2003 PLP 1456 (SCMR)

FAQIR MUHAMMAD KHOKHAR, J.

This petition is directed against impugned judgment, dated 29-5-2000 passed by the Lahore High Court, Lahore in R.S.A. No.684 of 1976.

2. The respondents Nos.1 to 14 instituted a civil suit for declaration and perpetual injunction claiming therein that they, alongwith respondent No. 15, were owners in possession of the suit-land measuring 169 Kanals and 9 Marlas situated in Chak Mauza Shahbazkhel, Tehsil and District Mianwali. The Administrative Civil Judge, Mianwali, by judgment and decree, dated 23-5-1974, decreed the suit against Mst. Rashida Begum, the predecessor-in-interest of the petitioners and also against respondent No.16. The appeal was dismissed by the Additional District Judge, Mianwali, by judgment and decree, dated 14-4-1976. The R.S.A. No.684 of 1976 of the petitioners was also dismissed by the impugned judgment, dated 29-5-2000 passed by the Lahore High Court, Lahore. Hence this petition for leave to appeal.

3. The learned counsel for the petitioners argued that out of the suit property, the land in Khata No.526 measuring 50 Kanals and 7 Marlas mortgaged by the predecessors-in-interest of respondents Nos.1 to 15 with the non-Muslim evacuees was never redeemed. The rights of ownership of the respondents Nos. 1 to 15, if any, stood extinguished by efflux of time. Therefore, the said property was rightly treated as evacuee property. The same was duly allotted to one Mst. Rasoolan, under the Settlement laws, free from all encumbrances she further sold it to the predecessor-in-interest of the petitioners, for a valuable consideration of Rs.15,

000. It was further submitted that the Civil Courts had no jurisdiction to entertain any claim or dispute in respect of the evacuee lands by virtue of provisions of sections 7, 8 and 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 read with section 25 of the Displaced Persons. (Land Settlement) Act, 1958 (hereinafter referred to as "the Act of 1957" or as the case maybe "the Act of 1958").

4. We have heard the learned counsel for the petitioners at length. We find that the predecessors-in-interest of respondents Nos.1 to 15 had mortgaged the suit property to the non-Muslim evacuee. Therefore, the suit property vested in the Custodian of the Evacuee Property only to the extent of the mortgage rights of the evacuees whereas the title of the property continued to vest with the local mortgagors. The evidence on record clearly shows that it was a case of simple mortgage of the property 'which was not held in usufruct. The evacuees never got the physical possession of the suit property which continued with the respondents or their predecessors-in-interest throughout. Except the land in Khata No.526 purchased by the petitioners, the remaining property measuring 119 Kanals and 2 Marlas mortgaged with the evacuee was formally redeemed in favour of the respondents Nos.1 to 15, by order, dated 30-9-1954 Exh.P7, passed by the Special Collector, Mianwali.

5. This Court was already examined somewhat similar questions of law in some other cases. It the case of Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioners West Pakistan and another (PLD 1962 SC 284) it was held that the provisions of section 22 of the Act, 1957 envisaged the possibility of the existence of properties of a composite nature in which some interest might belong to the evacuee and the remaining interest might vest in a non-evacuee. it would therefore be inapt to describe such properties as "evacuee property" in their entirety, without qualification. The intention to destroy the rights of Pakistani owners in properties, in which part of the interest vested in an evacuee, without any compensation whatsoever, could not be lightly attributed to the Legislature. A declaration granted by the Custodian under section 22 of the Act, 1957 would only recognize an existing mortgage but could not be said to have created a new charge. However, the Custodian was authorized under section 25 of the said Act, 1957 to create a charge on evacuee property. The Act of 1957 itself distinguished between the creation of such a charge and the declaration of an existing charge or mortgage under section 22, thereof.

6. In the case of Rehmat Ali v. Member, Board of Revenue and another (1974 SCMR 171) the evacuee had only tenancy rights over the land. This Court laid down that acquisition of land by the Government under section 4 of the Act of 1958, only had the effect of placing the tenancy rights of the evacuees in the compensation pool, and not of converting those rights into proprietary rights.

7. The case of M.A. Hafeez Khan and 9 others v. Riaz Ahmad Mehra and 3 others (1993 SCMR 803) was similar to the present one in which a local Muslim had mortgaged his property to a Hindu evacuee. It was held. that only the evacuee interest of the evacuee mortgagee had vested in the Custodian which had come to the compensation. pool and was available to the Settlement Authorities for disposal. It was further held that anything in excess of it did not vest in the Custodian or constitute the compensation pool or could be transferred by the Settlement Authorities and that the non-evacuee mortgagor's right to redeem the mortgage "did not ever come to be extinguished" or even if the property was transferred, it would be subject to mortgagor's right of redemption.

8. In such-like cases it was not obligatory for a mortgagor or the mortgagee to seek a declaration of the status of the property by making a reference to the Custodian of the evacuee property under the f provisions in the terms of section 22 read with section 25 of the Act of 1957.

9. In the circumstances, the Lahore High Court took a correct view of the law that the Settlement Authorities had no power to transfer the ownership rights of the property to. Mst. Rasoolan. All the three Courts recorded concurrent findings of fact on the basis of evidence on record. No misreading or non-reading of evidence was pointed out. The impugned order does not suffer from any legal infirmity so as to call for any interference by this Court. This is not a fit case for grant of leave to appeal.

10. For the foregoing reasons, we do not find any merit in this petition and the same is dismissed accordingly. M.B.A./R-80/S??????????????????????????????????????????????????????????????????????????????????? Petition dismissed