1989 PLP 1860 (SCMR)

SHAFIUR RAHMAN, J.‑‑The petitioners, Muhammad Bashir and 6 others, who have been unsuccessful as defendants in a civil suit, seek leave to appeal against the judgment of the Pesharvar High Court passed in a Regular First Appeal whereby a decree for possession of the suit‑property was passed in favour of the plaintiffs.

2. The predecessor‑in‑interest of the petitioners came to occupy the suit- property (Building No.94 in Havelian Urban Area) located in Khasra No.795, measuring 117 Sq. Yards and 3 Sq. feet. He got an allotment Order for the same on 25‑10‑1951. This Khasra Number in an un-built state belonged to the predecessor‑in‑interest of the plaintiffs‑respondents, who had mortgaged it with the non‑Muslim evacuee in the year 1932. The terms of the mortgage were that the mortgage was to stand redeemed after twenty years, without any payment to be made by the mortgagor. When the statutory period of the mortgage expired, the owner‑mortgagors moved the Custodian Evacuee Property for its redemption in terms of the mortgage agreement. An order in his favour was passed on 10‑11‑195‑

1. The operative part of the order provided as hereunder:‑ "1n absence of any document to the contrary, I am inclined to hold that property was under mortgage of non‑Muslim and the term was that after lapse of 20 years the mortgagor or successor of the mortgagor has a right to redeem the property without payment of the mortgage money. The Rehab. Deptt have mentioned in their written statement that Hindus have constructed building on the disputed land. The equity demands that successor of the mortgagor should pay the cost of the building before redemption:" 3. 1t appears that the value of the superstructure was not determined by the Custodian at any stage subsequently. 1n the meantime, this property came up for disposal before the Deputy Settlement Commissioner in 1972. He considered the competing claims of the occupant‑allottee and the owner and the other applicants and ordered the transfer of the super‑structure which alone was held to be evacuee to Abdul Jalil and Abdur Razzaq on 28th of June, 1972, It appears that the petitioners' predecessor‑in‑interest applied separately for House No.91‑B Survey registered No.795 and Assistant Settlement Commissioner Lands Haiara passed an order for its transfer in his favour on 1‑3‑1974 and a transfer document was also issued in his favour.

4. In this background the plaintiffs/respondents instituted a civil suit claiming that the property belonged to them, that the transfer in favour of the petitioners was unlawful and that they were entitled to its possession. The suit was contested and a number of issues were framed but finally the plaintiffs were held to be owners, entitled to possession of the property and their claim was decreed by the Civil Court. The appeal of the petitioners in the High Court also failed.

5. Mr. Abdul Hakim Khan, Senior Advocate, learned counsel for the petitioners contended that the order of the transfer in favour of the respondents was a nullity which could be ignored, that the superstructure was in fact evacuee and unless payment was made for the value of the super‑structure, the plaintiffs‑respondents were not entitled either to redeem the property or to seek and obtain its possession through the Civil Court.

6. The operative part of the Custodian's order has already been reproduced. It fully establishes the title of the plaint ifs‑respondents. On its strength they were held entitled to the possession of the property and the only reservation made was with regard to the value of the super‑structure which had to be determined by the Custodian There is nothing to show that it was ever determined and the plaintiffs‑respondents asked to pay and they defaulted in doing so. With that determination by the exclusive and competent authority on the record the petitioners could have no locus standi to claim the transfer of the property or to make the title and interest of the plaintiffs‑respondents conditional or suspect.

7. We find that both the Courts have taken into consideration the findings lawfully and competently recorded by the authorities and have given full effect to it. There is no merit and leave to appeal is refused. A.A./M‑924//S Leave refused.