P L D 1964 W (PLP)

S. A. MAHMOOD, J.-Before 1936, Ghalamun, husband of Mst. Jindo, petitioner No. 1, and father of Rasul Bakhsh, petitioner No. 2, purchased 32 kanals of land, bearing Khasra Nos. 169/13 and 189/1, situate in village Muhammad Murad Machi, Tehsil Sadiqabad, District Rahimyar Khan, from Dhramu Mal and others, respondents Nos. 2 to 7, for a sum of Rs. 1,200. In the Jamabandi for the year 1936-37 and the succeeding Jamabandis up to 1956-57, which were exhibited as Exhs. P. 1 to P. 6 by the Deputy Custodian, Evacuee Property, he was shown as in possession of the land on account of purchase. This land was not allotted to any one. As Mst. Jindo and Rasul Bakhsh were threatened by the Patwari that if they did not obtain a declaration, that the land was non-evacuee the land would be allotted to refugees, they brought an application under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, for a declaration to the effect that the land in dispute belonged to them and was not evacuee property, having been purchased by Ghulamun, who had obtained its possession in pursuance of a sale and had been in its possession all along as owner, and subsequent to his death, his heirs had succeeded to the property and had been in undisturbed cultivating possession as owners. Before the Deputy Custodian, Evacuee Property, the applicants produced their mukhtar Birbal, Muhammad Zaman Patwari (P. W. 1) and Allah Bakhsh (P. W. 3). The Deputy Custodian, Evacuee Property, came to the conclusion that as presumption of truth attached to the entries in the revenue records and as there was no proof to the contrary, Ghulamun was proved to be in continuous possession of land on account of purchase, without paying any lagan to any one, and that he had even perfected his title over the land in dispute on account of adverse possession, even if it was not admitted that there was a sale. He, therefore, granted a declaration that the applicants were owners of the land in dispute as heirs of Ghulamun and the evacuees had no interest in the land, but it was subject to confirmation by the Custodian. When the matter went to the learned Custodian, he was not prepared to accept the statement of Birbal and was of the view that the statement of Allah Bakhsh did not advance the case of the petitioner. He held that though it was recorded in the Jamabandis from 1936 onwards that Ghulamun was in occupation of the land by purchase, it was not known how he had purchased it, no sale-deed having been produced in support of it, and that if Ghulamun had really purchased it, a mutation would certainly have been entered, and that as no mutation had been entered, Ghulamun had not acquired any right or title over the land in dispute on account of adverse possession, because, on the establishment of Pakistan, only eleven years had elapsed and thereafter the property had vested in the Custodian, against whom, according to him, there could be no adverse possession, because, under the law, every person occupying such property held it on behalf of the Custodian. He, therefore, rejected the application of the petitioners and directed the petitioners to render accounts to the Deputy Rehabilitation Commissioner (Land), Rahimyar Khan, in respect of the income, for being in occupation of the land of the evacuees. The petitioners thereupon filed this writ petition under Article 98 (2) (a) of the Constitution for a declaration that the order of the Custodian was illegal and had no legal effect, and for a direction to restore the order of the Deputy Custodian, Evacuee Property. 2. The first contention raised by the learned counsel for the petitioner is that in view of section 3 (1) of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), no property, not treated as evacuee property before the 1st day of January 1957, could be treated as evacuee property after the said date. It is not in dispute that this property was not allotted to any one by the Rehabilitation Authorities, nor was it treated as evacuee property by the Custodian. The word "treated" in subsection (1) of section 3 of Act XII of 1957 has been inter preted by the learned Judges of the Supreme Court in Abdul Khaliq-Abdul Razzaq v. Kishanchand and others (P L D 1954 S C (Pak.) 74). Their Lordships have held that the "treating" must relate to either a declaration by the Custodian about the nature of the property, or its user for the purposes of the Act by him or by the Rehabilitation Authorities, so as to indicate a consciousness of the actual or assumed nature of the property. In the instant case, as it had not been so treated, subsection (1) of section 3 of the Act raises a clear bar to the Custodian passing an order in respect of this property which had the effect of so treating it after that date. The order of the Custodian had the effect of declaring it as evacuee property, because he has directed the petitioners to render accounts of the property for the entire period that they were in its possession, and has described it as land of the evacuees. 3. Learned counsel for the Custodian however relies on section 3 of the Displaced Persons (Land Settlement) Act, 1958, which provides as under:- "3. Information relating to certain land to be furnished.-(1) As soon as may be after the commencement of this Act, but not later than ninety days therefrom, every person who is in possession, supervision or management of any land which he knows or has reason to believe to be concealed evacuee property shall submit to the Rehabilitation Authority or the Settlement Authority, of the area concerned full information relating to such land, including the date since when, or the period for which, he has been in possession, supervision or management thereof. "(2) Any such property as is referred to in subsection (1) shall, notwithstanding the provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property, and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 7 of that Act." He argues that this section overrides section 3 of Act X11 of 1957. This section is applicable to persons who are in possession, supervision or management of any land which they know or have reason to believe to be concealed evacuee property. Its subsection (2) provides that such property shall, notwithstanding the provisions of section 3 of Pakistan (Administration of Evacuee Property) Act, 1957, be treated as evacuee property and shall vest and be deemed to have vested in the Custodian in accordance with the provisions of subsection (1) of section 3 of R that Act. This is not, however, the case here, as the land in dispute was not "concealed evacuee property". 4. The land in dispute was acquired by Ghulamun prior to 1936. He is recorded in the Jamabandi Exh. P. 1 as in possession on account of purchase. The entry in the Jamabandi would not have come about unless Ghulamun had been in possession for some harvests prior thereto. Reading the instruc tions in the Land Settlement Manual along with the claim of the petitioners and the evidence led by them, the conclusion could be drawn that Ghulamun had been in possession of the land in dispute for more than 12 years, even before the 1st day of March 1947. 5. The entries in the Jamabandis, to which presumption of correctness attaches, prove that a sale in favour of Ghulamun did take place before 1936. The sale may have been oral, and a mutation was obviously not entered, but the transaction of sale was acted upon, and possession having been delivered, had been completed. The sale was thus a completed transaction. No rights were, therefore, left in the non-Muslim owners, who never asserted their rights to this property. In view of the entries in the Jamabandis the Deputy Custodian, Evacuee Property, was right in holding that Ghulamun had acquired proprietary rights in the land and the evacuees had no title or interest left in the land, which may have vested in the Custodian. The property, therefore, cannot be said to have vested in the Custodian under the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). 6. Learned counsel for the Custodian, respondent No. 1, contends that as the name of the evacuees continued to be recorded as owners in the Jamabandis, they had a right and interest in the land, which vested in the Custodian with effect from the 1st day of March 1947 under section 6 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, corresponding to section 7 of Act XII of 1957. It is obvious that the names of the evacuees continued to be recorded as owners because a mutation was not entered, and the mere fact that the names of the evacuees continued to be entered as owners does not prove that they bad proprietary rights left in the land, as they had parted with their rights by sale. Learned counsel for the respondent argued that it could not be said that there was an outright sale in favour of Ghulamun and that the finding to the contrary by the Custodian cannot be interfered with in exercise of powers of certiorari. He relies on an unreported judgment of the Supreme Court in Amirzada and Halimzada v. Mst. Sardar Begum and another Civil Appeal No. 62 of 1962, decided on 25th October 1963, which holds that even on the assumption that the finding of the Chief Settlement and Rehabilitation Commissioner was wrong, it could not be said that the error was apparent on the face of the record, because it was not self-evident, and required investigation of facts and arguments to establish it. In this judgment reference was made to Rex v. Northumberland Compensation Appeal Tribunal ((1952) 1 K B 338) in which Denning, L. J. observed: "It will have been seen that throughout all the cases there is one governing rule : 'certiorari is only available to quash a decision for error of law if the error appears on the face of the record'." In the same case, Morris, L. J. also observed as follows :- "It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring an order of decision for rehearing of the issue raised in the proceedings. It exists to correct error of law 'where revealed' on the face of an order or decision or irregular, or absence of, or excess of, jurisdiction where shown." In Tariq Transport Company v. Sargodha Bhera Bus Service and others ((1958) 2 S C R 71) their Lordships of the Supreme Court observed :- "Particularly with reference to writs of certiorari and pro hibition, the error should generally appear on the very face of the proceedings, and the relief granted should be addressed specifically to the correction of such error. If then, no error of the relevant kind is made to appear in the petition itself, it is clearly the duty of the Court to reject the petition." Learned counsel also relied on the judgment of the Supreme Court of India in Hari Vishnu Kamath v. Syed Ahmad Ishaque and others (P L D 1956 S C (Ind.) 1) in which observations to the same effect were made. It was held: It may, therefore, be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error ; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observa tions of Chagla, C. J. in Batuk K. Vyas v. Surat Municipality A I R 1953 Bom, 133 that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be deter mined judicially on the facts of each case." We agree respectfully with the view expressed above, that in certiorari we can only interfere if there is an error apparent on the face of the order of the Custodian, and that we cannot deal with his order as an appellate Court correcting mistakes of fact. 7. As observed above, each case has to be decided on its own facts. The real difficulty lies not in the statement of the principle its in its application to the facts of a particular case. In our view, the Custodian committed an error on the face of the record in ignoring altogether the entries in the jamabandis which continuously existed from 1936 onwards. There was no evidence to rebut the entries in the jamabandis. These entries were made at a time long before Independence and no suspicion should normally have been attached to such entries. These entries were made when the Hindu owners still lived in this part of the sub-Continent, and yet they did not assert their rights to the land or contest the correctness of the entries in the jamabandis. The Custodian observed that no sale-deed shad been produced and that if Ghulamun had really purchased the, land, a mutation would have been entered. It is nobody's case that sale-deed was executed or that a mutation was entered or sanctioned. It was ignored that If a sale-deed had been produced or if a mutation had been entered and sanctioned, the name of Ghulamun would have found mention In column No. 4. It was entirely ignored by the Custodian that Ghulamun had been in possession as a purchaser, so that it was a completed transaction. The learned Custodian, therefore, in our view, committed an error of law, which is apparent on the face of the record, in Ignoring the presumption of correctness and truth which attaches to the entries in the jamabandis. 8. The Custodian secondly held that Ghulamun had not perfected his title to the land by adverse possession, because 12 years had not elapsed since the entries in the first jamabandis in 1936 came into being. It is true that from 1936 to the 1st of March 1947, only a period of eleven years had elapsed, and, by reason of section 7 of Act XII of 1957, "all evacuee property shall vest and shall be deemed always to have vested In the Custodian with effect from the first day of March 1947". Section 10 (1) of Act XII of 1957 also provides that- "Every person who is, or has at any time after the twenty -eighth day of February 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held: as the case may be, such property on behalf of the Custodian." It is true that Ghulamun must have been in possession of the land in dispute in assertion of his right as purchaser for some crops prior to 1936, and if the relevant khasra girdawris had been produced, it would have been possible to hold that 12 years had elapsed even before the 1st of March 1947. But as the records stands, we do not find it necessary to give a considered opinion contrary to the finding of the learned Custodian on the question of adverse possession. 9, To revert to the question of whether the land in dispute was or could be deemed as evacuee property from the 1st of March 1947, reference may be made to section 3 of Act XII of 1957, which provides as follows :-- "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 (1) shall apply

(a) to any person in respect of whom or to any property in respect of which any action has commenced or any pro ceedings 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." The order of the Custodian is dated the 7th of July 1962, by which, in effect, he declared the property to be evacuee and directed Ghulamun to render accounts of the property, treating It as evacuee property. There is a bar in subsection (1) of section 3 of Act XII of 1957 in treating a person or property, not treated as evacuee or as evacuee property before the 1st day of January 1957, as evacuee or evacuee property on or after the said date. It is nobody's case that the property was treated by the Custodian or the Rehabilitation Department as evacuee property. Therefore, it could not be treated as evacuee property by the Custodian in view of subsection (1) of section

3. Learned counsel for the Custodian, however, relied on, clause (b) to sub -section (2) of section 3 above, and contended that as the property was occupied or managed by a person whose authority to do so after the 28th of February 1957, had not been accepted or approved by the Custodian, the bar under subsection (1) of section 3 did not apply. We do not, however, consider that the property of Ghulamun was evacuee and could be treated as such, because, as already held, Ghulamu had acquired proprietary rights in the land, and the evecuees had no right, interest ort title left in the land, and the question of the approval of the Custodian for its management does not arise. Therefore clause (b) to subsection (2) of section 3 of Act XII of 1957 has no appli cation to this case. We were referred to the decision of this Court in Writ Petition No. 634 of 1959, Sardar Nur Muhammad v. The Custodian etc. decided on the 1st of June 1960, but the facts of this case are distinguishable.

10. Learned counsel for the Custodian also relies on paragraphs No. 3 and 4 of the Martial Law (Recovery of Unauthorised Evacuee Property) Regulation No.

49. Para graph 3 deals with a situation where a person has acquired possession of any immovable property, the ownership of which did not vest in him before the 1st of March 1947, and such a person is required to make a declaration to the Deputy Rehabi litation Commissioner to give the particulars stated in the regulation and to deliver possession of the property on demand to the Deputy Rehabilitation Commissioner. Paragraph 4 of Regulation 49 requires a person, other than a displaced person, who is in possession of evacuee property in any capacity whatever, to make a declaration before the 31st of December 1958, to the Deputy Rehabilitation Commissioner giving theft required particulars. These paragraphs have no application to this case in view of what we have stated above.

11. For the reasons given above, we hold that the Custodian had committed an error apparent on the face of the record in not giving effect to the entries in the jamabandis from 1936 onwards. We, therefore, quash his order under Article 98 (2) of the Constitution and direct that he shall decide the matter afresh in the light of what we have stated above.

12. This writ petition is accepted with costs against the Custodian. K. B. A. Petition accepted.