2002 PLP 1548 (YLR)

(2) Whether the Deputy Settlement Commissioner is not necessary party? (3) Whether the plaintiff has made unauthorised amendments in the plaint? If so, what is its effect? These issues were in the first instance disposed of on the basis of consenting statements of the learned counsel for the parties. Thereafter, the petitioners filed an application to the learned trial Court for reference of the matter to the learned Custodian in terms of section 41(2) of the Pakistan (Administration of Evacuee Property) Act, 1957 which was rejected on 1‑4‑1974. Thereafter, following issues were framed:‑‑ (1) Whether the suit property is evacuee land and forms part of compensation pool? OPD (2) Whether the suit property is a factory building known as Standard Textile Mills and was purchased by Muhammad Shafi in 1946 for Rs.60,000? OPP (3) Whether Hakeem Muhammad Shafi gifted the suit property in favour of the plaintiff? OPP (4) Whether the order of allotment of suit property in favour of defendants Nos. 1 to 14 as land is illegal, ultra vires, void, ineffective against the rights of the plaintiff for the reasons stated in the para. No. 6 of the plaintiff?" OPD (5) What interest, if any, the defendants Nos. 15 to 18 have in the property? OPD (6) Relief.

2. Evidence of the parties was recorded. The learned trial Court vide a judgment and decree, dated 22‑6‑1974 decreed the suit. The petitioners filed a first appeal which was allowed and suit was remanded back. Against this order of remand a civil revision was filed in this Court which was allowed on 18‑3‑1979 and the learned Court of 1st Appeal was directed to decide all the above referred issues. After the remand a statement was made on 16‑7‑1979 by the learned counsel on behalf of the petitioners that the appeal be dismissed as withdrawn and it was so dismissed. Thereafter, an application was filed by the petitioners stating that they had never authorised anyone to, seek withdrawal of the appeal. This application was contested and it was allowed on 21‑7‑1982. This order was challenged in this Court and was upheld on 11‑4‑1995. Ultimately the first appeal was heard by a learned District Judge, Sialkot who dismissed the same vide a judgment and decree, dated 10‑7‑1995.

3. The learned counsel for the petitioners contends that the impugned judgment and decrees are without jurisdiction inasmuch as the sole authority to determine the character of the property is the Custodian. Further contends that respondent No.1 did not take any steps to seek a declaration in terms of section 22 of the said Act of 1957. Then argues that the property belonged to Mst. Ram Piyari and there is no evidence on record of its transfer in favour of the said Messrs Ubrai Rubbers Industries Limited and consequently there is no valid transfer in favour of the, said Muhammad Shafi or the respondent No.1. The learned counsel for respondent No.1, on the other hand supports the impugned judgment and decrees with the contention that the property was never treated as an evacuee property before or after the prescribed date i.e. 1‑1 1957. Further contends that acquisition of valid title by Muhammad Shafi and its transfer in favour of respondent No.1 stands proved on record. States that the transfer in favour of the petitioners in any case is void inasmuch as an industrial concern, duly entered as such in the record has been got allotted on R. L.2 as agricultural land.

4. I have gone through the copies of the record appended with this civil revision, with the assistance of the learned counsel for the parties. I may note here that all the exhibit documents have been annexed with this civil revision and thus will be referred with reference to the Annexures numbers on the Paper Book of the civil revision. Annexure-H/20 is the Jamabandi for the year 1946‑47, the land measuring 9 Kanals, 16 Marlas bearing Khasra No. 289 located in the village Pakka Garha, Tehsil and District Sialkot (i.e. the suit land) is recorded to be owned by Mst. Ram Pyari wife of Sangat Singh. It is recorded to be in possession of Messrs Ubrai Rubber Industries Limited as tenant through Muhammad Shafi son of Budhay Khan as a sub‑tenant. The land is classified as "ﻪﻨﺎﺨﺮﺎﻛﻥﮑﻤﻤﺭﻳﻏ" Column No.9 reads that the said tenant is not paying anything because the land had been gifted to it while the said sub‑tenant claims that the land has been sold to him. In the remarks column there is a note that Mutation No. 740 of gift and 896 of sale stands entered but order has not been received. Copy of mutation No. 896 is annexed as H/8. A perusal of this document shows that in the first instance the mutation entered on the basis of registered sale‑deed, dated 3‑6‑1946 was rejected for the reason that Muhammad Shafi had not paid the mutation fee. It was done vide an order, dated 19‑1‑1950. Thereafter, there is an order of AC‑II, dated 7‑12‑1953 that in appeal the mutation has been attested. Annexure H/7 is the Jamabandi for the year 1958‑59 containing the same entries as Annexure H/20. However, the said mutation stands incorporated in the remarks column. The sale‑deed, dated 3‑6‑1946 is Annexure H/4. It has been executed by Sardar Sangat Singh, Director and Ram Pyari, wife of Sardar Sangat Singh, Managing Director of Ubrai Rubber Industries Limited. The said executants stated inter alia, that the land comprising Khasra Number 289 with building thereon stands mortgaged with Lala Ram Lal, Advocate, Lahore with possession and that the said executants are authorised in terms of the Article of the Association of the Company to sell the land and the building thereon. Thereafter, the reasons for the sale have been stated i.e. the closure of the business and the accumulation of the interest on the mortgaged money. With these averments the said executants sold the said property to Hakeem Muhammad Shafi son of Budhay Khan for a consideration of Rs.60,

000. Out of this amount a sum of Ps.39,618 was reserved for payment to the said Lala Ram Lal, Advocate. The Mortgaged Deed referred to in the said sale‑deed is Annexure H/6 and it contains a note, at page. 6 of the document that the mortgage stands discharged on payment of a principal and interest due up to 31‑5‑1946. The payment has been made by means of a Bank draft and the number of the Bank draft is noted in the said endorsement, dated 4‑6‑1946 signed by Lala Ram Lai, mortgagee. Needless to state that the document is original and has been produced by the said respondent No.

1. On the basis of the said evidence the learned Courts below have concurrently concluded that the land with building stood transferred in the first instance by Ram Pyari to Messrs Ubrai Rubber Industries Limited and then by the said Company to Hakeem Muhammad Shafi. The gift deed in favour of respondent No. 1 is annexed at H/5 which is a registered document. Admittedly the lady is in possession of the property. I have not been able to find anything on record to differ from the said conclusion of the learned Courts below.

5. Coming to the said first, rather, the main contention of the learned counsel for the petitioner. His main reliance is on a judgment in the case of Shaukat Hayat Jumani v. The Province of Sindh through Secretary, Rehabilitation Department and others (1991 SCMR 580), Azizuddin v. Muhammad Ismail and others (1985 SCMR 666) and a judgment of a learned Single Judge of this Court in the case of National Cooperative Transport Society Ltd., Lahore through the President of National Cooperative Society Ltd. v. Muhammad Ramzan and another (1994 MLD 1168). I may state here that so far as the case of said Aziz‑ud‑Din is concerned, the same is not relevant at all to the point being urged by the learned counsel inasmuch as in .the said case it was the very order of the Custodian declaring the property to be non‑evacuee that was brought under challenge before the High Court and was set aside and the Honourable Chief Justice and the Judges thus decided the matter arising out of the said proceeding. So far as the said judgment in the case of National Cooperative Transport Society Ltd. is concerned, I find that the same was appealed against and was set aside by the Honourable Supreme Court vide a judgment, dated 31‑1‑2001 rendered in Civil Appeals Nos. 1489 of 1995 to 1505 of 1995.

6. However, the said judgment in the case of Shaukat Hayat Jumani fully supports the contention of the learned counsel. However, the judgment was rendered by a Bench comprising two Honourable Judges. In a later judgment delivered by the Honourable Supreme Court of Pakistan in the case of Muhammad Ismail v. Abdul Haq and others (2001 SCMR 1350), the converse view was taken. In the said case a house was transferred by a Deputy Settlement Commissioner vide an order, dated 13‑12‑1960 to the appellant before the Supreme Court. The respondent, in the first instance challenged the order in the settlement hierarchy but failed. Then he filed a civil suit seeking a declaration that he is the owner of the said house. The objection being raised by the learned counsel before me, found favour with the learned Civil Judge who returned the plaint. A first appeal was dismissed. R.S.A. No. 1046 of 1997 was allowed by this Court and the suit was decreed. It will be noted here that in the said suit one of the reliefs sought was possession of the property which was delivered by the Settlement Department to the transferee. In the said background, after being satisfied that the property was not evacuee, their Lordships rejected the said objection of jurisdiction, after examining the relevant provisions i.e. sections 3, 22 and 41 and referring to the case of Abdul Khaliq Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74 and Mooso through Legal Heirs and others v. Aallahdito through Legal Heirs and 7 others PLD 2001 SC 23.

7. Now the facts and the circumstances of the present case are absolutely similar to those of the said case of Muhammad Ismail. The property stood transferred to Hakeem Muhammad Shafi, by means of a registered sale‑deed. It stood incorporated in the Revenue Record. There was a clear mention as to the rights being claimed by Muhammad Shafi. There is nothing on record to hold the registered sale‑deed not to be genuine. There was no requirement for confirmation of the said deed as the said transaction stood completed before the prescribed date i.e. on 1‑3‑1947. There is no evidence on record that the property was ever treated to be evacuee by the Custodian within the meaning of the section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957. The sole reliance of the learned counsel for the petitioner is on the entries in the Revenue Record. However, in the very judgment relied upon by the learned counsel as also in the judgment in the case of Abdul Khaliq Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74 relied upon by their Lordships in the said case of Muhammad Ismail, it has been held that mere entries in the Revenue Record continuing the name of the evacuee only would not be treatment of property as evacuee within the meaning or law.

8. There is yet another significant aspect of the case. It stands admitted on all hands that the land in question is underneath a factory wherein an industrial concern was being run long before the Partition of the Sub‑continent. Throughout of the entries in the Revenue Record the words are "ﻪﻨﺎﺨﺮﺎﻛﻥﮑﻤﻤﺭﻳﻏ". The fact that the property was never treated as evacuee by the Custodian or for that matter even by the Rehabilitation Authorities would be evident that some how or the other the said "ﻪﻨﺎﺨﺮﺎﻛ" has been transferred as agricultural land to the petitioners on an R.L.2. Needless to state that the manner in which the industrial concern, it treated to be evacuee and brought lawfully into compensation pool, is to be disposed of, stands stated in detail in the Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958. Had the Custodian treated the said property as an evacuee, as laid down in the case report as PLD 1964 SC 74 or for that matter by the Rehabilitation Authorities, it could never have been transferred as agricultural land vide an order challenged by the respondent No.1. It thus stands established on record that the suit property was never treated as evacuee at any time either before or after 1‑1‑1957 i.e. the date prescribed in Pakistan (Administration of Evacuee Property) Act, 1957. This being so, apart from the fact that the order of transfer in favour or the petitioners is inherently void ab initio, it could not have been transferred even in the manner prescribed in the seta Act No. XXVIII of 1958.

9. For all that has been discussed, this civil revision is dismissed, leaving the parties to bear their own costs. Q.M.H./M.A.K./A‑441/L Revision dismissed.