2001 PLP 1350 (SCMR)

DEEDAR HUSSAIN SHAH, J.

This appeal by leave of the Court is directed against the judgment, dated 26-10-1994, of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No. 1046 of 1970.

2. The facts, in brief, are that the respondents filed a suit for declaration of ownership of House No.313/B-IV, situate in Ghas Mandi, Montgomery (now Sahiwal) and for cancellation of order, dated 13-12-1960, passed by the Deputy Settlement Commissioner, whereby the house was transferred to the appellant under the provisions of the Displaced Persons (Compensation arid Rehabilitation) Act, 1958, as evacuee property. The respondents also prayed for possession and consequential relief. The suit was contested by the appellant. Both the patties led their evidence. The learned trial Court vide its judgment dated 25-3-1970, under Order VII, Rule 10, C.P.C., returned the plaint to the respondents for being presented to the competent forum.

3. Feeling aggrieved, the respondents-filed an appeal, which was dismissed on 8-7-1970, by the learned Additional District Judge, Sahiwal.

4. Feeling dissatisfied with the aforesaid judgment, the respondents filed second appeal in the Lahore High Court, which was accepted vide impugned judgment dated 26-10-1994.

5. Vide order dated 14-11-1995, leave to appeal was granted to consider the following point raised by the learned counsel for the appellant:-- "that the declaratory suit instituted by the respondents on 26-7-1966 seeking declaration that the suit-property was not an evacuee property was not competent in view of the provisions of section 22 read with section 41 of Pakistan (Administration of Evacuee Property) Act, 1957. "

6. Ch. Noor Elahi, learned counsel for the appellant, inter alia, contended that the learned Single Judge of the High Court has erred in decreeing the suit of the respondents in the absence of an issue on merits and the impugned judgment becomes illegal by refusing the right of giving evidence to the appellant; that the learned High Court has also failed to advert to the grounds of appeal in the lower Appellate Court specifically relying on section 41 of the Pakistan (Administration of Evacuee Property) Act, 195,'; that the impugned judgment is based on non-reading of the record; that the suit of the respondents was not within time; and that the abandonment of the possession of the house in dispute and the delivery of possession to Diwan Chand etc., has altogether been ignored by the learned High Court, which circumstance was in itself sufficient for the dismissal of the appeal.

7. Raja Abdul Ghafoor learned Advocate-on-Record for the respondents, contended that the impugned judgment is based on proper and sound appreciation of evidence and law; and that the property in dispute i.e. the house is/has been a Muslim property: In support of his contention he referred to Jamabandi for the year 1934-35 Exh.P.3, which shows that Allah Ditta, father of the respondents, was a lawful owner of the piece of land, over which the house in dispute was constructed and Diwan Chand Hindu was a tenant only. He has drawn our attention to documents Exh.P.4 and P.5 pertaining to the Jamabandi for the year 1942-43 and subsequent mutation made in favour of the respondents after the death of their father. He vehemently argued that the order Exh. P.1 was void, ab initio and was passed without jurisdiction because under the law .the Deputy Settlement Commissioner could have transferred only evacuee property, which, as such, had been declared as an evacuee property by the Custodian of the Evacuee Property, but in the instant case such adjudication on the part of the Custodian. Evacuee Property is not borne out from the record. He further emphasized that findings of the trial Court as, well as the First Appellate Court with regard to limitation i.e. Issue No.3 were also not based on proper and careful examination of the evidence because respondent No.l/P.W.1 stated. on oath before the trial Court that at the time of Independence i.e. 1947 all the respondents (plaintiffs) were minors and they were also residing in Lyallpur District. As soon as they came to know about the order passed by the Deputy Settlement Commissioner, the respondents filed a revision application before the Additional Commissioner, which unfortunately did not find favour and was rejected. Thereafter the respondents filed the suit without loss of time.

8. In order to consider the points raised by the learned counsel for the parties. it would be appropriate to reproduce below sections 3, 22 and 41 of the Pakistan (Administration of Evacuee Property) Act, 1957:-- "

3. Property not to be treated as evacuee property on or after 1st January, 1957.

(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date. (2) Nothing in subsection (I) shall apply

(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or (b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947; has not been accepted or approved by the Custodian." "

22. Claims by interested persons.

(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that

(a) the property is not evacuee property, or. (b) his interest in the property has not been affected by the provisions of this Act. (2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date. (3) On receiving an application under subsection (2), the Custodian shall hold a summary inquiring in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose. " "

41. Jurisdiction of Courts barred.

(1) Save as expressly provided in this Act no Civil or Revenue Court or any other Authority shall have jurisdiction

(a) to entertain or adjudicate upon airy question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; , (b) to question the legality of anything done under this Act by or at the instance of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine."

9. Perusal of the record shows that neither the Custodian of the Evacuee Property nor any of his subordinate Officer had adjudicated upon the nature of the property as evacuee; whereas in the case in hand the Deputy Settlement and Rehabilitation Commissioner, Montgomery, allotted the disputed property to the appellant by order dated 13-12-1960, which is EXh.P.I, thereafter the respondents took necessary steps to get their rights from the Additional Settlement Commissioner and finally filed the suit. According to the provisions of section 3 of the Act, after 1-1-1957 the property could not be declared as evacuee property, whereas in any case there is no adjudication about the nature of the property as evacuee. So far as sections 22 and 41 referred to above are concerned, since the allotment order passed by the Deputy Settlement Commissioner was not proper and was 8 without jurisdiction, therefore, applicability of sections 22 and 41 of the Act, in our view, does not arise. In this matter there is wealth of case-law, such as Azam Ali and others v. Custodian of Evacuee Property PLD 1968 Lah. 148; Isab Khan and another v. Muhammad Sher and 2 others PLD 1975 Lahore

833. In Mst. Munira Bibi and 7 others v. Member, Board of Revenue, Balochistan and 8 others PLD 1978 Quetta 121 it has been observed that-- "no person or property could be treated as evacuee or evacuee property on or after the Ist of January 1957, except in cases, where the action has already commenced, proceedings pending or the property is managed or supervised by a person whose rights have not been approved by the Custodian, Department within the prescribed period." This Court in Abdul Khaliq, Abdul Razzaq v. Kishanchand and others PLD 1964 SC 74 observed that: "Property declared by Deputy Custodian to be non evacuee and no appeal or revision, in respect of property, pending immediately before 1-1-1957 cannot be declared as evacuee after 1.1-1957." Very recently this Court in the case of Mooso through Legal Heirs and others v. Allahdito through Legal Heirs and 7 others PLD 2001 SC 23, at p.26 has discussed on sections 3 and 7 of Pakistan (Administration of Evacuee Property) Act (XII of 1957) and observed that-- "the land in dispute was not fully paid up and no T.0. Form was, even issued in favour of Hindu grantee, therefore, land remained no Kabuli consequently no property rights in land passed in favour of original grantee and was not available for its transfer to the claimant under the Settlement Scheme, therefore, its subsequent transfer by the claimant to the petitioner conferred no right, title or interest in their favour. Besides, three Courts below have given concurrent findings of fact and then; being no misreading, non-reading of evidence or legal infirmity in the impugned judgment, consequently no interference is called for in these petitions. We find no substance in these petitions, therefore, leave is refused and the petitions are dismissed. "

10. We have considered the arguments of the learned counsel for the parties and have also minutely examined the record. The contentions raised by the learned counsel for the appellant are not tenable. In view of the provisions of the Act, referred to hereinabove, the property was not declared as evacuee before 1-1-1957, and simple allotment of the property by the Deputy Settlement Commissioner, in any case, does not confer legal rights to the appellant. According to Exh.P.3, which is a Jamabandi for the year 1934-35, Allah Ditta, father of the respondents, is shown as owner of the property (agricultural land), over which the house was constructed and Diwan Chand Hindu was a tenant only. Soon after the death of Allah Ditta, the same property was mutated in favour of the respondents, who are his legal heirs. The said mutation in favour of the respondents was also entered in the revenue record, which had been produced before the trial Court as Exh. P.5.

11. The above evidence furnished on behalf of the respondents has gone unchallenged and there is nothing in rebuttal except the order of the Deputy Settlement Commissioner, which shows that the property was allotted to the appellant herein. The narration of the above facts and documents clearly establishes that the property in question was a Muslim property, which, in any case, should not have been allotted by the Deputy Settlement Commissioner under the Settlement laws. In our considered opinion, the order of the Deputy Settlement Commissioner, referred to above, was without jurisdiction and was coram non judice, because neither the Custodian of the Evacuee Property, nor any of his subordinate officer had adjudicated upon with regard to the nature of the property as evacuee one.

12. On the touchstone of the facts and evidence adduced by the parties and the dictum laid down by this Court, we are of the considered opinion, that the order of -the Deputy Settlement Commissioner allotting the property as evacuee property in favour of the appellant was without lawful authority, which was rightly struck down by the learned Judge in Chambers in the impugned judgment. We further find that the impugned judgment assailed herein is based on the proper appreciation of evidence as well as evacuee/Settlement laws and is in consonance with the rules laid down by this Court. We also do not find any material irregularity or jurisdictional error in the impugned judgment, which does no: call for any interference by this Court. Resultantly, this appeal is dismissed with no order as to costs. Q.M.H./M.A.K./M-229/S Appeal dismissed.