' SH. ABDUL RASHID, J.--- This judgment will dispose of this Writ Petition No,2305 of 2005 and C.Ms..
Nos.3141, 3235, 3493, 3632 of 2005.
2. The brief facts leading to the institution of the instant writ petition are that the land measuring 123 Kanals, 4 Marlas situated in Chak No,279(RB Tehsil and District Lyallpur (presently named Faisalabad) was origin-ally owned by a non-muslim Sodagar Singh. The said land was sold to Nabi Bakhsh father of the petitioner through sale-deed dated 18-7-1947 for Rs,30,000 but owing to communal disturbances the said Sodagar Singh migrated to India before the instrument of sale could be registered. Nabi Bakhsh father of the petitioner despite his best efforts failed in having the land mutated in his name in the relevant Revenue Record and was advised to have recourse to the Court of Custodian which he did by seeking a declaration from the Custodian by moving an application under section 22 of the Act (XII) of 1957 Administration of Evacuee Property Act to the effect that the suit property was non-evacuee and he was owner thereof through sale.
3. Aftet a thorough hearing which included notices in the press, examination of witnesses, scrutiny of the record and arguments of the learned counsel for the parties the Deputy Custodian vide order, dated 18-11-1957 reached the definitive conclusion that the sale-deed relied upon by the petitioner's father was a genuine document and the witnesses of the same were reliable and the same being of the value of Rs,30,000 was registrable under the existing law but could not be registered due to turbulent conditions prevailing at the time of partition and that Sodagar Singh had left for India, The Deputy Custodian in the said order declared that the suit property had not so far been recorded as evacuee nor allotted to anybody and went on to grant declaration to the effect that the suit-land measuring r23 Kanals, (?) Marlas mentioned above is non-evacuee property which was sold to Nabi Bakhsh father of the petitioner for Rs,30,000. The said order was subject to confirmation by the learned Custodian to whose Court the record was forwarded for orders. It was also stipulated in the said order that since the sale-deed was written and executed on the prescribed stamp paper, its execution and payment of sale price having been proved no formal registration was necessary and that the said order will make the same absolute, final and conclusive and further directed that it shall be given effect to straightway in the Revenue Record and the petitioner's father was directed to appear in that Court. The petitioner's father then approached the Court of the Custodian who vide order, dated 11-9-1959 confirmed the same. In both the Courts the Rehabilitation and Settlement Department had been made parties.
4. Nabi Bakhsh father of the petitioner and after his demise the petitioner made continuous efforts to have the order of the Custodian implemented in the Revenue Record but their efforts did not bear fruit and consequently the petitioner filed Writ Petition No,1652 of 2004 before this Court and the respondent were directed to process and dispose of the applications of the petitioner regarding implementation of the order of the Custodian in accordance with law and without further delay. This order was also not given effect to and thereafter the petitioner then instituted a civil suit for declaration in respect of the disputed property which was decreed in favour of the petitioner vide judgment and decree, dated 10-11-2004 which directed the respondents to make correction of the record in accordance with the prayer made by the petitioner. Copy of the judgment and decree is Annexure "G" with this petition. The Revenue Authorities again did not give effect to the said decree and being dismayed by their conduct the petitioner filed this petition to invoke the Constitutional jurisdiction of this Court. It is clear from the record that instead of complying with the orders in Writ Petition No,1652 of 2004, dated 30-9-2004 the respondents moved an application under section 12(2), C.P.C. Before the Senior Civil Judge, Faisalabad on 4-3- 2005 to have the decree, dated 10-11-2003 set aside on grounds of collusiveness etc. The said decree was set aside ex parte, by the learned Senior Civil Judge. Faisalabad despite the knowledge that the matter was sub judice before this Court. However, the said order had been suspended by the learned Additional District Judge, Faisalabad vide order, dated 5-5-2005.
5. The respondents had submitted the written replies wherein they have all taken consolidated stands that the orders of the Custodian and the Deputy Custodian are fake; that they do not exist; that every efforts had been made to trace the file of this case but there is no entry in any register regarding their consignment to the record room and as such they do not have existence. The respondents have further pleaded that according to the Revenue Record Sodagar Singh was not owner of the property which was subject of sale to Nabi Bakhsh (predecessor-in-interest of the petitioner) and that he had transferred some of his holding through oral mutations and that the order of the Custodian dated 11-9-1959 was manifestly bogus as 11th September is a gazetted public holiday being the death anniversary of Quaid-e-Azam Muhammad Ali Jinnah. The respondents have further pleaded that the writ petitioner chose to institute a declaratory suit before the Senior Civil Judge, where he succeeded in obtaining an ex parte decree which had been challenged by the respondents under section 12(2), C.P.C. In which they have succeeded in having the decree set aside on grounds of collusiveness and fraud. However, the said.Orders have been challenged before the District Judge, Faisalabad, which is still pending and therefore, having chosen an alternate remedy before another forum he cannot now invoke the Constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 on the same subject.
6. During the pendency of the proceedings in this writ petition the other parties moved C.Ms. Nos.3141, 3235, 3493, 3632 of 2005 seeing permission to become parties to the writ petition contending that they had acquired interest and rights in the disputed property through allotments and thus, was interested in the subject-matter of the suit property and as such were necessary parties.
7. I have heard the learned counsel for the petitioner, Additional Advocate-General for the respondents and as well as the counsel for the applicants seeking permission to become parties.
Learned counsel for the petitioner argues that the contention of the respondents that the petitioner by seeking the remedy of institution of civil suit has lost his right to invoke the constitutional jurisdiction of this Court is not tenable because no Court other than the Custodian Court had the jurisdiction in the matter to declare any property as evacuee and there is no estoppel against the law, that it is a settled principle of law that neither consent by the parties nor their participation in the proceedings before a Court or forum will confer the jurisdiction upon a Court with which it was not vested by law. He had relied upon PLD 1987 SC (AJ&K) 65 and PLD 1995 SC 66 in support of his contentions.
8. To settle the controversy that whether the orders of the Deputy Custodian and Custodian were bogus the relevant record of the Custodian's Court was summoned through its Reader. The register relating to consignment of case files was produced in Court and was examined. It was partially damaged on account of fire, which had emitted in the record room and had gutted most of the record. However, the register contained entries of the Case File No,6 of 1957 (Deputy Custodian) and Custodian dated 11-9-1959. The register, which was produced by Reader of the Custodian is more than 30 years old and had been produced through proper custody and this factor cannot now be excluded from consideration. The entries in the consignment register proved that the petitioner's father did move the Courts of Deputy Custodian and Custodian and the said files were consigned to the record room and the original record now stands gutted by the fire. Thus, these entries amply show that the written replies submitted by the respondents that File No,6 of 1957 of Nabi Bakhsh and Sodagar Singh etc. Decision of Deputy Custodian dated 18-11-1957 and decision of Custodian dated 11-9-1959 do not exist in the record room and that they had never been consigned there; do not portray the truthful position. The entries of the Case File No,6 of 1957 in the consignment register show that the said file came up for adjudication before the Deputy Custodian and as well as Custodian and were ultimately consigned to the record room.
9. The petitioner's predecessor-in-interest had been obtaining copies of the orders of the Deputy Custodian and Custodian from time to time for the purpose of appending these with applications made is the past for implementation of these decisions in the relevant Revenue Record and the relevant Sawal form with noting by the Reader, of the Custodian Court to the effect that the requisite order of the Custodian dated 11-9-1959 and that of the Deputy Custodian dated 18-11-1957 are available and the copies may be issued and were so issued. These have been annexed with the writ petition together with the recent photocopies from the relevant register, all of which go to show the existence of the orders of the Custodian Courts.
10. News cutting of Pakistan Times and Nawa-i-Waqt attached by the petitioner attested to the fact that September 11, 1959 was not a public holiday and even the Custodian Courts was open and functioning on that date in addition to other Courts and Government Offices and the said objection taken by the respondents is without any force.
11. The perusal of the order of the Deputy Custodian reveals that it is based on a detailed enquiry the object of which was satisfaction of the custodidn as to genuineness of the claim of the petitioner's predecessor-in-interest. The decision of the Custodian is not to be hampered by consideration, which may be relevant in proceedings before the Civil Court. The Custodian order, dated 11-9-1959 represented a transaction, which had been completed and was thus, past and closed beyond the possibility of being effected by any subsequent event or law. All taint of evacuee stood erased from both persons and the properties. The said order was passed in 1959 and it has remained operative till now. It has never been challenged anywhere at any time by anyone despite the fact that it had been continuously brought to the notice of the respondents for implementation, therefore, now the respondents cannot be allowed to challenge the same after lapse of more than 40 years. If the property had never been treated as an evacuee before 1-1-1957, it could not be so treated after that date in view of section 3 of Administration of Evacuee Property Act, 1957. It follows that no person or property can be declared as evacuee after 1-1-1957, if it was not treated as such before that date by the Custodian. Mere inclusion of property in notification would not render it evacuee when the Custodian had specifically declared it non-evacuee and the property had been declared to have been sold to the petitioner's predecessor-in-interest.
12. The Rehabilitation and Settlement Department had been impleaded as respondents before the Custodian Courts. Neither they nor anyone else had ever challenged the Custodian's order before any forum, its finality has remained undisturbed for over 40 years. The other rights alleged to have been created in the same property subsequently are illusory and have no legal existence and do not effect the vested rights of the petitioner who is also in possession of some of the disputed land through tenants. As the title of the petitioner's predecessor-in-interest in the disputed land had matured through orders of the Custodian Courts dated 18-11-1957 and 11-9-1959, therefore, C.Ms. Nos.3141, 3235, 3493, 3632 of 2005 claiming creation of subsequent interest of the applicants after the orders of the Custodian Courts have no legal substance and merit and as such they cannot be treated as necessary parties, hence the said C.Ms. Are dismissed.
13. After Sodagar Singh having sold the suit property to Nabi Bakhsh predecessor-in-interest of the petitioner as declared by the Custodian Courts no right to the same were left to him or anyone else in the suit property nor anyone else asserted rights to the suit property. A declaration by the Custodian would have precedence over oral mutation of property, therefore, the oral mutations in the name of other nonmulsim being referred to by the respondents have no relevance to the issue.
A mutation neither a document of title nor does it create or extinguish title, it being intended primarily for fiscal purposes for collection of land revenue. It is not a judicial proceeding in which rights or title in property is determined. According to settled law no decree of ownership can be awarded on the basis of oral sale where it is registrable.
14. It is not function of the Revenue Authorities to scrutinize the merits of a declaration of the Custodian's Court and they are bound to give effect to and implement the decision of Custodian Courts in the Revenue Record.
15. In view of the above discussion it is held that the orders of the Custodian and the Deputy Custodian relied upon by the petitioner are valid and above suspicion and have to be given effect to. This writ petition is, therefore, allowed and respondents Nos.1 to 3 and departments are directed to implement the order of the Custodian dated 11-9-1959 confirming the order of the Deputy Custodian dated 18-11-1957 in the relevant Revenue Record without further delay. .