P L D 1983 Karachi 353 (PLP)

The facts leading up to this Constitutional Petition briefly stated are that one Ryas grandfather of respondent No. 2 Lal Bux and his brother Raban sold 1.24 acres of land out of survey No. 811 measuring 2.30 acres in Deb Kandhro, Taluka Robri, District Sukkur, to Kudanmal son of Phaganmal on 7-6-1915 through a registared sale-deed admitting therein that the remaining 1.6 acres of the said survey number were already owned by Kudanmal. Consequently, Kudanmal became the owner of the entire survey No.

811. The said survey number then went to Dharmo Singh and then ultimately was sold to Hotomal and Kakumal through a registered sale-deed on 3-11-1974. After partition, since the said survey number continued to remain in the name of Hindus it was treated as an evacuee property and was transferred to respondents 3, 4 and 5 against their claims on permanent settlement in 1955. 'The respondent No. 3 Muhammad Mustafa got 1.25 acre respondent No. 4 Abdul Sami Khan got 0.38 acre and respondent No. 5 Mst. Sharifa Begum got 0.5 acre out of the said survey . number. In the year 1568, respondents 3 to 5 transferred their share in the said survey number totalling 2.28 acres to the petitioners who are locals. Since then the petitioners have been in possession of the same and are paying land revenue. In the year 1971, the respondent No. 2 moved the Deputy Commissioners and Additional Settlement Commissioner (Lands) for cancellation of the allotment to respondent No. 3 Muhammad Mustafa and consequently, sale in favour of the petitioners on the plea that till 1911 the disputed survey number was owned by his grandfather Ilyas, whereafter an entry was made showing that it was mortgaged without possession to Hindus and, therefore, it could not have been treated as an evacuee property and subjected to allotment to respondent No. 3 Muhammad Mustafa. On 15-11-1971, the Deputy Commissioner and Additional Settlement Commissioner (Lands) dismissed the application. On 4-11-1972, respondent No. 2 preferred revision to the Settlement Commissioner (Lands) respondent , No. 1 challenging the aforesaid order. The Settlement Commissioner set aside the order of the Additional Settlement Commissioner (Lands), on 17-1-1974 treating it as non evacuee property and allotment to respondent No. 3 in permanent settlement illegal, holding it to be Muslim property mortgaged with Hindus and consequently, cancelled the allotment in favour of respondents 3 to.

5. He further directed that the respondent No. 2 should file proceedings before the Custodian for redemption of mortgage. The petitioners have not challenged this order in this petition, as illegal and without lawful authority.

2. I have heard Mr. A. A. Fazeel, the learned counsel for the petitioners and Mr. Imam Bux Shaikh for respondent No.

2. The respondent No. 3 has been heard in person, whereas the respondents 1, 4 and 5 are not contesting the petition.

3. Mr. A. A. Fazeel, the learned counsel for the petitioner has contended ; firstly, that in view of the provisions of section 41 of the Pakistan Administration of Evacuee Property Act, 1957, only the custodian could adjudicate as to whether the property is an evacuee property or not and that no civil or revenue Court or any other authority shall have jurisdiction in the matter ; secondly, that the property having been permanently settled, the matter could not be reopened in view of the provisions of section 16 of the Displaced Persons Land Settlement Act, 1958 ; thirdly, that the provisions of section' 19(4) of the Displaced Persons Land Settlement Act, 1958, have been violated inasmuch as the respondents 4 and 5 who were the transferrors of disputed land to the petitioners, have not been impleaded as parties in the application filed before the Deputy Commissioner and Additional Settlement Commissioner (Lands) and Settlement Commissioner (Lands) and fourthly, the reliance placed by the Settlement Commissioner on the certificates from revenue authorities and the Sub-Registrar in view of the sale-deed dated 7-6-1915 and the other documentary evidence on the record in support of the impugned order was misplaced, and therefore, the impugned order is illegal and without lawful authority.,

4. Mr. Imam Bux Shaikh, the learned counsel for respondent No. 2, has contended that the disputed land is ancestral property of the respondent No. 2 and that it was not sold to Hindu. He has further contended that it was only mortgaged to Hindus in the year 1911 without possession and that it was not an evacuee property. The respondent No. 3 has claimed that the property was allotted to him and to the respondents 4 and 5 in their claims and was subsequently sold by them to the petitioners.

5. As regards the first contention raised by the learned counsel for the petitioners to the effect that the Settlement Authorities have no jurisdiction to adjudicate as to whether the disputed property was an evacuee property or not, a plain reading of section 41 of the Pakistan Administration of Evacuee Property Act, 1957 would support his contention to the effect that except the Custodian no civil or Revenue Court or any other authority shall have the jurisdiction to enquire into the character of the property. Reliance in that respect has been placed on the decision reported in the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi (P L D 1965 S C 698), in the case of Haji Suleman v. Settlement Commissioner, Karachi and others (P L D 1967 Kar. 834), wherein it was held that the Custodian alone could settle as to whether the property is an evacuee or not and that the Settlement Authorities have no jurisdiction to enquire into such character of the property. The impugned order passed by the Settlement Commissioner respondent No. 1 would clearly show that the Settlement Commissioner treated the disputed property which was already settled as evacuee property, as non-evacuee property and very clearly acted beyond jurisdiction.

6. As regards the second contention raised by the learned counsel for the petitioners, there is no dispute that the disputed property was so utilised in permanent settlement scheme and allotted to respondents 3 to

5. Even the impugned order passed by the Settlement Commissioner, respondent No. 1. is clear in that respect. In the circumstances, the matter could not be reopened in view of the provisions of section 16 of the Displaced Persons Land Settlement Act, 1958 which provides that the land on which a displaced person is permanently settled under the Act shall vest absolutely in such person, notwithstanding anything contained any other law for the time being in force. Reliance in that respect has been placed on the decision in the case of Sardar Muhammad and others v. The Deputy Commissioner and others (1968 Law Notes Lah. 206): The Settlement Department, therefore, lost all control over the disputed property particularly in the absence of any allegation about the commission of fraud.

7. With regard to the third contention raised on behalf of the petitioners by their learned counsel, the orders passed by the Deputy Commissioner and Additional Settlement Commissioner, dated 15-11-1971, and by the Settlement Commissioner dated 17-1-1974 are clear to the effect that the respondent Nos. 4 and 5 who transferred their shares in the disputed survey number to the petitioners were not impleaded as parties in the applications before the above-mentioned Settlement authorities and neither they nor their vendees, the present petitioners had any notice of the proceedings before the Deputy Commissioner and Additional Settlement Commissioner and the Settlement Commissioner, the respondent No. 1, who passed the impugned order. Accordingly, the provisions of section 9(4) of the Displaced Persons Land Settlement Act, 1958 which provide that the Settlement Commissioner shall not pass an order under this section revising or modifying any order affecting any person without giving such person an opportunity of being heard, have been clearly violated. Reliance in that respect has also been placed on the decision reported in the case of Mukhtaran and another v. Mst. Noor Begum and another (P L D 1972 Lah. 282).

8. As regards the fourth contention raised on behalf of the petitioners the Settlement Commissioner while passing the impugned order has placed reliance on the certificate dated 14-1-1974 from Mukhtiarkar, Rohri to the effect that there was no sale transaction in respect of the disputed survey number from the year 1910 to 1947 anal certificates dated 31-8-1970 and 2-8-1971 from the Sub-Registrar, Sukkur to the effect that there was no transaction in respect of the disputed survey number from the year 1901 to 1930 and that it was free from all encumbrances. So for the certificate dated 14-1-1974 issued by the Mukhtiarkar, Rohri is concerned, it was placed before the Settlement Commissioner after he had closed the case for orders on 21-11-1973 and was clearly considered without notice to the other party as would appear from the certified copy of the order sheet from the case file of the Settlement Commissioner which is on the record, and its consideration in the circumstances is in clear violation of the principles of natural justice. So far the certificates dated 31-8-1970 and 2-8-1971 from the Sub-Registrar, Sukkur, are concerned they appear to be without basis in the face of the registered sale-deed dated 7-6-1915, Ilyas and his brother Raban ancestors of respondent No. 2 having transferred their interest in the disputed land to Kudanmal son of Phaganmal resulting in the ownership of the entire disputed survey No. 811 in the name of Kudanmal son of Phaganmal, subsequent entry in deh form No. 7 which shows mutation in favour of Kudanmal son of Phaganmal which is available on the record and extract from mutation register showing various transactions by which the disputed survey number was subjected to various transfers from one Hindu to the other which has also been produced on the record and finally the certificate dated 1-12-1974 issued by Sub-Registrar, Sukkur to the effect that the interest in the disputed survey number was sold by Ilyas and Raban in favour of Kudanmal son of Phaganmal in the year 1915. The Settlement Commissioner has not referred to the registered sale-deed dated 7-6-1915, in the impugned order, otherwise he would not have referred to the mortgage of the disputed survey number therein. It would, therefore, be very clear that the reliance placed by the Settlement Commissioner respondent No. 1, on the certificates in the impugned order was clearly misplaced in view of, the documentary evidence available on the record.

9. The contentions raised by the learned counsel for the respondent No. 2 to the effect that the property was mortgaged without possession in the year 1911 with Hindus and was not sold is not borne out by the evidence on the record as discussed above. Further, contention raised by him to the effect that the disputed property was not settled in permanent settlement scheme and was not an evacuee property has also no force in view of the material available on the record to the contrary. The respondent No. 3 who transferred his interest in the property to the petitioners have supported the case of the petitioners. The contentions raised on behalf of the petitioners therefore, do not seem to be without substance. Accordingly, the impugned order passed by the respondent No. 1 is very clearly illegal and without lawful authority. Consequently, the allotment of the disputed land and its subsequent sale by the respondents 3 to 5 to the petitioners made in the year 1968 through registered sale-deeds are valid and subsisting.

10. The petition is allowed accordingly, with no order as to costs. M. Y. H. Writ petition accepted.