' Petitioners above named, being aggrieved by order, dated 28th October, 1971 of the learned Custodian of Evacuee Property, West Pakistan, passed in Revision Petition No, 47 of 1969, by which he set aside the order dated 5th June, 1969 of the learned Additional Custodian E.P. Passed in Appeal No, 5/69, have preferred the above petition, on the following facts and grounds :
2. That the petitioners' common ancester Wadero Pir Bux Bhutto was an owner of the agricultural land bearing Survey Nos. 488/1(0-25), 488/2 (0-18), 485/3 (0-38), 486 (1-14), 487 (1-12), 488/1 (0-18), 488/2 (0-16) 488-3 (0-35) admeasuring 6-18 acres, situated in Deh Visro Wahan, Taluka and District Khairpur Mir's, by virtue of Registered Sale Deed between the common ancestor of the petitioners and Tiloomal, Jhummromal and Chandoomal sons of Gajanmal, for a consideration of Rs, 2,500 registered before the Sub-Registrar, Khairpur on 24th March, 1938. The S. No, 496 in same Deh was obtained vide registered Exchange Deed dated 21st September, 1936.
3. That the above said land after registration was duly mutated in the name of the common ancestor of the petitioners in all the Revenue Records and the same still continues as such, vide order No, 17750, dated 27th April, 1938.
4. That the said property has been all along in continuous and actual enjoyment of the petitioners and it is the petitioners, who have all along been paying the land assessment etc. To the Government,
5. That the entire record of rights viz. Form No, VIII for the years 1945-46 and 1946-47 onwards also shows the name of the common ancestor of the petitioners, as its owner and possessor.
6. That in the year 1964, the respondent late Soofi Muhammad Sibtain moved the then Deputy Commissioner and Additional Settlement Commissioner (Lands) Khairpur, (Mr. Parvez Ahmed Butt) that he has been allotted the abovesaid disputed land and some other. Land bearing S. Nos. 490, 492 and 491 admeasuring 3-37 acres, situated in the same Deh.
7. That the then Deputy Commissioner and Additional Settlement Commissioner (Mr. Parvez Ahmed Butt) by his order dated llth August, 1964 decided, that the petitioners were the owners of the disputed property and of the other property bearing Nos. 490, 491 and 492 admeasuring 3-37 acres, was purchased by the petitioner's common ancestor by a Registered Sale Deed No, 1163, dated 19th December, 1947 for which the confirmation order has already been passed by tue Deputy Custodian Evacuee Property, Khairpur State. He further held, that the property could not be held to be an evacuee property under section 3 of the Pakistan (Administration of Evacuee Property) after January, 1957. However he further observed in the said order, that section 41 of the Pakistan (Administration of Evacuee Property) Act bars his jurisdiction, he therefore, remitted the file to the Custodian, so far the disputed lands under the above Constitution petition are concerned and further ordered, that the petitioners to continue in possession till the final disposal by the Custodian.
8. That there has been no order so far, in reference to the order of the Deputy Commissioner-cum- Additional Settlement Commissioner Khairpur, so far, but as the petitioners were being harassed by the late Soofi Muhammad Sibtain, who was known for his mischievous activities, as he dragged the petitioners in criminal cases etc. They therefore, moved the Deputy Custodian, Evacuee Property, Sukkur, for declaration under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 vide application No, 79 of 1964.
9. That the learned Deputy Custodian of Evacuee Property (Mr. Agha Ali Anweri), vide his order dated nil, rejected the application of the petitioners and at the same time held, that as the property was acquired by the Central Government under Settlement Act, therefore, the Custodian Department has ceased to have the jurisdiction.
10. That the petitioners, against the order of the learned Deputy Custodian, filed an appeal before the Additional Custodian, Evacuee Property (Mr. Muhammad Azhar), who, by his order dated 5th June, 1969 was pleased to allow the appeal of the petitioners and made a reference to the Custodian of Evacuee Property.
11. That against the order of the Additional Custodian Evacuee Property, the late respondent No, 3 Soofi Muhammad Sibtain also moved the Custodian in Revision.
12. That the learned respondent No, 1, however rejected the reference of the Additional Custodian, Evacuee Property and allowed the Revision filed by late Soofi Muhammad Sibtain, vide order dated 28th October, 1971.
13. That the petitioners however, filed a review petition before the respondent No, 1, who by his order dated 24th July, 1974 dismissed the same as he could not review the order of his learned predecessor.
14, The learned Advocate for the petitioners in support of the above petition submitted as under :
(a) That the order of the learned Custodian is perverse inasmuch as the learned respondent No, 1 has not considered the relevant documents, though the same were very much available before him.
(b) That the documents which are mostly registered deeds as old as 35 years old, and their genuineness cannot be suspected as they were executed much before the commencement of the Evacuee laws, clearly show, that it was the late ancestor of the petitioners Haji Pir Bux Bhutto, who acquired the full ownership rights in the disputed properties.
(c) That the learned respondent No, 1, it appears has not cared to go through the orders passed by the relevant authorities in the case. The order dated 11th August, 1964 passed by the respondent No, 2, is so clear, which hardly required any interference by the Custodian Department. The unfortunate thing is that neither the Deputy Custodian (E.P.) for the respondent No, 1 had taken notice of it even.
The learned Custodian ought to have considered, that the respondent No, 2 was an authority on the spot and could be well informed of the entire situation. The respondent No, 3 late Soofi Muhammad Sibtain was known for his misdeeds. The learned Custodian ought to have considered, that on the contrary a document viz. The death certificate in respect of Diwan Kansingh, produced by the late respondent No, 3 was a forged document, as Khairpur Mir's is not a notified area : but it has a Municipal Committee, from where the petitioners had obtained and produced the death certificate about the actual date of death of Diwan Kansingh.
(d) That the learned Custodian has seriously erred in holding, that because the petitioners could not produce the Dhal receipts for the years before 1946-47, therefore, they were not the owners.
This contention is quite perverse and illegal and ultra vires, when the name of the petitioners is very much available in Form 8 for the year 1946-47, there was no sense in talking about the Dhal receipts for the year 1946-47.
(e) That the learned respondent No, 1, it appears has not cared to go through the contents of registered documents of the year 1938 ; the land prior to the sale-deed was mortgaged and this fact too is very much mentioned in the sale-deed. In short there is nothing to suspect the bona fide of the petitioners in any way. The ownership of the petitioners was proved in full beyond any reasonable doubt.
(1) That the learned respondent No, 1 has seriously erred in holding, that the petitioners had notice and information that the property was treated as Evacuee Property in 1958. The reliance has been placed on the photostat copies allegedly produced by the late respondent Soofi Muhammad Sibtain. As already submitted the respondent Soofi Muhammad Sibtain was known for his mischievous activities, as such reliance could have been placed on the photostate copies produced by him. At no time any such notice was received by the petitioners.
(g) That the partition deed dated 9th July, 1957 is a registered document, showing the partition of the property between the petitioner No, 1 and petitioner No, 2 and that there is clear entry of the disputed survey numbers in the said deed.
(h) That the admitted position is, that till July, 1957 the properties in dispute were not declared an Evacuee Property, as such the respondent No, 1 was barred from giving such a finding and holding the properties to be an evacuee property.
(1) That the order passed by the respondent No, 1 is illegal, ultra vires and void and is liable to be quashed.
15. In support of the above contentions, the learned Advocate for, the petitioners relied upon cases reported in PLD 1973 SC 451/537 ; PLD 1961 Kar. 589 ; PLD 1964 SC 74 ; PLD 1972 Lah. 798 ; PLD 1978 Quetta 121, PLD 1978 B. J. 1, PLD 1968 Lab. 148, PLD 1958 Kar. 518 ; PLD 1964 Lab. 274 and PLD 1982 SC 330.
16. The learned Advocate for respondent No, 3 on the other hand submitted as under :
(a) That by notification in 1959 all evacuee properties were acquired by the Government of Pakistan and become part of the compensation pool and since in Jamabandi Register these properties stood in the name of the Hindus they were treated as Hidden Evacuee Properties under section 3 of the Displaced Persons (Land Settlement) Act of 1958 and on issue of above notification these properties become part and parcel of Compensation Pool and as such petitioners application under section 22 of Pakistan (Administration of Evacuee Property) Act XII of 1957 was not maintainable and was liable to be dismissed on this ground alone.
(b) That notice dated 20th May, 1958 under section 2 (3) (b) of Act XII of 1957 was issued by Assistant Custodian (Survey) to petitioners to show cause, why the properties in question should not be treated as evacuee properties, but petitioners did not send any reply nor appeared before the said Assistant Custodian and consequently properties in question were rightly treated as Hidden Evacuee Properties under section 3 of the Displaced Persons (Land Settlement) Act, 1958.
(c) That order dated nil of the Deputy Custodian passed on petitioners application under section 22 of Act XII of 1957, cannot be challenged by way of writ, as the same has been confirmed by Custodian of Evacuee Property, vide his impugned order, dated 28th October, 1971.
(d) That petitioners petition suffers from laches, as impugned order of learned Custodian is dated 28th October, 1971 and even petitioners Review Petition was dismissed on 25th July, 1974 whereas above petition was filed on 21st February, 1975 and consequently on this ground alone, the above petition is liable to be dismissed.
16. In support of the above petition the learned Advocate for respondent No, 3 relied upon cases reported in PLD 1974 SC 139, PLD 1976 Kar. 514, 1969 SCMR 315 ; 1975 SCMR 44/217 PLD 1973 SC 451 and 1973 Law Notes 559,
17. The learned Advocate appearing for respondents Nos. 1 and 2 submitted, that by notice dated 20th May, 1958 of Assistant Custodian (Survey) which was final notice, properties in question were treated as evacuee properties. However, the learned Advocate for respondents Nos. 1 and 2 stated, that he was not in position to produce or point out any order prior to 1st January, 1957 by which the properties in question were treated as Evacuee Properties and/or declared as such. He also admitted, that there is no specific order under section 3 of the Displaced Persons (Land Settlement)
Act of 1958, by which the properties in question were treated, as Hidden Evacuee Properties.
18. I have carefully considered the above submissions made by the learned counsels before me and have gone through R & P of the learned Deputy Custodian, Additional Custodian and Custodian of Evacuee Property and their respective orders as well as through the various cases cited by the learned Advocates before me.
19. Provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 are very clear, that no property could be treated as Evacuee Property after 1st January, 1957 unless it was covered under two exceptions to the said section. Neither learned Advocate for respondent No, 3 for learned Advocate for respondents Nos. 1 and 2 were able to point out to me anything on record to show, that any proceedings for treating the properties in question as Evacuee Properties had commenced prior to 1st January, 1957. The question of applicability of clause 2(b) of section 3 to the rights claimed by the petitioners and their predecessors-in-title obviously did not arise, as these properties were purchased by registered Sale Deeds in the years 1936 and 1938 and in respect of sale-deed dated 19th December, 1947 confirmation order was passed by Deputy Custodian of Evacuee Property, Khairpur State, which has not been set aside nor it is the case of respondents, that the said order was set aside at any time.
20. In view of the above facts, which were not disputed by respondents before me, I am of the opinion, that properties in question were neither declared as evacuee nor treated as such prior to 1st January, 1957B and consequently these properties did not become part and parcel of Compensation Pool, as a result of notification issued in this connections in 1959.
21. The only question which now requires consideration is whether properties in question were treated as Hidden/Concealed Evacuee Properties under section 3 of the Displaced Persons (Land Settlement) Act, 1958, and as such protection given under section 3 of Act XII of 1957, would not be available to the petitioners. In this connection, I repeatedly asked the learned Advocates of respondents to show me any order under section 3 of the Displaced Persons (Land Settlement) Act, 1958 in respect of these properties, but they were unable to point out any such order. In addition to this petitioners acquired these properties much before partition by a registered sale-deeds of 1936 and 1938, genuineness of which cannot be doubted, merely on the basis of the reasoning given by the learned Custodian in his impugned order, in my opinion. The sale-deed dated 19th December, 1947 was duly confirmed by Deputy Custodian and there is nothing in the impugned order by which, any doubt is shown C on existence of such order. Even the learned Advocates of respondents before me have not disputed passing of such order in favour of the petitioners. It may be further noted, that learned Additional Custodian of Evacuee Property in his order dated 5th June, 1969 on the basis of documents on record held, that Haji Pir Bux Bhutto and thereafter petitioners have been in continuance possession of these survey numbers, as this finding was fully supported by Exh. 47, the order of Additional Settlement Commissioner (Land) which was produced before him and as such non-mention of the names of petitioners and/or their predecessors-in-title in Revenue Records cannot by itself, deprive the petitioners of their legitimate legal rights acquired by the registered documents, herein-before mentioned, as entries in Revenue Record, by itself do not confer D rights of ownership, such entries are only corroborative evidence for said purpose.
22. In view of my above conclusions and observations, in my opinion it was not necessary for the petitioners to have moved application under section 22 of Pakistan (Administration of Evacuee Property) Act XII of 1957, consequently dismissal of petitioners said application by impugned order dated 28th October, 1971 does not affect the non-evacuee nature of ownership rights acquired by petitioners, under above mentioned three registered documents, in respect of the survey numbers in question, as these survey numbers were neither treated as evacuee properties nor declared as such prior to 1st January, 1957 nor it could be considered as hidden/concealed Evacuee Properties under section 3 of the Displaced Persons (Land Settlement) Act, 1958, on any grounds mentioned in the order dated Nil of the learned Deputy Custodian Evacuee Property and/or impugned order dated 28th October, 1971 of the learned Custodian of Evacuee Property.
23. The last point which requires consideration is whether above petition is liable to be dismissed on account of laches, as urged by the learned Advocate of the respondents. I am afraid, in view of facts mentioned hereinbefore, this is not a fit case, where the said doctrine be made applicable.
However this is the discretion vested in. This Court, which I am not prepared to exercise in favour of respondents, in view of the above-mentioned facts, especially as Review Petition filed by petitioners against the order dated 28th October, 1971 was dismissed on 24th July, 1974 and above petition was filed on 21st February, 1975. In this view of mine, I am fully supported by judgment of Hon'ble Supreme Court reported in PLD 1982 SC 330 and observations made in para. 10 of the said judgment.
24. Therefore I allow the above petition and declare, that non-evacuee status of the agricultural survey Nos. 485/1, 485/2, 485/3, 586, 487, 488/1, 488/2 and 488/3 admeasuring 6-10 acres, situated in Deh Visro Wahan, Taluka and District Khairpur Mirs, belonging to petitioners, which were acquired by petitioners by means of registered sale-deeds dated 21st September, 1936, 24th March, 1938 and 19th December, 1947 are not in any way affected by impugned order dated 28th October, 1971 of the learned Custodian and/or order dated Nil of the learned Deputy Custodian of Evacuee Property passed on petitioners application G under section 22 of Act XII of 1957, as the said agricultural survey numbers were neither treated as Evacuee Property and/or declared as such prior to 1st January, 1957 nor the said survey numbers could be considered as concealed/Hidden Evacuee Property under section 3 of the Displaced Persons (Land Settlement) Act, 1958, so as to automatically become Evacuee Properties and form part of the compensation pool and as such became available for allotments to the original respondent No, 3.
25. In view of the above declaration granted to the petitioners, and in view of my conclusion, that filing of application under section 22 of the Act XII of 1957 was not at all necessary for the petitioners, order dated Nil of the Deputy Custodian on petitioners application under section 22 of Act XII of 1957 and impugned order dated 28th October, 1971 of the learned Custodian of Evacuee Property are of no legal consequence and do not in any way affect the ownership of petitioner nor non-evacuee status of the survey numbers in question, which were acquired by three registered sale-deeds, by the petitioners predecessors-in-title.
25. The above petition is disposed of in terms of the above judgment with no order as to costs,