1999 PLP 2492 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above appeal with the leave of this Court is directed against the judgment of a learned Judge in Chambers of Lahore High Court dated 1-2-1993. Leave was granted to consider the following contention:

"(3) The learned counsel for the petitioners has submitted that, according to both the parties, no partition of Shamlat Deh had taken place. According to the Chairman, the whole of the Shamlat Deh was owned by Hindu owners. According to the petitioners, the Shamlat Deh was owned by the Hindus and Muslims, but no partition had taken place. There was no necessity of remanding the case to the Chairman. Learned counsel has referred to Mehr Dad v. Settlement and Rehabilitation Commissioner (PLD 1974 SC 193) wherein it has been observed that property cannot be declared evacuee until joint Khata is partitioned. Leave is granted. " We have heard Mr. Sheikh Zia Ullah, Senior Advocate Supreme Court for the appellants and Mr. Ch. Fazal-i-Hussain, Advocate-on-Record for respondent. The dispute in the appeal relates to a piece of land measuring 8 Kanals, 10 Marlas and 105 sq. feet bearing Khasra No.1535 of Shamlat Deh of village Pakki Thatti, Tehsil and District Lahore, hereinafter to be referred to the suit land.

2. According to appellants 1/2 of the suit land belonged to them while the remaining 1/2 belonged to Hindu evacuee. The appellants, however, claim that they are in possession of the entire suit land which has not so far been partitioned between the joint owners. The Chairman, Evacuee Trust Property Board (respondent No.2 herein) on the other hand claimed that whole of the suit land was evacuee trust property, and thus, vested in the respondents. Before the learned Judge in Chambers, the case was not defended on behalf of the respondents. The learned Judge in Chambers, therefore, hearing the learned counsel for the appellants concluded as follows:-- "(5) From the record, it is evident that the land in question comprised in Khasra No. 1535 is a part of Shamlat Deh of Village Pakki Thatti, Tehsil and District Lahore. There appears to be no dispute on this factual aspect which is otherwise borne out from the documents, Annexures E to J which are extracts from the Revenue Record. In the above-cited case, the Supreme Court has been pleased to observe that in the absence of any partition between the Muslim and non-Muslim owners, it cannot be doubted that the land in occupation of a joint owner was Evacuee till Khata is partitioned. The same rules appear to be applicable in the present case also. It is, however, to be seen that there is no positive finding either by Chairman or by Joint Secretary hearing the revision as to whether or not Shanilat Deh of the village Pakki Thatti had been partitioned between its Muslim and non-Muslim owners nor as the effect of law declared by the Supreme Court in the aforesaid case had been examined. In these circumstances, it appears appropriate that the matter is remitted to the Chairman Evacuee Trust Properties Board for its decision afresh. In view of what has been stated above, this petition is allowed; the orders of the Chairman Evacuee Trust Properties Board and Joint Secretary, Ministry of Religious and Minorities Affairs, dated 17-5-1977 and 15-11-1979 respectively are declared to be without lawful authority and of no legal effect with the result that the application filed by Deputy Administrator Evacuee Trust Properties, Lahore under sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975, shall be deemed to be pending before the Chairman of Board and shall be decided by him. No order as to costs."

3. Mr. Sheikh Zia Ullah, the learned Senior Advocate Supreme Court for the appellants contended before us that the learned Single Judge after having held that the suit land was jointly owned by the appellants and the Hindu evacuee and that it was not so far partitioned, could not remand the case to respondent No.2 whose jurisdiction is limited only to determine whether a property is Evacuee Trust Property or not. According to learned counsel, the question before the learned Judge in Chambers was whether the evacuee and lion-evacuee share in -the suit land was partitioned or not and if it was not partitioned so far, which is the competent authority to partition it. Mr. Fazl-i- Hussain, the learned counsel for the respondents on the other hand supported the order of the learned Single Judge. After hearing the learned counsel for the parties at length our conclusions are as follows:--

4. According to record produced before us, the land bearing Khasra Nos.902, 905 and 906 was entered in the Revenue Record from 1924-25 to 1936-37 in the column Nam Kashtqar or Ahwal as 1/2 in possession of Hindus while 1/2 share was shown in possession Chiraghdin son of Khairdin, (1/2 share) Islamuddin son of Bolaqi. The Appellants, however, claim that the Revenue Record from 1924-25 to 1936, referred to above related to the suit land. The extract from Register Haqdaran (Musal Haqiqat) for the year 1941-42 does mention Khasra No.1535 but in the column of (Nam Kashtqar or Ahwal) (column No.4) it is entered as (Maqboza Ahle Hanood) While under column No.7 (Wasail Abpashi ma nam or jahedamad ) it is written as (Ghair mumkin mana mani) .The names of Chiraghdin son of Khairdin and Islamuddin son of Bolaqi, the predecessor-in-interest of appellants, do not appear in this extract at all. The learned counsel for the appellants concedes that the above entries shown in the extract from Registar Haqdaran for the year 1941-42 were repeated subsequently until partition and even thereafter. However, this entry was corrected by the Revenue Authorities at the instance of the appellants in the year 1969-70. The questions which, therefore, arise for consideration in the above appeal are (i) whether the entries in respect of the suit land in the Revenue Record showing possession of Hindu evacuees over the entries suit land from 1941-42 to 1968-69 could be changed by the Revenue Authorities in 1969-70 by showing 1/2 share of the suit land in the ownership of appellants' predecessor; (ii) whether the alleged entries. in the Revenue Record in favour of predecessor of appellants for f year 1924-25 to 1936-37 related to different pieces of land or to the suit land; (iii) what is effect of omission on the part of appellants and their predecessor to challenge the entries in respect of the suit land in the Revenue Record in accordance with the provisions of Act XII of 1957, and (iv) if the suit land is held to be jointly owned by Muslim and Hindu evacuees in equal share, which is the competent forum now to partition it ? Since the impugned judgment does not deal with any of the points noted above, we are inclined to accept the appeal. The appeal is, accordingly, allowed and the order of the High Court is set aside. The case is remanded to the High Court with the direction that the Writ Petition NO. 1125-R of 1979 filed by the appellants, will be decided afresh in the light of the observations made above, after hearing all affected parties. No order as to costs. H.B.T./I-27/S Appeal accepted.