1. The petitioner (which is the Municipal Committee, Larkana), has filed the present petition and has sought the following reliefs:-
(1) declare that the orders of respondents the disputed plot has been transferred to respondent No. 3 has been passed without lawful authority and are of no legal effect whatsoever.
(2) direct the Settlement Authorities to hand over vacant possession of the said plot to the petitioner.
2. The brief facts leading to the filing of the above petition are that the petitioner had leased out a plot of land, bearing City Survey No. 1507/5, measuring about 13277 sq. Ft. Situated at Station Road, Larkana, to one Thakurdas son of Narain Singh Gokalani in the year 1936 for a period of 7 years for constructing a cinema. It has been averred that the above lease having expired on 31-3-1942 was renewed for further period of 7 years expiring on 31-3-49. After that it was again renewed for another period of 10 years-ending in 1959 under the Letter No. 9-124-C-45, dated 26-4-47 issued by the then Revenue Commissioner of Sind on an annual rental of Rs.1,000. It has also been averred that the leasee migrated to India in 1956, consequently the possession of the cinema; namely, Royal Cinema alongwith the plot was taken over by the Custodian of the Evacuee Property, West Pakistan, Southern Zone. It seems that the petitioner wrote a letter dated 6-10-56 to the Additional Rehabilitation Commissioner, Hyderabad (Annexure `C' to the petition) pointing out that the plot was amongst the plots, which were leased out for a period of 10 years April, 1949, to the evacuee.
2. The Additional - Rehabilitation Commissioner Hyderabad was called upon to pay the annual rental namely, Rs.1,000, and also a sum of Rs.300, being the drainage tax. After that the petitioner wrote another letter dated 22-12-59 (Annexure `D' to the petition) addressed to the Custodian Evacuee Property, Additional Rehabilitation Commissioner, Hyderabad and Khairpur Divisions, Deputy Rehabilitation Commissioner, Larkana, the Deputy Custodian Evacuee Property, Sukkur, Mr. Z. H.
3. Jamali the then Managing allottee of the Cinema and the Manager of the Royal Talkies, Larkana, inter alia, calling upon them to remove the structure of the cinema and to hand over vacant possession of the plot to the petitioner. In response to the above letter, the Deputy Custodian, Evacuee Property through his letter dated 29-12-59 pointed out to the petitioner that since Thakur Singh Narain Singh had become evacuee the petitioner was not entitled to take the threatened action in view of section 8 of the Pakistan Evacuee Property Act, 1957. He also requested the petitioner not to take any action. It seems that some further correspondence was exchanged between the petitioner and the Deputy Custodian, the Assistant Custodian and the Deputy Settlement Commissioner, Larkana (Annexures F to J to the petition). It has been further averred in the petition that the Custodian by his letter dated April, 1980 (Annexure `L' to the petition) addressed to the Deputy Rehabilita--tion Commissioner, Larkana (a copy of which was endorsed to the petitioner), requested the Deputy Rehabilitation Commissioner, Larkana, to remove the superstructure and to hand over the vacant possession of the land to the. Petitioner. After that the petitioner wrote a letter dated 14-4-60, to the Rehabilitation and Settlement Commissioner, Hyderabad and Khairpur Divisions with reference to the Custodian's aforesaid letter dated 9th April, 1980 (Annexure `K' to the petition) and pointed out that the Custodian by his above letter had requested tae Deputy Rehabilitation Commissioner, Larkana to remove the superstructure of Royal Cinema and also to hand over vacant possession of the plot to the petitioner. The petitioner also requested that the above action be taken namely, the structure of Royal Cinema be removed and vacant possession of the plot be handed over to them. They also called upon the Rehabilitation and Settlement Commissioner to pay a sum of Rs.6,710. Thereupon, the Settlement and Rehabilitation Commissioner through his letter dated 16-4-60 (Annexure `M' to the petition) sought the information. On the points mentioned in para. 2 and also requested for a copy of the lease- deed of the plot in question. The above letter was replied to by the petitioner through its letter dated 22-4-60 (Annexure `N' to the petition). It further seems that the Settlement Commissioner also sent a tele printer dated 18-5-60 addressed to the Commissioner, Khairpur Divisions requesting him to ask the petitioner not to demolish the structure as the lease was renewable. After that the petitioner, through its letter dated 15-6-60 addressed to the Rehabilitation Commissioner, Hyderabad and Khairpur Divisions and offered the renewal of the lease of the plot on the terms and conditions contained therein. Upon the receipt of the above letter, the Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Divisions through his letter dated 26-7-60 addressed to Z. H. Jamali the then Managing allottee of the cinema (Annexure `R' to the petition) asked him to contact the Chairman of the petitioner in order to settle the terms of the then proposed renewal of the lease. After that the aforesaid Mr. Jamali addressed a letter to the Settlement and Rehabilitation Commis--sioner (Annexure S to the petition) stating therein that the terms and conditions offered by the petitioner were not practicable and he was not willing to accept the same. It may be pertinent to observe that aforesaid Mr. Jamali was a co-allottee of the Management of the Cinema since 1957, with the respondent No. 3 and one Abdur Rauf till the above cinema was provisionally transferred to the respondent No. 3 on 14-7-60. After that PTD was issued on 1-11-1967 in favour of the respondent No. 3 exclusively. After that some further correspondence was exchanged between the parties. However, for the purpose of the above petition it may be pertinent to refer to the Letter No. 4226/RB, dated 20-6-61 addressed by the then Secretary West Pakistan Industries, Rehabilitation Board, Lahore (Annexure V to the petition) addressed to the Commissioner, Khairpur Division, stating therein, that the noted cinema had been provisionally transferred to Ahmed Naji i.e. The copy of the said letter, which has been filed along with the petition and is supported by an affidavit, and to which no counter affidavit has been filed by the respondent No. 3. Furthermore, from the documents on record the factum that the above letter was written stands proved. It may be pertinent to observe that this letter has been referred to by the petitioner in its letter dated 14-4-60, addressed to the Rehabilitation and Settlement Commissioner, Hyderabad and Khairpur Divisions (Annexure L to the petition) the copy whereof was endorsed inter alia to the Deputy Custodian.
(c) Reverting to Mr. Ismail Munshi's contention that though the respondent No. 3 has not filed any counter affidavit to the above petition, he is entitled to rely upon the paper book of the aforesaid and Appeal No. 263/64 for the purpose of refuting the averments of the petition, it may be observed that in my view the above contention is devoid of any force inter alia firstly for the reason that the respondent No. 3 was not a party to the aforesaid suit and appeals and secondly, on account of the fact that the above suit was dismissed mainly on the ground that a civil Court had no jurisdiction to determine the status of the property namely, as to whether the property in question was evacuee or not. I had asked Mr. Ismail Munshi to show an extract from the evacuee property register or any other judicial order of the Custodian Department to indicate that the ownership of the plot was ever treated as an evacuee interest by the Custodian Department, his reply was that since the present petitioner in the aforesaid suit had itself admitted the factum that the plot was treated as an evacuee property, the respondent No.3 was not obliged to produce any document to substantiate that in fact the plot in question was treated as an evacuee plot. He has also relied upon the judgment of the learned Senior Civil Judge in the aforesaid Suit No. 80/57 particularly his finding on Issue No. 1 and the Custodian Department's written statement to the effect that the property was an evacuee property. On the other hand, it was pointed out by Mr. Usman Ghani Rashid that the above suit, mainly related to movable properties (machinery & furniture etc.) and not about the determination of the status of the plot. Be that as it may, in my view the above petition is to be decided on the basis of the documents on the record of the petition, and not on the basis of the plaint, written statement, or the judgment of the learned Senior Civil Judge, particularly in view of the fact that because of section 22 of the Pakistan Administration of Evacuee Property only the Custodian was competent to determine the question as to whether the ownership of the plot of land had become evacuee or not. This has also been urged by the learned counsel for the respondent No. 3. Any observation made by the learned Senior Civil Judge in the judgment of the aforesaid suit about the status of the plot in question is without jurisdiction. I am inclined to hold that it was for the respondent No. 3 to refute the averments contained in the above petition supported by the documents annexed to the petition referred to hereinabove, which clearly indicate that it was never the case of the Custodian Department or the Rehabilitation Department that the I ownership of the plot vested in the Custodian. What was agitated was that the interest of the evacuee lessee in the plot in question stood vested in the Custodian.
(d) Mr. Ismail Munshi has also referred to the case of Mst. Hajran Sughra v. District Judge and Settlement Commissioner, Hyderabad and others (1969SCMR686), of the case Lachmandas v.
4. Central Government of Pakistan (PLD1973SC379), and the case of Mst. Mehtab Khan v.
5. Rehabilitation Authority and another (PLD1973SC451), in support of his above contention that only the Custodian of the evacuee property is competent to declare a property as non-evacuee and that if a property has been even wrongly treated as an evacuee, it is for the Custodian to correct the above error and not for any other forum. There cannot be any cavil to the above proposition of law, but from the documents on the record, referred to hereinabove in para. 2, it is clear as pointed out herein--above, that it was never the case of the Custodian Department or the Rehabilitation Department that the ownership in the plot vested in the Custodian.
6. Mr. Abdul Sattar, learned counsel who has appeared for the respondents Nos. 1 and 2 (f. e. For the Chief Settlement Commissioner and the Additional Settlement Commissioner (Industries) respectively) has submitted that it is the case of the Settlement Department that the plot belonged to the petitioner and only evidence interest in the plot had vested in the Custodian Department and thereafter in the Settlement Department. I had asked him to produce the record of the Settlement Department, which he has produced during the arguments. From the above record, it seems that even the managing allottee of the cinema in question Mr. Z. H. Jamali alongwith his application dated 14-6-60 addressed to the Chief Settlement Commissioner, Lahore, had enclosed a copy of the aforesaid letter dated April, 1980 (Annexure K to the petition), which has been denied by the present respondent No. 3. The above application and its aforesaid annexure were also shown to Mr. Ismail Munshi. However, he has also urged that this letter does not constitute a judicial order declaring the plot as non-evacuee and, therefore, on that account also it cannot be taken into consideration. It will suffice to observe that the onus is on the respondent No. 9 to show that the ownership of the plot was treated as an evacuee property in view of the documentary evidence brought on the record by the petitioner referred to and discussed hereinabove.
4. In view of the above discussion, in my view, the order of transferring of the plot itself to the respondent No. 3 cannot be sustained. However, the respondent No. 3 as the successor of the Hindu evacuee is entitled to, whatever right or interest the evacuee had in the plot. I, therefore, allow the petition to the extent that I declare that the purported transfer of the) ownership of the plot, whereon the Royal Cinema is situated is without) jurisdiction and of no legal effect.
7. It will be open to the respondent No. 3 to approach the petitioner for obtaining fresh lease.
8. Thereupon, the petitioner may consider the case of the respondent No. 3 sympathetically for the reason that he has been in possession of the cinema for quite along period as the transferee inter alia of the above plot.
9. M. Y. H.