' CH. MUHAMMAD TARIQ, J.---Vide a judgment dated 21-1-2002, the Hon'ble Supreme Court of Pakistan allowed Civil Appeals Nos.343 and 344/95, set aside the impugned judgment passed in Writ Petitions Nos.173-R of 1987 and 341-R of 1984 and remanded these cases back for decision afresh on merit in accordance with law.
2. Case was repeatedly, called. None has entered appearance on behalf of petitioner. Since it is an old matter pertaining to the year, 1987 and require to be disposed of under the Judicial Policy, we take the cognizance of this case with the help of learned counsel for the respondents.
3. Brief facts as narrated in the writ petition are that respondents Nos.1 and 2 who were non- agriculturists and one Mian Abdul Khaliq (died issueless) was predecessor in interest of the petitioners who had mortgaged some portion of the suit-land with respondents Nos.1 and 2 who were non-agriculturists. These three influential persons Mst. Bhagwani Bai widow of. Ram Chand.
Gurdiyal Singh son of. Khushia Ram and Mian Abdul Khalique had secretly in collusion with the Revenue staff got five mutations of sale allegedly made by their predecessor in interest bearing No,49, dated 16-9-1917, 50 dated 13-3-1918, 48 dated 7-12-1918, 52 dated 7-12-1918 and 57 dated 25- 12-1919 in their favour. The predecessor in interest of the petitioners became aware of the said fact after many years when they raised objection before the Revenue Authorities who advised the predecessor in interest of the petitioners to challenge the mutation by filing suit in the Civil Court.
4. That in the meantime, the communal disturbances had begun and the non-Muslims migrated to India. In consequence the predecessor in interest of the petitioners filed an application before Custodian Bahawalpur, under section 8 of the Bahawalpur Protection of Evacuee Property Act wherein Gurdiyal Singh son of Khushia Ram and Mst. Bhagwani Bai widow of Ram Chand were impleaded as respondents and it was prayed that a declaration be given in their favour to the effect that the respondents Nos.1 and 2 were not the owners of the land entered in their favour in the Revenue Record and in fact the ownership and possession vest in the predecessor in interest of the petitioners and the said land was not liable to be allotted to the Refugees.
5. That the learned Custodian by his order dated 7-2-1950 expressed the view that the petitioners had failed to adduce satisfactory proof in support of their ownership and as such they could not be declared to be the owners of the land However, he advised the petitioners to file a suit wherein the predecessor in interest of the petitioners could get the question of ownership decided.
6. That the predecessor in interest of the petitioners filed a suit in the Court of Civil Judge Chishtian who by his judgment dated 29-12-1954 held the petitioners as Agriculturists and therefore, could not sell the land in question to respondents Nos.1 and 2 who were non-Agriculturists without sanction of the Deputy Commissioner in view of the Provisions of Punjab Alienation of Land Act, 1900, which was also applicable to Bahawalpur. The suit of the predecessor in interest of the petitioners was decreed in their favour and held that the ownership of the land still vested in the name of predecessor in interest of the petitioners.
' On the basis of the said judgment and decree Mutation No,37 on 10-9-1957 in favour of the petitioners was sanctioned. This order was challenged before the Collector, which was dismissed by his order dated 6-8-1963. A revision was filed before the Commissioner, who expressed the view that the land in dispute should have been mutated in the name of the Alienors shown in the mutation and that both the parties being heirs of the Alienors were equally entitled to be shown as owners along with the petitioners in the Revenue Record. In this view of the matter, the revision was accepted by the learned Commissioner on 19-2-1964.
7. That in the meantime, one Dilawar along with thirteen others who were arrayed as respondents Nos.14 to 28 in the Revision before the Custodian filed a suit in 1959 against the predecessor in interest of the petitioners fora declaration that they were entitled to be treated as co-sharers of the land in dispute along with the predecessor in interest of the petitioners. In connection with the said suit a reference was made by the learned Administrator Civil Judge to the then Deputy Custodian' of Evacuee Property Bahawalpur under section 41 subsection (2) of Act XII of 1957 who answered the reference with the finding that the property in dispute is evacuee in the light of the judgment of the Deputy Custodian dated 7-2-1950. The learned Civil Judge on finding the property in question, being evacuee in nature dismissed the suit on 19-1-1960 holding that he had no jurisdiction to entertain the suit.
8. That the predecessor in interest of the petitioners assailed the order dated 19-2-1964 passed by the learned Commissioner, Bahawalpur, whereby he held that the petitioners along with the respondents were equally entitled to be shown as owners in the Revenue Record. The said Writ Petition No,698 of 1964 came up for hearing before their lordships' Mr. Justice Karam Elahi Chauhan and Mr. Justice Dr. Nasim Hassan Shah on 24-9-1971. Their Lor1ships dismissed the writ petition and held the decree dated 29-12-1954 being void. They further observed that the suit of the petitioners out of which the decree impugned has flown be considered to be pending and the learned Civil Judge was directed to send the reference to the Deputy Custodian Evacuee Property for decision.
9. That the reference was sent to the Deputy Custodian on 23-12-1972 by Civil Judge, Chishtian, District Bahawalnagar as Reference No,25 of 1974. The learned Deputy Custodian after hearing the parties held that the suit property is evacuee in nature and the petitioners' possession of the land in question is unlawful.
10. Learned counsel for the respondents has pointed out that vide order dated 10-10-1988, this Court directed the petitioners to furnish security for the mesne profit to the satisfaction of Tehsildar Chishtian within one month which order was not complied with and this writ petition is liable to be dismissed on this score alone. Lie further contends that vide judgment dated 29-12-1954, Sub- Judge Chishtian has held that the petitioners were agriculturists and therefore, were not entitled to sell the land in question to respondents Nos.1 and 2, who were non-agriculturists without prior sanction of the Deputy Commissioner under the provision of law Alienation of Land Act, 1900 which was also applicable to the District Bahawalpur, therefore, the petitioners have no locusstandi to file the instant writ petition which is liable to be dismissed.
11. Arguments heard, record perused.
12. Perusal of record reveals that there is no evidence on the record that the petitioners were non- agriculturists. In absence of this important condition, the petitioner had no authority to alienate the suit-land to respondents Nos.1 and 2, who were non-agriculturists without obtaining a prior sanction of Deputy Commissioner concerned in the light of provisions of the Punjab Alienation of Land Act 1900, which was duly applicable to Bahawalpur. According to the Exh.R.7 to Exh.R.11, the possession of respondents was also not proved over the suit-land.
13. That the alienation of land was also in violation of section 3(2) of the Alienation of Land Act XIII of 1900, which provides that number of tribes not declared as agriculturists are not entitled to alienate the land without the previous sanction of the Deputy Commissioner and if any such position arises, that land is alienated by a person who was not competent to transfer the land, such sale will not be a legal transfer and is liable to be cancelled.
14. The perusal of record further highlights that the property in question is an evacuee property in nature and the petitioners have failed to adduce any cogent evidence in support of their ownership as well as possession, thus, both the courts below have rightly held that they could not be declared as owner in possession.
15. It is further pertinent to mention here that a mutation does not create any right but it is mere proof of a transaction. In the instant case, the so-called sale was a mere breach of condition of Sharait Wajab-ul-Arz.
16. As a result of above discussion, we unanimously hold that both the learned lower forums have rightly concluded that suit property is an evacuee property. The so-called possession of the petitioner over the suit-land is not warranted under the law and the petitioners are bound to pay share of produce according to the schedule. This writ petition is without any substance, no interference is called for Dismissed.