' The above two appeals have been filed from the judgment of the learned District Ridge, Hyderabad, dated 16th March, 1972, whereby he had decided two appeals from the Judgments of Civil Judge, Thatta, dated 9th January, 1971 in two separate suits filed by the present appellant against Seth Qadir Bux and Seth Dhiran Magshi. Suit No, 20 of 1970 was filed by the present appellant Mufti Zaheeruddin Ahmed Ansari against Seth Dhiran Magshi while Suit No, 17 of 1970 was filed by him against Seth Qadir Bux.
2. As the facts 'and circumstances involved in the two suits were similar, hence the first appeals were decided by a common judgment. The two second appeals shall also be decided by this judgment. Mufti Zaheeruddin Ansari claims that he had purchased Evacuee Plot No, 2653/A situated in Thatta in 1961 from the Settlement Authorities in open auction. Such P.T.O. was issued in his favour on 22-2-1964. Subsequently P.T.D. was also issued in his favour which is dated 28-4-1969.
It is alleged by appellant Mufti Zaheeruddin Ahmed Ansari, that the plot was vacant when it was auctioned in his favour in the year 1961. He visited the plot in the year 1963 and found that one portion of the plot was occupied unlawfully by Seth Qadir Bux and another portion by Seth Dhiran Magshi. He, therefore, filed two suits for possession and ,:lesne profits against the two defendants who are the respondents in the present two appeals.
3. The plea of the respondents in both the suits was that this plot originally belonged to three persons namely, Jethanand, Tikamdas and Deepchand sons of Hiranand. Out of these three persons Jethanand and Tikamdas were declared non-evacuee while only Deepchand was evacuee. They had also produced order dated 19-6-1961 as Exh. 41 (in Suit No, 17/1970). This order shows that only 2/3rd portion of the plot in dispute is non-evacuee, whereas the remaining 1/3rd portion is evacuee. However, the respondents have pleaded that they had taken this plot on rent from the original ow'ner Tikamdas, who is still in Pakistan and has been receiving rent from them.
They have, therefore, challenged the powers of the Settlement Authority to transfer the plot by auction by treating it as evacuee property.
4. In the trial Court P.W. Sultan and P.W. Mufti Zaheeruddin Ahmed Ansari were examined on behalf of the appellant, while the respondents had examined themselves. The 'trial Court came to the conclusion that as the property i.e, open plot was treated as evacuee property by the Settlement Authorities, therefore, he had no jurisdiction to go beyond the orders of the Settlement Authorities and that the open plot was validly transferred to the appellant. In view of this finding the learned Civil Judge decreed both the suits.
5. The respondents filed separate appeals before District Judge, Hyderabad, being Civil Appeals Nos. 23 and 24 of 1971. The learned District Judge was of the view that the Settlement Authorities had no jurisdiction to transfer non-evacuee property under any Settlement Scheme. He, therefore, held that the appellant could claim ownership of only 1/3rd share in the plot in dispute which was available for transfer and that so far as the remaining 2/3rd portion is concerned, it was non- evacuee and the Settlement Authorities had no jurisdiction to transfer this property by auction.
While setting aside the Judgments/ decrees in the two suits passed by the trial Court, the learned District Judge further observed as under:- "In view of the above position, the suits of the plaintiff-respondent for possession and mesne profits must fail. The Settlement Commissioner must now pass an order and partition the lands in dispute after taking into consideration the non-evacuee shares of Messrs Tikamdas and Jethanand.
Pending the orders passed by the Settlement Commissioner for partition of the property the possession of the defendants through the non-evacuee owners holding 2/3rd share of the property, cannot be disturbed.
11. In the result, the appeals are accepted and the judgments and decrees of the Civil Judge, That are set. aside with no order as to costs under the circumstances."
' Aggrieved by the above judgment in the two appeals, the appellant has filed the present second appeals.
6. So far as the nature of the property being evacuee or non-evacuee is concerned, it has been decided finally by the Custodian by his order, dated 19th June, 1951 which has been produced as Exh. 41 is Suit No, 17 of 1970. By this order the Custodian has declared that Jethanand, Tikamdas and Deepchand sons of Hiranand are owners of Survey No, 2653, Ward "A" Thatta and that Deepchand only is evacuee, whereas Jethanani and Tikamdas are non-evacuee. It has further been held that 2/3rd of the property of the above persons is non-evacuee and only 1/3rd is evacuee property.
Below this order, all the survey numbers, including that of the disputed plot, have been given of which 1/3rd portion only has been declared as evacuee property. The question, therefore, is whether the Settlement Authorities were competent to treat the non-evacuee share of the plot as evacuee and transfer it under the Settlement Scheme. Reference in this connection has been made to the case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 in which it has been held as under:- "The foundation of the jurisdiction of the Settlement Officers for transfer of property should be that which was evacuee property, which has vested in the Central Government anti which is liable to be transferred under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. If the property be in fact such the Settlement Authorities exercise with respect to it quasi-judicial functions. They determine whether 'possession' of a party exists, whether a person is a claimant, what is the date of his possession and so on. With respect, to the nature of the property, however the Settlement Authorities have no jurisdiction to record a binding determination. If the property was in fact not evacuee property and was not vesting in the Central Government the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary civil Court on the ground that they had no jurisdiction with respect to the property transferred at all ' The Displaced Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to Settlement authorities to bring all property within their jurisdiction on their own findings.
' The order of the Settlement authorities would be binding by virtue of sections 22 and 25 in respect of matters which the law intended should be decided by them only (subject of course to the jurisdiction of the High Court under Article 98 of the Constitution), but would not be binding with respect to findings on facts Which form the foundation of their jurisdiction."
' In the case of Lachmandas v. Central Government of Pakistan and another PLD 1970 SC 379 it was laid down as under:- "The declarations made by a Custodian related merely to the personal status of alleged evacuees and were granted on the basis of their statements alone. The Custodian had not said a word about the properties belonging to the joint Hindu Family which had been treated as evacuee properties by the Rehabilitation authorities. It was held by the Supreme Court that if a person is declared an evacuee within the meaning of clause (2) of section 2 of Act XII of 1957, or the corresponding provisions as obtained at the relevant time and contained in the two Ordinances of 1948 and 1949, then his property would become evacuee property, and once a property has become evacuee property or has been treated as such, then the only remedy available to the person claiming any right or interest in such property was to move the Custodian under section 18 of the Ordinance XV of 1949, or under section 22 of Act XII of 1957 for a declaration that the property was not evacuee property or that his interest in the property had not been affected by the provisions of the statute. A mere declaration as to the non-evacuee status of the person concerned would not automatically have the effect of converting the property from evacuee to non-evacuee, or of its restoration to the claimant."
' In the case of Azam Ali and others v. The Custodian of Evacuee Property West Pakistan, Lahore and another PLD 1968 Lah: 148 a Division Bench of the Lahore High Court consisting of Sajjad Ahmed and Karam Elahi Chauhan, JJ. held:- "'Treated' in the sense in which it is used in section 3-A means that the character of the property must have been determined by the Rehabilitation authorities or the Custodian by a judicial process after notice to the owner and the determination in this regard must be a final determination so that the affected party has a right to represent against the characterization of a property as an evacuee property and to prove that it is not so, and the matter be closed on him only if after a proper inquiry and adjudication the issue is finally disposed of one way or the other. In a contested case of this nature, the final adjudication in these matters would obviously be done only by the Custodian. To interpret the word 'treated' in any other sense and to regard any declaration or any casual act of the Rehabilitation authorities in regard to the property as the 'treatment of that property' to be evacuee property, would entail the risk of divesting real owners of their properties, amounting to expropriation, without any legal basis or moral jurisdiction, and the Legislature cannot in fairness be burdened with that intention."
7. From the above decisions it would appear that the Settlement authorities have not jurisdiction to treat a non-evacuee property as evacuee and to transfer it under any of the Settlement Schemes.
The final authority to determine the nature of the property being evacuee or non-evacuee is the Custodian. If the Custodian has declared a particular property to be non-evacuee, then it shall not be deemed to be part of the compensation pool nor it shall be treated as available for transfer by the Settlement authorities. The order of the learned District Judge to the effect that only 1/3rd portion of the plot in dispute was evacuee and was legally transferred to the appellant is, therefore, unexceptionable.
8. In para. 8 of his judgment the learned District Judge has observed that the respondents are statutory tenants of this plot in respect of 1/3rd share belonging to Deckhand, but no notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 was issued hence their possession is protected. This is not correct position of law. 'Notice under section 30 is not necessary for transferees of open plots. it applies to houses and shops etc., but not to open plots Hence neither the respondents are statutory tenants of the appellant in respect of 1/3rd share of Deckhand, nor their possession is protected by section 30 'the relevant portion of which is as under:- "30.(1) Where any person is in possession of any evacuee house, or shop, or has been declared on or before the 20th day of December 1958, by a Custodian to have tenancy rights from a date prior to the 14th day of August, 1947, in any industrial concern, cinema house or printing press which is transferred to any other person under the provisions of this Act, then, notwith standing anything contained in any other law such person shall without prejudice to any other right which he may have in that house, shop, industrial concern, cinema house or printing press, be deemed to be a tenant of the transferee on the same terms and conditions as to payment of rent or otherwise on which he held it immediately before transfer:- ' Provided that:-
(a) it shall be lawful for the transferee on the basis of the latest assessment carried out by the Municipality or local authority, as the case may be, for other properties in the locality generally; and
(b) it shall not be lawful for the transferee to eject such persons from the house or shop for a period of six years and from the industrial concern, cinema house or printing press for a period of 3 years from the date of transfer, notice of which shall be given by the transferee to the tenant within one month of such transfer by registered post (acknowledgment due).
' It will thus appear that the respondents were not entitled to any notice under section 30 of Displaced Persons (Compensation and Rehabili tation) Act.
9. In his judgment the. learned District Judge has observed that "the Settlement Commissioner must now pass an order and partition the land in dispute after taking into consideration the non- evacuee share of Tikamdas and Jethanand and that pending the order passed by the Settlement authorities the possession of the defendants through non-evacuee owners holding 2/3rd share of the property cannot be disturbed. This order is not warranted by law. After issuance of the P.T.D., the Settlement authorities have become focus officio. The P.T.D. was issued as long back as in the year 1969. The suits were filed in the year 1970, whereas the first appeals were decided on 16-3-1982. On this date the Settlement authorities had no jurisdiction to effect partition of the evacuee and non- evacuee shares. The proper course for the appellant would be to file a suit for partition against the non-evacuee owners, Until then each one of the respondents shall be liable to pay manse profits for the 1/3rd portions of the plot in their possession. The appellant has claimed Rs, 20 per month for the portion in possession of respondent Seth Dhiran Magshi in appeal No, 237 of 1972. From Seth Qadir Bux, who is respondent in second Appeal No, 236 of 1972 and is in possession of major portion of the plot in dispute, mesne profits has been claimed at Rs, 30 per month.
The appellant is, therefore, entitled to recover at the rate of 1/3rd of the above amounts per month as mesne profits from each one of the respondents from the date of P.T.D., up to the date of these appeals and shall continue to recover further mesne profits at the same rate until he gets possession of his 1/3d share in pursuance of competent legal proceedings for partition and possession. The appeals are partly allowed to the extent indicated above with no order as to costs.