1. WAHIDUDDIN AHMAD, J.--This appeal by special leave is directed against the judgment of the West Pakistan High Court, Lahore, in Writ Petition No, 993 of 1960, dated the 19th September 1961. By this judgment the writ petition was allowed and a writ of certiorari was issued to quash the order of the Custodian of Evacuee Property, Lahore, in Review Application No, 34 of 1960 and Review Application No, 73 of 1960. It has arisen in the following circumstances :- The property in dispute is 366 kanals and 4 marks of land situated in village Kot Mathra Dass, Tehsil Chunian, District Lahore. It belonged to respondent No, 2 Gurbaksh Lal Sarin son of Lala Lachhman Dass. Respondent No, 1 Mst. Razia Begum is the daughter of Lala Lachhman Dass. In 1940, she embraced Islam and married Dr. Zahiruddin Alvi. At the time of Partition, Dr. Zahiruddin Alvi was posted at Larkana as District Health Officer. His mother-in-law and brother-in-law were also staying with him. They embraced Islam and started residing with respondent No, 1 who was appointed as a Lecturer in the Lahore College for Women in October 1947. Respondent No, 2, on embracing Islam, adopted the name of Abdul Ghafoor Sarin and got married to respondent No, l's sister-in-law Rashida Begum. Respondent No, 2 owned considerable immovable property including agricultural land situated in village Kot Mathra Dass, Tehsil Chunian, District Lahore. After Partition, this property was treated as evacuee property. Respondent No, 2 applied to the Custodian for restoration of his property. The Additional Custodian, by his order dated the 5th July 1948, held him as an evacuee but restored his 1/3rd share in the joint property under section 15 of Ordinance VII of 1947, on condition that he will not eject the refugees who have already been settled on his land and will not dispose of any part of his property without the permission of Custodian, Evacuee Property.
2. Respondent No, 2 being aggrieved by the quantum of his share in the joint property approached the Custodian of Evacuee Property, Lahore, in revision. The learned Custodian, by order dated the 14th March 1949, raised his share from 1/3rd to 19/28.
3. It appears that respondent No, 2 was in financial difficulties. He entered into an agreement with respondent No, 1 for the sale of 366 kanals, 4 marlas of land to her on the 6th May 1949, for Rs, 20,000. Out of which he received an advance of Rs, 16,000 and agreed to receive the balance of sale price at the time of execution and registration of sale deed after the Custodian had given the sanction for the proposed sale. In this connection he moved an application to the Custodian of Evacuee Property for permission to sell six squares of land. The Custodian of Evacuee Property, by order dated the 28th May 1949, granted the sanction in the following terms :- "I have, therefore, no objection if the petitioner sells 150 acres out of the land, restored to him to any Pakistani purchaser."
4. It is alleged that after obtaining sanction, respondent No, 2, backed out from his commitment to his sister respondent No, 1 and entered into an agreement of sale on the 13th July 1949, for Rs, 51,000 with one Mst. Shaukat Begum for the sale to her of 2931 kanals, 13 marlas including the land which he agreed to sell to his sister respondent No,
1. This agreement was also not fulfilled. Respondent No, 2 again migrated to India. In 1949, one Ilam Din applied to the Custodian of Evacuee Property for declaration that respondent No, 2 had become an evacuee. On an inquiry being held, the learned Custodian declared him an evacuee by his order dated the 24th November 1951.
5. Thereafter, respondent No, 1 moved an application to the Deputy Custodian of Evacuee Property for confirmation of the agreement of sale dated 6th May 1949 and for permission to get the registration of land in dispute effected. This application was rejected by the Deputy Custodian on the 23rd May 1956. Respondent No, 1 challenged this order in appeal which was heard by the Additional Custodian, Evacuee Property, Lahore. The appeal was accepted. The learned Additional Custodian found that the transaction between respondent No, 1 and her brother was bona fide and since the agreement of sale has been executed before the 26th of July 1949, and a sum of Rs, 16,000 has already been received by the vendor, he gave permission to respondent No, 2 by order dated the 8th April 1958, to execute the sale deed and in case of his default, allowed respondent No, 1 to file a suit for specific performance of the said agreement. This order was challenged by the allottees in revision before the Custodian of Evacuee Property. The Rehabilitation Department also challenged this order. Both the petitions were dismissed by the learned Custodian. The petition filed by the Rehabilitation Authorities was dismissed on the 3rd July 1958 and the revision filed by the allottees was dismissed on the 12th July 1958.
6. Respondent No, 2 Gurbaksh Lal Sarin came from India and on the 31st July 1958, executed the sale deed of the land in dispute in favour of respondent No, 1 which was registered on the 5th August 1958 and the balance of the sale price was paid to him in the presence of the Sub-Registrar. After obtaining the registration of the sale deed, respondent No, 1 tiled an application bearing Misc.
7. Application No, 190 of 1958 with the Additional Custodian of Evacuee Property for confirmation of the said sale in her favour and for delivery of possession of land in dispute to her. The learned Additional Custodian, by order dated the 8th August 1958, on this application held as under :- "The land which has been duly transferred according to law is now the exclusive property of Mst.
8. Razia Begum Alvi, who is admittedly a non-evacuee."
9. He further directed as under :- "The Deputy Rehabilitation Commissioner (Land) is accordingly requested to deliver possession to her."
10. Thereupon, the appellant and 31 other persons who were allottees challenged the validity of orders dated the 8th April 1958, 3rd July 1958 and 12th July 1958 in Writ Petition No, 561/R of 1958, filed in the High Court of West Pakistan, Lahore. In this writ petition respondent No, 1 and her brother Abdul Ghafoor Sarin were impleaded as respondents Nos, 1 and 2. The following prayer was made in the writ petition :- "That a writ of certiorari or mandamus or any other writ, order or directions may kindly the issued to the respondents commanding them to treat the agricultural land and its appurtenances as an evacuee property free from any encumbrances."
11. It was prayed "that the agreement of sale dated the 6th May 1949, and the registration of sale dated the 5th August 1958, may also be held as illegal and inoperative". It was further prayed that if any transfer or possession has been entered in revenue record it may be ordered to be corrected accordingly. The Rehabilitation authorities and the Custodian of Evacuee Properties were also impleaded as respondents Nos, 3 and 4, who did not challenge the ownership of respondent No, 1.
12. The writ petition was dismissed by the High Court, by judgment dated the 15th June 1959. It was held that the sale in favour of respondent No, 1 did not suffer from any legal defect. The appellant and others challenged this order in Letters Patent Appeal No, 103 of 1959, before a Division Bench of the West Pakistan High Court, Lahore, which was dismissed on the 25th September 1959, by late Mr. Justice M. R. Kayani and Mr. Justice A. R. Khan. On this occasion, it was also contended that under section 16(1) of the Ordinance of 1949, a sale made with the previous approval of the Custodian required further confirmation. This plea was repelled on the following observations :- "It is admitted that the Custodian's permission to sell had been obtained but it is contended that section 16(1) of the Ordinance of 1949, required fresh confirmation because the vendor Abdul Ghafoor Sarin had become an evacuee. The previous order of the Custodian, however, was saved by section 48 of the Ordinance in question. The transaction is perfectly genuine it is not denied. The appeal is dismissed."
13. The appellant and others then applied for obtaining a certificate of fitness for appeal to the Supreme Court which was dismissed on the 3rd October 1960, as having been withdrawn.
14. The matter did not rest here. On the 18th of April 1960, the appellant and others moved a review petition bearing No, 34 of 1960 before the Custodian of Evacuee Property for reviewing the orders of his predecessor dated the 3rd July 1958 and 12th July 1958. This application was supported by an application under section 5 of the Limitation Act for condoning the delay in filing the review application. It was also urged in the review petition that the agreement of sale dated the 6th May 1949, was a forged document. The review petition was dismissed on the 10th September 1960. The learned Custodian held that there was no satisfactory reason to condone the delay. He further held that even if the review petition had been filed in time he would have declined to interfere with the orders dated the 3rd July 1958 and 12th July 1958, passed by his predecessor-in-office as they appeared to him to be substantially correct. The learned Custodian, however, observed that after the registration of the sale deed, fresh confirmation was necessary under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957 and that it was obligatory for respondent No, 1 to apply for confirmation of the transaction of the sale. The appellant and others moved another review petition bearing No, 90 of 1960 which was dismissed on the 10th November 1960.
15. Respondent No, 1 also filed a review petition bearing No, 73 of 1960 in order to challenge the observation that the sale transaction required further confirmation by the Custodian. While this review petition was being heard, the learned Custodian directed the issuance of a notice to respondent No, 1 asking her to show cause as to why the order passed on the 18th August 1958, by the Additional Custodian of Evacuee Property be not set aside. The review petition filed by the respondent No, 1 was dismissed by the learned Custodian on the 5th December 1960. In this order he observed as under :- "No doubt in the Application No, 190 of 1958 on which the Additional Custodian's order dated the 18th August 1958, was passed, a prayer for confirmation had also been made, but that application was not in proper form, nor did the Additional Custodian treat it as an application for confirmation."
16. On the same date he modified the order dated the 18th August 1958, passed by the Additional Custodian of Evacuee Property "to the extent of declaring that until the transaction of sale in favour of Mrs. Alvi is confirmed under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957, the property in dispute shall continue to be treated as evacuee property and that the said Mrs. Alvi shall not be entitled to retain its possession".
17. Respondent No, 1 challenged the validity of the two orders of the learned Custodian of Evacuee Property dated the 10th September 1960 and the 5th December 1960 in Writ Petition No, 993 of 1960 in the High Court of West Pakistan, Lahore. This petition was allowed by judgment dated the 19th September 1961 and the above-mentioned orders were quashed. The learned Judges of the High Court held that --
(i) the Custodian and his successor-in-office were in law debarred from going behind the order approving the Agreement of Sale and permitting the sale deed to be executed; (ii)that after the sanction of sale is granted by the Custodian under section 19, then no further sanction under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957, was required; (iii)to invest the Custodian with the powers to withhold his consent after according permission and to render the sale nugatory which had been brought in conformity with his direction, will, to say the least, offend against all accepted notions of civilized laws.
18. This order is being challenged in this appeal.
19. Leave was granted in this case to consider the difficult questions of construction of sections 19 and 20 of the Pakistan (Administration of Evacuee Property) Act, 1957.
20. In support of the appeal, Mr. Ali Ahmad Khan, learned counsel for the appellant has raised three- fold contentions. In the first place, he has contended that the view of the High Court that no further confirmation was required was against the provisions of sections 19 and 20 of the Pakistan (Administration of Evacuee Property) Act, 1957. Secondly, he contended that the appellant was not made a party in the confirmation proceedings and, therefore, the order of the Custodian authorities offends against the principle of natural justice. Lastly, he contended that the sale of agricultural land was prohibited under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, and, therefore, the Custodian authorities had no jurisdiction to confirm the sale transaction under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957. These points will be dealt separately.
21. So far as the first point is concerned it is unnecessary to go into the question whether further confirmation of the sale transaction dated the 31st July 1958, was necessary or not. Mr. M. Anwar, learned counsel for the respondent No, 1, has drawn our attention to the fact that respondent No, 1, after obtaining registration of the sale deed had applied for the confirmation of the sale in her favour and for delivery of possession of the land in dispute to her. This application bearing No, 190 of 1958 is at pp. 121-124 of the record. It was moved before the Additional Custodian of Evacuee Property, Lahore. In this application, respondent No, 1 has clearly asked for the confirmation of sale in dispute in her favour. This application came up for hearing before Mr. Abdul Majid Asghar, Additional Custodian of Evacuee Property, Lahore, on the 18th August 1958, and the learned Officer on the above application passed the following order.
22. "By my order dated the 8th April 1958, passed in Appeal No, 26 of 1956, I had confirmed the agreement of sale executed by Gurbaksh Lal Sarin in favour of Mst. Razia Begum Alvi on 6-5-1949.
23. Feeling dissatisfied with the finding given in my order mentioned above the Rehabilitation Authority filed a petition for revision and this revision petition was dismissed by an order dated 3-7-1958, passed by the Custodian. A sale-deed has consequently been executed and registered in favour of Mst. Razia Begum Alvi, vide sale deed dated 30-7-1958, registered on 31-7-1958. The land which has been duly transferred according to law is now the exclusive property of Mst. Razia Begum Alvi, who is admittedly a non-evacuee."
24. Mr. M. Anwar, learned counsel for respondent No, 1, contended that this order is of confirmation of the sale under section 20 and, therefore, the grievance of the appellant that the sale required further confirmation has no basis whatsoever. In reply, Mr. Ali Ahmad Khan, learned counsel for the appellant has contended that the learned Custodian, by order dated the 5th December 1960, has modified the order dated the 18th August 1958, passed by the Additional Custodian, Evacuee Property, Lahore, "to the extent of declaring that until the transaction of sale in favour of Mrs. Alvi is confirmed under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957, the property in dispute shall continue to be treated as evacuee property and that the said Mrs. Alvi shall not be entitled to retain its possession". He further referred to the order of the Custodian in Review Petition No, 73 of 1960, dated the 5th December 1960. In this order, the Custodian of Evacuee Property observed as under :-- "When the order dated the 10th September 1960, was passed by me, I was not aware of the existence of the order dated the 18th August 1958, passed by the Additional Custodian of Evacuee Property, Lahore. That order has been seen by me now and from its perusal it appears that the Additional Custodian was of the view that after the agreement of sale had been 'confirmed' Mrs. Alvi became owner of the property in dispute, even though the transaction of sale had not been confirmed under section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957. In my opinion, the view of the case taken by the Additional Custodian was not correct, because an order of confirmation of the sale could be passed after and not before the sale deed had been executed and as on the date when the agreement of sale had been confirmed the sale deed did not exist, no question of confirmation of the transaction of sale arose, at that stage. No doubt, in the Application No, 190 of 1958, on which the Additional Custo-dian's order dated the 18th August 1958, was passed, a prayer for confirmation had also been made, but that application was not in proper form, nor did the Additional Custodian treated it as an application for confirmation. The Additional Custodian's order not being in accordance with law, will, therefore, have to be set aside under subsection (4) of section 48 of the Pakistan (Administration of Evacuee Property) Act, 1957. As the transaction has not yet been confirmed, as required by section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957, no question of the modification of the concluding portion of my order dated the 10th September 1960, arises."
25. The learned counsel contended that on these observations, it is quite clear that the Additional Custodian had not confirmed the sale transaction and the contention of respondent No, l's counsel is incorrect.
26. The question for consideration, therefore, is whether the learned Custodian was right in holding that the Additional Custodian had not confirmed the transaction. I have already reproduced the order of the Additional Custodian. In my opinion the following observation of the Additional Custodian in his order dated the 18th August 1958, clearly indicates that he had confirmed the transaction :- "A sale-deed has consequently been executed and registered in favour of Mst. Razia Begum Alvi, vide sale deed dated the 30-7-1958, registered on 31-7-1958. The land which has been duly transferred according to law is now the exclusive property of Mst. Razia Begum Alvi, who is admittedly a non-evacuee." in the earlier part of the order he had also referred to his order dated the 8th April 1958, passed in Appeal No, 26 of 1956 whereby he had confirmed the agreement of sale executed by Gurbakhsh Lal Sarin in favour of Mst. Razia Begum Alvi, on Wahiduddin, the 6th May 1949. If the entire order is read it is quite clear J that the learned Additional Custodian has confirmed the sale transaction entered into by sale deed dated the 30th July 1958, registered on the 31st July 1958. The mere fact that he had not used the word 'confirmation' in respect of sale deed dated the 30th July 1958, will not take away the legal effect of this order. The observation of the learned Custodian that the application was not in proper form cannot be upheld on the contents of the application. Mr. M. Anwar, learned counsel for respondent No, 1, has referred us to the application at page 121 of the paper-book. This application contains the particulars of the parties, the particulars of the sale and the particulars of the property in dispute. No other requirement was necessary under rule 12 of the Pakistan (Administration of Evacuee Property)
27. Rules. In my opinion, the application for confirmation was in proper form and for this reason the order of the Additional Custodian dated the 18th August 1958, was not liable to be set aside.
28. It seems to me that the learned Custodian has fallen into an error in coming to the conclusion that the learned Additional Custodian had not applied his mind to the facts of the case and had not treated the above application moved by the respondent No, 1 as that of confirmation. A perusal of the Additional Custodian's order clearly indicates that he was considering the question whether respondent No, 1 has become exclusive owner of the property. In that connection he referred to his earlier confirmation order, then he referred to the sale transaction and thereafter held that respondent No, 1 has become exclusive owner of the property in dispute. In my opinion, he has applied his mind to the sale transaction and approved of it. I would, therefore, hold that the sale transaction entered by the sale deed dated the 30th July 1958, has been duly confirmed by the Additional Custodian on the 18th August 1958 and the learned Custodian was not right in holding otherwise and in interfering with this order. In that view of the matter no further confirmation of the transaction in question is necessary.
29. The next contention of the appellant that the order of confirmation offends against the principle of natural justice is based on the plea that the appellant and other allottees were not made parties to the various applications moved by respondent No, 1 for confirmation of agreement of sale and sale deed. The grievance of the appellant is that these orders were passed behind the back of the appellant and other allottees and, therefore, the orders of the Additional Custodian and Custodian confirming the sale transaction are vitiated. In support of this contention, Mr. Ali Ahmad Khan, learned counsel for the appellant has referred to rule 12 of the Pakistan (Administration of Evacuee Property) Rules, 1950. This rule prescribes the procedure for confirmation under section 16 (now section 20) of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949). Sub-rule
(5) of rule 12 which is relevant is reproduced below :- "The Custodian shall cause a notice to be served on the respondent, and the Rehabilitation Authority of the area in which the property is situate, and on any other person likely to be interested in or affected by the result of the application, and may also cause a public notice to be published in a newspaper at the expense of the applicant."
30. On the basis of this sub-rule, Mr. Ali Ahmad Khan, learned counsel for the appellant, contended that in the proceedings for confirmation the appellant and other allottees were necessary parties. The objection raised by the learned counsel is not mentioned in the concise statement and, therefore, the appellant is not entitled to raise this point for the first time at the time of argument.
31. On merits also the point raised has no substance. The appellant and other allottees were merely allottees or licensees. The property in dispute had not been confirmed in their names. In these circumstances, the principle laid down in the case of Ata Ullah Malik v. The Custodian of Evacuee Property, West Pakistan and Karachi and others , will apply to the facts of the present case. The majority view in that case was that the question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. In this connection it was observed as under :- "The argument raises the question as to the nature of the contest, if any, when an application is made under section 20 for confirmation of the sale in respect of property which but for such confirmation would be evacuee property. The power has been given in this respect to the1 Custodian, in whom the property is vested. The question whether the title in the property which is vested in the Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between the Custodian and the party seeking the confirmation. As has been observed already, the sense of the law which the Custodian is appointed to administer is distinctly favourably to the retention by the Custodian of the Property vested in him, and against anything resembling easy divestment. The Custodian is armed with large powers to protect the rights so vested in him. Any further rights created in respect of these properties by any other authority, e.g. by act of allotment of a rehabilitation authority, are fully within the scope of the Custodian's protective power. And it is to be noted that at the time when the question of confirmation was taken up, no proceedings had yet taken place under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which could have the effect of divesting the Custodian of his title. The appellate order of the Additional Custodian allowing the transfer was made in September 1958, and it was not until August 1959, that evacuee properties generally were vested in the Government by notification, and so oecame available for transfer to claimant .1 refugees and others. A Provisional Transfer Order was issued in favour of Ata Ullah Malik, but it was later cancelled in consequence of the confirmation order. It would seem then that there is no force in the argument that the revival order is vitiated by failure to notify Ata Ullah Malik before it was made. He had no vested right in the property. Such right as he possessed as an allottee was derived from, and was held under the title which was vested in the Custodian, and which it was the duty of the Custodian, under the law, to protect within the meaning of section 20 aforesaid."
32. Mr. Ali Ahmad Khan, learned counsel for the appellant, referred to a decision of the Lahore High Court in the case of Zahid All v. Chief Settlement Commissioner, Lahore and others . In that case it was held that the order of the Custodian confirming the sale is vitiated for want of a statutory notice as contemplated by rule 12(5) of the Pakistan (Administration of Evacuee Property) Rules, 1950, as also for violation of the principles of natural justice. This case is distinguishable because in that case the petitioner was an allottee and the Deputy Settlement Commissioner had transferred the property in dispute to him under the Displaced Persons (Compensation and Rehabilitation Act, 1958. This distinguishing feature was also noticed by this Court in Syed All Abbas and others v. Vishan Singh and others . In that case the decision of Ataullah Malik was considered and it was observed as under :- "The learned Judges thought that this precedent covered the case before them, but it is to be pointed out that the status of Ataullah Malik in respect of the evacuee property there in question was that of a mere allottee or licensee, whereas the present case was rested on the fact that permanent rights in the land had passed to the writ petitioners. Therefore, the cases were by no means on all fours, in respect of the `natural justice' argument."
33. In the present case the appellant and others are mere allottees or licensees. No permanent right in the land had passed to them and, therefore, they were not entitled to a right of hearing on an application made for confirmation of the sale transaction. Even under rule 12(5) it cannot be said that the allottees were the persons likely to be affected by the result of the application. The property vested in the Custodian and he was quite competent to look after their interest. In any case the above-mentioned rule is of a directory nature and its non-observance cannot vitiate the proceedings of the Custodian authorities. I would, therefore, repel this contention.
34. Lastly it was urged by Mr. Ali Ahmad Khan, learned counsel for the appellant that the sale of agricultural land was prohibited under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, and therefore, the Custodian authorities had no jurisdiction to confirm the sale transaction under section 20 of the said Act. In order to appreciate the argument of the learned counsel it will be proper to reproduce sections 19 and 20 of the Pakistan (Administration of Property) Act, 1957. They read as under :-2 3 "19. Prohibition of transfers of property generally.
35. The Central Government may, by notification in the official Gazette, declare that in such area and for such period as may be specified in the notification, the transfer of any property or class of property, or the creation of any right or interest therein or encumbrance thereon, shall be prohibited, and where any such declaration has been made, no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian : Provided that nothing in this section shall prevent the transfer of movable property of which an evacuee has immediate physical possession.
20. Restriction on transfer by evacuees.
(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian.
(2) An application for confirmation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party.
(3) The Custodian shall hold a summary inquiry into the application in the prescribed manner, and --
(a) shall reject the application if the creation or transfer- (i)was or is prohibited under any law for the time being in force, or (ii)was not or is not covered by a certificate from the prescribed income-tax authority to the effect that no objection exists to such creation or transfer ;
(b) may reject the application if he is of opinion that the creation or transfer- (i)was not or has not been entered into in good faith or for adequate consideration, or (ii)ought for any other reason not to be confirmed.
(4) If the application is not rejected under subsection (3), the Custodian may confirm the creation or transfer either unconditionally or subject to such terms and conditions as he thinks fit to impose."
36. It will be noticed that under section 19, the Central Government -was authorised to prohibit, by notification, the transfer of any property, or class of property or creation of any right therein in such area and for such period as may be specified in the notification. It further lays down that no such transfer or creation shall be made during the period in the area except with the previous approval in writing of the Custodian. Under section 20, an application for confirmation of any transfer has to be made to the Custodian. Under subsection (3) of this provision of law, the Custodian is to hold a summary inquiry into the application and shall reject the application if the creation or transfer was or is prohibited under any law for the time being in force. It may be noted that section 19 was section 15 in the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and section 20 was section 16 of the said Ordinance.
37. The argument of the appellant's counsel is that the sale of agricultural land was prohibited under the various notifications issued by the Central Government and, therefore, the Custodian authorities were under an obligation to reject the application for the confirmation of transfer made to them. In this connection, he has referred to the Notification No, F. 28(33)/49-P, as amended by Notification No, F. 28(33)/49-F, dated the 12th October 1951. It reads as under :- "In exercise of the powers conferred under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that with effect from the eleventh day of January 1950, in the areas in which the said Ordinance is in force, no transfer of property shall, for a period of six months, take place as follows, namely :--
(i) Transfer by sale, exchange or otherwise, of any agricultural evacuee property, and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee ;
(2) transfer of any urban immovable evacuee property, and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee,-- (a)by sale, agreement relating to which is entered into on or after the twenty-sixth day of July 1949, if the agreement was entered into before the said date, in respect of which more than twenty per centum of the consideration money remained, on the said date, to be paid by the vendee to or to the account of the vendor ;
(aa) by lease or mortgage, agreement relating to which is entered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred, on or after the 12th October 1951; (b)by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or, if it is so treated, is not situated in any of the following areas, namely :- The Provinces of East Punjab, Himachal Pardesh, Delhi and Ajmer-Merwara the District of Saharanpur, Dehra-Dun, Meerut and Muzaffarnagar in the United Provinces, the Patiala and East Punjab States Union, Dholpur and Karauli States (now included in the Matsya Union), the Rajasthan Union, Saurashtra (as both these Unions stood on the 22nd July 1948), and the States of Bharatpur, Alwar, Bikaner, Jaipur and Jodhpur."
38. He also referred to a number of other notifications issued by the Central Government on this subject. In this connection reference may be made to Notification No, F. 9(4)/56-R-II dated the 10th April 1956, which reads as under :- "In exercise of the powers conferred by section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949), the Central Government is pleased to declare that, for a period of one year beginning from the 11th April 1956, in the areas in which the said Ordinance is in force, no transfer of property or creation of any right in immovable property shall take place as follows, namely :-
(1) Tranafer of any agricultural evacuee property and such agricultural property as a person intends to alienate in anticipation of his becoming an evacuee, by sale, exchange or otherwise, agreement relating to which is entered into on or after the twenty-sixth day of July 1949, or if the agreement was entered into before the said date in respect of which-- (a)in the case of transfer by sale, full consideration was not paid before that date ; and (b)in the case of transfer by exchange, the property given in exchange in India or in any area occupied by India was not or has not been treated as evacuee property ; and
(2) Transfer of any urban immovable evacuee property and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee,--
(a) by sale, agreement relating to which is entered into on or after the twenty-sixth day of July 1949 or if the agreement was entered into before the said date, in respect of which, after taking into account the sum or sums paid to the vendor before the said date and the income-tax or other Government dues or dues of Public bodies or if the property was mortgaged, the amount due under such mortgaged outstanding against the vendor being duly paid, on his behalf, by the vendee whether before or after the notification, more than twenty per centum of the consideration money remains to be paid : (b)by lease or mortgage, agreement relating to which is entered into, or by which, if there is no agreement, the interest of the lessor or mortgagor is thereby transferred on or after the twenty-sixth day of July 1949 : (c)by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India or in any area occupied by India.
(3) Transfer or creation of any right or interest in any immovable property by will or otherwise by a person who does or has done any of the acts specified in subsection (3-A) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (XV of 1949)."
39. I have gone through the various notifications and there is little doubt that they were issued by the Central Government and that they were in operation at the time when the sale transaction in favour of respondent No, 1 was confirmed by the Custodian authorities. There is no doubt that the agreement of sale and sale transaction between respondent No, 2 and respondent No, 1 could not be enforced if the permission of the Custodian had not been obtained but it will be noticed that under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance or section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, there is prohibition on the transfer of property mentioned in the notification issued by the Central Government except with the previous approval in writing of the Custodian.
40. Mr. M. Anwar, learned counsel for respondent No, 1, has contended that the permission of the Custodian was obtained and, therefore, there was no bar on the confirmation of the sale transaction. In this connection he has referred to the approval of the Custodian given on the 28th May 1949 which is in the following terms :- "I have therefore no objection if the petitioner sells 150 acres out of the land restored to him to any Pakistani purchaser."
41. He further referred to the permission granted by the Additional Custodian on the 8th April 1958, permitting respondent No, 2 to execute the sale deed and in case of his default allowed respondent No, 1 to file a suit for specific performance of the said agreement. This order was challenged by the Rehabilitation Department and the appellant and other allottees. The revision petition of the Rehabilitation authority was dismissed on the 3rd July 1958, and the revision filed by the allottees was dismissed on the 12th July 1958. It will be useful to reproduce here the orders of the Additional Custodian and the Custodian dated the 8th April 1958 and the 3rd July 1958 respectively. While granting permission the learned Additional Custodian observed as under :- "There is satisfactory evidence on record that the appellant has already paid Rs, 16,000 to her brother who had agreed to sell his land in her favour. This is a fit case in which the appellant can exercise her right of calling upon her brother to specifically perform the contract in accordance with the terms of the agreement dated 6-5-1949. The vendor is at liberty to complete the sale by executing a. sale deed. In case of default on his part the appellant has a right to file a suit for specific performance of contract against him. I therefore accept this appeal, set aside the order dated 23-5-1956, passed by Ch. Aziz Ahmed, Deputy Custodian, Lahore, and confirm the agreement of sale executed on 6-5-1949."
42. In rejecting the revision petition filed by the Rehabilitation authorities, the learned Custodian observed in his order dated the 3rd July 1958, as under :- "He, therefore, applied to the Custodian who allowed him to sell up to 150 acres, i. e., six squares of the land belonging to him. -The portion agreed to be sold to the respondent comes to about 45 acres. Thus the previous approval of the Custodian for the proposed transfer of land in favour of the respondent is in existence. The facts stated above are borne out by the record and admitted by the learned Rehabilitation Officer (Legal). His only contention is that the sum agreed to be paid for the transfer I. e. Rs, 20,000 is inadequate. That may be so today but is cannot be overlooked that the agreement to sell was made at a time when the conditions were greatly disturbed and the prices of property belonging to non-Muslims were not so high as they may be today. Moreover, the agreement to sell in this case was by a brother in favour of his own sister and I think the price fixed was reasonable. I, therefore, uphold the order passed by the Additional Custodian on 8-4-1958 and dismiss the petition for revision."
43. In the light of the above orders, it is quite clear that the respondent No, 2 had obtained permission of the Custodian in order to complete the sale transaction. This aspect of the case was also considered by the learned Custodian in his order dated the 10th September 1960 and he was also of the same view. In this connection he observed as under :- "The Custodian of Evacuee Property was of the view that previous approval of the Custodian had been obtained to the sale of the land in dispute on the 28th May 1949, and, therefore, the notification of prohibition (torn out) under section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, did not stand in the way of the transaction of sale being confirmed. No doubt, the Pakistan (Administration of Evacuee Property) Ordinance, 1949, was not in force on the 28th May 1949, and as there was no provision corresponding to section 15 of the said Ordinance in the Pakistan (Protection of Evacuee Property) Ordinance, 1948, 'previous approval within the meaning of section 19 of the present Act, to the transfer of any property could (torn out) but as at the relevant time, no prohibition was (torn out) of evacuee property, and the order dated the 28th (torn out) passed in favour of Ghafoor Sareen, brother of the (torn out) property had been restored earlier, must be (torn out) order under section 20 of the Pakistan (torn out) Property Ordinance, 1948, and, as such, the (torn out) that order to the sale of 150 acres of the land (torn out) Sareen to a Pakistani National, must be considered (torn out) `previous approval' within the meaning of section (torn out) (Administration of Evacuee Property) Act, 1957. It was contended by the learned counsel for the petitioners that the agreement dated the 6th May 1949, on which that approval was based, was a forged document, but this fact, in my opinion, has no bearing on this case. If previous approval of the Custodian had been granted to the evacuee owner to dispose of his property, in spite of the prohibitions imposed by the Notification issued under section 15 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and section 19 of the Pakistan (Administration of Evacuee Property) Act, 1957, the transaction of sale entered into, in pursuance of that approval, could be confirmed."
44. I am, therefore, satisfied that the prior approval of the Custodian had been taken by respondents Nos, 1 and 2 about the transaction in dispute and, therefore, there was no prohibition on the confirmation of the said transaction under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 or under section 20 of the Pakistan (Administration of Evacuee Property)
45. Act, 1957. The contention of Mr. Ali Ahmad that the sale transaction could not be confirmed has, therefore, no force and is repelled.
46. Apart from this I find much force in the contention of Mr. M. Anwar that the principle of res judicata applies to the facts-of the present case. It will be noticed that the subject-matter of the appellant's writ petition bearing No, 561/R of 1958 was the validity of the Additional Custodian and the Custodian's orders dated the 8th April 1958 and the 3rd July 1958, respectively. The validity of the sale deed dated the 31st July 1958, and ownership of respondent No, 1 about the land in question was also challenged.
47. In this writ petition, the Rehabilitation authority was respondent No, 3 and the Custodian of Evacuee Property was respondent No,
4. It was open to these respondents to raise the plea that the sale deed required further confirmation and the ownership of respondent No, 1 suffered from legal infirmity but they did not choose to take any such plea. In this writ petition, the High Court came to the conclusion that respondent No, 1 had acquired full ownership in the property in dispute in accordance with law. In the Letters Patent Appeal the plea of the appellant that the sale transaction required further confirmation was rejected. In such circumstances the Custodian of Evacuee Property has no lawful authority to reopen these questions in order to cast a cloud on the ownership of the property in dispute of respondent No, 1.
48. After careful consideration of the points raised in the appeal, I am satisfied that there is no substance in them. The appeal is, therefore, dismissed. The parties are directed to bear their own costs.
49. HAMOODUR RAHMAN, C. J.--I agree.
50. SAJJAD AHMAD, J. --I agree. M. R. KHAN, J. --I agree. PLD 1964 SC 236 PLD 1969 Lah. 850 PLD 1967 SC 294