' I. MAHMUD, J.-This Letters Patent Appeal is directed against the judgment of a learned Single Judge of the erstwhile High Court of West Pakistan in Constitutional Petition No, 887 of 1963 dated 10-1-1966 allowing the petition of the respondents Nos. 1, 2 and 3 and setting aside the order of the Settlement and Rehabilitation Commissioner, Karachi dated 12-6-1963.
2. The lands in dispute comprising about 1385 acres 13 ghunta as situate in deh 31, 37, 38 Jamroa, Bitore. Sinhoro, taluka Sinjhoro and deh Moujway, taluka Shandadpur, District Sanghar and stood in the revenue record in the joint khatas of several evacuee owners including Rochomal, Shewakmal and Jewanmal the respondents Nos. 1, 2 and 3. The whole of the lands were treated as evacuee property and were allotted by the Rehabilitation authority to the appellants in 1949 and they were in due course issued khatunis. The dispute relates to the undivided shares of the above-named three respondents totalling 864 acres 29 ghuntas. These three respondents were declared as non- evacuee persons by the Custodian of Evacuee Property by his order dated 31-8-1950. But on the application of a number of residents of Sinjhoro that these respondents had since migrated to India. The Assistant Custodian of Evacuee Property passed an order on 31-3-1954 holding that the respondents were evacuees and the property. Respondents, therefore, filed a revision to the Custodian, who partly allowed it by his order dated 10-11-1954 holding that only respondent No, 3, Jewanmal, was living in Pakistan and was non-evacuee but dismissed the revision as to respondents Nos. 2 and 3 holding them to be evacuees. The respondents Nos. 1 and 2 then applied under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 for declaring their undivided 9/4 anna share was not evacuee property, but this application was dismissed on 30-9-1954. However, an appeal was allowed on 7-12-1954 but the Additional Custodian, (Judicial) and they and their properties were held to be non-evacuee, Therefore, the Rehabilitation Commissioner, Sind made a reference to the Custodian under section 36(4) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 to revise this order but it was declined by the Custodian by his order dated 19-3-1956.
3. Some six years later, in February, 1962 respondents Nos. 1 to 3 applied to the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Division at Karacbi for possession of their shares and ejectment of the appellants. He passed a short order on margin of this application. On 20-3-1962 : "D. G. And D. S. C. (Land), Sanghar who may please cause necessary partition under law". The D. C. And D. S. C. (Land) forwarded the application of the respondents to the Assistant Rehabilitation Mukhtiarkar, Shandadpur for necessary action and report. Accordingly, by a partition order dated 8-9-1962 the Assistant Rehabilitation Mukhtiarkar partitioned the lands by assigning certain Survey Nos. Out of the lands against the shares of the respective respondents. The appellants being aggrieved by the partition order, filed an appeal before the Dy. Settlement Commissioner (Lands), Sanghar, who allowed the appeal by his order dated 29-4-1963 on the ground that the shares of the respondents were wrongly computed, primarily on the ground that the respondent "had not obtained any restoration order from the competent authority as provided by law. In the absence of any restoration order this partition order can only be considered as a mere paper partition, declaring only rights and shares of the appellant and the respondents separately. As no restoration order has been produced by the respondents, possession cannot be delivered to them and the allotments o the refugee allotters, cannot be disturbed. The respondents are advised t get the restoration order from the concerned authorities according to law so that they may be able to get the possession of the lands to which they are entitled". Therefore, respondents Nos. 1 to 3 filed application before the Settlement and Rehabilitation Commissioner under section 7(2) (b) of the Pakistan Rehabilitation Act, 1956 praying that as their shares in the lands have been partitioned the allotment of the appellants and others in occupation of the lands be cancelled after due notice to them and they be ejected and their shares be restored. This application was rejected by the Settlement and Rehabilitation Commissioner by his order dated 12- 6-1963 on the ground that without obtaining judicial order for restoration of the lands claimed by the respondent's non-evacuee property, the partition was wrongly effected. Being aggrieved by this order the respondents filed Writ Petition No, 837 of 1963 for setting the order aside. The writ petition was allowed by the learned Single Judge by the impugned judgment dated 10-1-1966. The learned Judge relying on certain observations of the Supreme Court in Yousaf Ali v. Muhammad Aslam Zia and others (1) held that when a property is allotted as evacuee property and that property has lost the character of evacuee property, it is the duty of the authority which put the allottee in possession to remove him from possession if he did not willingly surrender possession and restore the property to the owner who was not an evacuee. He, therefore, quashed the order of the Settlement and Rehabilitation Commissioner dated 12-6-1963 and directed him to pass an order for the restoration of the lands belonging to the respondents. The present Letters Patent Appeal is directed against the said judgment.
4. The short question is whether upon the respondents being declared non-evacuee persons by the Custodian, they thereby became entitled to restoration and possession of their properties without first obtaining a specific order of the Custodian under section 23 of the Pakistan (Administration of Evacuee Property) Act, 1957.
5. Mr. Khalid Ishaque, learned counsel for the appellants submitted that mere declaration by the Custodian of the respondents as non-evacuees, is not sufficient, by itself, for enabling them to obtain restoration of possession of their shares and for ejectment of the appellants, who are in occupation of portions of the lands as allottees. The respondents had first to obtain an order for restoration of their shares claimed by them as non-evacuee property before moving for partition of their shares. Now, respondent No, 3, Jewanmal, was declared non-evacuee and his undivided share in the lands as non-evacuee property. His status as non-evacuee was again confirmed by the Custodian on 10-11-1954. Respondents Nos. 1 and 2 were declared to be non-evacuees and their shares in the lands as non-evacuee, on their application under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 by the Additional Custodian (Judicial) on appeal on 7-12-1954, which order was upheld by the Custodian on 19-3-1956 despite reference to revise it suo motu moved by the Rehabilitation Commissioner, Sind. But the order of the Additional Custodian (Judicial) was silent a as far as the particulars of the property was concerned since no Schedule of the properties was filed. Thereafter, no further steps appear to have been taken by the respondents for declaring their specific shares as non-evacuee property and for restoration of the same to them under section 23 of the Pakistan (Administration of Evacuee Property) Act, 1957.
Instead, the applied in February, 1962 for being put in possession of their undivided shares after partitioning the same and by eviction of the appellant allottees. In support of this submission learned counsel referred to the following observations of the Supreme Court in Lachmandas v.
Central Government of Pakistan and another (2) :- ' if a person is declared an evacuee within the meaning of clause (2) {{FOOT NOTE}}
(1) PLD 1958 SC 104 (2) PLD 1973 SC 379 {{FOOT NOTE}} ' of section 2 of Act XII of 1957, or the corresponding provisions as obtaining at the relevant time and contained in the two Ordinances of 1 48 and 1949, then his property would become evacuee property, and once a property has become evacuee property or has been treated as such, then the only remedy available to the person claiming any right or interest in such property was to move the Custodian under section 18 of Ordinance XV of 1949, or under section 12 of Act XII of 1957 for a declaration that the property was not evacuee property or that his interest in the property had not been affected by the provisions of the statute. A mere declaration as to the non-evacuee status of the person concerned would not automatically have the effect of converting the property from evacuee to non-evacuee, or of its restoration to the claimant. In fact, while granting a declaration under section 18 of Ordinance XV of 1949, which was operative at the relevant time, the Custodian had to keep in view the provisions of sections 19 and 19-A of the Ordinance in the matter of prescribing terms on which property was being restored and seving the allotment orders which had been made by the Rehabilitation authorities while treating the property as evacuee property."
' Their Lordships of the Supreme Court approved their earlier observations in Mst: Hajra Sughra v.
District Judge & Settlement Commissioner, Hyderabad and others (1).
6. Mr. Abdul Majid Khan learned counsel for the respondents submitted that the power of the Rehabilitation Commissioner under section 7(2) (b) of the Pakistan Rehabilitation Act, 1956 to eject summarily persons in possession of any property which after it has been allotted as evacuee property, had lost the character of being such property, was independent of the power of the Custodian under section 13 of the Pakistan (Administration of Evacuee Property) Act, 1957. He submitted that it was the duty of the Rehabilitation Authority to eject the appellants immediately the respondents 1-3 and their property had been declared non-evacuee, which resulted in their property losing the character of evacuee property. He referred to the observations of the Supreme Court in the case of Yusuf Ali, referred to above, which the learned Single Judge also reproduced in his judgment as supporting the view taken by the learned Judge. In that case, the evacuee had a lease of a building owned by a local landlord, which was to expire on 30th September, 1950. Upon his migration, the building was allotted to another person. The Supreme Court held that upon the expiry of the lease, the Rehabilitation Authority had the power to evict the allottee and restore possession to the owner of the building. The case is distinguishable on its facts as in that case the allottee had an allotment for a fixed period which expired on 30th September, 1950. But, in view of the later observations of the Supreme Court in Lachmandas's case, referred to above, we are of the view that the obtaining of a restoration order for possession of specific shares by the respondents was necessary before their shares could be partitioned and the B appellants ejected there from by the Rehabilitation Authority. It is the Custodian alone who can pass an order for restoration of property treated as evacuee property to its non-evacuee owner. Under section 7(2) (e) of the Pakistan Rehabilitation Act, 1956, where the evacuee property consists of a share in land, the Rehabilitation Authority may effect a partition by defining the share "after obtaining the permission of the Custodian in the prescribed C manner". No such permission was obtained for the partition. It is true, as contended by Mr. Abdul Majid Khan, that the Custodian bas delegated {{FOOT NOTE}}
(1) 1969 SCMR 686 {{FOOT NOTE}} ' the power to the Rehabilitation Authority to partition lands, but this subject to the power of the Custodian to order restoration under section 23 of the Act. Section 23 would otherwise become redundant if the Rehabilitation Authority could summarily eject allottees under section 7(2) (b) of the Rehabilitation Act without a specific order for restoration of the Custodian. The object of section 23 of the Pakistan (Administration of Evacuee Property) Act, 1957 appears to be, inter alia to confer power and discretion upon the Custodian, that while ordering restoration of the property to their non-evacuee owners after holding a summary enquiry and after giving notice to the allottees, to impose such terms and conditions as he may think fit, while restoring the property to the non- evacuee owners. We, therefore, see no force in the contention of Mr. Abdul Majid Khan.
7. In view of the observations of the Supreme Court in Lachmandas's case, which conclude the matter, it is not necessary for us to consider the other submissions of the counsel.
8. For the foregoing reasons, we would set aside the impugned order and allow this appeal with no order as to costs.