This is a regular second appeal by the unsuccessful plaintiff. His suit against the defendant- respondent was dismissed by the trial Court and the decree was affirmed on appeal dismissed by the learned District Judge, Mianwali.
2. The brief facts are these. The land in dispute was admittedly evacuee property and was held by one Sharaf Din as a provisional permanent allottee under the West Pakistan Rehabilitation Settlement Scheme. After his death it had devolved on Lis heirs, Mst. Basso and some others. They sold away the land in favour of Zahoor Ahmad, defendant-respondent, by means of Mutation No, 621 sanctioned on the 27th of May 1964 in Mauza Jhangi Ram Dakhli, Tehsil Bakhar for Rs, 1,456. On the 27th of May 1965, Mehra, plaintiff-appellant brought the suit against defendant-respondent for possession of the land by pre-emption on payment of Rs, 1,456 in the civil Court at Bakhar. The denfendant filed his written statement denying the allegations of the plaintiff and raised a preliminary objection to the effect that the transaction in dispute was not pre-emptible and the suit with respect to the evacuee land was not competent.
This plea gave rise to the following preliminary issue framed by the trial Court :- "Is the transaction in suit pre-emptible"?
3. On the 24th of September 1965, the learned Civil Judge, Bakhar, relying on the decision in an unreported case in Muhammad Hanif v. Jewa Khan S. A. 0. No, 25 of 1962 by a learned Single Judge of the West Pakistan High Court found against the plaintiff in favour of the defendant on this issue and dismissed his suit. The decree was affirmed in appeal filed by the plaintiff-appellant which was rejected by the learned District Judge, Mianwali, on the 22nd of June 1966. Hence this appeal against the decree to this Court by the aggrieved plaintiff.
4. The facts necessary for the disposal of this [issue are not disputed. The Jamabandi for the land in dispute for the year 1962-63 (Exh. P. 1) shows that it was evacuee property, belonging to non- Muslims and was held by Sharaf Din as a provisional permanent allottee. On his death the land was mutated in the name of the vendors, his heirs under the Shariat Law. Meanwhile according to the endorsement in the remarks column of the jamabandi, the land had vested in the Central Government and the mutation for it was sanctioned on the 10th of October 1963, presumably by virtue of the Notification issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958.
5. As mentioned above the two Courts below have strongly relied on the judgment passed by a learned Single Judge of the High Court of West Pakistan in Muhammad Hanif v. Jewa Khan (S. A. 0.
No, 25 of 1962), in finding against the plaintiff on this issue in question. The facts in that case were that the provisional permanent allottee had sold the land on the 21st of September 1961, and the suit to pre-empt the sale was brought in the civil Court on the 30th of March 1961. The Court was of the opinion that the land was evacuee property, the provisional permanent allottee did not become the full owner of the same in the accepted sense of the term and the sale of his rights and interests was not pre-emptible within the meanings of section 4 of the Pre-emption Act. In the opinion of the Court, although under the Displaced Persons (Land Settlement) Act the aim is to settle displaced persons permanently on the land allotted to them, but this permanent settlement fell far short of acquiring the proprietary title, such as would be susceptible to pre-emption. In the opinion of the Court the permanent allotment of the land remained subject to cancellation on the grounds of fraud, misrepresentation or as being in excess of the entitlement of the displaced person concerned and that the combined effect of the legal provisions was that the displaced person who was permanently settled on evacuee property merely enjoyed certain rights and interests in the land, and any transfer by him of those rights and interests did not tantamount to a transfer of the land itself, which continued to be held by the Central Government as owner. The learned Judge was further of the opinion that the transaction in question was not pre-emptible under the law. The two Courts below have held that the position of the law in this respect has not undergone any material change even with the introduction of the Displaced Persons (Laws Amendment) Ordinance, XIII of 1964, on the 28th of December 1964, whereby inter alia, suitable amendments were made in sections 15 and 16 of the Displaced Persons (Land Settlement) Act, 1958, and corresponding changes were made in rule 7 of the Rules relating to the permanent transfer of this land. In this connection the two Courts below were of the opinion that these amendments did not have a retrospective effect to regulate the transfer of the lands already settled on the provisional permanent allottees before these amendments were made in the law.
The learned District Judge, Mianwali, has also referred to Muhammad Hassan v. Syed Mukhtar Hussain and Mst. Sughran and another v. Rehmat All in holding that in spite of the Notification issued under section 4 of the Displaced Persons (Land Settlement) Act, 1958, the land in dispute did not cease to be evacuee property for all intents and purposes.
6. But with due deference it appears to me that this view was not accepted and must be deemed to have been overruled in more authoritative pronouncements. By virtue of the notification issued under section 4 of the Displaced Persons (Land Settlement) Act, the right, title and interest of an evacuee in the land was extinguished and it has ceased to be evacuee property. It is vested' wholly and absolutely in the Central Government free from all' incumbrances. See Rahim Bakhsh v. Ch. Ahmad Bakhsh, Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner and others and A. R. Niazi, Advocate and others v. Pakistan through the Secretary, Settlement and Rehabilitation Department, Rawalpindi. In Babu Ali Muhammad v. Mahmood-ul-Hassan a Full Bench of the High Court of West Pakistan observed that there are three phases in the Rehabilitation and Settlement of a displaced person on evacuee property. The first phase starts with the1 2 3 4 5 6 temporary allotment, the second one with the confirmation of the land and last one ends with the permanent settlement on the allottee under the Displaced Persons (Land Settlement) Act. In the opinion of the Full Bench the interest of a confirmed allottee in the land is real property and is preemptible under sections 3 and 6 of Pre-emption Act. At the same time the Full Bench held that section 16 of the Pakistan (Administration of Evacuee Property) Act, XII of 1957 was a complete bar to such a suit brought in a civil Court for possession of the evacuee land by pre-emption and the Court had no jurisdiction to entertain it as long as it continues to be evacuee property. In the instant case, at least with effect from 24th December 1964, if not earlier, the provisional permanent allottee of the land, acquired full rights in the land as absolute owner by virtue of the amendment introduced by the Displaced Persons (Laws Amendment) Ordinance XIII of 1964, and rule 7 relating to the transfer of permanent rights. In Taza Gul and another v. Said Ghulam another Full Bench of the West Pakistan High Court, has held that section 16 of the Displaced Persons (Land Settlement)
Act, even prior to its amendment by Ordinance XIII of 1964, conferred full proprietary rights on a displaced person in the land settled on him. So that sale of the land made by him as a full owner was pre-emptible under the law. In this connection the Court further observed that the limitation imposed by clause (v) of rule 7 of the rules made under the Act that if it is subsequently found that the displaced person has obtained land by fraud, misrepresentation or in excess of the entitlement, in that event the land so settled shall be liable to be withdrawn, is wholly redundant and superfluous. These considerations did not detract against the absolute transfer of the land on the displaced person with its permanent settlement on him. In this manner the Full Bench refuted the contention that had weighed with the learned Single Judge in Muhammad Hanif v. Jewa Khan S. A.
0. No, 25 of 1962) on which the two Courts below have relied in the instant case. A Division Bench of this Court in Rukan-ud-Din v. Ghulam Mustafa has held that on a true interpretation of section 6 of the Displaced Persons (Land Settlement) Act, 1958 a suit for possession by pre-emption of a land still vested in the compensation pool was barred and the jurisdiction of the civil Court to entertain it was expressly excluded. But after the property was permanently settled and has left the compensation pool, there is no bar in the way of such a suit. Recently in Saee Mohammad and another v. Talib Hussain Shah this con-troversy was set at rest by the Supreme Court and held that the sale by the allottee who was permanently settled on the land under section 13(3) of the Land Settlement Act is not immune from pre-emption and the plea that the land sold was included in the compensation pool and as such under section 6 of Act was immune from being "proceeded against for any claim in any manner whatsoever in execution of any decree or order by any process of Court", was rejected. Also in C. R. No, 206 of 1963 "Mst. Imam Hussain Bibi v. Muhammad Lateef and others" I have discussed this aspect of the case at some length.
7. As discussed above in Babu Ali Muhammad v. Mahmood-ul-Hassan the Full Bench has held that a sale of the interests of a provisional permanent allottee in evacuee land tantamount to a sale of real property in the accepted sense was pre-emptible. But such a suit for possession of the land was expressly barred by section 16 of the Pakistan (Administration of Evacuee Property) Act so long as the property remains evacuee property. In the instant case the land in dispute was permanently settled on Sharaf Din deceased at the latest by the 24th of December 1964. It had altogether ceased to be evacuee property with effect from the 24th of December 1964, and thereby the bar in the way of the suit was also removed. In these circumstances this suit for possession of the land by pre-emption filed on the 27th of May 1965, in the civil Court at Bakhar was competent. In my opinion, therefore, the transaction of sale in dispute was pre-emptible under the law and the civil Court had the necessary jurisdiction on 27.5-1965 to entertain the suit. In the result the judgment and the decrees passed by the two Courts below cannot be sustained and must be set aside.
8. But, before parting with the case, I find that the office has raised on objection that this appeal, filed in this Court on the 2nd of January 1967 was barred by 47 days. The appellant has formally7 8 9 made an application under section 5 of the Limitation Act. In this application he has alleged that he is living far away from Mianwali. He applied for the copies of the judgment and decree passed by the learned District Judge and deposited the necessary fee and charges for despatch of the copies to him on his given address. The certified copies, although they were ready for delivery on the 11th of August 1966, were despatched to him for the first time on the 26th of September 1966, and are stated to have been actually delivered to him by post on the 6th of October 1966. The application is supported by a sworn affidavit of the appellant. The respondent in this case was ex parte in this Court and has not filed any counter-affidavit. In these circumstances it appears to me that the appellant was not responsible for the time consumed by the Copying Agency in despatching the certified copies to him by post after a long delay on the 26th of September 1966.
He actually received them afterwards on the 6th of October 1956. At any rate, in the circumstances, I find that there was a good and sufficient reason for the delay, if any, in this appeal which is liable to be condoned.
9. For the foregoing reasons I accept this appeal, set aside the decree under appeal and remand the suit to the trial Court for its disposal on the merits in accordance with the law. But in view of this uncertainty in the law that had prevailed on the subject I leave the parties to bear their own costs. PLD 1965 Lah. 35 PLD 1965 Lah. 580 PLD 1964 SC 189 PLD 1965 SC 356 PLD 1968 SC 119 PLD 1968 Lah. 329 PLD 1967 Pesh. 157 PLD 1970 Lah. 797 1970 SCMR 641