' MIAN HAMID FAROOQ, J.-Petitioners seek leave to appeal against judgment dated 15-3-2001, whereby the learned Lahore High Court at Multan dismissed their constitutional petition (Writ Petition No,230-R of 1980).
2. Facts of the case tabulated RI the impugned judgment are reproduced below:- "2. Pir Zaman Shah (late), whose successors-in-interest are now before this Court had made an application under section 8 of the West Punjab Protection of Evacuee Property Act, 1948 for a declaration that he was owner of 782 Kanals .And 11 Marlas of land situated in village Jarman Tehsil and District Montgomery (now Sahiwal). It was his case that he was owner of one half of the land whereas the rest of the half was in his adverse possession which had earlier been sold to one Lal Chand, an Evacuee. The Deputy Custodian vide order dated 31-3-1949 granted the declaration that the part of the land described in petition is an evacuee property. A revision was filed by Ahmed Ullah and Kanwar Tehseen Ali Khan/respondents Nos.2 and 3 herein which was rejected by the custodian of evacuee property on 14-6-1960 as time barred. He, however, sent for the record for finding out whether action for revising the deputy custodian's order Suo Motu was called for or not.
On perusal of record, a notice was issued to Pir Zaman as to why the Deputy Custodian's order should not be set aside under subsection (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957. The learned Custodian took the view that the property in dispute was of the value of more than Rs,5000 and a device had been resorted to by undervaluing the property to prevent the Custodian to examine the case, as all cases involving property of the value of more than Rs,5000 were to be submitted to the Custodian for confirmation. It was thus observed that the order of the Deputy Custodian had not become operative as it was not duly confirmed by the Custodian. As to the claim of adverse possession for half of the land, the learned Custodian took the view that he was not in possession of the land for more than 12 years nor there was evidence on record as to the ouster of Lal Chand, from the land. He thus, modified the order of the Deputy Custodian and declared that the respondent Zaman Shah is owner of only one half share of the land in dispute and that the other half share is evacuee property being owned by Lal Chand. This was vide order dated 16-12-1960. It was challenged by the petitioners by filing petition (W.P.
No,26/61) before this Court. The case of the petitioners before this Court was that since the property in dispute was not treated as evacuee property on or before 1-1-1957, it could not be treated so nor any order could be passed by the Custodian after the said date. For the view taken by late Karam Elahee Chauhan, J (as he then was), that this aspect had not been adverted to by the Custodian while passing the said order, the case was remanded for fresh decision in accordance with law.
This was vide judgment dated 9-10- 1968. The petitioners challenged this order through LPA No,292/68 which was dismissed by a Division Bench of this Court on 20-2-1969. It was noticed by the learned Division ' Bench that in view of Rule 7(c) of Protection of Evacuee Property Rules, 1948, the order of the Deputy Custodian heeded confirmation by the Custodian. It was observed that "an order passed by a deputy Custodian in respect of property which was more than Rs,5000 in value shall not become effective and be valid unless confirmed by the Custodian. If, therefore, the value of the property is more than Rs,5000 as held by the learned Custodian, then the order of the Deputy Custodian would clearly be invalid and ineffective in the eyes of law and no advantage could occur to the appellants on the basis thereof. A petition for leave to appeal (C . P. S. L. A No,137/69) was filed by the petitioners, which was dismissed on 27-10-1969 by the Honourable Supreme Court.
3. In this context, the learned Custodian took up the matter and recorded a finding that there is nothing on record to show that Chand evacuee was ousted by Pir Zaman Shah, respondent No,1, who later on occupied the land in question per force and continued in possession as such till the partition of the sub-Continent of India. In the circumstances, plea of adverse possession raised by respondent No,1 cannot be accepted". Adverting to the question of S.3 of the Pakistan (Administration of Evacuee Property) Act, 1957, he found that plea of adverse possession having already been repealed, he can only be considered to be a tress passer. Since his authority to occupy the property was never confirmed by the Custodian, therefore, the property always vested in that authority. It is this order dated 19-2-1980 of the custodian, that is challenged through this petition.
' Petitioners' constitutional petition (Writ Petition No,230-R of 1980) was dismissed by the learned Lahore High Court at Multan, vide impugned judgment dated 15-3-2001, hence the present petition.
3. Learned counsel for the petitioners contended that the learned Custodian had no jurisdiction to suo motu revise or review the order dated 31-3-1949 passed by the Deputy Custodian, Sahiwal, who granted declaration, in favour of the predecessor-in interest of the petitioners (Pir Zaman Shah), that he was in adverse possession of half of the property measuring 782 Kanals 11 Marlas; that the said order of learned Deputy Custodian, Sahiwal dated 31-3-1949 still holds the field; that the learned Custodian, while passing order dated 16-12-1960, did not collect any evidence to show that the value of the property at the relevant time exceeded from Rs,5,000 and that Lal Chand was Ghair Malik and Ghair Kashatkar. Conversely, the learned Law Officer supported the impugned judgment.
4. We have heard the learned counsel for the petitioners the learned Additional Advocate-General and examined the available record. It is true that the learned Deputy Custodian, vide order dated 31-3-1949, declared that Pir Zaman Shah was in adverse possession of half of the property, but it is also true that the said order was set aside by the learned Custodian, vide order dated 16-12-1960 in exercise of powers conferred upon him under section .43(4) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. The learned Custodian modified order dated 31-3-1949 and declared that Pir Zaman Shah was owner of only one half share of the land and other half share was an evacuee property, which was owned by Lal Chand. Even the said order dated 16-12-1960 passed by the learned Custodian was set aside by the learned Lahore High Court at Multan, vide order dated 9-10-1969, when it while deciding petitioners' petition (W.P. No,26 of 1961) remanded the case to the Custodian for fresh disposal. With the passing of order dated 9-10-1969 by the learned High Court the question of exercise of suo motu powers by the learned Custodian had become inconsequential. In the said backdrop the contention of learned counsel regarding lack of suo motu jurisdiction of Custodian and non-determination of the value of the property is not worth consideration and need not be addressed to on two counts. Firstly, the learned High Court set aside the order passed by the custodian, in exercise of suo motu powers conferred under section 43 (4) of Pakistan (Administration of Evacuee Property) Act XII of 1957 and secondly the petitioners did not agitate the plea of lack of exercise of suo motu jurisdiction by the learned Custodian before the High Court. It is evident from order dated 9-10-1969 that the petitioners did not agitate the said plea before the learned High Court, in their constitutional petition (W.P.No,26 of 1961) and primarily it was argued that the learned Custodian did not advert to the provisions of section 3 of Pakistan (Administration of Evacuee Property) Act XII of 1957 thus rendered his decision without lawful authority. It was mainly in the said context that the learned High Court remanded the case to the learned Custodian, by setting aside its order dated 16-12-1960, to decide as to whether the property in question could be treated as evacuee property under section 3 of Pakistan (Administration of Evacuee Property) Act (XII of 1957) and whether Pir Zaman Shah occupied the property according to the Jamabandi for the years 1933-37, in 1933 and as such was in adverse possession for more than 12 years at the time of partition. We found from the order dated 9-10-1969 that the petitioners neither raised any such pleas nor it was dealt with and decided by the High Court and was not one of the references of the remand. It may be noted that the petitioners in the subsequent round of litigation also did not urge A the said plea at any point of time, inasmuch as, it was not pleaded before the learned High Court in their latest writ petition (Writ Petition No,230-R of 1980). In view whereof, the petitioners are precluded from raising the said plea, which was not taken at any stage of the proceedings right from the year 1960, at this belated stage.
5. Next contention of the learned counsel that order dated 31-3-1949 passed by the learned Deputy Custodian, Sahiwal still holds the field is equally devoid of any force, as after the remand of the case by the learned High Court, vide judgment dated 9-10-1969, the learned Custodian took up the matter and after dealing with the terms of remand order, vide order dated 19-2-1980, reversed the order of Deputy Custodian, which is now being relied upon by the petitioners. It may be noted that the order passed by the Deputy Custodian was set aside twice, once by order dated 16-12-1960 and then on 19-2-1980. Even in the subsequent proceedings, the order of Deputy Custodian dated 31-3-1949 was never restored, therefore, it could not be urged at this stage that order of Deputy Custodian declaring the predecessor-in-interest of the petitioners in adverse possession of the property still hold the field.
6. Pir Zaman Shah claimed that he was in adverse possession of half of the property in question on behalf of Lal Chand. Pir Zaman Shah's said plea was although declared as correct by Deputy Custodian, yet thereafter it was consistently disbelieved by all the forums, inasmuch as, the learned custodian in the post remand proceedings held that there is nothing on record to show that Pir Zaman Shah came into possession of the property on behalf of Lal Chand or with his consent and he can only be considered as trespasser. The learned High Court after adverting to every aspect of the case rightly held that no material was placed before the learned Custodian, which could show that Pir Zaman Shah was holding half of the land in adverse possession. We subscribe to the findings of the learned High Court, which are not only in accordance with record of the case but also in consonance with the law on subject.
7. There is another aspect of the case. Predecessor-in-interest of the petitioners was claiming half of the land on account of adverse possession. All the forums, except Deputy Custodian, refused to recognize his plea. Litigation started from the date of passing of order dated 31-3-1949. The learned Shariat Appellate Bench of this Court in a case reported as Maqbool Ahmed v. Hakoomat-e- Pakistan (1991 SCM R 2063)" declared section 28 and Article 144 of the Limitation Act, 1908 repugnant to the injunctions of Islam in so far as, same provided for extinguishment of right in the property, and it was held that decision of this Court would take effect from 31st August 1991, on which date petitioners' constitutional petition was pending. It was neither finally concluded at any stage nor any decree was passed favouring the petitioners to the effect that Pir Zaman Shah was in adverse possession of half of the land. Petitioners' constitutional petition was pending on the day, on which the judgment of Maqbool Ahmed (ibid) was to take effect, thus it cannot be pleaded that the case of petitioners qua adverse possession was a past and closed transaction. In view of case of Maqbool Ahmed (ibid), petitioners' plea of adverse possession has lost its efficacy, if there was any. Learned counsel for the petitioners, when confronted with the case of Maqbool Ahmed
(ibid) stated that the said judgment cannot be applied retrospectively and thus it had no effect on the case of the petitioners. Suffice it to say that the said plea has little substance, as dictum laid down in the case of Maqbool Ahmed (ibid) would not affect only past and closed transactions, while in the case the matter of adverse possession was never treated as past and closed transaction. The predecessor-in-interest of the petitioners was never finally conclusively determined and held to be in adverse possession of the disputed land by any of the Courts. In view whereof, besides the reasoning advanced by the learned High Court for dismissal of petitioners' writ petition, we feel that the case of the petitioners is also hit by the case of Maqbool Ahmed (ibid) and the petitioners could not succeed on the plea of adverse possession.
8. In the above perspective, we have examined the impugned judgment and find that it does not suffer from any legal infirmity; rather the learned High Court after adverting to all aspects of the case decided the matter, which does not require any interference by this Court. No case for leave to appeal is made out.
9. For the foregoing reason the present petition, being devoid of any force, stands dismissed and leave to appeal is refused.