' IJAZ AHMAD, J.---Land measuring 47 acres 1 Kanal and 16 Marlas in Mouza Jungle Khan Muhammad Wala, Tehsil and District Multan belonged to the Provincial Government. This land was purchased by Pujara Ram and Roshan Das, who later became evacuees for Rs,47462 through an open auction held on 24-5-1946 the possession was delivered to them. They paid Rs,35596.50 up till 10-12-1946. After the partition of the subcontinent, both the purchasers migrated to Indian part of the subcontinent. The property was resumed by the Government of the Punjab vide letter dated 3- 3-1948. It was allotted to Mst.Hafeezan Khanum under the Well Sinking Scheme, vide order dated 24-5-1960. Subsequently this land was treated as evacuee property on the basis of official Letter No,3036-C and was allotted to Shadi son of Barkat, the predecessor in interest of the petitioners, vide order dated 2-6-1966, in order to satisfy his claim for the land left by him in India against Khata No,3 in RL-II of Mauza Mangal Khan. The parties were locked against each other in a long round of litigation. The Board of Revenue passed the order dated 17-8-1966 in favour of Mst.Hafeez Khanum. Tehsildar, Multan vide order dated 3-11-1966 cancelled the mutation of the lands in question sanctioning in favour of Shadi. It was challenged through Writ Petition No,1232 of 1967.
Learned Judge of this Court seized with the writ petition, vide order dated 16-12-1989 declared the orders/letters dated 17-8-1966 and 28-8-1966 passed/issued by Member Board of Revenue and the order dated 3-11-1966 passed by the Tehsildar, illegal and set aside the same. The case was remanded to the Board of Revenue for deciding the same afresh, after hearing both the parties.
The learned Member (Judicial-III)-Chief Settlement Commissioner, Board of Revenue, Punjab Lahore vide order dated 3-5-1994 held that the land stood resumed in favour of the Government on account of non-payment of full auction price by Pujara Ram and Roshan Das and never acquired the status of evacuee property and dismissed the revision petition submitted by Mst.Hafeez Khanum, predecessor in interest of respondents.
2. It is contended by learned counsel for petitioners that the land in question had attained the character of evacuee property and had been so treated before 1-1-1957 by the Settlement Authorities. Only an overt act by the competent Settlement Authority suffices to come to a conclusion that certain property had been treated as evacuee property and no declaration by a Court of law is required for that purpose. Places reliance on 'Settlement Commissioner (L) and another v. Mauj Din and others' (1989 SCM R 1351); that the Government of Punjab as custodian of land vide its Letter No,523/TH dated 4-7-1992 declared that all lands irrespective whether the payment has been made or not for acquisition of proprietary rights should be treated as evacuee property for the purpose of rehabilitation and settlement scheme. Refers to 'Muhammad Alam Khan and 3 others v. Mahmud Ahmad and 2 others' (1974 SCM R 92) wherein the said notification has been relied upon; that the land in question has been utilized by the rehabilitation authorities by making allotment to the refugees, temporarily. Thus, the property stands treated as evacuee property before 1-1-1957, the crucial date mentioned in section 3 of Pakistan (Administration of Evacuee Property) Act, 1957; that under section 3 of the Act supra, even the hidden property can be treated as evacuee property after 1-1-1957; that for the purpose of treating property as evacuee property, the confirmation of proprietary any rights in favour of an evacuee is not necessary. It is enough if the evacuee has any right or interest whether personally or as a trustee or a beneficiary or in any other capacity of the property. He refers to sections 2(2), 2(3) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and sections 2(2), 2(3) of the Pakistan (Administration of Evacuee Property), Act, 1957. He also argues that the land in question could not be allotted to Mst.Hafeeza Khanum under the Well Sinking Scheme as she did not fulfill the conditions laid down under the scheme.
3. On the other hand, it is contended by learned Additional Advocate General appearing on behalf of respondents Nos.1 and 2 and learned counsel appearing on behalf of rest of the respondents that Pujara Ram and Roshan Das having failed to pay all the installments had not yet become the owners of the land. They were yet the tenants. The land under their control or possession could not be termed the evacuee property. He refers to section 15 of the Colonization of Government Land Act, 1912; that evacuee property not earlier so treated cannot be treated as evacuee property after 1-1-1957, the crucial date said up in Act of 1957 ibid. Relies on 'Muhammad Yaqub and others v.
Tufail Muhammad and others' (1991 CLC Note 262), 'Mst. Nazeeran v. Wali Muhammad Nagar, Deputy Custodian, Lahore and others' (PLD 1969 Lahore 701) and 'Abdul Khaliq-Abdul Razzaq v.
Kishanchand and others' (PLD 1964 SC 74). He lastly argues that the respondent, Member Board of Revenue/Chief Settlement Commissioner, Board of Revenue Punjab, Lahore had decided all the disputed question of fact and law, High Court could not go into such disputed question in exercise of its Constitutional jurisdiction. Relies on 'Muhammad Rafique v. Nazir Ahmed and others' (2007 SCMR 287) and 'Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others' (PLD 2001 Supreme Court 415).
4.. I have heard the arguments of learned counsel for petitioners, learned Additional Advocate General and learned counsel for rest of respondents and perused the record.
5. First of all it is to be seen whether Pujara Ram and Roshan Das were the evacuee and then whether the land held by them was evacuee property ' or not. Under section 2(2)(i) of the Ordinance, 1949 ibid, evacuee means a person who:--
(i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place the territories now comprising Pakistan for any place outside those territories.
Same is the definition given in section 2(2)(a) of the Act of 1957. There is no denial of the fact that Puja Ram and Roshan Das had purchased the land in an auction held on 24-5-1946. They paid Rs,35,596.50 till 10-12-1946 out of the total price of Rs,47,462. There is no denial of the fact that they left this part of the Subcontinent which formed part of Pakistan. There is no record and no order available on file to show that this land was ever resumed on account of the non-payment of the last installment. The respondents M.B.R/CSC has relied only on entries made in Khasra Girdawari for the crops of Kharif 1952 to Rabi 1952. The entries so made do not render the land resumed.
6. In order to term a property, an evacuee property, the evacuee need not have acquired complete proprietary rights in the property in question. Section 15 of the Colonization of the Government Land Act, 1912 cannot be interpreted in a manner so as to take away all the rights of Pujara Ram and Roshan Das over the land in question. Section 2(3) of the Ordinance of 1949 ibid and section 2(3) of the Act, 1957 ibid define the evacuee property:- `Evacuee property, means any property in which an evacuee has any right or interest, or which is held by or for him in trus.'
' According to this definition, the property in question was an evacuee property on the day of partition of sub-continent and on 1-1-1957 and had never during the intervening time lost this character as no order of resumption of land is available on the record. Moreover, the Government of Punjab as custodian of land, vide its Letter No,523/TH dated 4-7-1992 had declared all such lands the evacuee property whether the full payment had been made or not. This property was never available for allotment to Mst.Hafiza Begum, the wife of a beaurucrate. I need not discuss her eligibility for grant of the land under Well Sinking Scheme. The right or the interest of an evacuee in a property in order to term it, the evacuee property, is much less than the proprietary rights. It extends to any right or interest whether personally or as trustee or beneficiary or in any other capacity. The evacuees in this case had a right in the property that would make this property evacuee property. It is the character of property that makes property, the evacuee or not. It always remained evacuee property. The Member Board of Revenue has lost sight of this legal aspect. The overt act of the Settlement Authorities is only an evidence that the property was recorded as evacuee property. No formal document or declaration is required as per the definition given in the Act or the Ordinance ibid. I rely on 'Muhammad Alain Khan and 3 others v. Mahmud Ahmad and 2 others' (1974 SCM R 92). For what has B been discussed, I am of the opinion that the impugned order passed by the M.B.R/CSC is violative of law and has been passed in illegal exercise of the jurisdiction vested in him. The same is set aside. The property in question is declared to be an evacuee property never having lost this character. Accordingly, the order dated 24-5-1960, allotting the land to Mst.Hafeeza Khanum under Well Sinking Scheme is also declared illegal.
Resultantly, the allotment order passed by the Rehabiliation and Settlement Authorities in favour of Shadi son of Barkat, the predecessor in interest of petitioners, holds the field. This petition is accepted.