1. ' The dispute in this Constitutional petition relates to a land in Badah (Larkana district) on which a Rice Mill is run by the petitioner. The land on which this Rice Mill is constructed falls under three survey Nos. 804, 806 and 645. And the dispute is only of a share, slightly more than 1/3, in these survey numbers. The three survey numbers had been purchased more than 40 years ago by two Hindus, Sunder Das and Chatrornal. Chatromn was evacuee and the petitioners are not concerned with his share. They claim however the share which had been originally belonged to Sunderdas.
2. This Sunderdas died in 1938 leaving behind him surviving, as far as is known, his son and a grandson. The son, Hashmat Rai, died in 1944 and was survived only by his widow and by his son Jiand Das who is the 4th respondent in the petition.
3. ' Now from the impugned orders, it would appear that Jiand Das's claim is that, in the events that had happened, and, subject to his mother's life-interest, he has become the sole owner of the share in the said survey numbers which had belonged to his grandfather Sundardas. However, this share was auctioned in favour of respondent No, 3 by the Settlement Department on 4th April, 1964 on the footing that it had become evacuee. Perhaps this was because, as submitted by the learned counsel, Jiand Das's name was not shown in the Land Revenue records. Therefore, Jiand Das's filed the usual application under section 22 of Act XII (Central of 1957) for a declaration that he was not evacuee. This application was heard and dismissed by a Deputy Custodian by his order, dated 16th August, 1971. Therefore, Jiand Das's filed an appeal before the Custodian which was allowed by the Custodian on 1st December, 1973. Meanwhile the auction-purchaser respondent No, 3 had sold his right title And interest to the petitioner, and it is the petitioner who is now running the Rice mill on the land in dispute, therefore, he is aggrieved by the Custodian's order and has filed this Constitutional petition to challenge it.
4. ' The petitioner appears to have been successful before the Deputy Custodian on several grounds, but, in his arguments before me, Mr. Memon advanced a very narrow submission. This was that the respondent Jiandas had not produced any evidence whilst the petitioner had produced copies of the land revenue records which supported his claim, therefore the Custodian's order declaring Jiand Das's to be non-evacuee was not based on any evidence and on the other hand was contrary to the only evidence available on the record.
5. ' I find it difficult to understand this submission because the Deputy Custodian's order refers to several pieces of evidence produced by Jiand Das's. Thus, it would appear that Jiand Das's produced copies of village forms VII an II. He also produced a certificate of the Assistant Custodian, Larkana, date 12th December, 1959 "showing the property of the applicant as non-evacuee properties. The other documents such as an order of the Deputy Com missioner regarding deletion of his properties from the compensation pool... ..". There is an obvious clerical error in the second sentence, which I have quoted from the Deputy Custodian's order. But this is not material, and in view of the passage quoted, the submissions that Jiandas did not produce evidence does not appear to be factually correct. I cannot however assess the value of the evidence produced by Jiandas because it is not before me. I may however point out that it was before the Custodian, who has relied on it.
6. ' However, the Deputy Custodian had also entered into a discussion of Hindu Law. Now as a copy of Jiandas's application to be declared non-evacuee is not available, I have to presume, from the Deputy Custodian's and Custodian's observations, that Jiandas's claim was that irrespective of the entry in the revenue records his father's properties had devolved on him as a coparcener under Hindu Law, and this contention was repelled by the Deputy Custodian with the observation" "this amounts to inconsistency to the provision of Hindu Law relating to inheritance". The observation is not clear, but I am not surprised that the Custodian reversed this finding on the view that the property to dispute had automatically passed to Jiandas and his mother on the death of Hashmat Rai in Pakistan in 1944. The view of the Custodian is in consonance with Hindu Law, except that a widow only acquires a life interest in her husband's estate ; therefore, to this extent the observations of the Custodian are not correct. But this does not help the petitioner's case, and even if, as submitted, Jiandas's name is not shown in the revenue records, this is immaterial. Mulla states in his Hindu Law (12th Edition at page 314) : Hindu coparcenary.-A Hindu coparcenary is a much narrower body the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property (x). ' There are the sons, grandsons and great-grandsons of the holder of the ' joint. Property for the time being, in other words, the three generations next to the holder in unbroken male descent."
7. ' Now as Jiandas is the son of Sunderdas's son, atleast on Sunderdas's death, it is clear that a coparcenary had been established consisting of the son and grandson of Sunder das, namely, Hashmat Rai and his son hand Das. Therefore as held by the Custodian, Hashmat Raj's share automatically devolved on his death to the sole surviving coparcener, Jiandas. And as it is not contended that Hashmat Rai and Jiandas were ever evacuees, it follows that the property in dispute was never evacuee and had been illegally sold by the Settlement Department as evacuee property.
8. I referred Mr. Memon to Mulla's Hindu Law as it was fatal to his case, but he merely said that entries in the Revenue records had to be presumed to be correct. That is so, but on the admitted facts and under the relevant law, which is Hindu Law, it is clear that the entries in the Revenue records were not correct. I may also add that as the Custodian was aware of this C position, he has rightly taken that view that the presumption raised by these entries had been rebutted by the admitted evidence that Hashmat Rai and his son Jiandas had constituted a coparcenary on Sunderdas's death, therefore, I see no error in the view taken by the Custodian.
9. ' I may also repeat here that the Custodian has, in coming to the conclusion that Jianddas was not evacuee, relied on the other evidence produced by Jianddas. That evidence was not produced, but presumably this was because learned counsel pressed the petition only on one point, that the Custodian had erred in rejecting the evidence of the Revenue records. This arguments fails, and no other argument had been advanced. The result is that the learned counsel has failed to show any error in the impugned order, much less any error to show that the impugned order was without lawful authority. The petition is, therefore, dismissed in limine.