1. MUHAMMAD YAQUB ALI, J.-The dispute in this appeal relates to ownership of bungalow No. 14-A, Amil Colony, Hyderabad. The contestants are Mst. Chaturbai, appellant, who claims to have acquired the site of the bungalow from the Cosmopolitan Co-operative Housing Society, Hyderabad, and put up construction thereon at her own expense before Partition and Muhammad Ayub, respondent, to whom the bungalow has been transferred by the Settlement authorities as evacuee property under the Displaced Persons (Compensation and Rehabili--tation) Act, 1958.
2. The facts appearing on the record are that a society originally known as "The Pioneer Amil Co- operative Housing Society Limited" and subsequently converted into "Cosmopolitan Co-operative Housing Society, Hyderabad" hereinafter referred to as "Society" was formed some time before Partition with a view to providing houses fur its members. In due course a large tract of land was acquired by the Society from the Municipal Committee, Hyderabad, on lease and divided into plots which were later on allotted to its members all of whom happened to be non-Muslims. Written agreements in favour of the Society for construction of houses for them on payment of price by instalments were executed by the allottees who on delivery of possession built up houses and came to be known as "tenant owners". The appellant, however, claim that she had acquired the site of the bungalow No. 14-A from the Society on payment of full price and built the house on it before Partition at her own expense.
3. Mr. Dharam Dass, Advocate, the late husband of the appellant, was the Chairman of the Society and one Daulat Ram its Honorary Secretary. On Partition 73 out of the 76 members of the Society migrated to India and in consequence the houses abandoned by them were treated as evacuee pro--perty. In 1951 Mr. Dharam Dass moved an application in the Court of the Assistant Custodian for a declaration that that the Society was not an evacuee as "its registered office was all along situated in Hyderabad and 50 % of its members: were residents of Pakistan". In the course of those proceedings Mr. Dharam Dass stated that all the registers of the Society were lost and at a latter stage admitted that barring three houses the tenant owners of the remaining 73 houses had migrated to India. The application was in the result dismissed and the Society and its property declared as evacuee which order was confirmed by the Custodian of Evacuee Property. This was followed by another application filed by Mr. Daulat Ram as Secretary of the Society through Mr. Dharam Dass as a counsel for a declaration that the Society and its pro--perty were non-evacuee which too was dismissed on 7-7-1953. A revision petition filed by the Society from the order was dismis--sed by the Custodian of Evacuee Property on 3-8-1953.
4. In 1951 the present appellant had obtained a declaration that she was not an evacuee and her property was not affected by the evacuee Laws. The list of the property in respect of which the declaration was given has not been placed on the record by the appellant and it would be legitimate to presume that the bungalow No. 14-A was not included in it. This is also borne out by the fact that in 1948 this bungalow was allotted by the Rent Controller to Major Muhammad Sharif son of the respondent No. 1, a serving officer in Pakistan Army, as belonging to an "unknown evacuee" and thereafter the rent of the bungalow was all along paid by him to the Rehabi--litation Department. However, in 1955, the appellant through a counsel sent a notice to Major Muhammad Sharif for pay--ment of rent to her on the assertion that the bungalow No-14-A belonged to her.
5. The notice was repudiated by Major Mohd. Sharif who rightly maintained that he was a tenant under the Rehabilitation Department and was paying rent to them.
6. Three years later the appellant on 7-6-1958 applied to the Assistant Custodian of Evacuee Property, Hyderabad, for pay--ment of the rent of the bungalow realized by the Rehabilitation Department from Major Muhammad Sharif to her as she was its lawful owner and her property had been declared to be non-evacuee. The Assistant Custodian rejected the appellant's claim on the finding that the bungalow along with other houses constructed by the Society had been in 1953 declared to be evacuee property. Thereupon the appellant on I-6-1959 moved an application under section 22 of the Administration of Evacuee Property Act XII of 1957 in the Court of the Deputy Custodian of Evacuee Property, Hyderabad, for a declaration that the bungalow No. 14-A belonged to her and was not evacuee property.
7. It has been found that by suppression of the correct address of Major Muhammad Sharif who was serving in East Pakistan at the relevant time and by giving an incorrect address of the respondent No. 1 the proceedings in the application under section 22 were conducted ex parte against the respon--dents and the Custodian of Evacuee Property on the basis of the declaration obtained by the appellant in 1951 that she was a non-evacuee held that the bungalow belonged to her and was non-evacuee and. That Major Muhammad Sharif in order to avoid payment of high rent had "fraudulently and without the knowledge of the appellant deposited some rent in the Custodian Department towards the rent of the bunga--low in question and thus advertently or inadvertently got the property treated as evacuee property". The question of ownership of the house was not at all adverted to by the Deputy Custodian nor was the question whether the application was within time ever examined by him. The proceedings were sent to the Additional Custodian of Evacuee Property for confirmation of the order, but he remanded the case to the Deputy Custodian for an inquiry on the question of limitation. For some unknown reasons the case was put up before the successor of the Additional Custodian of Evacuee Property instead of the Deputy Custodian who came to the conclusion that the question of limitation was not involved in the case and on the basis of entries in the property register of the Society in which the bungalow No. 14-A was shown as trans--ferred to the appellant held that it belonged to her. In regard to its evacuee status he observed that "I very much doubt, if any, regular order is passed by any appropriate Custodian with regards to the status of the property owing to the fact that it has not so far been allotted to any person and the possession is still with the tenant who is made a respondent, but has not come forward to challenge the allega--tions of the appellate" and "the only presumption that can drawn is that the property in question is in the regular possession of the applicant" and declared the bungalow to be non-evacuee property.
8. By a brief order dated the 25th June 1960, the Custodian of Evacuee Property condoned the delay in the submission of the application by the appellant under section 22 of Act XII of 1957 and confirmed the order of the Additional Custodian without even referring to the nature of the order or examining the merits of the appellant's claim to the ownership of the bunga--low and its non- evacuee status.
9. Armed with the declaration the appellant on 1-6-1959 filed an application in the Court of the Rent Controller, Hyderabad, for ejectment of Major Muhammad Sharif and the respondent No. 1 on the plea that he "has been habitual defaulter in payment of rent". It was admitted before us by Mr. Dingomal that he had no evidence to show that rent had ever been paid by Major Muhammad Sharif or the res--pondent No. 1, to the appellant. The basis of the application was, therefore, false.
10. In fact as seen above as far back as 1955 the appellant had been informed by Major Muhammad Sharif that rent was being paid to the Rehabilitation Depart--ment and the Assistant Custodian had in the same year declined to pay the rent to her on the ground that the bungalow was evacuee property.
11. On being informed for the first time in the ejectment proceedings that the appellant had obtained a declaration ex parte from the Custodian of Evacuee Property that bungalow No. 14-A belonged to her and was non-evacuee property the respondent No. 1 applied for review of the order of the Custodian of Evacuee Property dated 25-6-1960, but the apple--cation was, without calling for records, dismissed in limine with the observations that Major Muhammad Sharif who is serving in East Pakistan was "only an allottee of the property in dispute and his allotment is saved by section 24 of the Pakistan Administration of Evacuee Property Act, 1957". Similarly the transfer in `favour of the respondent No. 1 by the Settlement authorities was ignored on the ground that on the day the P.
12. T. O. Was issued to him pro--ceedings had been re-opened before the Deputy Custodian of Evacuee Property and in consequence the bungalow was not acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act.
13. Respondent No. 1 thereafter brought the aforesaid orders of the Custodian and Additional Custodian of Evacuee Pro--perty before the High Court in writ jurisdiction for quashment on the grounds that the declarations that bungalow No. 14-A belonged to the appellant and that it was non-evacuee pro--perty were obtained by the appellant by suppressing material facts, for example, that the bungalow was allotted to Major Muhammad Sharif as evacuee property in 1948 and he had paid rent all along to the Rehabilitation Department ; that application for payment of rent by the appellant was dismissed by the Assistant Custodian in 1955 on the finding that the bungalow was evacuee property ; that in the proceedings initiated twice by the husband of the appellant the bungalow along with 72 other houses belonging to the "tenant owners" of the Society had been in 1951-53 treated and declared as evacuee property and that the appellant had knowingly and deliberately inserted false address of the respondent No. 1 in the application under section 22 and obtained orders against him for ex parte proceedings with a view that the said facts may not be brought to the notice of the Deputy Custodian of Evacuee Property. Copies of the orders passed in respect of the Society referred to above and the order of the Assistant Custodian declining to pay the rent of the bungalow to the appellant and portions of the proceedings in which ex pane order against respondent No. 1 were obtained by the appel--lant against the respondent No. 1 were filed along with the writ petition.
14. On examining the facts appearing on the record including the statement of Mr. Dharam Dass, the husband of the appel--lant, dated the 29th May 1951, that all the registers of the Society have been lost and his statement that except houses Nos. 20, 53 and 59 the tenant owners of the remaining 73 houses in the Society had migrated to India and the incorrect address of the respondent No. 1 given by the appellant in her application under section 22 on the basis of which she had obtained orders for ex parte proceedings against him as well as the false statement that the bungalow had at no stage been treated as evacuee property the learned Judges concluded that the appellant had practised fraud on the Custodian in obtaining the declarations that the bungalow belonged to her and that it was non-evacuee property. The orders passed by the Additional Custodian of Evacuee Property on 6th April 1960, and by the Custodian on the 25th June 1960, were in the result set aside as without lawful authority.
15. Leave to appeal was granted to consider the plea that the Additional Custodian and the Custodian having acted within their jurisdiction in declaring that the bungalow No. 1 4-A was non-evacuee the High Court had acted illegally in setting aside the said orders in its writ jurisdiction.
16. In pressing the appeal Mr. Dingo Mall advisedly did not dwell on facts and briefly referred to the orders made by the Assistant Custodian in 1951, that the appellant and her property were non- evacuee and referred to the order of the Additional Custodian of Evacuee Property in which it was observed that the entries in the property register of the Society showed that on payment of price the bungalow had been transferred to the' appellant. The extract from the said register was not brought to the notice of the High Court, but the learned counsel now wanted to place its copy before us which we declined to receive for the reason that its genuine--ness could not be vouched for in view of the statement of the husband of the appellant that all the registers of the Society had been lost. It was also significant that in the 1951-53--proceedings before the Custodian Mr. Dharam Dass had laid no claim to the bungalow No. 14-A as the property of his wife.
17. Great stress was, however, laid by Mr. Dingomal on the want of jurisdiction in the High Court to interfere with the orders of the Additional Custodian and the Custodian of Evacuee Property about the ownership of the bungalow and its non-evacuee status. As seen above the High Court decision is based on the rule that fraud vitiates all transaction including order of Court. In that view it could hardly be maintained that the orders of the Additional Custodian and Custodian of Evacuee Property made with jurisdiction were not open to review under Article 98 of the Constitution.
18. However, on the view we have formed it was unnecessary to establish fraud in the case for the orders of the Additional Custodian and the Custodian of Evacuee Property suffered from an error patent on the record, namely, that no title could vest in the appellant without a registered deed executed by the Society in favour of the appellant transferring to her the bungalow or its site as the case may be valued at more than Rs. 100 as required by section 17 of the Registration Act. Section 49 of that Act provides that :--- "49. Effect of non-registration of documents required to be registered.-No document required by section 17 (or by any provision of Transfer of Property Act, 1882) to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered."
19. The entry in the register of the Society relied upon by the Additional Custodian of Evacuee Property in support of the finding that the bunaglow had been transferred to the appellant was therefore even if genuine not sufficient to pass on title to her.
20. It was claimed by the appellant that the bungalow was constructed by her, but there was no proof whatever of this fact. On the contrary the Assistant Custodian of Evacuee Property who had examined some of the agreements executed by the tenant owners in favour of the Society had found that the houses were built by the Society and the tenant owners were required to pay their price in instalments. We have no reason to believe that the allotment in favour of the appellant, if any, was different from the allotment in favour of the other members of the Society. But even if only the site was allotted to the appellant its value being more than Rs. 100 the transfer in her favour could only be made by a registered deed and not by an entry in the register of the Society. The appellant had thus acquired no title in bungalow No. 14-A, even if it was assumed that its site was allotted) to her by the Society and she had constructed the house thereon. This legal aspect of the case was not kept in view of the Additional Custodian and the Custodian of Evacuee Property. Their orders declaring that the bungalow No. 14-A was the property of the appellant and its status was non-evacuee property were therefore without lawful authority and have been rightly set aside by the High Court.
21. The appeal is thus without any merit and we dismiss it with costs.