a person is an evacuee. By applying under this section the aggrieved person, it is said, merely puts the question in issue, as he has a right to do, but that does not shift the onus of proof. The onus still lies on the other side to show that the person claiming the declaration under that section is an evacuee within the meaning of subsection (2) of section 2 of the Act, that is to say, is a person who had left Pakistan upon the setting up of the new Dominions of India and Pakistan or due to civil disturbances or fear of such disturbances. Mere temporary absence from Pakistan or a temporary sojourn in India is not, it is urged, sufficient to convert a person, who would otherwise be a Pakistani national, into an evacuee, for, the definition of "evacuee" given in the Act clearly provides that the departure must have some nexus with the circumstances therein mentioned. Unless such nexus is established the evacuee status cannot be shown to exist. In support of this contention reliance is placed on an unreported decision of this Court in the case of Hargundas alias Hargobind and another v. Evacuee Property Inquiries Tribunal, Karachi and others (Civil Appeal No. 58 of 1961) decided on the 28th of November 1962. In that case the appellants were the sons of one Kundomal who along with another son constituted a joint Hindu family. Kundomal had never left Pakistan and on an application under section 18 of Ordinance No. (XV of 1949) a declaration had been granted on the 12th of June 1951, to the effect that the said Kundomal and his sons were not evacuees and their properties were not evacuee properties. On the 21st of July of the same year, however, the Rehabilitation Commissioner wrote to the Custodian informing him that on the 28th of April 1951, Kundomal had, in fact, made a statement that the appellants who were his two minor sons and aged 15 and 13 respectively, had gone to Hindustan "on permanent permits" and requesting that the case of the appellants should be re-opened. This was done by the Additional Custodian without issuing any notice to the appellants and they were declared evacuees. But the Custodian, set aside this order as it was passed without notice, issued fresh notices to show cause as to why the order of his predecessor passed on the 12th of June 1951, should not be reviewed and after hearing the appellants set aside the order of his predecessor on the 19th of February 1952. Against this order a second review application was filed which came up before another successor Custodian. The latter came to the conclusion that the order of his predecessor was without jurisdiction and, therefore, a nullity in the eye of the law, but he did not pass any order as he thought that to do so would again amount to making an order without jurisdiction. The Rehabilitation Authorities, however, refused to give effect to the observations of the Custodian. The appellants in that case, therefore, put in another application under section 18 of the Ordinance. In this second application the Assistant Custodian declared them to be non-evacuees and this order was approved by the Deputy Custodian. In revision again the same learned Custodian approved the order of the Assistant Custodian, although in his opinion such approval was no longer required. This order was challenged before the Tribunal by the Central Government. The Tribunal came to the conclusion that the order passed by the Custodian on the 19th of February 1952, was made in the lawful exercise of his jurisdiction and that since it had not been set aside by his successor the ultimate order of the Custodian approving the order of the Assistant Custodian declaring the appellants to be non-evacuees was without jurisdic tion. On merits also the Tribunal held that the appellants were, in fact, evacuees. On a direct appeal to this Court from the order of the Tribunal this Court on a perusal of the whole record came to the conclusion that the Custodian's order of the 19th February 1952, and of the Tribunal with respect to the status of the appellants were based upon an obvious misapprehension as to the nature of the permits on which the appellants were said to have left for India in 1949. Although Kundomal, the father, had described them as "permanent permits", the permits were actually intended for "permanent return to Pakistan". The evidence also disclosed that although the appellants went to India in 1948, they remained there for only 5/6 months and then returned to Pakistan. Again in 1949-50 they went to India for short periods and lastly from the 28th of April 1951, they remained in India only till July or August 1951, whereafter they returned to Pakistan and were put in a Madrassa at Mirpur for prosecuting their studies. This Court found that the sole basis for the order of the Custodian declaring them to be evacuees was the statement of Kundomal himself which had obviously been made under a misapprehension and that it was also clear from the evidence that Kundomal, his wife and his other son had never left Pakistan. In view of the short visits of the appellants therein concerned and the mis conception as to the nature of the permits upon which they had gone to India for such short visits it was held that neither the Custodian nor the Tribunal was justified in coming to the con clusion that the appellants were evacuees. The question of onus does not appear to have been raised or discussed in that case, but upon the facts thereof this Court found that the evidence upon which reliance had been placed by the Custodian and the Tribunal was not such as could reasonably lead to the conclusion arrived at about the evacuee status of the appellants in that case. In the present case, however, the facts are materially different. On the statement of Lachmandas himself Devraj had gone away to India, been admitted into a school there where he was described as a resident of Jodhpur and was actually living in Jodhpur with his married sister. In 1951 when his father died he did not come back to Pakistan. That this was the correct position was admitted even by Mohandas in his original Memorandum of Appeal filed in the Court of the Additional Custodian on the 13th of April 1953. The subsequent amendment did not categorically controvert this fact but merely sought to raise the question that since Devraj away to Jodhpur could not, in the circumstances of be treat going migration to India. Even after Devraj returned in 1954, to Pakistan and was admitted in the Government High School at Mirpurkhas he was shown in the register of the latter school as a resident of Jodhpur. As against this it is true that the Assistant Custodian had relied on the Pakistani Passport (Exh. A-14) granted to him and on the Ration Cards (Exits. A-19 and A-20) but, as pointed out by the Custodian he failed to notice that the Passport was issued in 1954, after his return to Pakistan and the Ration Cards related to 1957. Therefore, it could not be said that these documents established that Devraj had not gone away to India. The next contention is that Devraj being a minor and having no will of his own could not be treated as a migrant, as he could not be said to be capable in law of possessing either or any of the intentions necessary under the definition of an "evacuee" given in the Act to make a person an evacuee. The mere fact that he was studying from May 1952, to September 1953, in a school at Jodhpur is, it is contended, not sufficient to lead to the inference that he had thereby become an evacuee within the meaning of the Act, in the absence of any evidence to show as to why he was at all sent to Jodhpur and under what kind of permit he left Pakistan, after he had been declared a non-evacuee by Mr. Akbar Hussain, the then Custodian in June 1950. It is no doubt correct, as contended by the learned counsel, that mere temporary residence in India may not be sufficient to treat a person as an evacuee unless the departure from Pakistan was for one or other of the causes mentioned in subsection (2) of section 2 of the Act but, in the present case, there is evidence which could reasonably lead to the inference that the stay in India was not intended to be purely temporary or that Devraj was taken to India merely for the purposes of receiving education there, as similar education was not then available in Pakistan or that there was any intention to return him to Pakistan when con ditions became settled. Evidence has, in fact, been led on both sides. One set of witnesses alleges that the entire family migrated to India after the setting up of the dominions of India and Pakistan and even removed all their movable properties witnesses examined on behalf of the appellant do not categorically deny that Devraj had gone away to India but merely stated that he stayed at Jodhpur for a short while. Tahilram in his statement did not say anything about this and Lachmandas when pressed was non-committal. He merely stated "I do not know if he (Devraj) has permanently made his home in India." The Custodian Authorities accepting only that oral evidence which found support from the documentary evidence on the record to which, we have already adverted, came to the conclusion that Devraj had become an evacuee. In the present case, therefore, it cannot be said that there was no evidence at all upon which the Custodian Authorities could reasonably have come to this conclusion. The question of onus raised by the learned counsel is not very material at this stage after evidence has been led on both sides. But it appears to us on general principles that the initial onus should be on the person seeking the declaration under section 22 of the Act to show that he has the right he claims, because, he is not an evacuee within the meaning of the Act, for, it is clear that if he adduces no evidence in support of his applica tion it is he who must fail and not those who oppose his applica tion. In any event, since the circumstances in which a person can become an evacuee under the Act are circumstances which can only be within the special knowledge of the person seeking the declaration, the burden of proving his relevant intention would lie upon him. The state of mind of such a person can only be inferred from his actions. So far as the actions of Devraj and the adult members of his family are concerned, the evidence is that the whole family left with their movable properties for India soon after the setting up of the two Dominions of India and Pakistan. Later the father Tahilram came back and gradually brought back his wife and two of his sons. His eldest son teak up permanent residence in India. Then according to the statement of Tahilram himself his house was sealed and refugees looted his bungalow and crops in the latter part of 1949. If after these happenings Devraj was again sent away to India, then can it be said that the Custodian Authorities were not entitled on these facts to draw the inference that he must have been sent away due to one or the other of the causes mentioned in section 2 (2) of the Act. The facts proved in the present case, in our view, could reasonably have given rise to the inference that Devraj left, as the Custodian seems to have thought, to permanently reside in Jodhpur and it cannot be said that the decision of the Custodian Authorities was so patently erroneous that this Court should interfere with it in the exercise of its appellate jurisdiction or that it was a decision of the nature that could have been interfered with by the High Court in its writ jurisdiction. The limits which this Court has set upon itself when entertaining appeals from Tribunals of this nature have been laid down in the case of Muhammad Saeed and others v. Election Petitions Tribunal West Pakistan and others (PLD1957SC(Pak.)91), and we are clear in our minds that the present is not a case which comes within those limits, as we are not prepared to hold that the decision of the Custodian Authorities was based on no evidence at all, or upon any manifest misreading or misconception of the evidence or such that it could not honestly have been arrived at after giving due consideration to the facts and circumstances of this case. For these reasons we are unable to accept these appeals which are, accordingly, dismissed. But having regard to the special facts of these cases we leave the parties to bear their own respective costs. A. H. Appeal dismissed.