P L D 1984 Peshawar 81 (PLP)

Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105 ; Muhammad Umar Khan v. Pakistan P L D 1982 Pesh. 1 ; Mehrdad v. The Settlement and Rehabilitation Commissioner P L D 197‑1 S C 193 and Maj. Mehtab Khan v. The Rehabilitation Authority, P L D 1973 S C 451 ref: Sardar Khan for Petitioners. Kh. Nazir Ahmad for Respondent Nos. 1 to

4. S. Safdar Hussain for Respondents Nos. 5 to

12. Z. Mahfooz Khan for the remaining Respondents. Date of hearing : 9th, 13th October; 8th December, 1982; 15th and 16th January, 1983. The dispute in this writ petition relates to agricultural land situated in village Jatti Payan Tehsil and District Peshawar. According to the petitioners Hassan Jan and Noor Muhammad sons of Sultan and one Fazal Haq purchased 1/6th share of the agricultural land, comprising of Knata Nos. 3C and 31 of the Jamabandi of the year 1936‑37 measuring 626 kanals 13 marlas and 391 kanals 17 marlas, respectively, from one Sohan Singh vide registered sale‑deed dated 29‑8‑1938. The aforesaid Khatas were numbered as 31 and 32, in the Jamabandi of the year 1940‑

41. The other 1 /6th share of Ram Singh in the aforesaid K hatas is also alleged to have been purchased by them with possession on the basis of an oral sale. In support of this sale reliance is placed on a receipt in 'Gurmukbi' executed by Ram Singh whereby be had acknowledged the receipt of the sale consideration of RS‑ 2,

500. It is further alleged that Anup Singh another co‑sharer in the two Khatas sold his 1/6th share in favour of one Abdul Jalil. This sale was successfully pre‑empted by Ram Singh who obtained a decree on 25‑9‑1942. The peti tioners claimed to have been in continuous possession of the land in dispute without interruption. It is alleged that Ram Singh had himself appeared before the patwari on 1‑7‑1947 and by admitting the sale in favour of the petitioners got entered mutation No. 154 which was rejected in the first instance but on appeal was attested on 10‑3‑1948. The petitioners allege to be in peaceful possession of the land when in 1960, inquiry was initiated by the Special Police Establishment into the transfer of land of Ram Singh in their favour. On 7‑1‑1961 petitioners made an application to the Deputy Custodian under section 22 of the Pakistan Administration of Evacuee Property Act (ACT‑XII of 1957) claiming declaration of their ownership and possession regarding 1 /3rd out of 626 kanals 13 marlas in Khata No. 31 and 65 kangls 5 1/16 marlas out of 391 kanals 17 marlas of land in Khata No; 32 as entered in the Jamabandi of the year 1940‑

41. The Deputy Custodian recommended their case to the Custodian for approval of the sale vide Reference No. 47 of 1969 but the reference was rejected by the Custodian vide order dated 3‑9‑1961 holding the land to be evacuee property. On 5‑2‑1962 the petitioners instituted a suit for a declaration that the property was not evacuee and was sold to them by Ram Singh evacuee. In the suit reliance was also placed on mutation No. 154 entered on 2‑7‑1947 and attested on 10‑3‑1948 in their favour. The suit was dismissed on 19‑3‑1966 by the civil Court for want of jurisdiction. The petitioners appeal before the District Judge also failed fide order dated 4‑10‑1966. The petitioners then filed R. S. A. in the High Court but without any success which was also dismissed on 9‑4‑1970. They then moved petition for Special Leave to Appeal No. 70‑P of 1970 before the Supreme Court which was also dismissed on 11‑12‑1972. Thereafter the petitioners challenged the order of the Custodian in Writ Petition No. 92 of 1973 in this Court but since Custodian was not impleaded as a party they were allowed to withdraw the writ petition with permission to bring a fresh one subject to deposit of Rs. 1,000 as cost. It was then on 9‑9‑1974 that the present writ petition was filed in this Court impleading Custodian Evacuee Property as respondent No. 1.

2. The learned counsel for the respondents raised an objection that the petition was not maintainable as it was barred by laches since the order of the Custodian dated 3‑9‑1961 was being challenged in the writ petition filed on 9‑9‑1974. From the material available in the case it appears that an inquiry was initiated in 1960‑61 by the Special Police Establishment into the transfer of the land in favour of the petitioners. They promptly filed an application under section 22 of Act XII of 1957 on 7‑1‑1961 before the Deputy Custodian. The Deputy Custodian vide order dated 2‑6‑1961 treated the land as non‑evacuee property and thus made a reference to the Custodian for his approval but since the approval was not accorded by the Custodian vide order dated 349‑1961, the petitioners filed a declaratory suit in the civil Court on 5‑2‑1962 which was dismissed on 19‑3‑1966 by the Senior Civil Judge, Peshawar, for want of jurisdiction. Their appeal before the District Judge having been dismissed, they approached the High Court by filing R. S. A. No. 357 of 1966 which was also dismissed on 9‑4‑1970. The petitioner then filed a petition for Special Leave to Appeal before the Supreme Court but the leave was refused on I 1‑12‑1972 with the observations that the petitioners remedy was by way of filing a writ petition against the order of the Custodian of Evacuee Property. Thereafter the petitioners filed Writ Petition No. 92 of 1973 which was allowed to be withdrawn on 2‑7‑1974 with the permission to file a fresh writ petition. Thus on 9‑9‑1974 the present writ petition was filed in this Court. From the facts stated above it is obvious that the petitioners have all along been pursuing their remedy with diligence since 1961. The petitioners have never been negligent in seeking their remedy. In Muhammad Khan v. Shamsuddin (1969SCMR 212), it was held that where the petitioner has been bona fide pursuing his remedy in the civil Courts, the fact that the writ petition was filed against the impugned order after the lapse of 8 years, would not disentitle the petitioner to the grant of equitable relief on the ground of laches. In Pakistan v. Sheikh Abdul Hamid (PLD1961SC105) it was observed that "the delay was of no consequence as the petitioner had diligently been making representations to the Government all through from 1949 before filing the writ petition in the High Court in 1957. In Mohammad Umar Khan v. Pakistan (P L D 1982 Pesh. 1) it was held that "there was no limitation on the discretion of the Court in granting relief and no bard and fast rule can be laid down as to what in parti cular circumstances would constitute laches". The delay alone was held not sufficient to non‑suit the petitioner or to constitute uncondonable laches the delay must be coupled with other conduct of the petitioner amounting to estoppel etc. In this view of the matter the objection with regard to laches cannot prevail in this case.

3. So far as 1/6th share of Sohan Singh sold in favour of the petitioners and their predecessor‑in‑interest is concerned there appears to be no dispute between the parties, as the sale was effected on the basis of a registered sale -deed dated 29‑8‑1938 and it was duly incorporated in the revenue record. Regarding 1/6th share of Ram Singh in the land in dispute which was obtained by him in the pre‑emption Suit No. 7/1 instituted on 4‑1‑1942 and decreed in his favour on 26‑9‑1942, it may be mentioned that the petitioners lave not specifically claimed ownership therof. Although the said portion is also alleged to be in their possession. In the civil litigation the aforesaid 1/6th share which was subject‑matter of the pre‑emption suit was claimed by the petitioners for the reason that Ram Singh was a 'Benamidar' and in fact he had instituted the pre‑emption suit for their benefit. This contention however, did not prevail with the learned District Judge who came to the conclusion that Ram Singh was the exclusive owner of the aforesaid 1/6th share in tie land. In this writ petition no such contention has been raised by the petitioners The learned counsel for the petitioners has mainly relied on the other 1/6th share of Ram Singh which is alleged to have been sold by him in favour of the petitioners and their predecessor‑in‑interest for a consideration of Rs. 2,500 paid by means of a receipt executed by Ram Singh in 'Gurmukhi' in the year 1998 Bikrami corresponding to the year 1941‑

42. It is urged that the possession of the aforesaid land was also given to the petitioners and their predecessor‑in‑interest and in consequence Mutation No. 154 was entered at instance of Ram Singh on 2‑7‑1947. This mutation was rejected on 5 0‑1947 since ban has been imposed by the Provincial Government on transfer of Evacuee Property of non‑Muslims. However, on appeal this mutation was ordered to be attested by the Collector Peshawar on 10‑3‑1948. The learned counsel urged that this mutation was entered pursuant to the oral sale effected by Ram Singh in favour of the petitioners which was duly evidenced by the aforesaid receipt and since the sale in question took place prior to 28‑2‑1947 it did not require any confirmation by the Custodian under section 20 of the Pakistan Administration of Evacuee Property Act, 1957 (Act XII of 1957). However, a reference to Mutation No. 154 would show that in the note of the Patwari dated 2‑7‑1947 there is no mention of the aforesaid receipt of the fact that the sale had already been effected by Ram Singh in favour of the petitioners prior to 28‑2‑1947. The note of the Patwari is in the following terms :‑ It is difficult to draw an inference from the aforesaid note of the Patwari that the sale had taken place earlier than 28‑2-1947 as it leads to the inference that soon after the oral sale the Patwari was informed for entering the mutation. Even if the principle that a mutation takes effect from the date of entry and not from the date of its attestation, is kept in view,, it is evident that the sale in question, having taken place in the month of July, 1947, was within the mischief of section 20 of the Act XII 1957 and would not confer any valid title on the, petitioners unless accepted by the Custodian as required by law. About the receipt relied upon by the petitioners it may also mentioned that the same being not registered could not be looked into. The argument of the learned counsel for the petitioners that it did not require registration as it was a simple receipt for payment of money would not prevail as it is clear from the contents of the receipt that the amount of Rs. 2,500 was received by Ram Singh as a consideration for the transfer of land wherein he also agreed to execute a registered sale‑deed subsequently in favour of vendees. The aforesaid document if considered as a conveyance of title would obviously require registration but if the document is taken as an agreement to sell it would not confer any title on the vendees unless it was specifically enforced and a registered sale‑deed duly executed in favour of the petitioners. The learned counsel then argued that the petitioners are recorded in possession of the land as owners. It is not disputed that Ram Singh was a co‑sharer in the land alongwith the petitioners and the mere possession by one co‑sharer would not amount to ouster in the absence of an overt act or assertion of hostile title. The contention of the learned counsel that the petitioners are recorded in the relevant Jamabandies as 'Bila lagan Bawaja Bai' is not well‑founded because from the perusal of the lamabandies of 1940‑41 and 1946‑47 it appears that Ram Singh himself and also alongwith other co‑sharers is shown in possession of a portion of the land in dispute and there is no entry excepting for Khasra Nos. 348‑79 and 331 in the Jamabandi of 1946‑47, showing the petitioners in possession of the land as 'Bila Lagan Bawaja Bai'. The entry regarding the aforesaid three khasra numbers in the Jamabandi of 1946‑4'. showing the petitioner as 'Bila Lagan Bawaja Bai' would be of no consequence as there exists no basis in the revenue record for incorporating the aforesaid entry. Such like entries in the Jamabandies subsequent to 1946‑47 would be of no avail as by operation of law the evacuee interest in the land stood vested in the Custodian since 1‑3‑1947. Thus it is evident that the oral sale or the receipt executed by Ram Singh in favour of the petitioners was not given effect to in the revenue record. There is nothing to prove that on the basis of the alleged sale of 1/9th share in favour of the petitioners or their predecessor‑in‑interest, they remained in exclusive possession thereof and the interest of the evacuee co‑sharer stood extinguished.

4. It was next argued that the property being joint could not have been transferred to the allottees unless partitioned. Reliance is placed on Mehrdad v. The Settlement and Rehabilitation Commissioner (P L D 1974 S C 193). In the cited case the land on which the property in dispute was constructed was 'Shamilat‑i‑Deh' and the evacuee interest could not be separated without partition. It was thus observed that the appellant who was a co‑sharer in the 'Shamilat‑i‑Deh land was entitled to maintain his possession undisturbed until partition and that the land on which the property in dispute was situated being 'Shamilat‑i‑Deh' and being a joint property could not be declared as evacuee property. In the case in hand it is not shown that the land in dispute is Shamilat‑i‑Deh or that it has been constructed upon. Rather there is evidence to show that symbolic possession of the land belonging to the evacuee was taken by the Settlement and Rehabilitation Department through the Revenue Officer on 28‑2‑1961. The report of the Patwari in this regard would show that symbolic possession of specified Khasra numbers out of various Khatas was taken from the petitioners. This fact would indicate that the share of the non‑Muslim Evacuee is identifiable and can be taken possession of separately from the joint property. Therefore, this objection of the learned counsel appears to be without any substance. The learned counsel then argued that after 1‑1‑1957 the property in dispute could not have been treated as evacuee property under section 3(1) of the Pakistan Administration of Evacuee Property Act, 1957 (Act X11 of 1957). But it is evident that clause (b) of section 3(2) of the Act is in the nature of an exception to the aforesaid provision of law whereunder the Custodian had the authority to treat the property as evacuee in cases covered by section 3(2) (b). Thus, obviously where any evacuee property is occupied, supervised,, or managed by a person whose right or authority in this regard has not been accepted or approved by the Custodian, the same can be treated as evacuee property by the Custodian even after 1‑1‑1957. In Maj. Mehtab Khan v. The Rehabilitation Authority (P L D 1973 S C 451) it, was observed that the protection granted by subsection (1) of section 3 of Act XII of 1957 is not available to properties occupied, supervised or managed by persons whose authority or right so to do after the 28th‑ day of February, 1947 has not been accepted or approved by the Custodian of Evacuee Property and that these words are wide enough to include cases of vendees of the evacuee properties where the sale were effected after the 28th day of February, 1947 and they have been confirmed by the Custodian as required by section 20 of the Act. The petitioners having failed to prove a valid sale in their favour prior to 1‑3‑1947, were obviously occupying the property whose right so to do was never accepted or approved by the Custodian.

5. For the aforesaid reasons, no exception can be taken to the order of the Custodian treating the land in dispute as evacuee property. Therefore, the writ petition being without any substance is hereby dismissed with no order as to costs. M. Y. H. Petition dismissed.