1. ' KHILJI ARIF HUSSAIN, J.--- The petitioner sought declaration that the land of the petitioner utilized in Survey Nos.243 and 244, Deh Okewari, Tapo Songal, Taluka and District Karachi are not the requisitioned and the perpetuation of the requisition is therefore, illegal and of no legal effect.
2. ' Brief facts of the case are that by notice dated 17-10-1940, the Collector of Karachi in exercise of powers delegated to him under Rule 79 of the Defence of India Rules, 1939, requisitioned, inter alia, various lands including (1-0), (2-21) acres found in. Survey Nos.74 and 87 of Deh Okewari, Tapo Songal, Taluka, Karachi. The petitioner claimed that out of Survey No,74, 1 acre 10 Ghuntas and Survey No,87, 2 acres, 10 Ghuntas were allotted to one Fazal Muhammad son of Khairuddin as an evacuee property on 10th August, 1972 and the name of Fazal Muhammad was mutated in the record of rights. It is further alleged that by an order dated 10-9-1972 provisional partition of land was declared to be final and Ghatwadh form was prepared giving land in question as new Survey Nos.243 and 244 of the land in question. On 25th December, 1973 Fazal Muhammad requested the respondent No,3, Director, Military Lands and Cantonments, Government of Pakistan, Rawalpindi, for the release of the land as the same was not being in use by the army and was lying vacant. It is alleged that by a registered sale-deed, dated 4-6-1977 Fazal Muhammad sold the said land to one Mr. A.R. Kayani who then gifted the said land in favour of the petitioner on 4-5-1982. It is an admitted position that till date the land is in possession of respondent No,3. It is wroth mentioning here that petitioner acting as an attorney of Fazal Muhammad sold the property to Mr. A.R. Kayani, who then gifted the same back to the petitioner.
3. ' Heard Mr. Hasan Akbar, learned counsel for the petitioner, Mr. Syed Tariq Ali, Federal Counsel and Mr. Ahmed Pirzada, Additional Advocate-General.
4. ' The position taken up by the respondents appears to be that the land in question was requisitioned under the Rules framed under the Defence of India Act, 1939 and continued to remain in lieu of different legislative instruments promulgated from time to time. It was argued that presently the land has to be treated as having been requisitioned under the West Pakistan Requisition Land (Continuance Amendment) Ordinance,1962.
5. ' Though the correct legal status as to the position was not elaborated by the learned Federal Counsel, we are indeed grateful to Mr. Hassan Akbar, learned counsel for the petitioner who took great pains in placing before us the relevant provisions of the statutory instruments indicating continuance of requisition. The powers to frame Rules for requisition of immovable property was conferred upon the Central Government under section 2(xxiv) of the Defence of India Act, 1939 and Rule 79 of the Rules framed thereunder enabled requisitioning of immovable property. This rule came to be deleted on 25th April, 1942 but the property already requisitioned continued to remain as such and this is deduced from section 3 of the Requisition of Land (Continuance of Powers) Act, 1949. The aforesaid section 3 stipulates that notwithstanding the expiration of the Defence of India Act and the Rules made thereunder all requisitioned lands shall continue to remain so until the expiry of this Act or may use until sooner release from the requisition. The Act was to expire on 31-3- 1955 and prior to its expiry the Requisition of Land (Continuance of Powers) Ordinance, 1955 was promulgated. Section 3 whereof stipulated continuance of requisition, before the expiry of the Ordinance, Requisition of Land (Continuance of Powers) Order, 1956, was promulgated stipulating such continuance upon the expiry of the Ordinance. This order was made repealed by the West Pakistan Requisition of Land, which extended the application of the West Pakistan Requisition of Lands (Continuance) Act, 1958 to the Federal Capital as well as continuing the requisition and enabling the Provincial Government to use or deal with the land in such manner as may deem expedient.
6. ' Mr. Hassan Akbar, however, argued that there was an essential difference between requisition and acquisition inasmuch as the former expression contemplated taking over of land for some public purposes on a temporary basis and the latter entailed taking over of ownership rights. Learned counsel argued that while the land has been requisitioned by the Central Government proprietary interest continue to vest to the original owner who were subsequently, declared evacuee. As such the interests of the evacuee owners were taken over by the Government under the Laws pertaining to evacuee property and such interest could always be transferred in favour of displaced persons entitled to be compensated under the Displaced Persons (Land Settlement) Act, 1958. To augment his contention Mr. Hassan Akbar relied upon section 5 of the Act describing compensation pools and contended that such pool was not confined to land, possession whereof would be given to a claimant but would also include rents or amounts including sale proceed, received on account of or recoverable in respect of land. Therefore, even if some land belonging to the evacuee has been requisitioned on leased proprietary interests therein could always be transferred to a claimant.
7. ' On the other hand, Mr. Syed Tariq Ali, Federal Counsel, argued that the land effected under the Government of India Ordinance, 1939 was kept alive under the Acts, Ordinances, enactments issued from time to time viz. Land (Continuance of Powers) Order, 1956 and after the repealed Order, 1956 the requisition of land was kept alive under the West Pakistan General Clauses Act, 1897.
8. ' Mr. Ahmed Pirzada, learned Additional Advocate-General argued that the land belongs to Government of Sindh and till the time the Government of Sindh is not made a party the petition is not maintainable.
9. ' The contention raised by Mr. Hassan Akbar, learned counsel for the petitioner to the effect that notwithstanding the requisition of the land evacuee interest therein could always be transferred to a displaced person, under section 5 of the Displaced Persons (Land Settlement) Act, 1958 describing compensation pool is not confined only to land has some force. In the instant case it appears that only an order for requisition of land was passed and as such the title and interest in the property remained with the owner of the said property.
10. However, the important question for consideration would be whether the petitioner had acquired any title to the land so as to entitle him to the relief of possession or whether he had locus standi to seek a declaration in respect of existence or otherwise of requisition. The petitioner is claiming title through his predecessor-in-interest, Fazal Muhammad, who is stated to have been allotted the land in question. No allotment order by a competent officer in favour of the aforesaid Fazal Muhammad is available on record. The petitioner has relied upon an order of the Assistant Rehabilitation Mukhtiarkar dated 10-8-1972, directing that the land be mutated in the name of Fazal Muhammad, resident of Chak No,124, District Lyallpur. There is nothing to show that the aforesaid Fazal Muhammad had applied for allotment of evacuee land against units available with him whether in Punjab (where he was residing) or in Sindh only. Moreover, it appears that he was entitled to 159 units, but was allotted land comprising 453 units. It is well-settled that mutation entries did not confer title but could at best be considered evidence of title, which may be rebuttable.
11. ' We are, therefore, of the view that these disputed questions requiring detailed scrutiny of facts and production of evidence cannot be undertaken in these proceedings and accordingly this petition having no merits is dismissed with no order as to costs.