' This Writ Petition is directed against the order of the Custodian, Evacuee Property West Pakistan, Lahore dated 29-9-1966. The facts and circumstances of the case are given in full detail in the said order and need not be repeated. Suffice it to say that the petitioners were allotted the land in dispute on account of the fact that the Collector, Toba Tek Singh on their appeal, found the property in dispute-land comprising Squares Nos. 52 and 56 in Chak No, l90/GB Tehsil Toba Tek Singh, District Layllpur, to be evacuee property and directed that accordingly the same may be allotted to them as informants ; while respondents Nos. 2 to 8 they are ejected tenants who were granted the land in dispute in 1958 under the Ejected Tenants Scheme, promulgated by the Provincial Government in 1956, considering the property in dispute to be non-evacuee. In the impugned order passed by the Custodian, the property in dispute has been found to be non- evacuee, which determination is challenged by this Writ Petition.
2. The property in dispute alongwith some other property, situate in District Montgomery, belonged to one Hira Lal. He embraced Islam in 1948 and adopted the name of Ghulam Sabir. These facts are recited in Mutation No, 89, entered on 20-1-1948. Hira Lal died in Pakistan in 1950. As the family members of Hira Lal alias Ghulam Sabir had migrated to India during the Partition Disturbances, the local Rehabilitation Authorities temporarily allotted the land in dispute to some refugees (not the present petitioners) taking the view that after the death of Hira Lal alias Ghulam Sabir his property in Pakistan devolved on his heirs and as the latter had already migrated to India in 1947, the said property became evacuee property. On the other hand, it was reported to the Revenue Authorities that Hira Lal alias Ghulam Sabir having died as a Muslim, his heirs, if any, who had migrated to India could not be legal heirs under the Muslim Law of Inheritance. Consequently, vide mutation No, 105 dated 8-11-1954 the earlier mutation was reviewed and it was observed that the property should escheat to the Provincial Government. The property was, therefore, mutated on 8- 11-1954 in the name of the Provincial Government and subsequently allotted to respondents Nos. 2 to 8 under the Ejected Tenants Scheme in September, 1958.
3. The petitioners claimed that they came to know about this illegal mutation in 1963 and accordingly filed an appeal before the Collector, Lyallpur, to challenge it, and the Collector accepted the appeal holding that the inheritance of Ghulam Sabir was evacuee property and the mutation of forfeiture to the State was against law.
By this order dated 10-9-1963 he ordered the same to be allotted to the petitioners as informants and on the basis of this order Squares Nos. 52 and 56 were allotted and confirmed in the names of the petitioners on 26-9-1963.
4. A petition was filed by respondent No, 2 before the Deputy Costodian, Evacuee Property, Lahore under section 22 of the Pakistan Administration of Evacuee Property Act, 1957, for a declaration that Squares Nos. 52 and 56 were not evacuee property and that the respondents were owners of the land in their respective possession. This petition, however, was unsuccessful and the Deputy Cust Han dismissed the same vide his order, dated 29-9-1974. The said order was challenged by respondents Nos. 2 to 8 through an appeal before the Custodian, which was accepted vide his order, dated 29.9-1966, now impugned.
5. It is an undisputed position that the property held by Hira Lal alias Ghulam Sabir was an ancestral joint family property. There is also no dispute about the fact that under Hindu Law conversion of a member of a joint family into Islam operates as a severance of the joint status as between him and the other members of the family. Hira Lal, therefore, ceased to be a coparcener from the moment of his conversion and because entitled to receive his share in the joint family as it stood at the date of his conversion. The argument of the learned counsel for the petitioners, by reference to sections 223 and 235 of the Hindu Law by Kalia was that the property in question being ancestral, the sons and the sons' sons were entitled to a share in Hira Lal's property and that he could not claim to be its exclusive owner. Accordingly, on Hira Lal's conversion to Islam only his share could be declared as non-evacuee property and not the shares of his sons and sons' sons.
6. The crux of the problem, therefore, is to determine as to what was the exact extent of the property of Hira Lal when he embraced Islam and ceased to be a co-parcener. On this point the learned counsel for the petitioners submitted that Hira Lal had three sons and also a member of sons' son. However, there is no material on the record on support of( this assertion. On the other hand, there is a categorical finding by the Custodian, on the basis of certain, material placed before him, that the property in dispute exclusively belonged to Hira Lal on account of specification of shares through partition. No good ground has been made out for interference with this finding of fact.
7. Furthermore, this is not a fit case for interference in writ petition. The petitioners are simply informants whereas the respondents are ejected tenants, who have been in possession of the land since September, 1958. Since then they have been paying the instalments, required to be paid under the Ejected Tenants Scheme to enable them to acquire proprietary rights and by now have almost paid the requisite number of instalment and are, therefore, eligible for conferment of proprietary rights in the land. In these circumstances, the discretionary jurisdiction under Articl 199 of the Constitution cannot be exercised in favour of the petitioners.
8. The result is that this Writ Petition fails and it is hereby dismissed, leaving the parties to bear their own costs.