SHAFI-UR-REHMAN, J.--The petitioners seek leave to appeal against the judgment of the Lahore High Court dated 30-4-1975 whereby a constitutional petition filed by them was dismissed with costs,
2. House No. P.-238 situate in Chak. No. 279/R. B., Lyallpur Town was in occupation of the petitioners.
They applied for its transfer under Settlement Scheme No. VII and obtained P. T. O. On 7-9-1964. Mst.
Fateh Bibi respondent claiming to be the owner of the property applied for the ejectment of the petitioners from the house but on objection by them that they were the transferrees of the house she withdrew that application and then filed two suits claiming declaration that she was the owner and the petitioners in possession were her tenants and in the alternative, claiming possession of the property on the basis of title. The petitioners contested the suit and challenged the jurisdiction of the civil Court to deal with the matter. Their objection prevailed in the trial Court which returned the plaint under Order VII, rule 10, C. P. C. An appeal was preferred to the District Judge which was allowed and the case was remanded to the Civil Judge to decide it in accordance with law after getting the question of the evacuee character of the property referred and determined under section 41(2) of the Administration of Evacuee Property Act, 1957 (herein--after referred to as the Act). A reference was accordingly made. The Deputy Custodian declared the property to be evacuee on 24-5-1969. The respondent appealed to the Custodian who reversed the finding and held that the property was non-evacuee.
3. The petitioners then filed the constitutional petition challenging the decision of the Custodian.
The grounds actually taken up in the con--stitutional petition were that the reference or the claim of the respondent was barred by time and a declaration under section 22 could not be given.
Again it was said that section 41 had to be read with section 22 and the reference by the civil Court was subject to the same conditions as was a claim under section 22 and being barred by time it could not be entertained or adjudicated in favour of the respondent. On various grounds the decision of the factual question that the property was evacuee was also challenged.
4. The arguments addressed before the learned Judge in the High Court were, however; directed towards establishing that the determination by the Deputy Custodian that the property was evacuee was final and no appeal lay to the Custodian. This argument taken up for the first time was repelled by the learned Judge by reference to the distribution of duties between the Custodian and the Deputy Custodian, as appearing at p. 97 of Punjab Statutes PLD 1950. Even the revisional powers possessed by the Custodian under section 43 (4) were held to be available to the Custodian for passing such an order and for reversing the order of the Deputy Custodian. On merits it was found that there was material on the record on the basis of which the Custodian could record the finding which he did record.
5. The learned counsel for the petitioners has taken up new grounds before us. It was contended that the property in dispute stood acquired under section 3(3) of the Displaced Persons (Compensation and Rehabilitation) Act and in view of the decision of this Court in Maj. Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC 451, the Custodian ceased to have any authority thereafter to adjudge the evacuee or non-evacuee character of the property. In support of this contention reliance is also placed on Act XLV of 1958 whereby an amendment was introduced by adding section 3-A in the Act providing that : "3-A. Notwithstanding anything contained in this Act, no person or property treated as evacuee or as evacuee property immediately before the commencement of the Pakistan (Administration of Evacuee Property) (Amendment) Act, 1958, shall be declared to be non-evacuee or, as the case may be, non-evacuee property, on or after such commencement."
The other ground taken up by the learned counsel for the petitioners is that no appeal lay to the Custodian as a reference under section 41 of the Act had to be finally decided by the Custodian and the Deputy Custodian satisfied the definition of a Custodian under section 2(1) of the Act. Such an order passed by the Deputy Custodian was neither reviewable by way of appeal nor by way of revision. The learned counsel for the petitioners reads the same limitation in subsection (4) of section 43 of the Act as are contained in section 43 (1). Finally, it has been stated that the property was in fact evacuee, had been in possession of the petitioners since 1947 and had been in fact dealt with as an evacuee property and for that reason it could not be declared to be non-evacuee.
6. We find that the first legal ground now taken up by reference to section 3 of Displaced Persons (Compensation and Rehabilitation) Act, was not taken up at any earlier stage, not even in the petition before us. This ground, though apparently a legal one, has a factual basis in so far as it required determination whether the property had been treated as evacuee property and if so from what date. The petitioners, stood by and allowed the Deputy Custodian and the Custodian to exercise the jurisdiction and when the adjudication went against them, as an afterthought, and at a late stage, they challenged their jurisdiction to do so. The decision in East & West Steamship Co. v. Queensland Insurance PLD 1963 SC 663, that a pure question of law could be allowed to be argued is not fully attracted to this case and we would be amply justified in giving effect to the salutary principle contained in Ghulam Mohi-ud-Din's case PLD 1964 SC 829. It is expressed in the following words: "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
7. The law laid down in the case of Maj. Mehtab Khan is not attracted to the facts of this case as will appear from the following conclusions recorded in that case: "The combined effect of these provisions is clearly to exclude the jurisdiction of all other authorities, including the Custodian of Evacuee Property, from dealing with lands which have been acquired under section 4 and included in the Compensation Pool formed under section 5 of this Act: 1f, however, a question arises as to the evacuee or non-evacuee nature of the property, the Custodian would, have exclusive jurisdiction to determine the same in terms of section 41 of Act X11 of 1957 for if the property was not evacuee property on the date of the publication of the relevant notification, it did not stand acquired in terms of section 4 of the Displaced Persons (Land Settlement) Act, 1958."
On the factual plane the finding of the Custodian was that the property was not treated as evacuee property. This appears from the following observations: "Even after partition of the sub-continent the property in dispute has been shown in the ownership of the appellant. It is strange that the respondents are' alleged to have been in possession of the property in dispute since 1948-49 but they did not get it allotted in their name. Admittedly they deposited the rent of the property with the Settlement Department but the same was done in 1959.
If the respondents believed that the property in dispute was an evacuee property and existed as such in the record of Taxation and Rehabilitation Department they should have moved for its allotment long ago. They have failed to establish that the property was an evacuee property."
There is therefore no question of application of section 3-A as introduced by Act XLV of 1958.
The power of the Custodian under subsection (4) of section 43 of the Act is residual, all pervading, and covers within its ambit all determinations, adjudications and proceedings pending or finalized by an officer subordinate to him. It is the usual concomitant of the more plenary power of superintendence and control exercisable by the Custodian on his subordinates. The limitations contained in subsection (1) of section 43 of the Act do not control the dispensation of this power, as is evident by the language in which the power has been conferred and also by the very substance of the power conferred.
8. We would not like to go deeper into the factual enquiry conducted by the Custodian for holding that the property was not evacuee because we find that there was sufficient material before him to record that finding. It is not one of these cases where the material evidence has been ignored or misread or a decision has been given against the full weight of evidence.
9. The petition has no merit and the leave to appeal is refused.