1. ' DORAB PATEL, .-The dispute in this petition for leave relates to two plots on I. I. Chundrigar Road, Karachi, to which we will refer as the said plots. The first respondent to whom we will refer as the respondent had purchased them at an auction held by the Karachi Municipal Corporation on the 12th of April,1942. But, according to Mr. Akhtar Mahmood, the said plot had been forfeited by the Karachi Municipal Corporation, because the respondent had failed to comply with the conditions on which the plots had been auctioned. The respondent however claims, that he is still the owner of the said plots. Be that as it may, the respondent is a Hindu and in the words of Mr. Justice Masud Ahmad, Custodian of Evacuee Property West Pakistan, Karachi, "on the 9th September, 1949,, Mr. Arshad Hussain, Assistant Custodian of Evacuee Property, Hyderabad, passed, an order declaring the property of the petitioner, Rai Saheb Roopchand as evacuee property. An appeal was filed against this order before the Custodian and this appeal was allowed by the Custodian on 6th March, 1950 and Mr. Akhtar Mahmood, who has been of great assistance to us in this petition, infermed us that the appeal was allowed on the orders of the Central Government on a reference made by the Custodian under section 3 of the Pakistan (Administration of Evacuee Property)
2. Ordinance, 1949 (hereinafter 4 called the said Ordinance). But, despite the orders of. The Central Government and of the Custodian, the said plots were Ehown as evacuee property on 18-6-1951 and again on 13-2-1952 in the register of evacuee property maintained by the Custodian. However, what is extraordinary about these entries is that &though the said plots are very valuable plots, their rent was shown in the Custodian's register as only Rs, 20 per month. Mr. Hassan Sheikh, therefore, submitted that these entries in the Custodian's register invited suspicion, the more so, as they were contrary to the Custodian's order of 6th March, 1950, and further, as rightly submitted by him, these entries had been made without notice to the respondent. Therefore, the respondent did not challenge them, because he had no means of knowing what had been done behind his back.
3. ' The next step in the protracted litigation against the respondent was the Deputy Custodian's notice to him of 5th September, 1959, and as the respondent realised that he might loose his properties as evacuee properties, he immediately challenged the Deputy Custodian's order in a revision before the Custodian and the observations of Mr. Justice Masud Ahmad, which we quoted earlier, are contained in Mr. Justice Masud Ahmad's order of 28th December, 1959, allowing the respondent's revision. Now, the respondent's contention before Mr. Justice Masud Ahmad, in words of his Lordship, was "that there has been no change of circumstances since the year 1950 when the then Custodian of Evacuee Property passed an order declaring the property of his family to be non-evacuee property." Mr. Justice Masud Ahmad then went on to examine the evidence produced before him by the Department and reached the conclusion that the respondent had proved his contention that there had been no change of circumstances after the orders of the Central Government and of the Custodian dated 6th March, 1950. Accordingly, as Mr. Justice Masud Ahmad was satisfied that the respondent had not become an evacuee or an intending evacuee at any time after his predecessor's order of 6th March, 1950, he set aside the notice issued to the respondent by the Deputy Custodian with the observation that the Deputy Custodian "had not the slightest justification for passing such a perverse order, which will therefore, have to set aside".
4. ' Despite this second declaration by the Custodian that the respondent was not an evacuee, it would appear that some agricultural land of the respondent was treated as evacuee by the Assistant Rehabilitation Commissioner, Hyderabad, on 5th December, 1958, and further, one Maulana Quddus Bihari had also made an application to the Deputy Custodian that the petitionor and his family were evacuees. Although this application was allowed, Mr. Akhtar Mahmood did not rely on the Deputy Custodian's order, presumably because of Mr. Justice Masud Ahmad's order of 28th December, 1959. And for the purpose of this petition, it is sufficient to state that the respondent was compelled to invoke the High Court's jurisdiction for the second time against the orders of the Rehabilitation Department and of the Deputy Custodian. Mr. Akhtar Mahmood informed us that this writ petition had been allowed by Inamullah, J., as he then was, on the short ground that the question whether the respondent was an evacuee and whether his properties were evacuee, could be decided by the Custodian alone, and as the Custodians had twice decided the question in the respondent's favour, Inamullah, J., set aside the illegal orders of the Rehabilitation Department and of the Deputy Custodian.
5. ' Mr. Akhtar Mahmood also informed us that the order of Inamullah, J., was challenged in a Letters Patent Appeal in the Karachi Seat of the West Pakistan High Court. But, this appeal met the same fate and was dismissed, therefore, the matter was taken to this Court, but learned' counsel informed us that this Court also had upheld the orders of the High Court with the result that the respondent's claim that he was not an evacuee, had been upheld even by this Court.
6. ' However, despite the successive judgments in his favour, the respondent discovered in 1961 that the said plots had been included by the Settlement Department in a list of evacuee properties which were to be auctioned. Therefore, he had immediately mdved the Deputy Settlement Commissioner, Karachi for excluding the said plots from the properties which were to be auctioned.
7. After verifying the position and examining the records, the Deputy Settlement Commissioner allowed the respondent's application and observed by his order dated 12-8-1961 that he-was "satisfied that the properties belonging to Mr. Rai Saheb Roopchand are non-evacuee properties."
8. ' Accordingly, he ordered the deletion of the said plots from the properties which were to be auctioned.
9. ' Despite this order, the said plots were apparently put up for auction again in 1964 and auctioned on 10-10-1964. This was behind the respondent's back, but as he came to know of the 'auction from an advertisement in one of the Karachi newspapers on 9-1-1965, he made enquiries and learnt that the said plots had been auctioned in the petitioner's favour to whom the Settlement Department had issued a P. T.
0. On 7-11-1964 and an F. T.
0. On 31-12-1964. Therefore, he was once again compelled to invoke the constitutional jurisdiction of the Karachi Seat of the West Pakistan High Court and in March, 1963, he filed a writ petition against the petitioner and the Settlement Department and the relief sought in this petition is important. The relief sought by him was a declaration that the auction of the said plots was illegal and that the P.
10. T.
0. And the F. T.
0. Issued to the petitioner should be cancelled.
11. ' This writ petition was contested by the petitioner as well as by the Settlement Department. The petitioner's contention was that the said plots were evacuee properties and therefore title to the said plots had lawfully passed to him in the events that had happened. His alternative plea was that the said plots had been forfeited by the Karachi Municipal Corporation, because the respondent was in breach of the conditions on which the said plots had been auctioned in his favour. Perhaps, because he realised that this alternative plea was fatal to his plea that the said plots were evacuee, he did not press this alternative plea when the respondent's petition came up for hearing after a delay of more than 12 years before a learned Single Judge of the Sind High Court. And as the petitioner opposed the writ petition on the sole ground that the said plots had become evacuee property, it is relevant to point out here that the petitioner relied on the entries in the register of evacuee property dated 18-6-1951 and 13-2-1952, and stated that "the Rehabilitation Department allotted the said plot and settled displaced persons on the said plot" and there was a further averment in paragraph 21 of the counter affidavit of the petitioner that "the said plot was continuously treated as evacuee property by the Custodian's Department and no declaration under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 has been obtained by the petitioner with reference to it before it was acquired by the Central Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958".
12. ' The petitioner had opposed the petition on other grounds also which are not relevant to the arguments advanced before us. By Mr. Akhtar Mahmood and it is sufficient for the purpose of this petition to state that the learned counsel for the petitioner had relied on this Court's judgment in Mst. Hajiran Sughra v. The District Judge & Settlement Commissioner, Hyderabad and others (1), because the property in dispute in this case was held to be evacuee, despite the fact that, as in the instant case, its owner had obtained a declaration from the Custodian that he was not an evacuee.
13. ' The learned Judge, who heard the writ petition pointed out that the respondents before him had relied on Mst. Hajiran Sughra's case and then observed :- "The learned Advocates have pointed out the following passage which appears in that judgment: "The property could not be excluded from the compensation pool merely
(1) 1969 SCMIt 686 ' on the ground that its original owner has been declared a non-evacuee finally by the order of the Evacuee Property Enquiry Tribunal. The mere declaration .Of the owner as a non-evacuee is' not sufficient for this purpose.'
14. ' In that case the facts were entire different, first of all the Custodian had realised rent in respect of the property in question and secondly the property had not been excluded from compensation pool. In the present case the Custodian or Settlement Authorities had not realised any rent from the property in question and on the contrary the Deputy Settlement Commissioner by deleting the property from auction list had taken the properties out of the compensation pool. No doubt the property of a. Person who is non-evacuee may under certain circumstances be treated an evacuee property but it would also depend on the circumstance of each case and in a case where the Settlement Authorities have acted in manner showing that they did not consider the property to be an evacuee property, the claim of the non-evacuee on that property would be strengthened.
15. In, the result, I am of the view that the petitioner is a non-evacuee and the two plots in question non-evacuee property."
16. ' The learned Judge, therefore, allowed the respondents writ petition by his judgment dated 3rd September, 1978, and the petitioner, prays for the grant of leave against this judgment.
17. ' Mr. Akhtar Mahmood submitted that the learned Judge had erred in distinguishing Mo. ,Hajiran Sughra's 'case and that the said plots were evacuee, because the respondent had failed to obtain a declaration -either under the said Ordinance or under the Pakistan (Administration of Evacuee Property) Act, 1957. (hereinafter called the said Act), that these plots were not evacuee. Learned counsel's second and alternative submission was that said plots had been validly forfeited before partition by the Karachi Municipal Corporation and as the respondent had thus been divested of his right, title and interest in the said plots, his writ petition should have been dismissed on this ground.
18. ' It is open to the parties in civil litigation to advance alternative submissions, but the difficulty in the way of learned counsel is that his alternative submissions are mutually inconsistent. Thus if the said plots had been resumed by the Karachi Municipal Corporation before partition, they were clearly not evacuee and so this submission is fatal to learned counsel's first submission.
19. Additionally, this plea does not appear to have been pressed in the High Court, and when we referred learned counsel to these circumstances, he stated that he would not press this submission before us but raise it before an appropriate forum. The petitioner is free to prosecute in the regular Courts the remedies available to him for the enforcement of' his rights, it may, but we are constrained to observe that his contention that the said plots had been resumed by the Karachi Municipal Corporation, reacts against his plea that these plots were evacuee, and with these observations, we would now turn to the question whether the learned Judge had erred in holding that the said plots were not evacuee.
20. ' It is a trite observation that the status of a property depends upon the status of its owner, in the absence of some law to the contrary, and as the respondent had obtained an order in his favour as-far-back as 1950 under the said Ordinance, we would first examine whether there was any provision in the said Ordinance under which the said plots could have become evacuee, despite the Custodian's order of 6th March, 1950.
21. ' The question turns on the definition of evacuee property in subsection (3) of section 2 of the said Ordinance. It is not contended that the said plots were joint property, or that the respondent had been an evacuee or an intending evacuee after the Custodian's order of 6th March, 1950, therefore, it would be sufficient to observe that evacuee property was defined in the said Ordinance as "any property in which an evacuee has any right or interest." On this definition of evacuee property, the respondent's properties could not become evacuee during the pendency of the said Ordinance, because the Custodian's order of 6th March, 1950, was never set aside, However, according to Mr. Akhtar Mahmood, the entries about the said plots in the Custodian's register were sufficient to prove that the said plots had been treated as evacuee. Mr. Hassan Sheikh submitted that mere book entries could not possibly amount to evidence to establish that the said plots had been treated as evacuee property. It is not necessaryto examine this controversy between the learned counsel, because even if it is assumed that the said plots had been treated as evacuee property during the pendency of the said Ordinance, how will this help the petitioner's case Mr. Akhtar Mahmood did not refer us to any provision in the said Ordinance under which property which was not evacuee became evacuee merely it had been treated as evacuee. No doubt the properties of the respondent including the said plots would have become evacuee if he had migrated or tried to migrate to India and it was presumably on this allegation that the Deputy Custodian had passed an order treating his property as evacuee. But after examining the evidence produced by the department, Mr. Justice Masud Ahmad, as Custodian, held in his order of 28-12-1959 that there was no evidence whatever to show that the respondent had done anything after the Custodian's order of 6th March, 1950 which could have brought him (the respondent) within the mischief of the said Ordinance. M. Akhtar Mahmood emphasized the fact that this order was passed in a revision which related to the Hyderabad properties of the respondent. But the location of the properties of the respondent had no relevance whatsoever to the question whether there was any evidence to show that the respondent had migrated or attempted to migrate to India, because on the facts of this case, he could have become an evacuee during the pendency of the said Ordinance, only if he had migrated or tried to migrate to India. Therefore, in the circumstances discussed, it is clear that the properties owned by the respondent had not become evacuee properties during the pendency of the said Ordinance, merely because of the entries in the Custodian's register.
22. ' We are aware of the powers conferred on the Custodian under sections 18, 19 and 19-A of the said Ordinance. These provisions, curtail the rights of an owner, whose property has been treated as evacuee, and section 19-A (which was omitted in 1956) from the Pakistan (Administration of Evacuee Property) Ordinance, 1956), expressly saved allotment orders made under the Pakistan Rehabilitation Ordinance, 1948. But, whilst this section amounted to a drastic inroad on the rights of a citizen whose property had thus been allotted, this temporary deprivation of the right to the exclusive enjoyment of the property did not and could not alter the character of the property into evacuee property.
23. ' Learned counsel, however, relied on subsection (1) of section 3 of the said Act, therefore, we may explain here that this provision was first contained in the Pakistan (Administration of Evacuee Property) (Second) Ordinance, 1956 and it reads :-- "(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee, or, as the case may be, as evacuee property, on or after said date."
24. ' This section has made a sweeping departure from the old law and indeed . From the principles of our jurisprudence inasmuch as the status of a property is not exclusivey dependent upon the status of its owner. Therefore, as a property can become, evacuee if it has been treated as evacuee, whether lightly or wrongly, learned counsel placed great stress on this section and the case-law on it, and this was indeed the sheet-anchor of his arguments.
25. ' It is hardly necessary to refer to the case-law on this provision, because there is absolutely no ambiguity about it. Property can become evacuee if it has been treated as evacuee, but this is subject to the condition that it has been treated as evacuee "immediately before the first day of January 1957". This is so plain that in order to bring the case within this provision, as we pointed out, the respondent had pleaded in paragraph 21 of his counter affidavit in the High Court that "the said plot was continuously treated as evacuee property by the Custodian's Department". But the learned Judge had after examining the record expressly rejected this contention and Mr. Akhtar Mahmood was not able to refer us to any evidence whatever to show that the said plots were being treated as evacuee property "immediately before the first day of January, 1957". It is also significant that although the petitioner has pleaded in his petition for leave that the facts have not been correctly stated in paragraphs 4 and 5 of the impugned judgnment, he has not challenged the observations of the learned Judge, which we quoted earlier. Therefore, the petitioner's reliance on subsection (1) of section 3 of the said Act is misconceived and this plea was rightly rejected by the learned Judge.
26. Mr. Akhtar Mahmood, however, submitted that the entries about the said plots in the register of evacuee property had never been deleted, and because these entries were in the register of evacuee property "immediately before the first day of January, 1957", this was sufficient to prove that t said plots had been treated as evacuee property. We are unable to agree with this submission. In the first place, if the entries in the Custodian's register had bee& correct, it is impossible to believe that the said plots would not have been allotted by the Rehabilitation authorities. But, there is absolutely no such evidence. In order to get round this difficulty learned counsel feebly stated that the said plots were occupied by persons, who must be claimants. In the first place, this Court cannot substitute evidence b conjecture and the plea that the said plots must have been occupied b claimants or refugees is a mere conjecture. And, Mr. Hassan Sheik emphatically denied that the said plots were occupied by claimants Therefore, as the question is of fact and is not supported by any evidence whateve the submission is totally devoid of merit but in all fairness to Mr. Akht Mahmood, we may point out that he informed us that the statement that the said plots were occupied by refugees was based on instructions alone.
27. ' Additionally, as submitted by Mr. Hassan Sheikh for the caveator, the fact that the first of these entries in the Custodian's register was made, within a year of the. Custodian's order is a circumstance which casts doubt on the correctness of the entries, because Mr. Akhtar Mahmood was not able to refer us to any evidence to show that the respondent had done anything after the Custodian's order of 6th March, 1950, which would have brought him within the, mischief of the said Ordinance. Secondly, the question whether the respondent had become an evacuee or an intending evacuee after the Custodian's order of 6th March, 1950 had been re-examined by Mr. Justice Masud Ahmad as Custodian, and after a minute examination of th evidence placed before him, Mr. Justice Masud Ahmad reaffirmed the finding that the respondent was not an evacuee and he set aside the Deputy Custodian's order (which was to the contrary) with the observation that it was a perverse order. Finally, Mr. Akhtar Mahmood had himself very fairl drawn our attention to the fact that the declaration that the respondent was not an evacuee had been upheld by this Court.
28. Therefore; in all th circumstances discussed, the entries in the Custodian's register of evacuee property do not inspire confidence.
29. ' Learned counsel then referred us to this Court's judgment in Mst. Hajiran Sughra's case and as the submission was that the learned Judge had erred in distinguishing this case, we would observe that the dispute in this case related to a property in Hyderabad, which had been transferred to the appellant against her N. C. H. Form, and as in the instant case, the property had been entered in the register of evacuee property, despite the fact that its owner had obtained a declaration that he was not an evacuee. But, unlike the instant case, the claim of the appellant, Mst. Hajiran Sughra, was that she had regularly paid rent to the Custodian for the property and had first constructel a katcha structure on it and later built a godown on it. The transfer of this property to the appellant was challenged before the Settlement Department by the respondents on the ground that the property was not evacuee, because its owner had obtained a declaration from the Custodian that he was not an evacuee and as the Settlement Commissioner accepted this objection and cancelled the transfer documents of the appellant, she filed a writ petition which was dismissed.
30. Therefore, she challenged the dismissal of her writ petition in this Court on the ground that the property had become evacuee, because it had been treated as evacuee, and this Court remanded the case for an enquiry into the question whether the property in dispute had been treated as evacuee.
31. ' The judgment is distinguishable on the facts, because of the claim of the appellant, Mst. Hajiran Sughra, that she was in possession of the property and because this claim was supported by the fact that the appellant's name was shown as the occupant of the property in the Custodian's register, which also contained an endorsement that a katcha structure had been built on the plot, as claimed by the appellant.
32. ' However, whilst remanding the case, Hamoodur Rehman, C. J., observed :- "Even according to this concept of treating, it must, however, be pointed out that if the entries in the register are correct then the fact that the Custodian Department had even assessed the rent to be realized from the evacuee occupant would sufficiently satisfy the above test and would show that the property in dispute had in fact, been used for the purposes of the Administration of Evacuee Property Act, consciously and would, therefore, amount to treating the property as evacuee property."
33. ' Learned counsel relied on these observations, but we do not think they help his case. ' In the first place, as the case was remanded for an enquiry into the question whether the property had been treated as evacuee, the observations are only obiter dicta. Secondly, the words in these observations which we have underlined are significant. They mean that entries in the Custodian's register are evidence to show that a property has been treated as evacuee only if the entries arc correct. But the question whether the entries about a property in the Custodian's register are correct, or not, is a question of fact and not of law. And in the instant case, the order of Mr. Justice Masud Ahmad and learned counsel's very fair admission that this Court had also upheld Mr. Justice Masud Ahmad's order show clearly that the entries in the Custodian's register about the said plots were not correct, therefore, in our humble opinion, the judgment cited is of no assistance to the petitioner's case.
34. ' The petition is without merit and is dismissed. *[Here in italics]