1. MUHAMMAD ZAHOORUL HAQ, J.-This is a Letters Patent Appeal arising from the judgment dated 14- 4-1969 passed by Single ,fudge of the then High, Court of West Pakistan (Karachi Bench) in Petition No. 52/1969.
2. The facts in this case are that the appellant had purchased a plot of land with structures bearing No. 94-A in Jhudo Town Taluka Degree, District Tharparkar, measuring 2,574 Sq. Ft. From one Bishan Singh on 24-2-1942 for a sum of Rs. 1,983 by oral sale. The price of the plot with construction thereon being Rs. 1.800 was paid at that time by the appellant to Bishan Singh and Rs. 183 towards the price of iron girders and teairon lying on the plot was paid on 19-9-1947 when Bishan Singh appeared before, the Mukbtiarkar Degree to make a statement for mutation of the plot in favour of the appellant. The appellant is alleged to have secured the possession of the plot on 2a-2-1942.
3. On 14th May, 1953, the appellant was granted by the Revenue Authorities an extended piece of land contiguous to this plot which was described as "Mohag 94- A". This was granted by the Mukhtiarkar Degree.
4. The appellant alleged that he had let out a shop premises situated on the above Plot No. 9a-A to respondent No. 3 on a rent of Rs. 12 per month, but the respondent No. 3 had filed an application before the Deputy Claims Commissioner, Mirpurkhas and by showing that the shop in his possession corresponded to Custodian Nos. A/387/1, 2 and A/388 and 389 which Custodian numbers belonged to evacuee Sant Tara Singh, the respondent No. 3 secured the transfer of this shop. For the above three custodian numbers the relevant revenue number of the plot is described to be 93. On coming to know of this position, the appellant moved the Settlement Authorities for cancellation of the transfer made in favour of the respondent No. 3. However eventually, the Additional Settlement Commissioner, Hyderabad Division made the following order :-- "The property under dispute if situated in Revenue No. 93 as decided by me already which is an evacuee property and transferred to the respondent along with D. S: mentioned by the Lower Court, the transfer stands good failing its situation on non-evacuee property which is 94-A, if at all non- evacuee as alleged, subject to demarcation made by the Revenue Authorities, the same be cancelled as non-evacuee properties cannot be transferred under any of the Settlement Schemes."
5. With these observations, the appeal of Muhammad Shafiq, the cousin of the present appellant filed against the respondent No. 3 was dismissed.
6. Meanwhile, Muhammad Shafiq, the cousin of the appellant had already moved an application on 6th May, 1966 before the Revenue Authorities for demarcation of Plot No. 94-A. Similar application for demarcation of Plot No. 93 was moved on 5-7-1966 by the respondent No. 3 before same authority viz. Deputy Collector of Mirpurkhas. These two applications were heard together by the said Deputy Collector and relying on old correspondence of 1937 submitted by Mukhtiarkar Degree which contained an old sketch of the Plot No. 94-A, the said Deputy Collector decided on 6-12-1966, that Plot No. 94-A was located on the western side of Plot No. 94, at the place where it is claimed by Muhammad Shafiq as shown in the map obtained from the record of the Tapedar Jhudo.
7. Respondent No. 3, filed a review application in respect of this order but this was also dismissed on 22-6-1967.
8. The respondent No. 3, filed an application before the Deputy Collector, Mirpurkhas for cancellation of mutation made in favour of the present appellant on 19-9-1947, in respect of Plot No. 94-A of Jhudo Town. The same was heard separately and was dismissed on 30-11-1967. The Deputy Collector observed that the application was filed about 20 years after mutation. He held that mutation had been rightly made in 1947 as possession of Muhammad Issa over the land in question had remained undisputed for such a long time and the governing factor in Record of Rights is possession and not title and it was not feasible to disturb the present arrangement after lapse of 20 years.
9. Respondent No. 3 filed appeals against the said two orders dated 6-12-1966, and 30-11-1967, before the Deputy Commissioner, Tharparkar a who heard the parties at length and held on 5-2-1968 that Plot 94-A is situated adjacent to and in east of Plot No. 94 in Jhudo Town. He further held that the contention of Yaqoob Ali that Plot No. 93 purchased by him from the Settlement Authorities is situated at place where Plot No. 94-A exists is not correct as Yaqoob Ali had failed to produce any documentary proof in support of his version He further held that register of plot of Jhudo Town shows that Plots Nos. 80 to 93 are missing. Ultimately the Deputy Commissioner found that Plot No. 94-A has properly been located by Deputy Collator, Mirpurkas.
10. The Deputy. Commissioner, Tharparkar proceeded further and examined the question of correction of Entry No. 54 of T. F. II in favour of Muhammad Essa son of Muhammad Yaqoob, the present appellant on 19-9-1947 by the Mukhtiarkar, Digri. The Deputy Commissioner held that the action taken by Mukhtiarkar is illegal as no Revenue Officer was competent to sanction any mutation of names in respect of any evacuee property on or after 1-3-1947 unless the parties presenting the documents produced a certificate from the Custodian that the property is not evacuee property.
11. He accordingly set aside the correction made by Mukhtiarkar in favour of the present appellant.
12. The appellant moved the Additional Commissioner, Hyderabad Division in revision against last part of order of Deputy Commissioner, Tharparkar dated 5-2-1968. The Additional Commissioner heard the parties and held on 25-7-1968, that sale in favour of the appellant had taken place in 1942, and statement made by Bishan Singh was good evidence to prove the year of the sale of the plot, and therefore, it was improper and wrong to insist upon a certificate from the Custodian. Consequently, the order of the Deputy Commissioner was set aside to the extent of cancellation of mutation in favour of present appellant.
13. The respondent No. 3, thereafter moved the Member, Board of Revenue, West Pakistan in second revision and he by order dated 9th November, 1968 held that since the statement of Bishan Singh was made on 19-9-1947. Ordi--nance XVIII of 1.947 restricted such transfer after 1-3-1947, and that mutation could not be made as the transaction of immovable property worth more than Rs. 103 was necessarily to be registered in this area. In view of this, he held, that the mutation sanctioned by the Mukhtiarkar in favour of the respondent (the present appellant) cannot be allowed to stand and is therefore cancelled. Aggrieved against the said order, the appellant moved petition No. 52 of 1969 before the High Court and the same was dismissed after hearing on 14 4-1969. The respondents in the petition were not present before the learned Single Judge. The learned Single Judge based his judgment upon subsection (3), of section 34 of Ordinance XV of 1949.
14. Aggrieved against the said order, the appellant filed the present Letters Patent Appeal.
15. We have heard Mr. Saeeduzzaman Siddiqui for the appellant and Mr. Muhammad Usman for the respondent No. 3. Other respondents were served but did not defend the appeal.
16. Mr. Saeeduzzaman Siddiqi learned counsel for the appellant contended (i) that the transaction of sale was completed in 1942, and was therefore not covered by any of the provision of the evacuee laws. In any case, he contends (ii) that there was no restriction on mutations till 21-4-1951 and hence mutation made on 19-9-1947 was not affected by the mischief of evacuee laws. He also contended (iii) that since Plot 94-A had never been treated as an evacuee property before 1-1- 1957, it could not be treated as such thereafter in view of section 3(1) of Act XII of 19.17, which was a complete bar to such treatment. He also contended (iv) that the question of determina--tion of status of evacuee property was within exclusive domain of the Custodian and no other authority could deal with such question. And that what could not be done directly could not be done indirectly. He also contended (v) that Standing Order No. 17 issued by the Revenue Commis--sioner of Sind on 6-9-1921 and contained in the volume of Standing Orders published under the authorities to effect mutation of names in revenue records on the basis of oral sales and hence member Board of Revenue took a wrong view. Lastly he contended that (vi) the learned Single Judge did not apply the law correctly when he relied upon subsection (3) of section 34 of Ordinance XV of 1949, in rejecting the petition.
17. Mr. Usman, learned counsel for respondent No. 3, on the other hand has contended that (i) cancellation of mutation was justified under the circumstances as mutation effected on 19-9-1947 amounted to a transfer of evacuee property. He also contended (ii) that transfer of property Act, is applicable to Sind and hence oral sale could not be the basis of mutation. Lastly he contended (iii) that Circular No. 1.7 issued by the Revenue Commis--sioner was not applicable in respect of this case as it pertained to land and not urban property.
18. We find that there is substance in the contention raised by Mr. Saeeduzaman Siddiqui Advocate.
19. The transaction in question was an oral sale which was completed in the year 1942 and the entire consideration for the sale was paid to Bishan Singh in the year 1942 and Bishan Singh had also handed over possession of the plot in question with its structure to the appellant in the year 1942.
20. Therefore, the sale was actually completed in the year 1942 and at this stage we are not very much concerned as to whether there was a defect in the sale so effected or not. It seems that oral sales have been allowed in this part of the country in respect of properties which were dealt with by the Revenue Authorities and Mr. Saeeduz Zaman Siddiqui had shown to us Standing Order XVII which contains instructions issued in 1903 and on 6-9-1921 which is contained in the Volume of Standing orders published under the Authority of the Government of Sind which reads as under;---- "G. R. No. 8856 of 1903 and 590 dated 6-9-1921.
(1) The oral transactions of land and rights in the land are admitted for the purposes of entries in the records-of-rights if the parties give written statements of agreement."
21. This clearly shows that the mutation of names in the revenue records could be effected if the transaction of oral sales was proved before the Revenue Authorities through the statements by the parties: The objection of Mr. Osman the learned counsel for the respondent that this would not apply to the urban properties is not correct as this notification talks of mutation in the revenue records and since we are dealing in respect of mutations effected by the Revenue Authorities therefore we do not see any reason to exclude the application of this notification to the mutation on the basis of the oral sale before us. The sale thus having been completed in the year 1942, it was, a matter of mere formality of bringing the record of the Revenue Authorities in conformity with this sale as the mutation was sought to be effected in the year 1947 on the basis of the statement of Bishan Singh. This mutation did not in fact create a transfer in itself but simply recorded in revenue records the factum of the transfer which had been made in the year 1942. Therefore, it was not a case of transfer of property made in the year 1947 but was merely a case of recording a sale completed in the year 1942. The mutation in the revenue records is really made for the purposes of showing the possession of the property involved and in this case the possession of the property had been transferred to the appellant. In the year 1942. It is true that ordinarily the mutation should have immediately followed the transaction of sale in the year 1942 and therefore, there could be some doubt in respect of the bona fides of mutation. But since the possession had admittedly been with the appellant, therefore,. The delay in the mutation is not of any significance.
22. Since we have come to the conclusion that the sale was in fact effected A in the year 1941, therefore, thereafter it could not be affected by any provisions of the Evacuee Laws passed in the years 1948 or 1949 or in 1957. In this respect we will point out that Ordinance XVIII of 1948 which was the first legislation in respect of the evacuee property in Pakistan provided under section 12 as under :- "Transfer of evacuee property.-(1) No transfer of any right in or over or to any evacuee property made by an evacuee, his agent, assignee or attorney, on or after the 1st August, 1947, shall confer any right or remedy on the parties to such transfer or any person claiming under any of them unless such transfer is confirmed by the prescribed Custodian upon application made to him in that behalf within the prescribed period."
23. (The rest of this section is not relevant as the same pertains to confirmation of transfer by the Custodian).
24. Thus it would be clear that it is only a transfer which is effected on or after 1-8-1947 which was barred by section 12 of Ordinance XVIII of 1948. But if the sale had taken place in 1942 then the same could not be affected by the said Ordinance.
25. Similarly section 16 of the Ordinance XV of 1949 provided for restriction on transfer by an evacuee on or after 1st day of March, 1947. But this restriction would not again be relevant is this case before us as the same had been completed in the year 1942. Till 1951 there was no restriction whatsoever on the mutations effected in respect of the agricultural properties. But on 21-4-1951 by Act VI of 1951, Pakistan Administration of Evacuee Property Amendment Act, 1951 was passed which for the first time referred to mutation of names by amending section 17 of Act XV of 1949. The relevant part of the amended section 17 reads as follows :- "17. Registration of documents and mutation of names.-(1) Where any document required to be registered under the Registration Act, 1908 (XVI of 1908), or any application for mutation of names purports to create or transfer any right or interest in any property in contravention of the provisions of section 16 or section 23-A of this Ordinance, no registering officer shall register the same, and no revenue officer shall sanction any mutation of names in respect thereof, unless the party presenting the document or making the application produces a certificate from the Custodian that the property is not evacuee property or that the transaction has been confirmed or that the property is not property belonging to an intending evacuee or that the Custodian has sanctioned the transaction."
26. This amended section again shows that only such mutations of names which purported to create or transfer any right or interest in any property in contravention of the provisions of section 16 or section 23-A of Ordinance XV of 1949 which was restricted. But if the mutation was not in respect of sale or transfer effected after 1-3-1947, and was not in respect of the evacuee property no restriction in respect of the mutation of names would apply. In the present case the mutation made in the year 1947 was in respect of the sale completed in the year 1942, and was not in respect of any sale or transfer after 1-3-1947 and thus it could not be said to create or transfer any right or interest in any evacuee property. It would be pertinent to note here that the Additional Settlement Commissioner in his order dated .12-4-1967, mentioned by us earlier, bad clearly mentioned that Plot No. 94-A was non-evacuee property and he had suggested that if the property . Which was transferred to Yaqoob by the Settlement Authorities was found to be situated on Plot No. 94-A, the same shall be cancelled. Hence it would be correct to say that Plot No. 94-A had never been treated as an evacuee property either by the Custodian or by the Settlement Authorities and since its sale had been completed in the year 1942 and the mutation of names itself had been completed on 19-9-1947 therefore it could not be affected by any provisions of the Evacuee Laws.
27. The most important aspect of the law in this regard is that section 3(l) of the Pakistan Administration of Evacuee Property Act, 1957 prohibits any property to be treated as an evacuee property after 1-1-1957 if the said property had not been treated as an evacuee property before the said date. In case before us there is no allegation whatsoever that Plot No. 94-A with its structure was ever treated as an evacuee property till 1-I-1957 and, therefore, it could not be treated as an evacuee property after the said d ate. The exceptions provided in subsection (2) of section 3 of the said Act did not apply to the present case as no action or proceedings had commenced or was pending before the Custodian in respect of the said plot and there is no allegations that such plot was occupied by or managed by a person whose authority so to do after 28-2-1957 had not been accepted or approved by the Custodian. Such being the factual position, we agree with Mr. Saeeduzaman Siddiqui Advocate that this property being Plot No. 94-A could not treated as an evacuee property either directly or indirectly because what B cannot be done directly cannot be allowed to be done indirectly. Hence it would be correct to say that if the Custodian itself could not treat this plot as an evacuee property after 1-1-1957 then the Revenue Authorities cannot indirectly treat the same as an evacuee property by cancelling the mutation affected in the year 1947 on the basis that the mutation was made in respect of the evacuee property. Even otherwise it would not be fair to cancel the mutation effected in the year 1947 on the basis of the application made in 1967. Twenty years is fairly along period during which vested rights are created which cannot be allowed to be disturbed in this manner.
28. We are, therefore of the view that the order passed by the Member, Board of Revenue dated 9-11- 1968 was without lawful authority as it had the effect of indirectly making a declaration that Plot No. 94-A was an evacuee property. The correct order had been passed by the Additional Commissioner, Hyderabad Division, on 25-7-1968 and by the Deputy Collector, Mirpurkhas on 30-11- 1967.
29. We have, however, now to consider that the learned Single Judge had disposed of the objection of the appellant on the basis of section 34(3) of Ordinance XV of 1949 which reads as under; "(3) No decision of any Court or other authority on any question such as is referred to in clause (a) of subsection (1), given between the forteenth day of August, 1947, and the commencement of this Ordinance shall be binding on the Custodian, or affect any right or interest of any evacuee in any property affected by such decision."
30. We are, however, of the view that the learned Single Judge was not justified in relying on subsection
(3) of section 34 as the real question in controversy was whether the sale had taken place in the year 1942 or not. We have held that the sale had been completed in the year 1942 and the factum of recording of mutation of names in September, 1947 was merely in consequence of sale effected in 1942, and that the mutation of names did not itself create any right of transfer in respect of any evacuee property. Therefore, the mutation effected in the year 1947 could not be said to be an order which was creating any right or interest in any property and therefore, it was not necessary to get the sale effected in the year 1942 approved from the Custodian. The learned Single Judge seems to be of the view that the mutation effected in the year 1947 itself created a right or was the transfer of the right in respect of the evacuee property. But with respect we do not agree with this view as the mutation effected in the year 1947 was merely recording the factum of possession on the basis of sale in the year 1942. It did not in itself create the transfer and had been based on the statement made by Bashan Singh. If this statement had been made in 1942 then obviously there could be no objection to the same. Merely because it had been delayed for some years on account of one reason or the other would not have the effect of converting it into a fresh sale made in 1947.
31. If it was a case of sale being effected by a statement before a mutation officer after 1-3-1947, then it could be a different matter.) However, that not being the position in this case the order of mutation, made on 19-9-1947, could not be said to be covered by the provisions off subsection (3) of section 34 of the Ordinance XV of 1949.
32. In this view of the matter we set aside the order of the learned Single Judge and direct that the mutation effected in favour of the appellant in the year 1947 should be allowed to have effect and should not be cancelled. Orders of the Revenue Authorities in this respect to the contrary are hereby declared to be without lawful authority. The appeal is therefore, allowed with costs.
33. I. MAHMUD, J.-I agree .