This Constitutional Petition is directed against the order of Deputy Commissioner and Additional Settlement Commissioner (Lands), Sanghar dated 17-10-1973 whereby transfer of disputed land situated in Deh Berandi, Taluka Shahdadpur in the Sanghar District under section 4 of the Displaced Persons (Land Settlement) Act to petitioners 1 to 4 was cancelled.
2. The disputed land falls into three categories. Some of it is naqabooll land i. e. It is Government barrage land which has never teen granted before. In the next category is the land originally granted to Janimal and his brother Chelomal which grants were subsequently cancelled by the Coloniza--tion Officer, Barrage vide Order No. 132 dated 19-4-1949. Then there is the land which was surrendered by Janimal and his brother under M. L. R. 115 on 22-9-1975. This land was available for grant on lease with the Colonization Officer and he accordingly allotted this land to respondents 1, 2 and 3 for 3 years from the year 1959. The land remained with the respondents and respondents Nos. 4, 5 and cultivated this land as harts. It appears that in 1962 the disputed land was brought under the compensation pool as evacuee property of Janimal and Chelomal and the land was then transferred under the Land Settlement Scheme to petitioners 1 to 4 in the year 1970. Petitioners 1 to 4 thereafter sold the land to petitioners Nos. 5, 6 and 7. When these transfers came to the knowledge of the respondents they filed an appeal under section 18 of the Displaced Persons (Land Settlement Act, 1958 before the Additional Settlement Commissioner (Lands), Sanghar for cancellation of the allotment to the petitioners. The matter was heard by Additional Settlement Commissioner who passed his order dated 17-10-1973 that the disputed land had been allotted to the appellants by the Barrage Department as. State land ; that the land was originally granted to certain Hindus who were all reported to be non-evacuee. Thereafter the land reverted to the Barrage Department as cancelled grant. The Additional Settlement Commissioner accordingly held that the disputed land was Barrage baud which was wrongly allotted and it was accordingly cancelled.
3. It has been argued by Mr. Ismail Munshi on behalf of the petitioners that the Barrage land allotted to Janimal and Chelomal remained with these Hindus till 1947. They had paid certain instalments from 1944 to 1947. After 1947 this grant could not be cancelled as it involved evacuee interest in agricultural land vested in the Custodian. That this evacuee land was allotted to the petitioners 1 to 4 in the year 1970. An appeal was filed against the allotment in 1973 after about 3 years and the same became time barred. That section 5 of the Limitation Act was not applicable. The Deputy Commissioner as Additional Settlement Commissioner had no jurisdiction to convert this appeal into a revision application as these powers to hear revision applications were vested in the Settlement Commissioners alone. That there was nothing to show that the Settlement Commissioner had made over the revision application to the Additional Settlement Commissioner.
The learned Advocate has then argued that the main question in this case is whether the property in dispute was an evacuee land or it was Government barrage land. As evacuee land it had been allotted to the petitioners and as barrage land it had been allotted to the respondents. That this question could only be decided under section 41 of the Administra--tion of Evacuee Property Act by the Custodian. Mr. Ismail Munshi has also pointed out that the Additional Settlement Commissioner bad passed the orders without affording the opportunity to the petitioners to be heard as the matter was disposed of in the absence of the counsel for the petitioners who could not attend the hearing on account of an accident.
4. It has then been argued by Mr. A. A. Fazeel on behalf of the respondents that the petitioners who were claiming equitable remedy have themselves not come to seek this remedy with clean hands.
That it would be evident from the deposition of the general attorney for the petitioners that petitioners 1 to 4 are non-existent fictitious persons. There are admis--sions of the general attorney in his cross-examination before this Court. These fictitious persons are supposed to have sold their interest in this land to petitioners 5 to 7 who are the real contestants. Mr. Fazeel has then pointed out that the land in dispute had been leased for 3 years to respondents 2, 3 and 4 in the year 1959.
They continued to remain in possession and paid remokal fines for cultivating this land through their haris respondent Nos. 5 to 7. The land had been granted to them as Government barage land by the then Colonization Officer. Part of the land was nagabooli land and a part was either cancelled grant of Janimal and Chelomal or the land surrendered by them.
5. Mr. Ali Ahmad Fazeel has then pointed out that Janimal and Chelomal were Pakistani citizens and they had not been declared to be evacuees. That there was a difference of opinion regarding the nature of their joint family property inherited by them. That even with regard to that property there was difference of opinion between the two Judges of the High Court who heard and decided the L. P. A. Against the judgment of the Single Judge in writ petition and the matter had been referred to a third Judge and had not so far been decided. Mr. Fazeel has produced order of Mr. Akbar Hussain the then Custodian dated 11-7-1950 that Janimal son of Ramandas is not an evacuee and Janimal's self-acquired property is not evacuee property. His brother Chelomai like wise has been held to be non--evacuee like his brother Janimal according to another order of Mr. Akbar Hussain, Custodian dated 11-7-1950. According to Mr. Fazeel the writ petition and the L. P. A.
Were not in respect of the self-acquired propert-of ]animal and Chelomal and concerned properties inherited by them from Pahloomal as joint family property. That the disputed land was admittedly not joint family property and there was, therefore, no question of this property being treated as evacuee. Regarding the objection of Mr. Munshi that the question regarding the property being evacuee or not is the one to be decided by the Custodian Mr. Fazeel has referred to a decision in PLD 1970 Kar. 51 that mere raising of a plea in suit or proceedings that the property is evacuee property would not be enough, unless the party alleging the evacuee nature of the property brings direct or circumstantial evidence in respect of the plea in order to show its bona fides,
6. Regarding the question that the Additional Settlement Commissioner (Land) had acted with jurisdiction in deciding the revision application, it has been argued that after the amendment, the matter stood transferred to the Settlement Commissioner, and the Additional Settlement Commissioner could not have heard the same unless such powers were delegated to him by the Settlement Commissioner. It is, therefore, presumed that the official acts were properly performed and the matter bad been made over by the Settlement Commissioner to the Additional Settlement Commissioner as was the practice in those days.
7. Lastly regarding the question of the appeal or revision being barred by limitation Mr. Fazeel has pointed out that where the order is a nullity in law, the question of limitation would not arise.
8. The disputed land has thus remained in possession of the respondents since the year 1959. The nature of this possession was the grant of lease by, the Colonization Officer treating the land as Government barrage land. The] original grantees were Hindus but they had continued to reside in Pakistani and the question of the land being evacuee property had not arisen during those days.
They had, however, discontinued payment of instalments ands the grants had been cancelled.
Even the Custodian had declared the originals Hindu grantee to be non-evacuee and those orders have not been specifically set aside. The question of this land being treated as joint Hindu family property did not arise as the grantees were Janimal and Chelomal themselves. Obviously it was their self-acquired property.
9. Under these circumstances the order of the Additional Settlement Commissioner cancelling the allotment of this land as evacuee property does not appear to be invalid or without jurisdiction.
This petition is accordingly, dismissed. s. A. H.