1972 PLP 328 (SCMR)

WAHEEDUDDIN AHMAD, J.‑Fateh Chand son of Dewan Mehtab Rai, a collateral of the petitioners and respondents Nos. 3, 4, 5 and 6, owned 12613 kanals and 2 marlas of land in village Piply Mehtab Rai, Tehsil Dipalpur, District Sahiwal. In 1914, he died issueless. He was survived by a step‑mother named Mst. Daya Bai and his collaterals. All his property was mutated in the names of the collaterals. Mutation No. 2, on the death of Fateh Chand was sanctioned on the 3rd July 1916. Mst. Daya Bai filed Suit No. 49 of 1916 in the Court of Senior Sub‑Judge, Montgomery seeking declaration claiming herself to be the sole owner of the property as step‑mother of the said Fateh Chand. ‑ The suit was dismissed by the Senior Sub‑Judge. Appeal against this order was also dismissed. The appellate order is reported in A I R 1923 Lah.

448. Mst. Daya Bai further agitated the matter and filed Suit No. 34 of 1923 claiming maintenance out of the property during her lifetime. This suit was compromised on the 11th June 1923. In pursuance of this decree, 12613 kanals and 2 marlas of land were delivered to Mst. Daya Bai as a life estate. On the 23rd October 1942, Kist. Daya Bai executed an agree ment. Under the terms of this agreement, land measuring 80 acres, situated at outlet No. 32914‑L, village Haveli and land measuring 167 kanals and 2 marlas situated at Pipli Mehtab Rai, was given to Mouj Rai, the father of the petitioners without payment of any rent. He was only to pay land revenue and was not liable to be ejected unless he committed default in payment of land revenue. After Partition, Mst. Daya Bai migrated to India and she died there on the 29th March 1949. The petitioners' father embraced Islam after Partition and was known as Muhammad Mouj Din. He died in Pakistan in 1951 and was succeeded by the present petitioners being his sons. On the 10th December 1951 the petitioners filed an application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance No. XV of 1949, before the Deputy Custodian, Montgomery for declaration that the land in dispute was not evacuee property and that the peti tioners were entitled to possession and were not liable to ejectment. A declaration was granted to this effect on the 16th March 1954. The matter was directed to be placed before the Custodian for con firmation but this was withheld as the Deputy Custodian observed that the value of the property in dispute was less than Rs. 5,

000. Later on, the Director of Enforcement, Evacuee Property, moved an application to the Custodian for setting aside the order of Deputy Custodian, Evacuee Property. On the 16th September 1963, the learned Custodian entrusted the matter to the Deputy Custodian for further inquiry and report. The parties appeared before the Deputy Custodian. The Deputy Custodian made a report to the Custodian on the 26th June 1965. Before that, the petitioners moved a writ petition against the order of the Custodian dated the 16th September 1963, on the 8th June 1965, in the West Pakistan High Court, Lahore. The writ petition has been dismissed by a learned Single Judge of the Lahore High Court by order dated 29th May 1972. The petitioners seek permission to file an appeal against the said order. In support of the petition, Sh. Abdur Rashid learned counsel for the petitioners, has contended that the property in dispute was not treated as evacuee property before January 1957 and, there fore, the learned Custodian should not have entrusted the inquiry to the Deputy Custodian. The contention of learned counsel is not well founded. The Rehabilitation authorities have interfered in the matter and have directed the petitioners to move the Custodian for the redress of their grievance. It is, therefore, quite clear that the property in dispute was treated as evacuee property by the Rehabilitation authorities. In this connection, the High Court observed as under : "It is not factually correct that before 16th March 1954, the property in dispute was not treated as evacuee property. In fact, the action taken by the Rehabilitation authorities clearly amounted to treating the same as evacuee property. If the Department had not treated this land as evacuee property and had not imposed six times land revenue upon the petitioners, they could not file the application before the Deputy Custodian of Evacuee Property." This contention is, therefore, repelled. Apart from this, it is admitted that Mst. Daya Bai died in India in 1949. After her death any agreement between the petitioners' father and Mst. Daya Bai became ineffective and the petitioners were bound to restore the possession of the property in dispute to the Custodian Department because it has become evacuee property. Sh. Abdur Rashid, learned counsel for the petitioners, has contended that the petitioners' father was collateral of Fateh Chand and the petitioners are entitled to succeed to his interest and a petition to that effect is pending before the Custodian. If that is so, the petitioners are entitled to redress their grievance before the Custodian, Evacuee Property and if they are found entitled to some property, they will be given that property. There is no merit in the petition. The petition is dismissed. Leave refused.