1998 PLP 467 (CLC)

(8) Whether the suit land has been exchanged by the Government with other lands of the plaintiffs in the year 1973 as shown in Schedule ' B' annexed with the plaint? (9) Whether the land of the plaintiff given in exchange of Government has been granted to various persons? (10) Whether plaintiffs after taking over possession from Government have developed the land and have spent Rs.1,00,000 on it. If so, to what effect? (11) Whether plaintiffs have got the peach of the suit land transferred from Sukkur Barrage to Kotri Barrage and spent Rs.5u,000 on excavation of new watercourses? (12) Whether some of the suit land has been fully paid up? If yes, what is its effect? (13) Whether suit land was in possession of the defendants Nos.4 to 8 and the plaintiffs have obtained possession by force? (14) Whether suit land was allotted to any claimant or claimants? If yes, whether the same is false, illegal, fraudulent, void, mala fide and without jurisdiction? (15) Whether sale‑deed or deeds in favour of defendants Nos.4 to 8 is legal, valid, in operation and binding on the plaintiffs? (16.) What should the decree be? .

5. In support of their case plaintiffs examined Muhammad Arab P.W. 2 and Mehmood Khan Chandio P.W. 3 whereas no evidence was adduced on behalf of the defendants. It may be observed that official defendants/respondents did not take part in the proceedings and expressed lack of interest in the decision of litigation.

6. On assessment of evidence learned trial Court by its judgment and decree found all issues in favour of the plaintiffs and decreed the suit with costs. The judgment and decree were challenged by the applicants in appeal but without any success hence this revision application presented in this Court on 16‑8‑1988.

7. During the pendency of the suit respondent No.4 expired and on 8‑3‑1989 Mr. Habibullah Memon, Advocate filed a statement on behalf of legal representatives of respondent No.4 alongwith his Vakalatnama who were impleaded as party to the revision but thereafter, there has been no appearance, as the revision application itself was listed for hearing after a lapse of more than seven years. A Court motion notice was repeated to respondents Nos.3 to 14 but there is no appearance on their behalf.

8. Kazi Munawar Ali learned counsel for the applicants has addressed this Court. Learned counsel has fairly conceded that he would not press issues of law as decided by the two Courts below. He has, however, raised the following contentions:‑‑‑ (i) That both the Courts below seriously erred in proceeding to hold that the suit lands were declared as non‑evacuee by the Custodian, Evacuee Properties, Hyderabad. (ii) That the lands allotted to Mirza Mohsin Baig and others were not cancelled at any point of time, therefore, the title transferred in favour of the applicants remained intact. (iii) That in spite of invasion of the title of the contesting respondents, they failed to seek any declaration in respect of their title and on this account the suit was hit by the provisions of section 42, Specific Relief Act.

9. Adverting to the first contention learned counsel has referred to the order, dated 11‑2‑1974 passed by Custodian Evacuee Properties, Sindh at Hyderabad on reference from Commissioner Hyderabad (Exh.64), order, dated 13‑10‑1965 passed by Settlement and Rehabilitation Commissioner (Lands), Hyderabad Division (Exh.65) and a letter issued by Additional Deputy Commissioner and Additional Settlement Commissioner (Lands), Hyderabad (Exh. 66) addressed to Muhammad Bux Khoso intimating the cancellation of Khata of the claimant. It is rightly pointed out that the order, dated 11‑2‑1974 passed by the Custodian, Evacuee Property relates to declaration of status of agricultural property leased out in favour of Vithal Bhai Patel situated in Deh Mussadi Taluka, Tando Bago and it has no reference to the lands granted on lease to the said Hindu Evacuee in respect of the suit lands situated in Deh Ahmadani and Bangar. It is, therefore, apparent on the face of record that both the Courts have misread this document and proceeded on wrong assumption that this order directly related to the suit lands situated in two other Delis which no doubt were leased out to the same gentleman. Learned counsel, however, could not controvert the actual position that the said Hindu evacuee had only leasehold interest for a limited period and with the expiry of the lease period in 1951‑52 the Barrage lands reverted to the State and could not be lawfully resumed by the Settlement Authorities. It may further be observed that if the lands on lease with the Hindu evacuee situated in Deh Mussadi were declared to be non‑evacuee and State land reverted to Government how could it be argued that the lands situated in two other Delis leased out to Vithal Bhai M. Patel for a limited period of ten years could be treated as evacuee and lawfully transferred in settlement of claim. Notwithstanding misconception about order relied upon both the Courts below it may be observed that on expiration of period of lease, the lands reverted to Sukkur Barrage Authorities, and were lawfully granted in favour of the plaintiffs.

10. I am fortified in my view by the case reported as Quetta Hindu Panchayat v. Mst. Dilshad Akhtar (1993 SCMR 21) in which the view expressed was that where property was neither owned by any evacuee nor validly declared as evacuee property at any time muchless before 1‑1‑1957, the target date mentioned in section 3 of Pakistan (Administration of Evacuee Property) Act, 1.957 and thus, never formed part of the compensation pool for transfer under settlement laws. It was held that transfer of such property to any claimant, was without lawful authority, coram non judice and of no legal effect. It was ruled that subsequent transfers made by the allottees were resultantly illegal and not binding on the owner of such property.

11. There is another aspect of the case namely the provisions contained in Sukkur Barrage (Validation of Orders) Act, 1974. Section 2 of this Act reads as under: "Notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a non‑Muslim who migrated to India or granting such land to any other person shall be deemed to have validly made and shall have, and shall be deemed always to have had, effect accordingly."

12. From the above enactment it is established that the grant of Barrage lands to a non‑Muslim who migrated to India or grant of such lands to any person has been given a legal protection and a complete blanket from being affected notwithstanding the provisions contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) or any decree or order of any Court or other authority. It further appears that the order passed by Sukkur Barrage Authorities in this regard shall have overriding effect notwithstanding the Rehabilitation Settlement and Evacuee laws and even a decree or order passed by any Court or any authority shall not affect such grant. I am, therefore, of the considered view that after the expiry of lease period in 1951‑52 the lands in suit reverted to the Barrage Authorities and their grant in favour of the respondents cannot be questioned impugned and assailed on any ground whatsoever. On this score, contention of the learned counsel must fail being devoid of any substance.

13. Learned counsel also referred to order, dated 13‑10‑1965 (Exh. 65) made by Settlement and Rehabilitation Commissioner (Lands), Hyderabad making a reference to Custodian, Evacuee Property for treating the lands as non evacuee and reversion to Barrage authorities by cancelling allotment in favour of claimants. A reference was also made to letter, dated 13‑9‑1971 (Exh. 66) addressed to Muhammad Bux son of Sohrab Khoso by Additional Deputy Commissioner and Additional Settlement Commissioner (Lands), Hyderabad intimating him with regard to cancellation of allotment of lands of claimants treating it as State lands. True, that these orders and letters have no direct nexus with the suit lands but only inference that can be drawn in the circumstances is that the lands granted on lease to Vithal Bhai Patel and subsequently, allotted to claimants in satisfaction of their claim were cancelled as these were found to be State lands. At any event by taking into consideration these documents, both the Courts cannot be said to have acted with illegality or material irregularity.

14. Reverting to the second contention raised on behalf of the applicants there is hardly any evidence on record relating to allotment of lands in favour of Mirza Mohsin Baig and others from whom the lands were purchased by the applicants. Unfortunately applicants did not lead any evidence before the Trial Court and confined themselves to their written statement which in law, cannot be accepted as substantive evidence. No doubt, the plaintiffs claimed that the suit lands were allotted to some claimants but in the absence of any evidence to the contrary, it cannot be said that the Courts below committed an error of law by declaring the allotment of suit lands in favour of claimants as illegal and in operative. Since allotment of suit lands was found to be illegal and of no legal effect the applicants could not derive any title or interest muchless a marketable title as on their own showing they were allegedly dispossessed by force but they did not take any action for restoration of their possessory rights.

15. Lastly I find hardly any substance in the contention that the plaintiffs ought to have solicited a declaration of title in respect of the suit lands as they had pleaded invasion of their rights and threats to their possession. Since the plaintiffs claimed to be owners of the suit lands by virtue of grant by the Provincial Government in exchange of their other lands on payment of valuable consideration and in possession and enjoyment thereof it was not absolutely necessary for them to seek a declaration of their title in the circumstances. As they succeeded in challenging the title of the applicants and obtained a permanent restraint order by way of consequential relief of injunction it cannot be held at this stage that the suit filed by them was hit by the provisions of section 42, Specific Relief Act. Learned counsel has referred to the case reported as Shafqatullah Qadri v. University of Karachi (PLD 1954 Sindh 107) but the authority is apparently irrelevant and not applicable to the facts of the case in hand.

16. For the aforesaid facts and reasons no error of law having been pointed out I find no merit in this revision application or justification to interfere with the concurrent findings of fact which do not suffer from any inherent infirmity or legal and jurisdictional error. Revision application is accordingly dismissed in limini. A.A./M‑231/K Revision dismissed