ANWARUL HAQ, J.--This petition under Article 98 of the Constitution seeks to challenge the correctness and legality of an order passed by the learned Custodian of Evacuee Property, West Pakistan, on the 10th of May, 1963, upholding, in appeal, an order passed by a Deputy Custodian on the 17th of December, 1962, dismissing the petitioners' application under section 22 of the Pakistan (Administration of Evacuee Property, Act (XII ,of 1957) (hereinafter referred to as the Act) for a declaration that the evacuees had no interest in the land in dispute measuring 1418 kanals and 14 marlas situate in village Ahmad Shah, Tehsil and District Montgomery, for the reason that the petitioners had acquired prescriptive title on account of adverse possession, for more than twelve years before the 1st of March, 1947. Briefly, the case set up by the petitioner was that in 1872 the entire village comprising 725 acres belonged to Jalal Shah, Hussain Shah, Chiragh Shah and Amir Shah, the ancestors of the present petitioners, in equal shares. In 1879 Amir Shah and Chiragh Shah mortgaged their 1/8th share with Gobinda Mal and Parvati Ram for Rs.1,923, but the possession of the land was never delivered under the mortgage. In 1907 the sons of Chiragh Shah and Amir Shah sold their equity of redemption to Lala Bhawan Ram. Thereupon Noor Shah, father of petitioners Nos. 2, 3 and 4, and some others filed a suit for pre-emption which was compromised with the vendee to the effect that one-half of the 1/8th share (i.e. 1/16th share of the entire Khewat) be decreed in favour of the plaintiffs without any payment and as regards the remaining one-half share of the land then it suit, the plaintiffs agreed to surrender its possession to the vendee Lala Bhawan Ram on receipt of costs of improvements effected by them on the land. It. Is stated that the possession of this one-half share, was however, never delivered to Lala Bhawan Ram. Then in 1920 one Atama Singh purchased 3/16th share in the entire Khewat from the sons of all the owners with the result that by 1925 the village had to be partitioned and two Khewats were formed. 314th share in the entire Mauza remained with the Muslim owners, whereas 1/4th area of the estate measuring 1418 kanals and 14 marlas was made into a separate Khewat No. 2 belonging to the non-Muslims. Out of the non-Muslims Khewat, 3/4th share was shown to be the ownership of Atama Singh and the remaining 1/4th of Nand Lal and Kishan Lal, sons of Bhawan Ram. The petitioners assert that in spite of this partition of the entire estate into two Khewats between the Muslim and the non-Muslim owners the petitioner's ancestors remained in adverse possession of the lands comprised in Khewat No. 2 and that this position continued to prevail until 1947, when the evacuee-owners migrated to India, and that even after partition the petitioners have remained in possession up-to-date. However, in 1961 the area in dispute was allotted and confirmed by the Rehabilitation authorities in the names of respondents Nos. 4 to 11 who are displaced persons from India. It was this allotment by the Rehabilitation authorities which gave the petitioners a cause of action for invoking the provisions of section 22 of the Act.
2. The petitioner's application was accepted by the learned Deputy Custodian of Evacuee Property, by his order, dated the 27th of November, 1961, subject to confirmation by the learned Custodian.
When the case came up before the learned Custodian he remanded the same for a fresh decision by his order dated the 6th of March, 1962, observing that some important revenue entries like the Jamabandi of 1939-40 had not been brought on the record, nor had a proper sifting been done of the revenue entries pertaining to 'the disputed land from the beginning to the end. In accordance with the learned Custodian's direction the case was re--examined by another Deputy Custodian and the petitioners' application was rejected by his order dated the 17th of December, 1962.
3. The orders passed by the Custodian authorities have been challenged before us on the following grounds--
(a) that the land not having been treated as evacuee property up to the year 1961, the possession of the petitioners was protected under section 3 of the Act,
(b) that the learned Custodian has misread the evidence placed on the record in coming to the conclusion that adverse possession of the petitioners was not proved for more than twelve years before the 1st of March, 1947, and
(c) that, in any case, even after the 1st of March, 1947, the petitioners have been in continuous uninterrupted adverse possession of the land for nearly fourteen years until the land was proposed in the name of the respective refugees on the 16th of March, 1961, and later on confirmed on the 19th of Au0gust, 1961.
4. As regards the first contention, there was some argument at the Bar on the point whether it was raised by the petitioners before the Custodian authorities or whether it was being agitated for the first time in the High Court. We find that this question was raised before the learned Deputy Custodian who heard the petitioners' application for the first time and it was again raised before the learned Custodian when he remanded the case for re--consideration. The point is mentioned even in the grounds of appeal presented by the petitioners to challenge the dismissal of their application by the Deputy Custodian who considered the case after remand. It is true that the point is not discussed in the final order passed by the learned Custodian on the 10th of May, 1963, but it is clear that it could not have been abandoned by the petitioners as it had been raised at the earliest stage when they presented their application in the first instance. We, therefore, proceed to consider this contention on merits.
5. The scope and application of section 3 of the Act were considered by a Full Bench of this Court in Syed Ali Iqtdar Shah and others v. The Custodian of Evacuee Property, West Pakistan (PLD 1964 Lah. 274), and the conclusions reached were summed up in paragraph 18 of .The judgment which may be reproduced here with advantage :- "(1) That no person or property can be declared evacuee or evacuee property after the 1st of January 1957, if it was not treated as such before that date by the Custodian. The treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authorities. Mere vesting of the pro--perties in the Custodian under section 7 or holding possession under section II will not mean that such properties were treated as evacuee properties. If a person has been declared as a non-evacuee, his property cannot be declared to be evacuee property. If the Custodian has confirmed a transaction or approved the right of supervision, management and possession of any party, such properties also cannot be declared as evacuee properties.
(2) All cases in which action has commenced or proceedings are pending immediately before the 1st of January 1957, are outside the purview of section 3 (1).
(3) Only those properties are covered by clause (b) which are in unauthorised possession, management or supervision of certain parties. These persons cannot be the owners of the property. Amongst them will fall the cases of agents, transferees claiming their right after the 1st of March 1947, through the evacuee. It will also cover the case of a trespasser."
6. It will be seen that according to the dictum of the Full Bench "the protection envisaged in subsection (1) of section 3 of the Act is no available to properties which are in unauthorised possession, management o supervision of certain parties, as clause (b) of subsection (2) of section 3 of the Act creates an exemption in respect of such properties. The case of trespassers has been held to fall under clause (b) of subsection (2), with the result that a person claiming on the basis of adverse possession is not protected by section 3 of the Act even though the property in dispute may have been treated as evacuee property immediately before the 1st of January 1957. On this view of the matter, it is clear that no benefit accrues to the petitioners under section 3 of the Act even though it be assumed that the property was not treated as evacuee property immediately before the let of January 1957.
7. It was submitted by Mr. Aziz Ahmad, the learned counsel for the allottees, that it was not correct to suggest that the property had not been treated as evacuee property immediately before the 1st of January 1957, as the property was all along owned by evacuees and as such had vested in the Custodian of Evacuee Property from the 1st of March 1947, under section 6 of Ordinance XV of 1949 and, therefore, in these circumstances the vesting of the property in the Custodian by operation of law was equivalent to its being treated as evacuee property. !n support of this contention the learned counsel drew our attention to the observations made by Yaqub Ali, J., in an unreported case Sardar Noor Muhammad v. Custodian of Evacuee Property, West Pakistan, Lahore, Writ Petition No. 634 of 1959, decided on the 1st of June 1960, in which the view was expressed that the notification issued by the Custodian under Ordinance, V of 1947 on the 24th of December 1947 had the effect of treating all evacuee properties as such. In other words. Vesting and treating were interpreted as being synonymous in the context of section 3 of the Act. This view was, however, not accepted by the Full Bench in the case of Syed Ali lgtdar Shah, to which reference has already been made. In conclusion No. 1 embodied in paragraph 18 of that judgment it was clearly held that "the treatment referred to in this section indicates that some overt act must have been done by the Custodian or Rehabilitation Authorities. Mere vesting of the properties in the Custodian under section 7 or holding possession under section 11 will not mean that such properties were treated as evacuee properties," This conclusion embodied in the judgment delivered by Waheeduddin Ahmad, J. Rims concurred in by the remaining four Judges of the Full Bench and must, therefore, be regarded as a dictum of the Full Bench. It is clear, therefore, that in view of this dictum it has to be held that in the present case the property in dispute was not treated as evacuee property by the Rehabilitation authorities or by the Custodian immediately before the 1st of January, 1957, and indeed this is the view taken by the learned Deputy Custodian as well as the Custodian while stating the case of the petitioner. However, as already observed, no benefit accrues to the petitioners on this account for the reason that the protection envisaged by section 3 of the Act is not available to trespassers.
8. Before dealing with the factual aspect of the case we might dispose of the last contention that, in any case, even from the year 1947 the petitioners have remained in possession for more than twelve years until the property was treated as evacuee property by being proposed for confirmation in the names of the respondents 4 to 11. This argument advanced by Sheikh Abdur Rashid is clearly untenable in view of the provisions contained in section 7 of Ordinance XV of 1949.
Whereas by section 6 it was directed that all properties shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947, it was enacted by section 7 of the Ordinance that "every person who is or has, at any time after the 28th day of February 1947, been in possession, supervision or management of evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian". It is clear, therefore, that after the 28th day of February 1947 the possession of the petitioners must be deemed to be on behalf of the Custodian and not on their own account. Such being the case, the period commencing from the 1st of March 1947, cannot be tagged on to the period ending the 28th of February 1947. The contention, therefore, fails. Before concluding with this part of the case, we may observe that the case set up by the petitioners in their application under section 22 of the Act was that they had perfected their title before the 1st of March 1947, and no attempt was made to take advantage of their possession since 1st of March 1947. That was the correct position to take in view of section 7 of Ordinance XV of 1949.
9. We now turn to the contention that the Custodian authorities have misread the evidence on the record in rejecting the plea that the petitioners had been in adverse possession for more than twelve years before the 1st of March 1917. It has already been stated that in 1925 a separate Khewat was carved out for the non-Muslims to the extent of 1/4th of the entire area of the estate. In 1931 the non-Muslims Nand Lai and Kishan Lai instituted a civil suit for redemption of the mortgage, which was decreed .In their favour in 1932, and in execution of that decree constructive possession was delivered to the decree-holders on the 24th of August 1935. However, dispute with regard to tenancy rights continued as is apparent from the entries appearing in the jamabandis for the years 1930-31 and 1934-35. On the 18 of September 1935, a mutation was sanctioned by the Assistant Collector of the Second Grade ordering that the possession of the Muslims shall be described as but the non-Muslims went up in appeal which was accepted by the Collector on the 14th of May, 1936 and the entry with regard to the possession of the petitioners and some of their ancestors was directed to be altered so as to read.In Exh. P. 3; which is the jamabandi for 1934-35, the Collector's appellate order, dated the 14th of May 1936, appears to have been given effect to and the remarks column regarding the possession of the petitioners and other Muslims showed that they were occupying land. However, the entries in the jamabandi for 1938-39 have one description for certain Khasra numbers and the other description for the other, but in the jamabandi for 1942-43 the old entry re-appear m respect of practically all the Khasra numbers.
10. It is submitted by Sheikh Abdur Rashid and Mr. Saeed Hassan, the learned counsel appearing for the petitioners, that the jamabandis clearly show that the petitioners, and before them their ancestors, never surrendered physical possession of the land and all the time they were holding adversely to the non-Muslim owners. It is further submitted that even if the period before the 24th of August 1933, i.e. The date on which constructive possession of the land was delivered to the non- Muslims, is excluded, the period of twelve years still stands completed because the petitioners again took possession of the land and did not pay lagan to the true owners. It is emphasised by the two learned counsel for the petitioners that the non--payment of lagan for such a long period andth the re-appearance of the entry in the jambandi of 1942-43 are factors strongly indicative of the fact that the petitioners were all along claiming adversely to the non---Muslim owners.
11. It seems to us that there is no merit in these submissions. Whatever the nature of the petitioners' possession before the 24th of August 1933, that possession came to an end with the delivery of constructive possession to the non-Muslims under a decree of the civil Court. It has been held by the learned Judges in Malik Muhammad Hayal Khan v. Subedar Yar Muhammad Khan (PLD1966SC612), that as against a judgment-debtor symbolic possession is as good as actual possession. It is, therefore, clear that from this date onwards the possession must be deemed to be that of the non-Muslim owners unless it can be shown that the petitioners or their predecessors-in- interest repudiated the title of the non-Muslim owners in an open, overt and hostile manner. The evidence of such conduct on the part of the petitioners or their predecessors-in-interest is completely lacking in this .Case. The dispute which arose after the delivery of constructive possession to the non-Muslims was confined to the question of tenancy and the position was clarified by the Collector's order, dated the 14th of May, 1936, that the non-payment of rent by the tenants in actual possession shall be regarded as being due to or dispute as to cultivation. The term is well understood in revenue law and practice and has no reference to any dispute about title. The ordinary expression to describe adverse possession in the revenue records is "but that expression does not appear even once in the revenue records. The strongest term used in favour of the petitioners is but old possession need not necessarily be adverse to the true owners. The facts brought on the record show that there was a dispute not only between the Muslim tenants and the non-Muslim land-owners but also between a set of non-Muslim tenants named Lachhman Das and Narain Das on the one side and the non-Muslim landlords on the other: In these circumstances, there was indeed a which, however, did not have any bearing on the question of title. In 1946 one of the non-Muslim landlords, namely, Attama Singh, filed a suit for possession of the property, but the same was dismissed in default in October 1947, for the ostensible reason that Attama Singh, etc. Had migrated from the country. Even this suit was brought within ten years of the order of the Collector dated the 14th of May 1936.
12. From the revenue records the position clearly emerges that the non. Muslims were the owners of 1/4th area of the estate, i.e. The land now in dispute; that on the 24th of August 1933, constructive possession had been delivered to the non-Muslim owners under the decree of a civil Court ; that on the 14th of May 1936 the Collector decided that the entries in the revenue records shall read and that since that date there is no evidence of an overt, open and hostile repudiation of the non- Muslims, title by the present petitioners or their predecessor-in-interest. The dispute regarding cultivation cannot be raised to the status of a dispute regarding ownership, and cannot be equated with. In these circumstances, the Custodian authorities were clear justified in coming to the conclusion that adverse possession for more than twelve years before the 1st of March 1947 had not been proved by the petitioners.
13. The learned Custodian had also taken note of the fact that the major portion of the land in dispute is either banjar gadeem or sailibi and to these circumstances possession will follow title. On this view of the matter also no inference of adverse possession could be drawn in favour of the petitioners.
14. For the foregoing reasons, the petition fails and is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.