1972 PLP 661 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner and one Rehmat ullah, the predecessor‑in‑interest of respondents Nos. 11 to 15, held an occupancy tenancy of 54 kanats and 2 marlas of land, bearing Khasra Numbers 3756/1312, 3757/1312, 3758/1309 to 1311, 3605/1322 and 3759/1309, in village Salhad, Tehsil Abbottabad, District Hazara. Out of this, they mortgaged with possession 19 kanals and 4 marlas with two Hindus, namely. Ganga Ram and Ram Saran, for a sum of Rs. 3,200, for a period of 18 years, under a registered deed dated 3‑7‑1930. Mutation of this mortgage ways sanctioned on 6‑8‑1930, but the name of Lakshmi Das, a previous mortgagee, who had relinquished his mortgage rights, continued to be recorded in the revenue papers instead of those of the new mortgagees. This was corrected by another mutation sanctioned on 18‑11‑

32. The balance of the property measuring 34 kanals 171 marlas was again mortgaged with possession for a sum of Rs. 5,000 for a period of 20 years with the same mortgagees, namely, Ganga Ram and Ram Saran, in pursuance of a registered deed dated 1 2‑12‑1934. This mortgage was entered in the revenue records by Mutation No. 6153 sanctioned on 18‑12‑

34. Thereafter, the occupancy tenants sold also the equity of redemption in respect of the first lot of 19 kanals and 4J marlas to the mortgagees by a registered deed dated 6‑7‑

37. This sale was duly entered in the revenue records by Mutation No. 6968 sanctioned on 11‑8‑

37. Similarly, the equity of redemption of the balance of 34 kanals and 171 marlas was also sold to the same mortgagees by a registered deed and this sale too was entered in the revenue records by mutation No. 7186 sanctioned on 24‑6‑

38. As the second sale had been made without the concurrence of the landlords, the same was challenged by one of the landlords under sections 53 and 60 of the Punjab 'tenancy Act, 1887, and was cancelled. The decree of cancellation was confirmed by the Revenue Commissioner, Peshawar, on 10‑10‑1942 and mutation No. 9688 was entered on 8‑9‑43 with the result that these 34 kanals and 171 marlas remained subject only to mortgage with Gangs Ram and Ram Saran. In all these transactions, the occupancy tenants described themselves as "Mochas", who were not recognised as an agricultural tribe in these parts. In April 1944, when settlement operations were going on in Hazara District, the occupancy tenants made an application for the correction of their caste from "Mocha" to "Gujar", a statutory agricultural tribe. This application was sought to be opposed by other gujars who wanted to be joined as parties to those proceedings, but the Settlement Officer, Mr. Tollington, ordered the correction to be made without joining them or giving the other gujars or the Hindu mortgagees any notice or opportunity of being heard. This order, it appears, was made on the 8th of June 1944; but thereafter the occupancy tenants took no further steps until the 16th of August 1948, after the Hindu mortgagees had migrated to India and their mortgagee rights had vested in the Custodian, for the restoration of possession of their occupancy tenancies In respect of these lands measuring 34 kanals and 171 marlas claiming that, on becoming gujars, a statutory agricultural tribe, they became automatically entitled under section 14 of the Punjab Alienation of Land Act, 1900, to get back possession of their lands. The occupancy tenants also made a similar application for the cancellation of the sale of the equity of redemption of the other 19 kanals and 4 marlas which had been sanctioned on 11‑8‑

37. Both these applications were made without notice to the Custodian of Evacuee Property in whom evacuee's rights had by now vested. Notwithstanding this, the Collector of Hazara, by his order of the 3rd of March 1949, treated even the sale sanctioned on 11‑8‑37 as a mortgage with possession for the maximum period of 20 years and granted the occupancy tenants permission to redeem all their lands on the deposit of a sum of Rs. 4,

190. In the alternative, the original mortgage and sale of equity of redemption were ordered to be changed into usufructuary mortgages for a period of five years with effect from Rabl, 1949. This order was given effect to by mutations Nos. 100 and 101 sanctioned on 1‑2‑1950. Nevertheless the accompany tenants continued to pay rent (chakota) to the predecessor‑in‑interest of respondents 4 to 10, a displaced person, who had been Allotted these lands by the Custodian of 19vacueo Property. In the meantime the North-West Frontier Province Tenancy Act of 1950 came into force, and the petitioner also claimed that, by reason of the provisions of sections 4 and 4‑A thereof, he had become full owner, and on this basis he, on the 25th of July 1951, paid Rs. 59‑13‑6 to the landlords by way of compensation. The mutation of the 1st of February 1950, bad, however, yet to be confirmed by the Deputy Commissioner, who, on a reference from the Rehabilitation Authorities, on the 17th of April 1950, ordered the petitioner to get the mutation confirmed also by the Custodian. It is only after this that the petitioner applied to the Deputy Custodian, Hazara, under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1 949 for a declaration that these properties were not evacuee property. Tbi3 application was moved on the 3rd of May 1950, and the Deputy Custodian, by his order of the 11th of October 1950, held that confirmation was not necessary Hence the declaration prayed for was granted to the effect that the occupancy tenancy rights of the petitioner in these lands were not evacuee property. The mutations of redemption Nos. 590 and 591, which had also since been entered in the revenue records in respect of the mortgage transactions as a result of the order to change them into unfructuary mortgages for a period of five years were alto rejected by the Tehsridar, Abottabad, on 1‑12‑1954. Against this order, the petitioner went up to the Collector in appeal and the same was accepted. Fresh mutations were sanctioned` on 17‑5‑1956 showing the petitioners as full owners of the property in dispute. Fazal Muhammad, the predecessor‑in‑interest of respon dents 4 to 10, however, made a representation to the Additional Custodian of Evacuee Property, Peshawar. But he too allowed the occupancy tenants to redeem on payment of the amount found due from them as mortgagors. Being dissatisfied with this order, the petitioner again moved the Deputy Custodian, Hazara, under sections 22 and 23 of the Pakistan (Administration of Evacuee Property) Act X11 of 1957. The declaration sought for was granted by the Assistant Custodian on the 28th of May 1958; but on appeal by Fazal Muhammad, the Additional Custodian remanded the case back with a direction to implead the said respondent as a party and to afford him an opportunity of taking part in the proceedings. On remand, the Assistant Custodian recorded the statement of the said Fazal Muhammad, but, again, on the 28th of December 1958, confirmed his previous order, Fazal Muhammad again went up on appeal to the Additional Custodian, Lahore, who set aside the order of the Assistant Custodian. The petitioner (occupancy tenant) then went in revision to the Custodian who not only dismissed the: revision petition on 8‑5‑63 but also gave a further direction that a sum of Rs. 10,000, for which a decree had actually been passed in. favour of Gangs Ram and Ram Saran on the 10th of July 1944 should be recovered from him within three months. The petitions r challenged this order by a writ petition in the High Court. It was partially accepted in so far as the direction for the recovery of Rs 10,000 was concerned but was dismissed so far as the lands were concerned. The petitioner then went up in Letters Patent appeal which was dismissed in limine on the 24th of September 1970. He now seeks special leave to appeal, and the learned counsel appearing on his behalf contends that, by reason of the provisions of sections 3, 6 and 14 of the Punjab Alienation of Land Act XIII of 1900, the occupancy tenants, who had been declared to be gujars, a statutory agricultural tribe in the former province of North‑West Frontier Province, were entitled to have their mortgages treated as usufructuary mortgages, as held by the Collector of Hazara on the 3rd of March 1949. This contention is not correct, because, the relief given by l this Act is only available in the case of a mortgage created by a member of an agricultural tribe." In the present case, on the dates the mortgages were created, namely, 1932 and 1934, the' mortgagors were not members of any agricultural tribe. They', became, if at all members of an agricultural tribe, only when their' caste was changed in 1944 from Mochis to Gujars. The order of Mr. Tollington is not before us and we do not know under what circumstances and in what terms the correc tion of the caste description was made in the settlement records; but we find it difficult to imagine that it could have been with retrospective effect. Apart from this, there is another very substantial reason for repelling this contention. The relief given by section 6 of the Punjab Alienation of Land Act, 1900, is not automatic. The conversion of a mortgage has to be made on an application, as will be evidenced from the provisions of subsection (3) of~ section 6 of the said Act itself. This application was made by the petitioner only in 1948, even though the Act was in force when the mortgages were originally created in 1932 and 1934. If the Punjab Land Alienation Act of 1900 was applicable, then the mortgagors would have applied thereunder long before 1948. They did not do so, because, the mortgagees were here and would have opposed the application. They accordingly waited until the mortgagees had left to make the application. Even the correction of We description in the settlement records was not made on notice to the mortgagees and, therefore; could not possibly bind them or take away the right they had acquired on payment of valuable‑, consideration. Lastly, it appears‑ to us that the provisions of the Punjab Alienation of Land Act, 1900, were not applicable to these mortgages or the sales of the equity of redemption, because, the second sale of the equity of pre emption wish regard to 34 kanals and 17 marlas was invalidated in October 1942 under sections 53 and 60 of the Punjab Tenancy Act of 1887. This was obviously because, even up to that time, the occupancy tenants in this case were not treated as members of an agricultural tribe recognised in the former Province of North‑West Frontier Province. In these circumstances, we are in agreement with the High Court that the orders of the Additional Custodian and of the Custodian passed on tie 17th of October 1959 and the 8th of May 1963 respectively were not without lawful authority. So far as the first lot of 19 kanals and 4J marlas is concerned, the petitioner had lost his right of redemption also as a result of the sale of the equity of redemption in August 1937, by Mutation No. 6968. So far as the other lot of 34 kanals and 17 marlas is concerned, the mortgagee rights of the evacuees vested in the Custodian and the occupancy tenants could redeem the same only on payment of the mortgage dues, as has been ordered by the Custodian authorities. The ex parts proceedings taken before the Settlement Officer in 1944 and before the Revenue Authorities under the Punjab Alienation of Land Act, 1900, in 1948 could in no way be binding on the Hindu mortgagees or the Custodian Authorities in whom their rights had become vested. It is only after such redemption that the petitioner will acquire the right to be treated or transposed as full owner under the Act of 1950. With these observations, this petition is dismissed. Petition dismissed.