' The facts giving rise to this petition shortly put areas under :- ' Rochi Ram and Bhagromal had joint undivided share in two Khatas of 413.37 and 101.11 acres of land situated in Deh Debto, Taluka Khipro, District Sanghar. The share of Rochi Ram was 3 annas and 0-4-9,3/5 annas in the two Khatas respectively. The Petitioner No, 1 purchased the entire share of Rochi Ram in the first larger Khata and the Petitioner No, 2 likewise purchased his entire share in the second smaller Khata. The other joint owner Bhugromal, however, became an evacuee and his property was treated as evacuee property. The aforesaid transactions of sales were duly confirmed in favour of the two petitioners by the Custodian. As a result the petitioners became joint Khatedars alongwith Bhugromal in the lands in question. The total area of the two joint Khatas worked out to 515.06 acres in which the petitioners held undivided share of 106.31 acres, while share of Bhugromal worked out to 408.17 acres. Although the Khatas were joint between Rochi Ram and Bhugromal and there was no partition, Rochi Ram enjoyed `hissadari qabza, over 106.31 acres of land in joint Khatas comprising S. Nos. 48/1, 2, 49/1 to 4, and some other lands set out in Schedule '13' to the petition. It is alleged that after the purchase of land from Rochi Ram the petitioners as co- sharers, got into possession of 106.31 acres of land comprising of S. Nos. 48/1, 2, 49/1 to 4 etc. And have been in continuous possession thereof. By a notification issued under section 4(2) of the Displaced Persons (Land Settlement) Act, 1958, dated 15th April, 1969, all evacuee land, which stood allotted under the West Pakistan Rehabilitation Settlement Scheme, was acquired, free from all encumbrances, and vested in the Central Government. Later by a subsequent notification, dated 5th June, 1980, all other land also came to be acquired and vested in the Government for the purpose of settlement. As a result of these notifications the property ceased to be evacuee property. In February/ March, 1960 the Rehabilitation Authorities in purported exercise of power under the provisions of the Pakistan Rehabilitation Act, 1956 read with Pakistan Rehabilitation Settlement Scheme prepared under section 6 of the Pakistan Rehabilitation Act, 1956 and Pakistan Administration of Evacuee Property Act, 1957, partitioned in the joint Khatas and allocated survey numbers which were neither in possession of the petitioners to their shares, thereby maintaining status quo. Such order is .Said to have been passed on or about 18th February, 1960 by the respondent No,
3. However, on appeal from the respondent No, 6, the Deputy Rehabilitation and Settlement Commissioner ordered for fresh partition of the land. As a result the respondent No, 3 passed a fresh partition order on 16th March, 1963 again maintaining the status quo leaving an area of 106.31 acres with the petitioners. The order of the respondent No, 3 was again set aside on appeal and the same was challenged by the petitioners in a Civil Suit No, 23 of 1966, which, however, came to be dismissed on account of lack of. Jurisdiction in the civil Courts. As a result of the order passed second time in appeal directing fresh partition the respondent No, 3 passed a provisional partition order on 15th August, 1969 and this time he allocated certain different land to the share of the petitioners thereby disturbing their possession which they had been enjoying so far. The order was passed in exercise of powers vested in the respondent No, 3, under section 7 (2)
(e) of the Pakistan Rehabilitation Act, allegedly with the previous approval of the Custodian accorded in this behalf under section 25(2) (w) of the Pakistan Administration of Evacuee Property Act, 1975. The petitioners filed objections against the provisional partition order inter alia challenging the jurisdiction of the Rehabilitation and Settlement Authorities to partition evacuee and non-evacuee shares. In the disputed land. The respondent No, 3, however, overruled the objections of the petitioners and confirmed the provisional partition order on 7th October, 1969, with minor modification. The petitioners filed an appeal before the respondent No, 2 which was dismissed on 21st March, 1970 and a revision to the Settlement and Rehabilitation Commissioner also met with the same fate on 16th December, 1970. The petitioners have now challenged the orders dated 7th October, 1969, 21st March, 1970 and 16th December, 1970 passed by the respondents Nos. 1 to 3.
2. Mr. Ahsan Hussain Alvi, Advocate for the petitioners, contended that the evacuee share of Bhugromal having been validly acquired under section 4 (2) of the Displaced Persons (Land Settlement) Act, 1958, ceased to be evacuee property and vested in the Central Government free from all encumbrances. He contended that the Settlement Authorities had no jurisdiction under the Land Settlement Act to partition the land as the Act did not provide for the same. The learned counsel further contended that in so far as the purported exercise of power under the Administration of Evacuee Property Act, 1957 was concerned the same could only be exercised so long as the property was evacuee and not after its acquisition when by operation of law the same for all intents and purposes ceased to be evacuee property and as such the question of partition was one which fell in the exclusive jurisdiction of civil Courts.
3. Mr. Ahsan Alvi referred to a judgment of this Court in the case of Abdul Ghani v. Settlement and Rehabilitation Commissioner. The said judgment was later confirmed by Supreme Court as per judgment dated 24th January, 1969, passed in Civil Appeal No, K-22 of 1966. In that case the question which had fallen for consideration pertained to urban property but the discussion equally covers the case of landed property. Reliance in that case was placed on section 8 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and it was contended that the words of the section were wide enough to authorise the Settlement authorities to partition the property for the purpose of affective management of the same even after its acquisition in order to facilitate transfer to the claimants. This contention was repelled and their Lordships observed asunder:-1 "So far as the question of division of landed property or houses is concerned, in the absence of any specific power to the Chief Settlement Commissioner it cannot be so construed. Under the general law the division of agricultural property can be effected by the Revenue Authorities and the other immovable property by the civil Courts. If the intention of the Legislature was to take away this power from the ordinary Courts it would have been so mentioned."
' Their Lordships then referred to the provisions of the Pakistan Administration of Evacuee Property Act XII of 1957, and it was held that once the property had been acquired under section 3 of the Displaced Persons Act it was no longer evacuee property and the authority conferred by the Custodian could not be available. It was further held that where the Legislature wanted to confer a power on an authority it did so specifically and in the absence of specific powers there exists no jurisdiction in the Settlement Authorities to partition any property under section 8 of the Displaced Persons Act. Their Lordships of the Supreme Court in their judgment dated 24th January, 1969, agreed with the aforesaid view of the High Court and the judgment of the High Court was confirmed. The judgment of the High Court was brought to the notice of the Settlement Authorities who, however, observed that the said judgment was distinguishable because it was applicable to cases falling under the Displaced Persons (Compensation and Rehabilitation) Act, and did not cover the cases falling under the Land Settlement Act. This interpretation of the judgment of the High Court, however, is not sustainable and the learned Settlement Authorities clearly failed to appreciate the purport and substance of the same. In passing, reference may be made to another judgment of the Supreme Court in the case o Mehtab Khan v. Rehabilitation Authority. In that case it was contended on behalf of the appellants that the Custodian continued to have jurisdiction to deal with the property which was once evacuee property in spite of its acquisition under section 4 of the Displaced Persons (Land Settlement) Act. This contention was repelled by the Supreme Court and it was held that the provision with regard to section 25(2)(w) o Administration of Evacuee Property Act was intended for the purpose o protecting, preserving and administering avacuee property, and cannot b stretched to mean that the Custodian has been given jurisdiction to continue to deal with the property which had ceased to be evacuee property.
4. Mr. S. M. Raza, learned counsel, appeared on behalf of the respondents Nos. 4 and 5 and supported the contentions of Mr. Ahsan Husain Alvi.
5. The upshot of the above discussion is that the impugned order of the respondents dated 16th December 1970, 21st March, 1970 and 7th October, 1969 are held to have been passed without lawful authority and the same shall stand quashed. As there has been no contest on behalf of the respondents there will be no order as to costs. 1971 Law Notes 222 PLD 1973 SC 451