1. This revision application is directed against the judgment of 11 Addi--tional District JudgeSukkur, dated 9th June, 1977, whereby he dismissed the appeal of applicant and confirmed the Judgment and decree passed by the joint Civil Judge, Sukkur, in favour of respondent.
2. The dispute relates to House No. A-81011, Mirki Lane Sukkur (I will hereafter describe it as `the house') which was transferred by the Settlement Authorities, Sukkur, under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, to one Muhammad Hanif vide P. T.
2. O. Dated 5th February, 1960 and P. T. D. Dated 31st December, 1966. The house was later sold by the said Muhammad Hanif to the respondent through a registered sale-deed executed on 7th May, 1968. Late Sugnomal (I will hereafter refer to as the deceased applicant) who was in occupation of the house claimed J share in the house -on the basis of a registered sale in his favour which took place on 18th November, 1928. The deceased applicant therefore did not accept the respondent as owner of the house whereupon the respondent instituted suit No. I1 of 1970 against the deceased applicant for declaration, injunction possession and mesne profits. The deceased applicant resisted the suit on the ground that he is owner of J share in the house and in the absence of partition of property, the suit for possession and mesne profits was misconceived. The trial Court framed several issues of law and facts and after recording evidence of parties decreed the suit of respondent. On appeal the 1st appellate Court also concurred with the Judgment of trial Court.
3. Mr. Ghiasuddin BaIoch, the learned counsel for the applicant has contended before me that Judgment and decree of the Courts below is illegal and in excess of jurisdiction as the suit for declaration, possession and mesne profit was not maintainable in taw. It is contended that the deceased applicant who was admittedly a non-evacuee was owner of share in the house since 1928 and therefore no suit for possession and mesne profit could lie against the deceased applicant in the absence of partition of the house. It is also urged that in so far the other half share to the house was concerned which was transferred to the predecessor-in-title of the respondent under the provisions of D. P. Act, the deceased, applicant became a statutory tenant of that portion of the house, being in its occupation much before its transfer and therefore for that reason as well the suit for possession and mesne profit was not maintainable against the deceased applicant. To support his contention that only share in the property was evacuee the leaned counsel referred to the order of Additional Custodian dated 23rd June, 1956 (Exh. 24) and the order of Deputy Custodian dated 31st August, 1960 (Exh. 25). From perusal of these two orders it appears that under a deed of settlement dated 11th February, 1927, City Survey bearing No. A-810 measuring 435 sq.
4. Yds. Was given to Phalraj, Chaadanmal and the deceased applicant jointly. The built up area of this plot measuring 295 sq. Yds. Was given in equal shares to Chandanmal and Phalraj, whereas the open area measuring 139 sq. Yds. Came to the share of the deceased applicant. Plot No. A-810 was Later on bifurcated into plots No. A-810/1 and A-810/2. The built up area of plot was numbered as A- 810/1 while the open area was assigned the number A-810/2. The deceased applicant thus under the aforesaid settlement deed got plot No. A-RI0/2. Later on the deceased applicant purchased the share of Chandanmal in House No.A-810,/1 through registered sale deed dated 19th November, 1928 and thus became owner of ! Share in the house. It is an admitted position that after creation of Pakistan, Phalraj migrated to India and therefore his J share in the house became evacuee. The Deputy Custodian of Evacuee Property, Sukkur, by his order dated 31st August. 1960, held that J share in the house which belonged to deceased applicant was non-- evacuee and for partitioning., of evacuee and non-evacuee share in the house it was observed that the parties concerned may approach the D. R. C. Concerned for partition. In spite of the above order of the Deputy Custodian, Sukkur, the house was transferred by the Settlement Authorities. To said Muhammad Hanif by a P. T. O. Dated 5th February, 1960 and P. T. D. Dated 31st December, 1966.
5. However, neither in the P. T. D. Nor in the P. T. O. The area of the property transferred is shown. The trial Court as well as first appellate Court on the basis of P_ T. O, and P. T. D. Reached the conclusion that the entire property bearing No. A-810/-1 has been transferred to respondent. The Courts; below further reached the conclusion that by virtue of notification issued by the Government under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the house stood acquired in compensation pool and therefore the order of Deputy Custodian dated 31st August 1960, was of no legal effect. On issue of maintainability of suit the Court below reached the conclusion that orders of settlement authorities were immune from attack in civil Courts by virtue of sections 22 and 25 of D. P. Act. The learned counsel for the applicant contends that in view of orders of the Additional Custodian and Deputy Custodian Exhs. 24 and 25 the orders of the Settlement Authorities to the extent they purported to transfer the -1 non-evacuee share of the deceased applicant in the house, was a void order as the non evacuee share of the deceased applicant never formed part of compensation pool constituted under section 3 of the D. P. Act. Mr. Abdul Hamid Khan, the learned counsel for the respondent on the other hand contended that on the issuance of notifica--tion the entire property bearing No. A-810/1 stood acquired under section 3 of the compensation pool and accordingly it was available for transfer to the persons who were entitled to its transfer under the provisions of D. P. Act. In support of his contention that the property on the issuance of notification under section 3 of the D. P. Act stood acquired under compensation pool, the learned counsel for the respondent has referred to the cases of Muhammad Mehtab Khan v. Rehabilitation Autho--rities and others (PLD 1973 SC 451), Nazar Ali v. Secretary Rehabilitation (PLD 1963 Kar. 575) and Devachand Mouljlmal v. Deputy Settlement Commissioner (PLD1965SC356).
6. The above-cited cases d not support the proposition that on issuance of a notification under sec-- tion 3 of the D. P. Act even non-evacuee interest in a property which is partly evacuee stands acquired in the compensation pool. The notification under section 3 of the D. P. Act was issued on 21st August, 1959 and on the language of this notification there can be no doubt that only those properties were acquired under the .Compensation pool which were admittedly evacuee and in respect of which no proceedings were pending before a Custodian. In the case before me the admitted position on record is that I shares in the house was purchased by the deceased applicant in the year 1928 by a registered sale deed. It is nobody's case that the deceased applicant ever became an evacuee or his properties were ever declared as evacuee by the Custodian. The order of Addl. Custodian dated 23rd June, 1956 (Exh. 24) shows that on 10th December 1955 the Deputy Rehab. Commissioner Sukkur, had ordered the deceased applicant to build a partition wall between the two plots namely A-810/ 1 and 810/2 at his own. This order was challenged by the deceased-applicant before the Additional Custodian on the ground that no order for partition of the property could be made by the Rehb. Authorities without prior permission of Custodian as the property was jointly owned by him and the evacuee. This contention of the deceased applicant was accepted and the Additional Custodian recommended that the revision should be allowed. The parties were directed to appear before the Custodian of Evacuee Property on 12th July, 1956. The order of Custodian was not produced before the trial Court by !He deceased applicant but from the copy of order of Deputy Custodian dated 31st August, 1960 which was produced before the trial Court as Exh. 25, it is .Clear that the order of D.R.C. Sukkur passed for partitioning of the property was set aside by the Custodian in Revision No. 30 of 1956. The Deputy Custodian in. The same order held that J share in property No. 810/1 is non-evacuee as it was owned by the deceased applicant. In these circumstances only undivided one-half share in the house which was admittedly evacuee was acquired under compensation pool on issuance of the notification under section 3 of D.P. Act on 21st August, 1959. There could be no question of acquisition of the J share of the deceased applicant in the house in the compensation pool in these circumstances and as such if the settlement authorities purported to transfer that share of deceased applicant it was an act without any lawful authority. It is an admitted position that the house all along remained in occupation and physical possession of the deceased applicant and at no stage there was partition of the evacuee and non-evacuee interest of the parties in the house.
7. The applicant is therefore right in contending that in these circumstances the suit for possession was not maintainable against the deceased applicant. The deceased applicant being in possession of the house since before its transfer to respondent was to be treated as a statutory tenant is respect of the transferred portion of the house by force of section 30 of the D.P. Acct and in any case the house being the joint property of the deceased applicant and the respondent no decree for possession could be passed against the deceased applicant as owner in the absence of partition of the property. Mr. Abdul Hamid Khan, the learned counsel for the respondent very vehemently argued that the orders passed by the Settlement Authorities transferring the house to respondent's predecessor-in-title is protected from being challenged before the Civil Court in view on sections 22 and 25 of the D.P. Act. The extent of protection afforded to the orders of Settlement Authorities under sections 22 and 25 of the D.P. Act was considered by the Supreme Court in the case of Mohammad Jamil Asghar v. Improvement Trust (PLD1965SC698) and I can do no better than t reproduce here the following passage appearing at page 705 of the report in answer to the contention of Mr. Abdul Hamid Khan :- "The foundation of the jurisdiction of the Settlement Officers for transfer of property is that the property should be that which was evacuee property, which has vested in the Central Government and which is liable to be transferred under provisions of the Displaced Persons (Compensation and Rehabilitation) Act. If the property be in fact such the Settlement Authorities exercise with respect to it quasi judicial functions. They determine whether "possession" of a party exists, whether a person is a claimant, what is the date of his possession and so on. With respect to the nature of the property however the Settlement Authorities have no jurisdiction to record a binding determination.
8. If the property was in fact not evacuee property and was not vesting in the Central Government the Settle--ment Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders -would always be liable to challenge in an ordinary civil Court on the ground that they. Had no jurisdiction with respect to the property transferred at all. Of course, in every case which comes ,up before them the Settlement Authorities have to decide whether the, property which they are asked to transfer or to auction was evacuee property and is vesting in the Central Government. But it is .One thing to decide a matter for the purpose of taking action and another to have jurisdiction to record a binding determina--tion in respect of it. They have no jurisdiction to record such a determination in respect of the evacuee or non-evacuee nature entire property or rather in respect of the question whether it vests in the Central Government and any finding by them in respect of the nature of property has no more force than the finding of an election tribunal that a case which it is trying is within its jurisdic--tion. The Displaced Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to Settlement Authorities to bring all property within their jurisdiction on their own findings. According to the contention of learned counsel for the respondent if the Settlement Authorities chose to transfer property which never vested in the Central Government the only remedy of the person aggrieved was an appeal or revision under the Displaced Persons (Compensation and Rehabilitation) Act. We sea no ground for attributing such an intention to the Legislature. However, if the property was in fact property which the Settlement Authorities were empowered to transfer their orders would be liable to be set aside only on the ground that the jurisdiction was not validly exercised. The proceedings would be liable to challenge in the High Court under Article 98 of the Constitution on grounds appli--cable to certiorari but not on the simple ground that the decisions were not in accord with facts.."
9. The result of the above discussion is that the respondent is declared to be the owner of only half share belonging to evacuee Phalajarai in the house bearing No. A-81011, Meerki Lane, Sukkur, but he is not entitled to reliefs of possession and mesne profit in the circumstances. The order of the Courts below is modified accordingly to the above extent but in the circumstances of the case I will make no order as to costs.