P L D 1969 Karachi 412 (PLP)

(a) Evidence Act (I of 1872), S. 114‑Official acts‑Presump tion‑Application pending pith relevant authority nine years ago‑No material on record to contrary‑Plea that continuance of same state of affair should be presumed‑Rejected‑Presumption, in circumstances, held, should be that application pending nine years ago has been disposed of rather than left unattended. (b) Pakistan (Administration of Evacuee Property) Act (XII of 1957), Ss. 13(3) & 22‑Determination of share of co parceners in joint Hindu family‑Exclusive jurisdiction of Custodian‑Ques tion of evacuee or non‑evacuee character of property‑Declaration rests with Custodian‑Petitioner claiming two annas share in joint Hindu property challenging treatment of such property as evacuee property and filing applications before Rehabilitation Authorities‑Rehabilitation Authorities rejecting such applications with direction to seek declaration from Custodian‑Held, direction given was proper‑Petitioner instead filing writ petition against orders of Rehabilitation Authorities ‑ Petition dismissed. Perumal v. The Central Government of Pakistan P L D 1963 S C 127 and Issarbai alias Kishan Bai v. Settlement Commissioner P L D 1965 Kar. 252 ref. Ram and Kanayo sons of Pahlumal have submitted this petition under Article 98 of the Constitution for a declaration that two orders, dated the 29th of October 1960 and 7th of April 1964, made by respondent No. 2, the Deputy Settlement Commissioner and by respondent No. 1, the Rehabi litation Commissioner, were made without legal authority, and are of no legal effect. The first order, which is Annexure 'K' to this petition, was made by the Deputy Rehabilitation Commissioner, Larkana, by which he dismissed the appeal of the present petitioners, which they had preferred against the order of the Assistant Rehabilitation Mukhtiarkar, Shahdadkot, on the 5th of April 1960. The petitioners went in revision against the appellate order of the Rehabilitation Commissioner, who dismissed it on the 7th of April 1964 and the decision was announced on the 20th of June 1964. This second order is Annexure 'N' to this petition. The decision was that the revision application was barred by time as well as unacceptable on merits. It was pointed out that the order of the Custodian declaring the father of the peti tioners to be a non‑evacuee person did not relate to agricultural land which was in question, and that the agricultural land had re mained in uninterrupted possession of refugees for the preceding 14 years. Since no remedy was sought by the petitioners or their father to get the orders of the allotment cancelled in time, the property in question had become a part of the property which formed " evacuee pool " and was acquired by the Central Government. The Central Government acquired till such property through Notification No. 1376‑RR/4R/59, dated the 15th of April 1959.

2. The petitioners question the above‑mentioned orders, `K' and 'N', mainly on the ground that after the declaration that their father was a non‑evacuee person, was given by the Custodian in 1951, the entire property which belonged to the father, became non‑evacuee property, with the result that it became a redundant exercise for them to successively ask for similar declarations. But in this respect, it is to be noted that the order on which the petitioners rely, related to the status of their father, and not to that of their own. This is important, because from the fact that the father was a non‑evacuee person, it did not necessarily follow that the sons were also non‑evacuee persons. Moreover, the petitioners have probably not realised that they have questioned the orders which were made in appeal and revision, but have not questioned the basic order from which they had gone in appeal and preferred revision. The basic order is dated the 5th of April 1960 and is Annexure ` J ' to this petition.

3. The relevant history of the litigation can be summarised by pointing out that the order ` J ' shows that it was made on an application, dated the 7th of February 1960. Counsel for the petitioners has explained that it was a reminder of an earlier application which was dated 1st September 1958 and is Annexure ` F ' to this petition. Petitioner No. 1 had made that application asking for the restoration of the agricul tural property of his father on the ground that the petitioners had a share in it equal to two annas in a rupee. The reason for asking for the restoration was that their father's share in a husking factory was declared to be non‑evacuee property, and in that connection the status of their father was declared to be that of a non‑evacuee by the Assistant Custodian in 1950. He stated in that application that the agricultural land was by mistake allotted as evacuee property; therefore it should be released. The Assistant Rehabilitation Mukhtiarkar, dismissed that application by his order of the 5th of April 1960 on the ground that the agricultural land had remained allotted to refugees since Partition and that the petitioners had taken no steps to get it released from the Custodian. Moreover, he pointed that an application of the petitioners relating to the same matter was pending before the Deputy Commissioner in his capacity of a Deputy Rehabilitation Commissioner. The Assistant Rehabilitation Mukhtiarkar directed the petitioners to apply to the Custodian for the restoration of the property. The petitioners went in appeal against his order, as mentioned above, which appeal was dismissed as barred by time, and then this revision application was also dismissed as barred by time as well as on the merits. Since the appeal and the revision were clearly barred by time, their dismissal on that ground at least cannot be said to be wrong. But assuming for the sake of argument that the orders made in appeal and in revision can be questioned by the petitioners, their removal from the way of the petitioners will not affect the basic orders of the Assistant Rehabilitation Mukhtiarkar dated 5th April 1960, Annexure `J' which has not been questioned by the petitioners in these proceedings.

4. Before proceeding further, I may examine the conten tion of Mr. S. A. Nusrat that the order dated the 7th of April 1964, dismissing the revision petition on the ground that it was barred by time, is incorrect. Counsel says that the Settlement Commissioner held that the revision application was barred by time because limitation for such petitions was 15 days, but this is, according to the counsel, an erroneous view because 15 days' time was fixed under Rule 10 of the Pakistan Rehabilitation Rules, 1951 with reference to section 13(A), which exists in a different statute, namely the Pakistan Rehabilitation Ordinance of 1948. Mr. Muhammad Idris Qureshi does not agree with this view of Mr. S. A. Nusrat, and Mr. Naimuddin has questioned the right of the petitioners to contend that the finding about the bar of time was wrong, because this ground has not been taken in this petition. Mr. Nusrat has relied on ground `D' of this petition which is as follows: "It is submitted that the petitioners' application was of an administrative‑cum‑judicial nature, and since action on their application was pending, there was no question of their remedy getting time barred. The petitioners submit that their application for restoration has not been disposed of on merits so far, although under Annexure ` J ' the petitioners were informed that the final orders would be communicated to them when passed by the D. R. C., Larkana. Accordingly it is submitted that the learned respondent No. 2 has not disposed of the, petitioners' application so far which he was under the law bound to decide by restoring the lands to the petitioners." The above pleas of the petitioners show that they have questioned the finding about the limitation on the ground that the order from which they had gone in revision was not a judicial but an administrative‑cum‑judicial order. Having said this, they have stopped short and fallen back on the application which, according to the Assistant Rehabilitation Mukhtiarkar was pending at that time. Mr. Naimuddin, therefore, is not wrong in contending that no plea has been raised by the petitioners to question the orders on the ground that there was any error or confusion about the periods of limitation.

5. The foregoing quotation leads me to the contention of Mr. S. A. Nusrat that irrespective of the two orders which have been questioned in this petition, the petitioners' grievance is that one of applications for restoration has remained indisposed of. He would have us believe that there is an application which was not disposed of by the Rehabilitation Commissioner to this day, merely because in 1960 an Assistant Rehabilitation Mukhtiarkar stated that an application was pending. On my enquiry as to whether there was anything else besides that order to support the contention that an application was pending, counsel replied that their being no material on record to the contrary, the continuance of the same state of affairs should be presumed. In law, such a presumption is raised under section 114 of the Evidence Act, but in the circumstances of this case, which are, that pending applications are expected in the ordinary course to be disposed of, the presumption under that section should be that the application, which was pending 9 years ago, has been disposed of rather than that it has been left unattended for a decade. Mr. Naimuddin has pointed out that in the prayer clause there is no mention of any relief with respect to the allegedly pending application, and Mr. Muhammad Idris Qureshi says that the pending application has been mentioned by the Settlement Commissioner in his order of the 7th April 1964, in which he has held that the property could not be restored, which tantamounts to the decision of the entire dispute about the restoration of agricultural land including the pending application.

6. The above discussion is adequate for disposing of this petition, but counsel for the parties have addressed arguments on merits also; therefore, it is proper to refer to them in this order.

7. Mr. Muhammad Idris Qureshi has argued that the order of the Custodian of 1951, on which the petitioners rely for getting the restoration of agricultural land, has several weak nesses in it. One of them is that it was made without notice to the allottees in violation of Rule 13 of sub‑rule 4 of the Administration of Evacuee Property Rules, 19‑

0. That order is, therefore, neither binding on the occupants of the land, nor valid in law. Secondly, 'the order determining the character of a share in a rice husking factory did not determine the character of the agricultural land. Similarly that order determined the status of the father of the petitioners, and not that of the petitioners. Thirdly, the father of the peti tioners does not appear to have disclosed necessary facts to the Custodian, and appears to have obtained the order by concealing the important fact that some of his co‑parceners were evacuees, and that his claim to a definite share in the Joint Hindu Family was not supported by any previous partition. (See section 203, Hindu Law by Mulla, 1955 Edition). If there are more owners of a property than one, and it belongs to a Hindu Family, then the presumption is that it is a Joint Hindu Family Property. The fact that some of the members of the family of the father of the petitioners were evacuees, could have for reaching effects if it was disclosed to the Custodian. Since the property is still undivided, according to Mr. Muhammad Idris Qureshi as well as Mr. Naimuddin, the petitioners are not its a position even now to take the stand that they have any known share in the agricultural land on which they are laying their claim by alleging that their share in it is two annas in a rupee. Thus the very basis of the petition that the petitioners have two annas share in the agricultural property, is unsupported by law. This is important because the jurisdiction to deter mine the share of coparceners in a Joint Hindu Family, according to section 13(3) of the Pakistan Administration of Evacuee Property Act, 1957 is exclusively of the Custodian. The above objections to the order of the Custodian of 1959 are formidable, and no answer was even attempted to the objection that the order does not relate to the petitioners.

8. This brings the discussion down to the point of time when direction was given by the unchallenged order of the Assistant Rehabilitation Mukhtiarkar, dated the 5th of April 1960 that the petitioners should approach the Custodian for getting their property restored, if they so desired Mr. S. A. Nusrat argued that it was unnecessary to obtain successive declarations because the Supreme Court has so held in Perumal v. The Central Government of Pakistan (P L D 1963 S C 127). Reference in this connection was also made to the judgment in Israrbai alias Kishan Bai v. Settlement Commissioner (P L D 1965 Kar. 252). The principle of law is correct as far as it goes, but it does not provide an answer to the question as to what should be done if an officer wrongly treats a non‑evacuee property as evacuee property. The proposition advanced by counsel is helpful when the proper authority be inclined to grant relief, but it cannot otherwise provide relief against an action which might have been wrongly taken. The remedy as provided by section 18 of Ordinance XV of 1949 and section 22 of Ordinance XII of 1957. As pointed out by Kaikaus, J. of the Supreme Court in Perumal's case that:‑ " .. whenever a person applies under section 18, he has to assert that the action taken by the Rehabilitation :authorities is illegal and ultra vires, and if the Custodian grants him a declaration it amounts to saying that the action of the Rehabilitation Authorities was ultra vires. To say, therefore, that if the action of the Rehabilitation Authorities was ultra vires, the declaration is non‑existent and therefore, does not affect the operation of section 43‑A, is not an accepted argument." Since the petitioners were interested in establishing that their property was wrongly treated as evacuee property, the remedy open to them was to move the Custodian for a declaration under section 22 of Act XII of 1957, which is equivalent to section 18 of Ordinance XV of 1949 for a declaration that the treatment was wrong. It was more so, because the petitioners' own case is that their interest in the property is to the extent of two annas in a rupee, and that Anand Ram, who was their uncle, was a member of their family and was an evacuee person. In these circumstances, the share of the petitioners could be determined only by the Custodian under section 13(3) of the Pakistan Administration of Evacuee Property Act, 1957.

9. Lastly, I may add that the property in dispute is undeniably in the possession of refugees, and was allotted to them from 1947‑

48. It was permanently transferred to the present respondents in 1959 and in 1960. The Assistant Rehabilitation Mukhtlarkar, Shahdadkot clearly pointed out to the petitioners that the right course for them was to apply D to the Custodian for the restoration of the property, but they have adamantly refused to do so during the last decade.

10. In the final result, I find no force in this petition, and dismiss it with costs. A. B./K. B. A. Petition dismissed.