P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑This first appeal arises out of Suit No. 4 of 1958 filed in the District Court of Dadu for setting aside the order of the Custodian in Application No. B‑38 dated the 17th of May 1954 and permanent injunction against the respondents for not interfering with the possession of the appellants in respect of the property in dispute. Mr. Azizullah Memon, the then District Judge of Dadu, by judgment dated the 30th of June 1959 dismissed the appellant's suit on the short ground that the Civil Court had no jurisdiction to interfere with the impugned order. The agricultural land in dispute is situated in Deb. Pusla and in Deh Koor, Taluka Kakar, District Dadu. In 1903 one Bachal Khan, the grandfather of appellant No. 1, sold his share equivalent to 49 acres of land in the agricultural property in dispute to Rijumal and Rochumal, Hindu evacuees, for Rs. 2,

000. The Hindu purchasers continued to remain in possession of this property and enjoyed its produce till they migrated to India in the year 1948. In 1949, Ramzan Khan, father of Appellant No. 1 and appellant No. 2 filed Suit No. 87 of 1949 in the Sub-- Civil Court, Mehar, District Dadu, for redemption of the property in dispute on the allegation that the transfer was not a sale but a mortgage against the Hindu purchasers. The learned Civil Court held an inquiry under the Dekkhan Agriculturists Relief Act and passed an ex parte preliminary decree in favour of the appellants on the 15th of February 1950. The appellants also filed Application No. 13 of 1950 under section 18 of Ordinance XV of 1949 before the Assistant Custodian, Evacuee Property, Dadu, for a declaration that the property in dispute was not evacuee property. This application was accepted on the 2nd of January 1951. The learned Assistant Custodian declared the property in dispute as non‑evacuee and further held that the equity of redemption vests in the applicant‑mortgagors, and permitted them to move the Civil Court for determination of the amount of the mortgage‑debt after proper accounting. This order was approved by Mr. Akbar Hussain, the then Custodian, on the 13th of January 1951. The last mentioned order was produced before the Sub- Civil Court, Mehar, who ultimately passed a final decree of redemption on the 29th of November 1952 in appellants' favour holding that no amount was due on the mortgage and the property in dispute exclusively belonged to them. But this did not see the end of the dispute. In 1954, Mr. Mansoor Alam, the then Custodian, re‑opened the question of the evacuee nature of the property in dispute in exercise of his suo motu revision and review powers in Application No. B‑

38. On the 17th of May 1954, in these proceedings, he set aside the order of the Assistant Custodian dated the 2nd of January 1951 and his predecessor's order of approval dated the 13th of January 1951. In setting aside these orders be observed that it is impossible to believe that had the transaction been one of mortgage, Muhammad Ramzan or his father would have kept quiet from 1903 to 1948 and allowed the two Hindus to enjoy the property to the extent of Rs. 4,

000. He further observed that according to the agreement the appellants were to re purchase the land for the price it was sold within eight years' time and yet no action was taken with regard to the re‑purchase at any time during 45 years intervening between the date of the transaction and the migration to Bharat. He therefore held that the appellants' claim was false and the property in dispute being evacuee vested in the Custodian. He further held that in any case the mortgage right vested in the Custodian in 1948 and the property in dispute could not be declared as non‑evacuee property. The learned Custodian in arriving at these conclusions further remarked that the appellants in their application under section 18 concealed the fact before the Assistant Custodian that they had already obtained an ex parte decree against the Hindu owners, without impleading the Custodian as party, from the Sub‑Civil Court, Mehar. The appellants challenged the above‑mentioned order of the learned Custodian in Suit No. 4 of 1958 on the ground that the Custodian had no jurisdiction to review the order of his predecessor. On the pleadings of the parties as many as eleven issues were framed. But at the trial the learned District Judge treated the following first two issues, reproduced below, as preliminary issues: (1) Whether the Court has jurisdiction to entertain the suit? (2) Whether the order of the then Custodian of Evacuee Property Mr. Mansoor Alain is illegal, ultra vires, bad, perverse and nullity in law ? His conclusions are that the order of the Custodian passed in 1954 was absolutely intra vires, the decree obtained from the Civil Court was not binding upon the Custodian and the property being evacuee property the Civil Court had no juris diction to entertain the suit. The appellants seek to challenge these findings in this first appeal before us. Mr. Mazhar Ali, the learned counsel for the appellants, conceded that the Civil Courts have no jurisdiction in the matter in case the property in dispute is found to be evacuee property but his main contention is that the order of the Custodian dated the 17th of May 1954 referred to above was without jurisdiction. In support of his argument he has taken two‑fold objections: firstly, that the learned Custodian had no right to review his predecessor's order dated the 13th of January 1951 as no fresh material was placed before him to come to a different conclusion; and secondly, that the learned Custodian had no jurisdiction to declare that the final decree passed by the Sub --Civil Court, Mehar, in Suit No. 87 of 1949 was not binding on him. After hearing the learned counsel of the parties we are satisfied that the objections raised by the learned counsel against the decree under appeal are without substance and this appeal must fail. In support of his first contention the learned counsel has referred us to a decision of the Supreme Court of Pakistan in Sahibrai v. The Custodian of Evacuee Property, South Zone, West Pakistan, Karachi (P L D 1957 S C (Pak.) 63). In this decision their Lordships observed that recourse could be had to the general Law for ascertaining the principles governing the exercise of the power of review vested in the Custodian under the provisions of the Administration of Evacuee Law, and in this respect their Lordships referred to the principles set out in Order XLVII, r. 1, C. P. C. Their Lordships further observed as under: "It is natural therefore to expect that the law should give to the Custodian the power of review exercisable upon the coming into existence of circumstances equivalent to the discovery of new and important matter, or evidence not previously available, and In the very nature of the case, it is not possible to fix any limit of time within which such discovery or availability could be given effect to." The appellants' counsel argued that in view of the above observations of their Lordships of the Supreme Court, the learned Custodian could review the order of his predecessor only upon the coming into existence of circumstances equivalent to the discovery of new and important matter, or evidence not previously available. According to him no fresh material was placed before the learned Custodian and therefore his order reviewing the order of his learned predecessor was absolutely without jurisdiction. In our opinion this objection is not available to the appellants in the present case. It will be noticed that Mr. Mansoor Alam not only reviewed the order of his learned predecessor passed on the administrative side approving the order of the Assistant Custodian, but also set aside the order of the Assistant Custodian dated the 2nd of January 1951. Thus the then Custodian exercised two jurisdictions namely his suo motu revisional powers and suo motu review powers. So far as the suo motu revisional power of the Custodian is concerned, there is no doubt in our mind that it is unlimited and is not circumscribed by any conditions whatsoever. Mr. Mazhar Ali therefore conceded that if the main order is taken to be passed in the revisional jurisdiction by the learned Custodian, it is perfectly valid and no exception can be taken to it. According to him the difficulty only arises in respect of the power of review exercised by the learned Custodian. It has already been stated that the learned Custodian only approved the order passed by the Assistant Custodian. There is no specific provision in the evacuee law which requires the subordinate Custodian authorities to refer the order passed by them for approval to the Custodian. This is only a Departmental practice in order to safeguard the evacuee Interest. The Assistant Custodian's order was submitted to the Custodian in this case with a view to safeguard the evacuee Interest. There is nothing on the record to show that Mr. Akbar Hussain the then Custodian approved the order of the Assistant Custodian in the exercise of his judicial powers. It was admitted at the Bar that none of the parties was heard and the points in dispute were not considered by him after notice to the Rehabilitation Authorities. In our opinion the order of the Custodian approving the order of the Assistant Custodian was nothing more than an administrative order. Apart from B this it is quite clear from the impugned order that the fact that the appellants had obtained a decree from the Sub‑Civil Court, Mehar, before making an application under section 18 to the Assistant Custodian, was for the first time brought to the notice of the Custodian during the pendency of the suo motu revision and review matter. This was of course a new fact brought to the notice of the Custodian and therefore the learned Custodian had ample jurisdiction even on the observations of their Lordships of the Supreme Court to review the order of his learned predecessor in respect of the property in dispute. It is thus quite clear to us that primarily under the impugned order the learned Custodian set aside the order of the Assistant Custodian and only incidentally set aside the order of his learned predecessor whereby the order of the Assistant Custodian was approved. In our opinion, by approval, the order of the Assistant Custodian did not become the order of the Custodian Moreover, for the review of administrative orders the same principles will not apply which are applicable to orders passed by the Custodian on the judicial side. In view of this we are satisfied that the Impugned order of the learned Custodian does not suffer from any infirmity and is intra vires. As regards the second objection that the learned Custodian had no jurisdiction to hold that the decree passed in Suit No. 87 of 1949 was not binding on him, the learned counsel was unable to refer us to any provision of law which comes in the way of the Custodian to pass such orders. Admittedly the Custodian was not a party in the above‑mentioned suit and it was open to the learned Custodian to observe that as he was not a party in these proceedings the decree passed in the above mentioned suit was not binding on him. Mr. Mazhar Ali has referred us to a decision in Custodian, Evacuee Property, Punjab and others v. Parbhu Dayal Chhajan Lai and others (A I R 1960 Pb. 298). In that case Mahajan, J. observed that in those cases where relief is claimed against the Custodian of Evacuee Property, the Custodian cannot decide such disputes and only Civil Courts have jurisdiction in those matters. The learned counsel has not placed before us the relevant provision of evacuee law which is applicable in the Indian Dominion. At any rate, with respect, we are not in agreement with the view expressed in the above‑mentioned decision. Under the Administration of Evacuee Law of 1949 it was encumbent on a party to approach the Custodian to establish his right in any property owned by the Hindu evacuees. In such cases naturally the Custodian is interested to safeguard the interest of the evacuees, but the provisions of our evacuee law permits him to decide such disputes. This objection, therefore, must fail. On the view we have taken of the matter, the learned Custodian was fully competent to set aside the order of the Assistant Custodian and that of his predecessor in so far as it approved the former order. The property, therefore, is evacuee and the view of the learned District Judge that in such matters the Civil Court has no jurisdiction is perfectly sound and no exception can be taken to it. In the result the appeal is dismissed with costs. K. B. A. Appeal dismissed.