M. S. H. QUESHI, J.--The petitioners as well respondents Nos, 9 to 39 are local Muslims. Their predecessor-in-interest had mortgaged with possession, the agricultural land in question measuring 242 kanals 10 marlas comprising Khewat No, 94 of jamabandi for the year 1957-58 of village Sherowana, Tehsil and District Jhang, to Tulsi Das and other Hindus for Rs, 90 in 1870.
Respondents 3 to 8 who were the successors of the mortgagees at the time of the Partition, became evacuee. Ghazi and other mortgagors moved an application on 22-8-1960 for the restitution of the property under the Punjab Restitution of Mortgage Lands Act, 1938 (later repealed and substituted by West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964). The application was ultimately allowed on 21-11-1967 by the Revenue Officer, Jhang exercising the powers of Collector, subject to the Mortgagors' depositing within two months the sum of Rs, 85.31 as compensation money. Mst. Nighat Ara Begum (respondent No, 1) to whom the land in question had been allotted by the settlement authorities under the D. P. (Land Settlement) Act, preferred an appeal before the Additional Commissioner (Revenue), Sargodha Division which failed. She thereupon filed a revision petition before the Member, Board of Revenue who by his order dated 11- 3-1970 accepted the same and set aside the orders of the Collector and the Additional Commissioner for the following brief reason :-- "It is settled law that when property goes into Central Pool it becomes the absolute property of the Central Government and the allottee gets it free from encumbrances. If respondent 1 to respondent 9 had any rights over the property they should have applied in time to the Custodian. Without any order from the Custodian to the contrary the right of the petitioner is absolute."
The petitioners have challenged this order by the present writ petition.
2. The view taken by the learned Member, Board of Revenue is based on a misconception of the law. Section 22 of Pakistan (Administration of Evacuee Property) Act, 1957 envisages the possibility of the existence of properties of a composite nature, on which some interest may belong to the evacuee and the remaining interest may vest in a non-evacuee. It would, therefore, be inapt to describe such properties as "evacuee property" in their entirety, without qualification. In expounding this view in the case of Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another , their Lordships of the Supreme Court had held as follows:-- "The intention to destroy the rights of Pakistani owners in properties, in which part of the interest vested in an evacuee, without any compensation whatsoever, cannot be lightly attributed to the Legislature. The Displaced Persons (Land Settlement) Rules, 1959, make it clear that permanent settlement of lands has to be made only to the extent of the right or interest abandoned by an evacuee therein."
3. Where the land had been mortgaged by an evacuee to a local Muslim, the equity of redemption duly vested in the Custodian and the mortgage money due to the mortgagee, as laid down under section 14-A of the Displaced Persons (Land Settlement) Act became a charge on such land; vide decisions in Muhammad Nawaz Khan and others v. Muhammad Amin and others , Muhammad Tufail v. The Chief Settlement and Rehabilitation Commissioner and Muhammad Dinv.
Government of Pakistan etc. . On the other hand where the land had been mortgaged by a local Muslim to an evacuee, as is the case here, it vested in the Custodian only to the extent of the right or the interest of the evacuee mortgagee and the local mortgagor could redeem such land on payment of the mortgage money, or the Custodian could take action to recover the mortgage money under clause (1), failing which the Custodian could transfer the property under clause (s) of subsection (2) of section 25 of the Pakistan (Administration of Evacuee Property) Act. It would not be correct to say that the right of the mortgagor to redeem the land on payment of the mortgage money had been extinguished by the enactment of the Pakistan (Administration of Evacuee Property) Act, 1957.
4. The application for redemption could, however, lie only before the Custodian who alone had jurisdiction over it by virtue of section 41 read with section 25 (2)(/) of the Pakistan (Administration of Evacuee Property) Act. It was in pursuance of this legal position that the Chief Settlement and Rehabilitation Commissioner by his memorandum No, 6883-59/7042/R(P), dated 8-12-1969 directed as follows:-- "The land mortgaged by locals with evacuee has remained excluded from allotment under the Rehabilitation Settlement Scheme. The question of its final disposal has been considered and it has been decided that the amounts (mortgage money) due to the evacuee in such cases should be recovered by the local Rehabilitation authorities within their respective areas of jurisdiction. The needful will be done under section 25 (2) (1) of the Pakistan (Administration of Evacuee Property)
Act, 1957. Powers under this subsection have since been delegated to the Deputy Rehabilitation Commissioners and Assistant Rehabilitation Commissioners by the Custodian of Evacuee Property, vide Custodian's orders dated the 28-8-1959/27-11-1959. The Assistant Rehabilitation Commissioners concerned should immediately issue a notice to the local mortgagors of this category to redeem the properties involved within one month, failing which the evacuee right in the properties shall be auctioned under section 25 (2)(s) of the Pakistan (Administration of Evacuee Property) Act, 1957. , The position was further clarified by the Chief Settlement and Rehabilitation Commissioner in his memorandum No, 3519-3888 R (P) dated 12-11-1960 in the following words: "It may be observed that after the migration of evacuees their properties vested in the Custodian.
Non-evacuee mortgagors could have sought redemption of the mortgage or recovery of1 2 3 4 possession in their immovable property from the Custodian or Evacuee Property."
5. The proper course for the petitioners, therefore, was to have moved the Custodian or his delegate under the above instructions, for it is obvious that no application could lie for the purpose under the West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964. It is to be noted that the Board of Revenue itself had by its memorandum No, 3051/Reader, M. B. P. (R) dated 30-7- 1965, issued instructions to the effect, inter alia, that "no action under the West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964, can be taken in respect of the evacuee lands ". Perhaps the above instructions, had not been brought to the notice of the learned Member, Board of Revenue or the other revenue authorities who had entertained and dealt with the petitioners' application for restitution, at its various stages. In this view of the matter, and as the contrary has not been shown, we hold that the entire proceeding under the Punjab Restitution of Mortgage Lands Act, 1938 and after its repeal under the West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964, 'before the Revenue Authorities was a nullity and without any legal effect.
6. It appears that the time prescribed by the Chief Settlement and Rehabilitation Commissioner in his memorandum dated 8-12-1959 (referred to in Para. 4 ante) for the redemption of mortgage properties, had been extended from time to time. Mr. M. G. Cheema, the learned counsel for the petitioners states that according to the latest instructions, the time stands extended up to 31-3- 1971. He, however, states that the petitioners would move the settlement authorities for the restitution of the property within the time still available to them.
7. We accordingly set aside the impugned order of the learned Member, Board of Revenue as well as the entire proceedings leading up to it. The petitioners will be at liberty to seek their remedy before the Settlement authorities. The petition is disposed of accordingly. There will be no order as to costs. PLD 1962 SC 284 PLD 1969 Lah. 622 1970 SCMR 73 1970 SCMR 94