' TASSADUQ HUSSAIN JILLANI, J.---Through this petition, the petitioners have challenged the judgment dated 19-4-2002 passed by the learned High Court vide which petitioners' constitution petition (No,337-R of 1986) was upheld.
2. Facts in brief are that petitioners filed an application before the Assistant Commissioner Sialkot/Deputy Settlement Commissioner for delivery of possession of the land, subject matter of this petition, which according to him was mortgaged with evacuee Makhan Lai by the predecessor-in-interest of the petitioners in lieu of Rs,9,000 vide registered mortgage deed dated 13-6-1944 and mutation of redemption of land was entered into revenue record on 24-4-1962. The Assistant Commissioner/Deputy Settlement Commissioner vide order dated 14-12-1965 having heard the petitioners recommended that PTOs issued in favour of the respondents/allottees should be cancelled, the houses built should be auctioned and the petitioners be delivered possession. As the petitioners were not delivered 'possession, they filed a miscellaneous application before the Settlement Commissioner/Chief Settlement Commissioner West Pakistan camp Sialkot who disposed of the said application by inter alia observing that proper course for petitioners was to challenge the PTOs and PTDs issued against the respondents in the light of the order dated 14-12- 1965 passed by the Deputy Settlement Commissioner (Rehabilitation) Sialkot. This was vide order dated 21-5-1971. This order was challenged before the learned High Court in W.P. No,547-R of 1971 which was partly allowed (on 5-12-1983), the order of the Settlement Commissioner dated 21-5-1971 was set aside and the case was remanded to the notified officer to decide the case afresh in terms as follows:- "The notified officer shall decide the case afresh after determining as to whether the predecessors-in-interest of the petitioners were owners of the disputed property and what was its nature and character before partition in the light of the judgment of the Supreme Court in M.A.
Hafeez' case."
3. Petitioners challenged the afore-mentioned order of the High Court and this Court upheld the order by dismissing C.P.L.A No,13I-L of 1984 in terms of order dated 12-3-1984. On remand the Additional Commissioner/Chief Settlement Commissioner Gujranwala after holding detailed enquiry rejected petitioners' claim vide order dated 8-3-1986 by holding as follows:- "In order to further probe into the matter I summoned Haji Fayyaz Muhammad Building Inspector and Mr. Akhtar Ali. Record Keeper Municipal Corporation Sialkot. They produced building file No,184 containing sanction of site plan of Makhan Lal Soori to construct a house in Mohallah Furan Nagar Sialkot City. The site plan was approved by the Administrator Municipal Committee Sialkot on 12- 9-1943. He further stated that village Attari was brought within Municipal limits of Sialkot during year 1938.
' The houses and plots situated in the property in dispute were allotted and put to auction by the Settlement Commissioner, Sialkot on 18-2-1960 and 12-5-1960 in favour of the respondents. After having made full payment they were issued P.T.Os. And P. T.Ds. The petitioner during their litigation admitted that construction was made by the non-muslims on the land in dispute before partition.
This fact is also supported by the house plan approved by the Administrator Municipal Committee Sialkot in favour of Makhan Lal and other houses were constructed by Hans Raj, Bell Ram etc. A perusal of Register Haqdaran Zamin for the year 1946-47 also shows the area as "Ghair Mumkin Abadi". As such the nature and the character of the property at the time of partition was not agricultural land but constructed abadi. Hence this could not be got redeemed as agricultural land. The P.T.Ds. Issued in favour of the respondents indicate the names of the evacuees as owners of the property before partition. Their names have been shown as Makhan Lal, Hans Raj, Beli Ram, Resakhi Ram etc. It appears that the petitioners had either sold or exchanged the land in dispute in favour of the above said evacuee owners before partition. The P.T.Os. And P.T.Ds. Issued in favour of the respondents have not been challenged by the petitioneRs, There is not an iota of evidence on record to show that the respondents obtained possession of the property or got issued P.T.Ds. In their favour through fraudulent means. They are bona fide allottees and purchasers of evacuee property and by no reason can be disturbed at this belated stage. The relevant laws have since been repealed. It is established beyond any shadow of doubt that property in dispute bearing Khasra Nos, 1476/500 and 1477/500 measuring 4 Kanal, 12 Marlas was a constructed property before partition and was rightly transferred in favour of the P.T.D. holdeRs, The petitioners, therefore, cannot claim the possession of land, the character of which has altogether been changed."
4. This order has been maintained by the learned High Court vide the impugned judgment dated 19-4-2002.
5. Learned counsel for the petitioners contended that the learned High Court, has not correctly appreciated that petitioners are successorsin-interest of the owners of the land which was mortgaged with the evacuee Makhan Lal before partition; that after payment of mortgage money of Rs,9,000 it was redeemed in their favour; that the redemption of such mortgage in no way destroys the right of non-evacuee land in which the evacuee had any right under mortgage; that the petitioner being the successor-in-interest of the mortgagors continued to have a right to equity of redemption notwithstanding the acquisition of interest by Central Government; that the transfer of land in favour of the respondents was unlawful and of no legal effect; that the P.T.Os.
And P.T.Ds. Issued in favour of the respondents ought to have been cancelled; that the Revenue Assistant had rightly issued warrant of possession in favour of the petitioners on 14-12-1965 and the Notified Officer and the learned High Court have wrongly reversed the said order. He further contended that the learned High Court did not appreciate that in terms of the remand order passed in W.P. No,547-R of 1971 dated 5-12-1983, the Settlement Authorities were directed to decide the matter in the light of the law laid down by this Court in M.A. Hafeez Khan v. Riaz Ahmad Mehra (1983 SCM R 803) and a bare reading of the order passed would indicate that the same has not been done so.
6. Learned counsel for the respondents Mr. Ali Zafar, on the other hand, defended the impugned judgment by submitting that the concurrent findings of fact by the courts below did not warrant interference; that admittedly respondents are owners in possession on the basis of PTOs and PTDs issued by the competent authority and the petitioners have no case to warrant indulgence at this belated stage. In support of his submissions, learned counsel relied on Secretary to Government of Punjab Forest Department Punjab through DFO v. Ghulam Nabi (PLD 2001 SC 415) and Evacuee Trust Property Board v. Mst. Sakina Bibi (2007 SCM R 262).
7. We have considered the submissions made, have gone through the record as also the;precedent case-law quoted at the bar.
8. Much stress was laid by the learned counsel for the petitioners on the argument that the notified officer did not decide the matter in the light of the judgment of this Court in M.A. Hafeez Khan's supra case as directed by the High Court in terms of the remand order dated 5-12-1983 We have examined the said judgment and find that the facts and the law in the said case are distinguishable. In that case the property was owned by one Lala Dina Nath which had been mortgaged with possession in favour of Ms. Padmavati Thakur in 1932 for a sum of Rs,26,500.
Mortgager Lala Dina Nath embraced Islam and assumed the name of Sheikh Din Muhammad and remained in Pakistan. The mortgagee Mst. Radmavati became evacuee. In November 1947 she brought suit against the mortgager for recovery of mortgage amount, she also applied to the Custodian for restoration to her for the property which had been treated as evacuee. The application was disposed of with the observation that she should first establish a title. Thereafter she obtained a decree on 6-6-1949 against the mortgager for the sum of Rs,6,832. She however did not take any further action. Sheikh Din Muhammad mortgager died in 1957 and among his legal heirs, only one son embraced Islam under the name of Riaz Ahmad who remained in Pakistan while others became evacuees. The property in early 1947 was allotted in favour of M.A. Hafeez Khan and others and was eventually transferred in their favour in 1959. After three months of the said transfer, Riaz Ahmad son of Sheikh Din Muhammad mortgagor applied under section 25 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 for redemption of property. The Deputy Custodian vide his order dated 24-10-1969 found that the mortgage debt had fully been discharged; that Riaz Ahmad was entitled to the restoration of property and that as excess income recovered by the Custodian was insignificant, nothing was payable to him by the Custodian. The Deputy Custodian however referred the matter to Custodian for confirmation and Riaz Ahmad also filed an appeal. His application was ultimately dismissed by the Custodian on the ground that the property has been treated as evacuee property since 1947; that having been acquired under section 3 of the Displaced Persons(Compensation and Rehabilitation) Act, it stood vested in the Government free from encumbrances; that the Central Government not having been impleaded, no decision as prayed could be given by the Custodian; that recourse having not been taken to section 22 of the Act XII of 1957, the non-evacuee mortgagor had forfeited his right of equity of redemption in the property. The Custodian further expressed that after the acquisition of the property, the same has ceased to be evacuee and as such he had no power to make any order in respect of the same. This order was challenged before the High Court and a learned Division Bench of the High Court allowed the Constitution petition and held that only mortgagee's rights in the property were evacuee property and that as such it was not necessary for Riaz Ahmad to have obtained any further declaration nor had he forfeited his right in the property. In the afore-referred circumstances, the transfer of property in favour of the allottees was declared to be without lawful authority and of no legal effect. This judgment of the High Court was maintained by this Court and leave was refused and by reiterating the ratio of an earlier judgment of this Court in Muhammad Khan's case (PLD 1962 SC 284), it was observed as under:-- "No action appears to have been taken in the present case although the Department was fully aware, on account of the applications made by Mst. Padmavati in November 1947 and by Riaz Ahmed in 1959, that non-evacuee mortgagor's interest was involved in the property. Anyway, the first two contentions have been rightly resolved by a reference the principle enunciated by this Court in Muhammad Khan's case wherein in respect of evacuee land mortgaged with possession to locals it was held that the interest of the mortgagee locals could not be acquired by the Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958, that notwithstanding the words "free from all encumbrances" in that section the mortgagee locals were entitled to retain possession of land until the mortgage was redeemed and that it was not necessary for the mortgagee in order to safeguard his rights to have sought a declaration under section 22 of Act XII of 1957. Relying on the rule laid down in Muhammad Khan's case another Division Bench of the Lahore High Court, in Writ Petition No, 458/R of 1976, decided on 5-7-1977 in respect of an urban property also situate in the City of Lahore, had held that only the evacuee interest of the evacuee mortgagee had vested in the Custodian which had come to the compensation pool and was available to the Settlement authorities for disposal, that anything in excess of it did not vest in the Custodian or constitute the compensation pool or could be transferred by the Settlement authorities and that the non-evacuee mortgagor's right to redeem the mortgage "did not ever come to be extinguished".
9. The narration of facts in the M.A. Hafeez Khan supra would make it clear that it is distinguishable for more than one reason. First in the said case there was no dispute that the property in question was in the name of non-evacuee mortgagor prior to 1947 and continued to be so till it was transferred in the name of the allottees in 1959; second the non-evacuee mortgagor had not forfeited his right in the property; third that the interest of the mortgagee locals could not be acquired by the government under section 4 of the Displaced Persons (Land Settlement) Act, 1958 and that notwithstanding the words "free from all encumbrances" appearing in that section the mortgagee locals were entitled to retain possession of the land until the mortgage was redeemed and further it was not necessary for the mortgagor to safeguard his rights to have sought a declaration under section 22 of Act XII of 1957; fourth only evacuee interest of the evacuee mortgagee had vested in the Custodian which had come to the compensation pool and was available to, the settlement authorities for disposal. Anything in excess of it did not vest in the Custodian or constituted the compensation pool or could be transferred by the Settlement Authorities and that the non-evacuee mortgager's right to redeem the mortgage did not ever come to be extinguished; fifth if the non-evacuee mortgagor's right could not be acquired as has already been so held the property could not be transferred to the allattees and if transferred, it would be subject to mortgagor's right of redemption.
10. The case in hand is distinguishable, first because there is a finding of fact that the property even prior to 1947 was in the name of the evacuee. The Chief Settlement Commissioner after detailed enquiry and having examined the Record Keeper and relevant record of Municipal Corporation Sialkot came to the conclusion vide order dated 8-3-1986 that the site plan of the house constructed on the property subject matter of the said case was approved in the name of Makhan Lal Soori, evacuee mortgagee as far back as 12-9-1943 much before the alleged mortgage deed.
After partition the houses and plots constructed on the property were put to auction by the Deputy Settlement Commissioner on 18-2-1960 and 12-5-1960 and having received full payment PTOs and PTDs were issued. These PTOs and PTDs remained unchallenged before a court of plenary jurisdiction; third even in the PTDs issued the names of evacuees appeared in the ownership column; fourth the Chief Settlement Commissioner/Notified Officer found that there was either an exchange of land or the mortgagor had sold the land to the evacuee owner much before partition.
Even in the revenue record khasra numbers were shown to be in the ownership of the evacuees; fifth no evidence was led that there was any element of fraud in issuance of PTDs or in possession of the property.
11. It has concurrently been held that the evacuees had constructed houses even prior to 1947 and to the knowledge of the predecessor-ininterest of the petitioners and that no steps were taken by the latter to restrain the construction, the Notified Officer had carried out a detailed enquiry. The Notified Officer also observed that the land underneath the constructed buildings was no longer agricultural and further that either there was an exchange or sale and that the land could not be said to be under mortgage. Even in the revenue record the land in question was shown in the ownership of the evacuees. The learned High Court also refused to interfere for another salutary reason i,e, that it would be inequitable because it would result in uprooting a number of families who have built houses and have been living there since long.
12. The impugned judgment of the learned High Court is in accord with the law laid down by this Court in Evacuee Trust Property Board v. Mst. Sakina Bibi (2007 SCM R 262) wherein at page 272 it was held as under:-- "It is a settled law that order of Custodian cannot be interfered in constitutional jurisdiction unless it was passed without application of mind and without perusing the record or in violation of law.
See Muhammad Munir's case 1993 CLC 478 and Mst. Sofia Begum's case 1994 MLD 213. The Chairman Evacuee Trust Board has ample power to decide whether the property has a character of evacuee or not while exercising power under section 8 of the Act, 1975 as the law laid down by this Court in Khurshid Zaman's case 1999 SCMR 1007."
13. The afore-referred view was reiterated in Secretary to Government of the Punjab, Forest Department, Punjab Lahore v. Ghulam Nabi (PLD 2001 SC 415) wherein it was observed at page 430 as under:- "Another vital question which needs consideration is as to whether Constitutional jurisdiction should have exercised in such-like cases specially when the forums available in the hierarchy under the relevant law have decided all the controversial questions on the basis of record and in accordance with law. It is well settled by now that "High Court will not go into disputed questions of fact in Constitutional jurisdiction".
14. For what has been discussed above, we do not find any merit in this petition which is dismissed and leave refused, with no order as to costs.