P L D 1969 Lahore 404 (PLP)

4. On 16‑12‑1893, Pir Bakhsh (who had by that time become major) alongwith his other two minor brothers (Illahi Bakhsh and Muhammad Bakhsh) filed a suit for possession of the shops aforesaid alleging that their mother Mst. Jiwani had no authority to alienate their properties and that the alienation or alienations made by her was or were not for their welfare or in their interest, and they were not bound by the same. In the suit there were five defendants. Defendant No. 1 was Mst. Jiwani the vendor. Defendant No. 2 was Mst. Jawala Devi widow of Ram Chand (who it appears had died in the meantime); defendant No. 3 was Kartar Singh; Defendant No. 4 was Hari Singh sons of Hara Singh; and Defendant No. 5 Raja Baldeo Singh of Poonch. Defendant No. 2 was a sort of pro forma defendant; because it ultimately was held that Ram Chand was a mere benamidar and the real vendees/mortgagees were Kartar Singh, Hari Singh and Raja Baldeo Singh defendants Nos, 3, 4 and

5. Raja Baldeo Singh had one‑half interest in the transactions aforesaid. His name at some later stages of the case was struck off from the suit with the result that the case proceeded only regarding the one‑half share of Kartar Singh and Hari Singh. The suit was decreed on the 18th of January 1895 by Mr. E. W. Parker, District Judge Jhelum, who held that there was no valid mortgage or sale, "and that the plaintiffs are not liable to defendants in any sum whatsoever." The defendants alienees filed an appeal which was dismissed by Mr. D. C. Johnstone, Divisional Judge Jhelum Division, on 13‑7‑1895. The defendant‑alienees then filed a further appeal No. 1085 of 1895, in the Chief Court of the then Punjab, which was disposed of by a Division Bench of that Court consisting of F. A. Robbertson and P. C. Chatterji, JJ., on 29‑41899. The learned Judges modified the decrees of the Courts blow and in lieu thereof passed a decree in favour of the plaintiffs against the defendants‑alienees for recovery of one‑half share of the fifteen shops in dispute on payment by them of a sum o f Rs. 1,

734. The actual passage in the judgment of the learned Judges reads as follows :‑ "We, therefore, decree against the defendants Kartar Singh and Hari Singh that the plaintiffs are entitled to recover one- half of the property sued for on payment of one‑half of Rs. 3,468 i.e., Rs. 1,

734. The appellants will be allowed costs calculated on that amount." The decree sheet, as it exists in the High Court's record in the file of Further Appeal No. 1085, reads as follows :‑ "Decretal Order for Civil Appeals." IN THE CHIEF COURT OF THE PUNJAB, JUDICIAL DEPARTMENT Appellate Side. Civil Case No. 1Q85 of 1895. Raja Baldeo Singh etc. Defendants‑Appellants versus Pir Bakhsh and 2 others‑Plaintiffs | Respondents Mt. Jiwani and another‑Defendants | Further Appeal from the order of the Court of the Divisional Judge, Jhelum Division, dated the 13th day of July, 185, affirming the order of the District Judge, Jhelum, sated 18t,' 4nuary 1895. Claim on Appeal to reverse the decrees of the lower Courts for possession of 15 shops at Jhelum valued at Rs.

400. MEMORANDUM OF APPEAL Pir Bakhsh and 2 others‑Plaintiffs Raja Baldeo Singh and others‑Defendants The defendants Raja Baldeo Singh, Kartar Singh and Hari Singh above-named appeal to the Chief Court of the Plaintiff at before against the decree of the Divisional Judge, Jhelum Division, in the above suit dated the 13th day of July, 1895. This appeal coming on for hearing on the 26th day of April, 1899 before P. C. Chatterji and F. A. Robertson Esquires Judges of the Chief Court of the Punjab, in the presence of Mr. Rattigan, Advocate and Lala Ishwar Das, Pleader for the Appellants and of Mr. Oertal Advocate for the Respondents, it is ordered that the decrees of the Courts below be varied and in lieu thereof a decree be and the same is hereby made in plaintiff's' favour against the defendants Kartar Singh and Hari Singh for recovery of a one‑half share of the fifteen shops in suit, situate in the bazar at Jhelum, on payment by them of the sum of Rs. 1,731; And it is ordered that the plaintiffs do pay the costs incurred by the appellants, the said costs being calculated on Rs. 1,

731. It is further ordered that the costs of this appeal (as detailed blow), amounting to Rs. 447‑15‑3 (Four hundred and forty‑seven annas fifteen and pies three only, be paid by the plaintiffs. Given under our hands and the seal of the Chief Court of the Punjab this 29th day of April, 1899. Costs of Appeal. Law Stamps 115‑0‑0 Process fees 2‑8‑0 Pleader's fees 86‑8‑9 Miscellaneous 243‑14‑6 Total 447‑15‑3 (Sd.) Judges."

5. Nothing happened subsequent to the passing of the aforesaid decree and no steps were taken by the decree‑holders for its execution and it appears that the alienees remained in possession thereof till the Partition of the sub‑continent in 1947, whereafter they migrated to India and became evacuees. The petitioners, who are successors‑in‑interest of the aforesaid decree holders, filed a suit (the date of institution not being clear on the present record) in the Court of the Senior Civil Judge, Jhelum, for possession of the shops aforesaid by means of redemption. (It may be reiterated that in the very nature of things, the Punjab Chief Court decree established title of the plaintiffs only to the extent of one‑half share and the other half share belonged to Raja Baldeo Singh whose name had been deleted from the previous snit). They based their case on the decree of the Punjab Chief Court, dated 29‑4‑1899, and averred that that had the effect of creating a mortgage on the property in dispute. According to the learned counsel for the petitioners since the limitation for redeeming a mortgage, as contained in Article 182 of the Limita tion Act, is 60 years, therefore, the suit was quite in time. As the shops in dispute had, in the meantime, been allotted by the Rehabilitation and Settlement Department to refugees, they were also made as parties in the case who pleaded that the property in dispute was evacuee property. The learned Senior Civil Judge, Jhelum, on the pleadings of the parties referred the case for adjudication of "evacuee interest" to the deputy Custodian.

6. The learned Deputy Custodian, by means of his order, dated 27‑3‑1961, held that powers for redemption having been delegated to the Rehabilitation Department, the petitioners could apply to that Department for possession of the property on that basis. Since the order of the learned Deputy Custodian did not answer the precise reference, which had been made by the learned Senior Civil Judge, Jhelum, therefore, the said Court again referred the matter to the learned Deputy Custodian to determine the "evacuee interest" in the property and particularly to decide as to whether evacuees were the mortgagees of the property in dispute or not.

7. The learned Deputy Custodian, by means of his order, dated 7‑9‑1961, held that since the property had been treated as evacuee property by the Rehabilitation Department and the petitioners had failed to obtain a necessary declaration about their rights in time, under section 22 of the Pakistan (Administration of Evacuee Property) Act XII of 1957), therefore, the property was an evacuee property. The petitioners filed a revision which was accepted by the learned Custodian on 11‑11‑1961, whereby, not feeling satisfied with the manner in which the learned Deputy Custodian had dealt with the case, he directed him to re-decide it in accordance with law.

8. After remand, the learned Deputy Custodian, by means of his order, dated 15‑3‑1962, held that one‑half of the property in dispute was evacuee property and as regards the other half, the petitioners were entitled to redeem the same; because accord ing to him the relationship of mortgagors and mortgagees still subsist ed. After giving this finding, the learned Deputy Custodian, sent the case, by means of a reference to the learned Custodian. The learned Custodian did not confirm the order of the Deputy Custodian and by means of his judgment, dated 16‑7‑1962, held that the decree of the Punjab Chief Court did not create any relationship of mortgagors and mortgagees between the parties. He was of the view that the plaintiffs were entitled to recover one‑half of the property on payment of Rs. 1,734 it they had deposited this amount within the period of the execution of the decree and as they had failed to do so, no relief could be given to them. The actual relevant passage in the judgment of the learned Custodian reads as follows: "Learned counsel for Abdul Majid and others, respondents, has vehemently argued that the property in suit was mortgaged by Mst. Jiwani in 1882 and there was no creation of fresh mortgage in 1899 and, therefore, the suit is time‑barred. Learned counsel for Muhammad Noor Elahi and Mirza Abdul Hamid concedes this point. He, also admits that the original mortgage after it had been converted into sale did not exist in the eye of law. He mainly relies on the judgment of the Chief Court and urges that the Chief Court had, in fact, converted the sale into a mortgage. I do not agree with this contention. The judgment is quite clear on the point. The plaintiffs in that suit were entitled to recover one‑half of the property on payment of Rs. 1,734 that is to say, if they had deposited this amount within the period of the execution of the decree they would have obtained half of the property but this was not done. I do not see how it can be assumed evacuees (sic) in the sum of Rs. 1,

734. In these circumstances, I do not confirm the order of the Deputy Custodian, dated 15‑3‑1962; and hold that the property in dispute is evacuee property. The record of the case may now be returned to the Senior Civil Judge, Jhelum." The petitioners have come up in writ petition against the last mentioned order of the learned Custodian.

9. With reference to the passage reproduced above from the impugned judgment of the learned Custodian, learned counsel for the petitioners has raised a number of points. The first point argued by him is that according to section 2(3) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), "Evacuee property" means "any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary .or in any other capacity)". Learned counsel submitted that in the instant case, the learned Custodian has failed to determine as to how the property in dispute was evacuee property and as to what was the precise right or interest of the evacuees therein and in what capacity the same was held by them. Elaborating his contention further, learned counsel submitted, that according to the judgment and decree of the Punjab Chief Court, dated 29‑4 1899, the evacuees had a right to retain property so long as the sum of Rs. 1734 was not paid to them, and taking the said judg ment and decree at their face value they created a right or interest in the evacuees only to that extent and no further. In my opinion, the argument of learned counsel for the petitioners has a force because without a proper answer to the various concepts hereinbefore mentioned, to hold just in abstract that the property in dispute was an evacuee property was not a proper or complete disposal of the matter.

10. The second point raised by the learned counsel for the petitioners was that the Custodian had on the objection of the respondents decided that the suit in which the reference had been made to him was time‑barred and taking this matter further held that the property was evacuee property. Learned counsel submits that the reference to the learned Custodian in the very nature of things was only about the property being evacuee property or not, or about the right or interest .of the evacuees, and not whether the suit was time‑barred. 'He further submits that even otherwise such a question can be determined only by a Civil Court and not the Custodian except in cases where the evacuees had pleaded adverse possession. In the instant case, the Custodian had not determined that the evacuees had been holding adverse possession and as such his finding just in the abstract that the suit was time‑barred was in excess of his jurisdiction. I think here again the contention of the learned counsel for the petitioners must prevail. It was laid down in Riaz Ahmad Javed and another v. Rai Sahib Prithvi Raj and two others. (P L D 1955 Lah. 567) that the question whe ther a suit is time‑barred or not is not for the Custodian to determine, unless the adj4dcation of the Custodian is based on a plea or finding of adverse possession a point on which no find ing exists in the present case. When confronted with this situation, learned counsel for the contesting respondents argued that the learned counsel for the petitioners had himself conceded before the Custodian that the suit of his clients was time barred and. as such, he should not be allowed to pick up any quarrel on this account. The contention has no force because when the very point was beyond the jurisdiction of the learned Custodian, any concession made by the then petitioner's counsel would not attach any sanctity to it, as it is well‑known that jurisdiction r cannot be conferred by consent where none exists. Again a concession by a counsel on a point of law, as for example, as to which Article of Limitation Act applied to the facts and the circumstances of a given case, is not binding on his clients and t despite such a concegsioq, it can be urged that the case should be decided according to the proper and relevant law or Article on the subject. It was held by their Lordships of the Supreme Court in Haji Abdullah Khan add others v. Nisar Muhammad Khan and others (P L D 1965 S C 690) that, "it may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has. been relied upon by a party." In this behalf another conten tion raised by the learned counsel for the contesting respondent was that it was provided in section 28 of the Limitation Act that,. "at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." He argued that since the petitioners did not get the decree executed within the period of its execution, therefore according to the aforesaid section their right in or title to the shops got extinguished. The contention, so far as it is based on section 28 of the Limitation Act, is miscon ceived, because as the very wording of the section shows, it applies only where the period of Limitation to file a "suit" for possession has elapsed and not where the period to file an application for possession has lapsed. This has to be so held because the various articles of the Limitation Act, can be divided into three parts ; some dealing with suits ; some with appeals; and some dealing with applications. According to the very Scheme of the Act, therefore, when in section 28, the Legislature has used the word "suit", it cannot mean "applications". Even otherwise, this is obvious from clause (10) of section 2 of the Limitation Act, where it is written that the word "suit", doest not include an "appeal' or an "application." See Bala Kushaba v.. Abal Amrita Vaghrtode (4 I C 246) which states that failure to file am application for possession does not extinguish the rights. Again the section apples where the period for institution of a suit is provided for in the Limitation Act IX of 1908 itself and not in any other law for the time being in force. This is clear from the word "hereby" used in the section. It has not been shown to me as to within which Article of the Limitation Act, a suit for possession based on the judgment and decree of the Punjab Chief Court, could have been filed. In the absence of any such determination on the part of the learned Custodian, he was not justified in holding that the property was evacuee property if (subject to what I have observed earlier) by that finding he intend ed to lay down that the right or interest of the petitioners in the circumstances of the case, had totally been extinguished. Still another point to be mentioned is that the learned Custodian recorded adverse answer against the petitioners because he was impressed by the fact that the petitioners had not applied for the execution of the Punjab Chief Court's decree to use his phraseology "within the period of execution of the decree." He has, however, not decided as to (a) whether a conditional decree of the present kind was capable of being executed according to the law then in force; (b) what was the period of limitation within which the decree‑holders were required to deposit the amount, especially when no such period had been fixed in the decree itself; and (c) was the fact of not depositing the amount to be such as to extinguish the rights of the decree‑holders, when it was not so laid down in the decree. An argument was raised before the learned Custodian that the decree created a sort of charge or mortgage but the Custodian held that there being no such direction in the decree itself, the contention of the petitioners could not be accepted. The answer of the learned Custodian is too general and since from the point of view of the discussion about another aspect of his judgment, hereinbefore mentioned, the case shall have to be remanded to him, I think I need not answer these questions myself and leave them to be decided by the Custodian. Some case‑law in the form of Ram Singh and Sahib Singh v. Nodh Singh (93 P R 1879), Buta Singh v. Jhagra and others (10 P R 1888), Sher Singh v. Gobind Sahai & Amir Chand (30 P W R 1909), Debi Sahai v. Ramji Lal (56 P R 1918) and Ahmad Khan v. Mahla Khan (132 P R 1882) exists where such like conditions. have been held to create a mortgage in the form of the terminology known as a "judicial hypothee". In some cases, it is described merely as a charge and still a third category of cases holds that this is a simple condition and such a decree is a conditional decree; execution of which should have been applied for within three years of the date when the right to apply for execution accrued. The learned Custodian can attend to these aspects and record to the extent it is necessary whatever is correct answer of these points in view of the facts and the circumstances of the present case. It might be quite relevant in the context of things to refer to the sale consideration and to note down as to of what amounts or items it consisted, and as to what was their nature and whether by accepting or incorporating some of them in the decree, their initial characteristic remains the scale or undergoes a change. As for example, if the initial debts were such which in their very nature constituted a charge on the property of Jiwan, then whether their incorporation in the sale‑deed or in the decree alters their character.

11. The upshot of the above discussion is that the writ petition is accepted; the order of the learned Custodian is set aside and the case is remanded to him for fresh decision in the light of the observations hereinbefore made in accordance with law. There will be no order as to costs. A. E. Petition accepted.