' By this constitutional petition, the petitioner has called into question the order dated 31st May,1974 passed by the Custodian Evacuee Property, Sind, granting the prayer of private respondents Nos. 3 to 8 in their application under section 22 of Pakistan (Administration of Evacuee Property) Act XII of 1957 in respect of the house situated on plot No,7, Soldier Bazar, Hyderabad Cantonment. The petitioner had purchased the property in open auction of the Settlement Department; whereafter in Apri1,1964 P.T.O. Was issued in her favour and on 4th May,1965 Permanent Transfer Deed was also issued in favour of the petitioner. By a resolution dated 30th August,1965 of the Hyderabad Cantonment Board, the transfer was confirmed in favour of the petitioner and her name was mutated in the General Land Register maintained by the Hyderabad Cantonment Board. It is the case of the petitioner that after the transfer of the property in question in her name by the Settlement Department, she filed an ejectment application against the tenants of the property, which included private respondents Nos.4, 5, 6 and 7. The Rent Controller, Hyderabad Cantonment, struck off the defence of the tenant including respondents Nos. 4 to 7, as they failed to deposit the rent as ordered by the learned Rent Controller. This order was passed by the Rent Controller on 18th August, 1966. Thereafter, six out of the seven tenants including respondents Nos. 4 to 7 filed a revision application No,87 of 1966 against the transfer of the property in favour of the petitioner but the Additional District & Sessions Judge-cum-Settlement & Claims Commissioner, Hyderabad, by order dated 10th August,1967 dismissed the revision application. An application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act,1968, was then filed by respondents Nos. 4 to 7 but the said application was also dismissed by the Settlement and Rehabilitation Commissioner, Hyderabad, by order dated 19th April, 1968. It is averred in the memo.
Of petition that the Chairman Evacuee Property Trust Board had also filed an application declaring one of the tenements of the said property as a temple and other tenements in the said property as attached to the said temple. This application was filed before the Settlement Commissioner (with the powers of Chief Settlement Commissioner) South Zone, Karachi, who by his order dated 25th October,1969 held that one of the tenements bearing Sub-No,7 was a temple and the other tenements bearing Sub-Nos.1 to 6 were not evacuee property attached to the said temple. The Chairman Evacuee Property Trust Board filed a Miscellaneous Appeal No,14 of 1970 in the High Court but by order dated 5th November,1973 the High Court dismissed the appeal. Thereafter respondents Nos. 3 to 8 filed an application before the Custodian Evacuee Property Sind under section 22 of th Displaced Persons (Compensation and Rehabilitation) Act, 1968, for declaration that house on plot No, 7 i,e, Survey No,41/7, Settlement No,6, Soldier Bazar, Hyderabad Cantonment was not evacuee property. The Custodian Evacuee Property Sind, by order dated 31st May,1974 allowed the application under section 22 of D.P. Act, 1958. It is this order dated 31st May,1974 of the Custodian which is challenged in this petition. I have heard Mr.Abdul Majid Khan, learned counsel for the petitioner, Mr.Qazi Qadir Buz, learned counsel for the respondent No,9. No one has appeared on behalf of the other respondents.
2. On behalf of respondent No,9 it was submitted that Faiz Mohammad, father of Jan Mohammad, respondent No,3, had entered into an agreement with Vijay Shankar, a Hindu, for purchase of the property in question for Rs,2,500 on 18th September,1947 and paid Rs,2,000 to him and the balance of Rs,500 was to be paid after execution of the sale-deed. The possession of the property, according to respondent No,9, was handed over to Faiz Mohammad, who rented out this property to respondents Nos. .:4 to 8. An application for confirmation of the said agreement of sale dated 18th September,1947 was moved by Faiz Mohammad, the purchaser, before the Custodian authorities under section 16 of Pakistan (Administration of Evacuee Property) Ordinance XV of 1949.
The Deputy Custodian Evacuee Property passed the following order dated 28th October,1950 allowing the application under section 16 of Act XV of 1949:-- "There is an application for confirmation of an agreement of sale dated 18th September,1947 executed by respondent in applicant's favour for Rs,2,500 relating to a house situated on plot No,7, Soldier Bazar, Hyderabad Cantt. Respondent is absent in spite of service. Applicant has obtained possession. Income Tax Certificate has been filed.
It is proved that the applicant has paid Rs,2,000 i,e, 80% of the consideration to the respondent on 8th September,1947. Hence the abovementioned agreement is hereby confirmed and the applicant is permitted to obtain the registration of a sale-deed relating to the disputed property under section 17 of Ordinance XV of 1949."
' The balance consideration amounting to Rs,500 was deposited by the purchaser, Faiz Mohammad, with the Deputy Custodian on 13th August,1963. It is an admitted position that no suit was filed by Faiz Mohammad or after his death by his legal heirs for the specific performance of the agreement against the evacuee, Vijay Shankar. The main point involved in this constitutional petition is whether by the aforesaid order dated 28th October,1960 of the Deputy Custodian confirming agreement of sale dated 18th September,1947, lie property in question no longer remained evacuee property and could not form part of the evacuee compensation pool or the mere confirmation of an agreement of sale did not make the property non-evacuee and to make it non-evacuee it was further required that the purchaser had filed suit for specific performance of the agreement, obtained a decree and got the sale-deed registered.
3. Learned counsel for the petitioner relied upon the following reported judgments for the proposition that the property in question had not become non-evacuee:-
(i) Khalid Shafqat V. Settlement Commissioner 1971 Law Notes 469.
(ii) Haji Ghulam Hussain V. Sharaf Din 1973 Law Notes (NUC) 331.
(iii) Custodian Evacuee Property V. Rais Ghazi Mohammad PLD 1973 SC 537.
(iv) Mehtab Khan V. Rehabilitation Authority PLD 1973 SC 451.
' In the Karachi case reported in 1971 Law Notes 460, a learned Single Judge, while deciding a constitutional petition, took the view that confirmation of an agreement of immovable property by a person, who become evacuee, did not confer any right or title over the property in favour of the purchaser as the property being of the value of Rs,100 required registration of the sale-deed in order to confer title on the purchaser. According to the learned Single Judge, the only means by which a transfer in respect of such a property could have been effected was duly registered instrument.
' In 1973 Law Notes (NUC) 331, Division Bench of the Lahore High Court observed that a mere agreement of sale does not create any right, title or interest in immovable property and the petitioner instead of filing an application under section 18 of Ordinance XV 1949 should have filed a suit for specific performance after obtaining the necessary permission from the Custodian and after obtaining the decree for specific performance from the competent civil Court, the petitioner should have approached the Custodian for approval. It was held that the application of the petitioner on the basis of a mere agreement of sale was not maintainable under section 18 of Ordinance XV of 1949 and the Custodian had no jurisdiction to grant the required declaration on the basis of a mere agreement of sale.
' In P L 0 1973 SC 537, an application had been made to the Custodian for confirmation of a sale- deed written on a two-annas non-judicial stamp paper. The application was rejected by the Custodian on the ground that the sale-deed was not genuine and the transaction was not bona fide. Respondent filed a review petition, which was accepted but thereafter the department moved the successor-in-office of the Custodian for review of the order of confirmation. The successor-in- office of the Custodian in exercise of his suo motu powers set aside the confirmation order and held that the sale-deed was not genuine and that it was ineffective and inadmissible in evidence.
A writ petition filed by the respondent was allowed by the Lahore High Court holding that the Custodian was not competent to review the confirmation order in view of section 3 of the Pakistan (Administration of Evacuee Property) Act of 1957. While accepting appeal, filed against the order of the Lahore High Court, the Supreme Court held that the sale-deed in question could not have been received in evidence, as it was not registered and it offended section 54 of the Transfer of Property Act and therefore, could not be considered by the Custodian and in view of the lacuna the sale- deed was not lawfuly confirmed and the case was, therefore, covered by section 3(2)(b) of the Act,1967 and the bar contained in section 3(1) of the Act 1957 was not attracted and the Custodian was competent to review the order of confirmation and treat the property as evacuee.
' In PLD 1973 SC 451, it was held by the Supreme Court that for the purposes of acquisition under section 4 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958, the property must be evacuee agricultural land on the date of the relevant notification and once the notification was issued it had the effect of extinguishing the right, title and interest of any evacuee or person claiming through him in the land specified in the notification with effect from the date of its publication and the land shall vest wholly and absolutely in the Central Government free from all encumbrances.
' Mr.Qadar Bux, learned counsel for the respondents, argued that by confirmation of the agreement of sale dated 18th September,1947 with the purchaser Faiz Mohammad paying the entire consideration that is major portion to the evacuee and the balance to the Custodian later on, and getting possession of the property in question and the Custodian authorities granting permission to Faiz Mohammad to obtain the registration of a sale-deed, the property no longer remained evacuee property and could not form part of the compensation pool. For this proposition learned counsel relied upon the judgment of the Supreme Court in the case of Mohammad Hashim V. Dr. Muhammad As har PLD 1970 SC 326. In that case Dr. Mohammad Asghar entered into an agreement of exchange with one Dr. Chanan Lal, whereby Dr. Mohammad Asghar exchanged his property in India with the property of Dr. Chanan Lal in Rawalpindi. Dr. Mohammad Asghar approached the Deputy Custodian of Evacuee Property for confirmation of agreement of exchange but the application was rejected. Revision filed by Dr. Mohammad Asghar before the Custodian was, however, allowed and the agreement of exchange was confirmed and the Custodian further mentioned in his order that Dr. Mohammad Asghar was at liberty to bring a suit in a civil Court for getting the agreement specifically performed under clause (a) of subsection (3) of section 16 of the Act of 1957 to enable him to become owner of the property in dispute. Dr. Mohammad Asghar, in pursuance of this order of the Custodian, filed a suit for specific performance of contract against Dr. Chanan Lal in civil Court at Rawalpindi on 4th September,1959 and obtained a decree of specific performance on 31st March,1960. However, in the meanwhile, on 25th November,1959, the house in dispute was transferred to the appellant by the Settlement Authorities treating the property as a part of the compensation pool under the provisions of Displaced Persons (Compensation & Rehabilitation) Act,1958. In that case leave was granted by the Supreme Court to consider the contention of the appellant that the mere confirmation of the agreement by the Custodian did not confer title to Dr. Mohammad Asghar and as the property had been transferred to the appellant before the decree of specific performance was passed, they had a better title. It was held by the Supreme Court that in view of confirmation of the agreement of exchange in favour of Dr. Mohammad Asghar and the granting of the certificate by the Custodian that Dr. Mohammad Asghar was at liberty to bring a suit in a civil Court for getting the agreement specifically performed under clause (a) of subsection (3) of section 16 of the Act of 1957, the property in dispute was taken out from the evacuee compensation pool and became the subject-matter of transfer in the ordinary way to Dr. Mohammad Asghar.
4. The decisions reported in 1971 Law Notes 460 and 1973 Law Notes (NUC) 331 no doubt support the proposition advanced by the learned counsel for the petitioner that mere confirmation of agreement of sale could not take the property out of the compensation pool and unless the sale- deed was registered after permission from the Custodian, the property remained evacuee and could be transferred validly by the Settlement Department to the displaced persons. But then the law laid down by the Supreme Court is binding on all the authorities in Pakistan including the High Courts and PLD 1970 SC 326 has decided that where an agreement of sale is confirmed by the Custodian and a certificate is also given by the Custodian Permitting the purchaser to file a suit in a civil Court for getting the agreement specifically performed, the property in question goes out of the evacuee pool and becomes subject-matter of transfer to the purchaser in the ordinary way. No other judgment of the Supreme Court was cited before me where the Supreme Court has taken a different view than that expressed in PLD 1970 SC 326. I am bound to follow the law laid down by the Supreme Court.
5. In the present case there is an agreement of sale dated 18th September,1947 executed by the Hindu owner in favour of Faiz Mohammad, whereby the Hindu owner agreed to transfer the property to Faiz Mohammad for a total consideration of Rs,2,500 out of which Rs,2,000 had been paid at the time of the agreement. Possession had been delivered to Faiz Mohammad and this agreement of sale was confirmed by the Deputy Custodian Evacuee Property, Hyderabad, by his order dated 30th October,1950 and Faiz Mohammad was permitted to obtain registration of the sale-deed under section 17 of Ordinance XV,1949. It is also an admitted position that the balance of Rs,500 was deposited by Faiz Mohammad with the Custodian on 13th August,1953. Although, it is an admitted position that no suit by Faiz Mohammad was filed for specific performance and no sale- deed was got registered, in view of the law laid down by the Supreme Court in P L 1970 SC 326, the confirmation of the agreement of sale by the order. Dated 30th October,1950 of the Deputy Custodian with a certificate being granted to Faiz Mohammad permitting him to obtain registration of a sale-deed under section 17 of Ordinance XV of 1949, the property no longer remained evacuee property and became subject-matter of transfer in the ordinary way to Faiz Mohammad. The Custodian always stepped into the shoes of the evacuee and could only acquire such rights which the evacuee had in the property. In the instant case the agreement of sale dated 18th September,1947 was found by the Deputy Custodian to be bona fide and was confirmed and a certificate was also granted to purchaser Faiz Mohammad permitting him to file a suit for getting the agreement specifically enforced. Out of the total consideration of Rs,2,500 a sum of Rs,2,000 had been paid to the evacuee and the balance of Rs,500 had been received by the Custodian authorities. According to the order dated 30th October,1950 of the Deputy Custodian possession of the property had also been obtained by Faiz Mohammad. In these circumstances Faiz Mohammad had become the beneficial owner of the property although the title in the property had not been formally transferred to Faiz Mohammad. The Hindu evacuee, on the ' other hand, had no right left in the property although the property stood in his name. In fact he was under an obligation to execute a conveyance deed for effecting a formal transfer of the property in favour of Faiz Mohammad. As observed earlier on the agreement of sale having been confirmed with permission being granted to file a suit for specific performance with full consideration having been paid by the purchaser who also obtained possession of the property, the Hindu owner stood divested of all beneficial rights and interests in the property. In these circumstances the property no longer remained evacuee property and could not form part of compensation pool and as a consequence could not be allotted to the petitioner by the settlement authorities.
6. As a result this petition fails. Constitutional petition No, 252 of 1976 is dismissed but with no order as to costs.