P L D 1955 Lahore 567 (PLP)

KAIKAUS, J.--‑This judgment will 'dispose of Civil Revi sions Nos. 210, 211 and 212 of 1954, in which the point involved is the same. These revision petitions arise out of three suits filed by Riaz Ahmad Javed, the petitioner before me, to impeach three alienations made by his father on the ground that the property in dispute is ancestral and the alienor was governed by custom. The alienees are in all the three cases evacuees. The learned Civil judge, who was trying these cases, framed the following issues :‑ (1) Whether the suit is time‑barred ? (2) Whether the transaction sought to be impeached was without legal necessity and consideration ? (2) (a). Whether the land in suit is ancestral qua the plaintiff ? (3) Whether the plaintiffs and their ancestors are not governed by the zamindara custom ? (4) What right and interest the evacuees have got in the property in suit ? (5) Relief. . Under section 34 of the Administration of Evacuee Property Ordinance, he referred all the issues to the Custodian. These three applications in revision have been filed by the plaintiff who contends that only issue No. 4 should have been referred to the Custodian and that other issues ought to have been decided by the Civil Court itself. I agree that the only matter to be referred to the Custodian is that contained in issue No.

4. Under section 34 of the Administration of Evacuee Property Ordinance it is only a question relating to the relative interest of the evacuee that is to be the subject matter of reference to the Custodian. I do not agree, however, that the other issues except issue No. 1 are to be decided by the Civil Court because issues are relevant only for the purpose of deciding the rights and interests of the evacuee. While deciding issue No. 4, the Custodian has to decide issue Nos. 2, 2 (a) and 3 for without the decision of these issues he cannot determine the rights and interests of the evacuee. The question to be decided on the merits is whether the interest of the evacuee in the property extends only to the lifetime of the alienor or whether it is to survive his death. For that purpose the questions of consideration and necessity and the question whether the parties are governed by custom must first be decided. I do not see what purpose the decision of issues Nos. 2, 2 (a) and 3 by the Civil Court can serve. The Custodian cannot, for the decision of issue No. 4, accept the finding of the Civil Court. He has no juris diction to do so. If he is to decide a matter it means he is to give his own judgment. The decision on issues Nos. 2, 2 (a) and 3 by the Civil Court will neither affect the decision of the Custodian nor will it be of any use after the case has returned from the Custodian because when the Custodian gives his decision the only function of the Civil Court would be to pass a decree in accordance with that decision. If the Custodian found that the interest of the evacuee was complete and would extend beyond the death of the vendor because the alienation was with consideration and necessity or because the parties did not follow custom the Civil Court would pass a decree accordingly and vice versa. In such cases, all those issues which are relevant only for the purpose of determining the rights and interests of evacuee have to be determined by the Custodian alone. Of course, the reference to the Custodian is only of the issue as to evacuee interest. The other issues are really included in that issue because it is in accordance with the findings on those issues that evacuee interest has to be determined. If the findings on the issues are to affect only the right and interest of the evacuee a finding of the. Civil Court on such issues is altogether uncalled for. Of course,, this applies only to decisions on the question of evacuee interest and not to the maintainability of suit on grounds of procedure, in which I would include limitation. It is not for the Custodian to decide whether a suit is bad for misjoinder or whether it is not maintainable on account of some defect in its form. In deciding the question of limitation also, the Court does not determine the question of evacuee interest except when limitation includes adverse possession which involves an acquisition of title. It may be that in some cases the question of .limitation ultimately does affect the rights of parties but the real point involved in such an issue is only whether the plaintiff has a right to approach the Court. Learned counsel for the petitioner has relied on the Full Bench case Ghulam Mohi‑ud‑Din v. Kishori Lal (P L D 1951 Lah. 214) for the proposition that the Court should decide the issues of necessity before sending the case to the Custodian. I find no words in the judgment laying down any such rule. The question refer red to the Full Bench in that case was whether, even if the interest of the evacuee was indirectly involved in the suit the matter had to be referred to the Custodian. The learned judges did say while discussing this question that the Civil Court may first decide the issues and then send the case to the Custodian for determining the question of evacuee interest or may refer it to the Custodian without giving such finding, but the object of the discussion there was only to show that indirect interests are also covered by section 34 and not to lay down any rule of procedure. I would, therefore, accept these revision petitions in part and direct that‑ (1) the issue as to limitation shall be tried by the learned Civil Judge before sending the case to the Custodian; (2) only the issue as to evacuee interest shall be referred to the Custodian ; (3) the learned Civil judge shall not give any finding on issues Nos. 2, 2 (a) and 3, i. e., the issues relating to the merits of the case which are relevant only for the purpose of determining evacuee interest. Learned counsel for the petitioner has drawn my attention to the fact that the onus of issue No. 2 has been placed on the plaintiff and has urged that onus should be on defendant. This is correct. The onus of consideration and necessity is always on the alienee and not on the plaintiff. I find that there was a ground of revision directed against this issue. Accordingly I amend issue No. 2 as given below:

Whether the transaction sought to be impeached was with legal necessity and for consideration ? The parties shall bear their own costs of these revision petitions. A. H. Order accordingly.