' The dispute in this petition under Article 98 of the Constitution of Pakistan, 1962 relates to a residential house bearing No, A-116/34/75, situated in the territorial area of the Cospmopolitan Co- operative Housing Society Ltd., Hyderabad. This house, it would seem, was placed by the Settlement Department in the earmarking list and objections to its inclusion in the said list were invited to be filed upto the 7th of December,1959. The house featured as at S.No,1 of the said list. No objection having been received the earmarking operations proceeded to their completion and in the consequent lots that were drawn, the petitioner succeeded in obtaining the house. On the 15th of January, 1960, the petitioner was issued an Appendix 2 in relation to the said house whereby a payment of Rs,36,000 was demanded from him. Eventually on 21st of June, 1962 the first petitioner alongwith his two brothers (petitioners 2 and 3) whom he had associated with himself were issued the formal P.T.O. On the 17th of June,1963 the petitioners received an order from the Deputy Settlement Commissioner, informing them that the property in question was a non-evacuee property and that the transfer in their favour had been cancelled. The petitioners were invited to exercise their choice ever some other property. Against the last mentioned order the petitioner represented to the Settlement Commissioner complaining that they (the petitioners) had not been heard before the transfer in their favour was cancelled and that in any case the Deputy Settlement Commissioner was not possessed of power to declare any property as non-evacuee. On this application being received the learned Settlement Commissioner by his order, dated 2nd November,1963 directed the Additional Settlement Commissioner to hold a judicial enquiry and piss order after hearing the parties. Amongst the persons who appeared before the learned Additional Settlement Commissioner was Haji Muhammad Yagoob, the present respondent No,2.
His contention was that he had purchased the said property for valuable consideration from Akhtar Muhammad. Akhtar Muhammad, it was stated, had himself purchased the property from k.M.
Danish, the latter having purchased it from a Hindu owner on the 23rd of January, 1949. It was further contended by Haji Muhammad Yagoob that the sale in favour of Akhtar Muhammad had been confirmed by the learned Deputy Custodian (Judicial) by an order, dated 30th of May, 1950.
The present petitioners had attempted to establish before the Additional Settlement Commissioner that the property actually purchased by Akhtar Muhammad (No,116/35-A/75) was different in its identity from the one transferred by Settlement Authorities to the petitioners. The learned Additional Settlement Commissioner after hearing the parties and examining the evidence expressed the view that the house in question could not be excluded from the compensation pool at that stage until and unless Haji Muhammad Yaqoob obtained a clear declaration from the learned Custodian, that the house purchased by him corresponded to C.S.No,A/34/75 and that the same was non- evacuee property. In this view of the matter the transfer documents issued to the petitioners in respect of the house were restored. This order was passed on the 24th of October,1964. Thereafter, on the 10th of March,1965 the petitioners were issued a permanent transfer deed in their favour.
2. The matter, however, did not rest there. Against the order of the learned Additional Settlement Commissioner, dated 24th of October, 1964 Haji Muhammad Yaqoob filed a revision petition before the learned District Judge Ex Officio Settlement Commissioner, Hyderabad. The learned District Judge by his order 19th of May, 1965 allowed the revision holding that:--
(a) the property transferred to the petitioners was a part and parcel of the property purchased by Haji Muhammad Yaqoob;
(b) the proceedings before the Additional Settlement Commissioner were in the nature of review proceedings--a power which the Settlement Commissioner had ceased to enjoy on the date the application was filed;
(c) the sale of the property by the Hindu owner having been confirmed it ceased to from a part of the compensation pool and was not available for settlement of claims;
(d) the property not having been treated as evacuee property before 1st January,1957 could not thereafter be treated as such and that the mere fact of its being borne on the register of the Custodian could not be construed as amounting to treatment of the property as evacuee property.
' As a result of the aforesaid order the transfer in favour of the petitioners was set aside.
3. In so far as the identity of the property is concerned the learned counsel for the petitioners frankly conceded that it was purely a question of fact and that this Court would not be acting properly in assessing the weight of the learned District Judge's finding.
4. In relation, however to the view of the learned District Judge/Settlement Commissioner, that he power of revision was not available on the relevant date to the learned Additional Settlement Commissioner, the learned counsel for the petitioners contended and I would say, rightly so, that the learned Additional Settlement Commissioner was not exercising a review jurisdiction when he restored the transfer in favour of the petitioners. As observed earlier, the Deputy Settlement Commissioner had unilaterally cancelled the transfer in question was a non-evacuee property. The petitioners on the plea that the property in question was a non-evacuee property. The petitioners had represented against the said order of the Deputy Settlement Commissioner to the Settlement Commissioner who had made over the representation to the Additional Settlement Commissioner for a judicial enquiry and necessary order. The view of the learned District Judge on this aspect arises evidently from a misconception in his mind as to the nature of the proceedings before the Additional Settlement Commissioner. Even so if the view of the learned District Judge in relation to non-evacuee nature of the property is to prevail, it would seem that this error, if it may be so described, on the review powers of the Additional Settlement Commissioner will not entitle the petitioners to relief this petition.
5. Realising the above situation the learned counsel for the petitioners concentrated his attack to that part of the learned District Judge's order which holds the confirmation of the sale to be a valid one and construes the same as putting an end to the evacuee status of the property. The contention of the learned counsel for the petitioners was that Mst. Devi Sal Telram Thadani, the Hindu owner of the property, had merely entered into an agreement with K.M.Danish for the sale of the property and had not proceeded to complete the sale of the registered instrument. There was thus no valid sale which the learned Deputy Custodian of Evacuee Property could have confirmed, that the learned Deputy Custodian actualy confirmed by his order, dated 30th of May, 1950 was, according to the learned counsel for the petitioners, the agreement to sell dated 23rd of January, 1949 which had been entered into between Devi Bai Telhram Thadani and K.M.Danish. At this stage it would be worthwhile to reproduce here the order of confirmation which is a short one:-- "This is an application for confirmation of a transfer for Rs,13,000 dated 8th March,1949, executed by respondent No,2 in favour of respondent No,1 and transfer dated 19th July,1949 executed by respondent No, 1 in applicant's favour for Rs,4,300 relating to respondents' interest in House No, 35/A, West Portion, Amil Colony, Hyderabad (S) owned by Cosmopolitan Housing Society, Hyderabad (S).
' Respondents are absent in spite of service. Applicant has obtained possession. Income-Tax Certificate has been filed.
' It is proved from the applicant's evidence that the trasferees referred to above were made for adequate consideration and that the transactions are genuine. Hence the above-mentioned transfers are hereby confirmed."
' It would appear from a perusal of the foregoing order that the learned Deputy Custodian refers to a transfer, dated 8th March,1949 executed by Devi Bai in favour of K.M.Danish and to a transfer, dated 19th July,1949 executed by K.M.Danish in favour of Akhtar Muhammad. I have examined the original record of the learned Deputy Custodian which was placed before me by the learned counsel for the Settlement Commissioner, and I have not been able to see any deed of transfer, dated 8th of March,1949 referred to by the learned Deputy Custodian. On the other hand there is a letter purporting to be from the Honorary Secretary of the Cosmopolitan Housing Society, Hyderabad addressed to Mr.K. M. Danish informing him that "the managing committee had accepted the transfer of Plot No,33 West and had accepted the sale of that plot" in his favour at its meeting held on 8th of March,1949. This letter has apparently been referred by the learned Custodian as the transfer, dated 8th of March, 1949. Learned counsel for the respondent No, 2, Haji Muhammad Yagoob, frankly conceded by me that in fact the transfer had not been affected by means of a registered instrument, but that it had been sought to be done by a change in the records of the Society after obtaining the approval of the Managing Committee of the Society to the transfer. It is not denied that on the date the transfer was sought to be effected by the Hindu owner the residential house, which is now the bone of contention between the parties, had already been constructed. On the above facts as they stand it plainly seems to me that there, was no valid transfer under law which could have gained a confirmation by the Deputy Custodian. In this contention reference may be made to section 49 of the Registration Act which provides as under:- - "No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall--
(a) operate to create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, to or in immovable property, Or
(b) confer any power to adopt, unless it has been registered."
' It is at once clear from a perusal of the foregoing provision, read of course with section 17 of the Registration Act, that the transaction relied upon by the respondent as evidencing transfer of the Hindu onwer's interest in the immovable property in question did not in fact operate to create or assign any right, title or interest in it in favour of K.M. Danish. The agreement entered into between the two recites that the property was being sold for a consideration of Rs,13,000. The only means by which a transfer in respect of the property could have been effected was through an instrument duly registered, which admittedly is not the case here. A similar question was considered by the Supreme Court of Pakistan in an unreported case of Chaturbai v. Muhammad Ayub and others Civil Appeal No, K-42 of 1964, decided on 24th May, 1967. The dispute in Chaturbai's case also related to a house situated in the territorial area of the Cosmopolitan Co-operative Housing Society Ltd., Hyderabad. Title to this house was claimed by Chaturbai by reference to any entry in the property register of the Society which showed that on payment of price the bungalow had been transferred to her. Their Lordships, however, observed that no title could vest in Chaturbai without a registered deed executed by the Society in her favour transferring to her the bungalow of its site as the case may be, valued as it was at more than Rs,100. The entry in the register of the Society relied upon by the Additional Custodian of Evacuee Property in support of the finding that bungalow had been transferred to the appellant was, in the opinion of the Supreme Court not sufficient to pass on title to her. This decision brings about a collapse of the very foundation upon which the title of the second respondents rests. I have also no difficulty in holding that super imposition of an order of confirmation to a transaction which was otherwise invalid in law cannot in any way add to its sanctity or its legal validity.
6. Mr. Akhtar Mahmmood the learned counsel for the petitioners contended as observed earlier, that the order of the learned Deputy Custodian was to be construed merely as an order confirming the agreement of sale, dated 23rd of January, 1949. It was urged that by an amendment of Ordinance No,15 of 1949 by the Pakistan (Administration of Evacuee Property) Amendment Act No,6 of 1951 the right of a purchaser to file a suit against the vacuee owner for specific performance of a contract of sale, where the said contract has been duly confirmed or approved by the Custodian, was for the first time visualised and that no suit having been filed for specific performance within the period of limitation the agreement of sale in this case had also lapsed and had become unenforceable. It seems to me, however, that the petitioners are entitled to succeed in this petition even without recourse to the latter argument of learned counsel for the petitioners. The order of confirmation does not, at any place, refer to the agreement of sale. Its operative part purports to confirm the transfer .Said to have been effected on the 8th of March,1949. This was evidently the date on which the society approved the transfer; but nonetheless the alleged transfer in question not having been effected through a registered instrument did not operate to create any right, title or interest in the property and was thus no transfer in the eye of law
7. The learned counsel for the second respondent, however, contended that the property in question had not been created as evacuee property prior to first of January, 1957 and would not, therefore, be treated as such after the aforesaid date. While repelling this contention of the learned counsel for the second respondent Mr. Akhtar Mahmood Khan drew my attention to the judgment of a Division Bench of this Court, dated 12th February, 1963 passed in Writ Petition No,470/60 in para. 6 whereof it is observed that the evacuee character of House No,34 of the Cosmopolitan Co- operative Housing Society ltd., Hyderabad was referred by the civil Court to the Custodian for his decision. The learned Assistant Custodian decided on the 11th of January, 1955 that the property in question stood as evacuee property. The learned counsel for the respondent No,2, however, contended that House No,34 mentioned in the aforesaid judgment was a different property. But the observation made in the third paragraph of the aforesaid judgment notes that late Mr.Dharamdas, Advocate, who was at that time the President of said Co-operative Housing Society had written to the Assistant Custodian that all tenant owners of the houses situated in the society, which were about 76 in number, had migrated to India excepting the tenant owners of Houses Nos.20, 53 and 59 who were still nationals of Pakistan. The learned counsel for the respondent No,2 does not claim that the property purchased by his client was one of the three numbers excepted.
8. In view of the foregoing reasons I am of the view that the confirmation accorded by the learned Deputy Custodian to the transfer of the house in favour of K.M.Danish did not operate to vest any title in himself in relation to the property since the transaction by reference to which he claimed his title was an incomplete one and did not, in terms of section 49 of the Registration Act, confer any title on him. The property thus continued to be an evacuee property and no exception can be taken to its transfer as such to the present petitioners.
9. In the result this petition is allowed and the order of the learned District Judge/Settlement Commissioner, Hyderabad impugned herein, is declared to be illegal and without lawful authority. I would, however, leave the parties to bear their own costs.