1. ' This is a IInd Appeal against the judgment passed by District Judge, Jacobabad who decreed the Suit No, 9 of 1967 of the respondent/plaintiff by judgment, dated 1st April, 1976 reversing the judgment of the Joint Civil Judge, Jacobabad, dated 1st November, 1969 by which the suit had been dismissed.
2. ' The property in dispute is in Survey No, 207 measuring 5.18 acres situated in Deh, Taluka and District Jacobabad. The same was allotted to one Abdul Ghaffar on 24th September, 1959 as an Evacuee Property and Khatooni issued to him. The same was confirmed on 5th January, 1962. The appellant Sanwal Khan, however, purchased the said Survey No, 207 from Abdul Ghaffar by a registered sale-deed executed on 17th July, 1964.
3. ' The other relevant facts involved are that upto 1955-56 one Malo Mal, an evacuee, held 6 Annas 9 Pies share in survey No, 207 while Muhammad Hassan had 4 Annas 44 Pies share and Fateh Muhammad had 4 Annas Pie share and Subhan Khatoon had one Annas share in the said property. On 18th August, 1964 Fateh Muhammad transferred his rights by registered sale-deed in favour of Respondent Haji Muhammad Saifal and on 28th February, 1964 Muhammad Hassan transferred his rights by registered sale-deed in favour of the respondent and on 20th of August, 1965 one Karim Dad who had purchased the share of Subhan Khatoon in the said land transferred his interest therein in favour of the respondent.
4. ' On 19th February, 1967 respondent filed suit No 9/1967 for partition, separate possession and mesne profits against the appellant. Pending the suit the respondent also made application to the Deputy Commissioner for excluding the non-evacuee shares from the allotment of Abdul Ghaffar.
5. On 27th February, 1968 the Deputy Commissioner, Jacobabad directed that the non-evacuee shares should be excluded from the allotment of Abdul Ghaffar and some other land should be given to the allottee. This was done after notice to the appellants. On 1st May, 1967, 11 issues were framed and on 1st November, 1969 after recording the evidence of the parties the suit was dismissed and all the 11 issues were decided against the plaintiff/respondent. The learned counsel took the view that since the property has been treated as an evacuees property, therefore, if the plaintiff wanted to get the same as non-evacuee property then he had to apply to the Custodian for the same as section 41 of the Evacuee Property Act, 1957 was a bar and civil Court could not determine that the property was not an evacuee property.
6. ' The respondent's appeal was allowed by the District Judge on 1st April, 1976 by detailed order and he held that the Muslim Property had not been treated as evacuee property in a lawful manner and it was allotted by mistake. Therefore, the suit of the plaintiff was not barred. He also held that a joint owner, in the property could file a suit for partition of the land if there was no conscious ouster of the joint owner from the property. He further held that in any case the rights of the appellant had not been affected by adverse possession and prescription as the allotment had been made only in 1959, and the suit had been filed in 1969 before the expiry of 12 years.
7. ' Mr. Ahmadullah Farooqi has placed reliance upon PLD 1970 Kar. Where it was held that if property was shown to be evacuee property in Evacuee Property Register which was challenged to be erroneous then the question raised could be determined only by the Custodian under section 41 of Act 12 of 1957. He also relied upon PLD 1967 Kar. 834 where Mr. Justice Farooqui held that if a property had not been treated as evacuee property but the Settlement Authority proposed to deal with it as such then the question whether the property was evacuee or not could be settled by the Custodian only. He also relied upon PLD 1973 SC 451 where the Supreme Court held that where an evacuee property had been once acquired by the Government and thereafter had vested completely in the Government then Custodian could no longer deal with the same and could not confirm the sale made by an evacuee. On the other hand Mr. Dastagir relied upon PLD 1968 Lab.
8. 148 where it was held that a mere ex parte declaration or action by the Rehabilitation Authority without proper adjudication of the rights of persons affected could not deprive that person of valuable right and without affording them an opportunity to defend, and further that a casual act of the Rehabilitation Authority in allotting property could not be treated as a treatment of that property as evacuee property. Reliance was also placed on observations in PLD 1942 SC 284 that "intention to destroy Pakistani rights in property in which part of the interest vested in an evacuee without any compensation whatsoever cannot be lightly attributed to the Legislature." The Supreme Court in that case was dealing with the rights of mortgagees in an evacuee property and had held that the rights of the Pakistani mortgagees did not vest in the Government after the evacuee property bad been acquired by the Government. Finally Mr. Dastagir relied upon PLD 1965 SC 698 (705) where the Supreme Court observed that "the Settlement Authorities had no authority to record a binding determination if the property was not in fact an evacuee property and their decision could be challenged in any ordinary civil Court."
9. In the present case it is an admitted position as shown in the statement of Ali Nawaz Tapedar as based on relevant revenue entries that the evacuee Malo Mal had only 6 Annas 9 Pies shares in the disputed Survey No, 207 while the 9 Annas 3 Pies shares belonged to Muslim non-evacuees.
10. Moreover, there is no conscious order by any custodian that the shares of the Muslim non- evacuees were ever declared as an evacuee property. The village form never showed that the Muslims had ever lost any interest in the said property and it was only by mistake that the Khatuni had been issued of the whole survey number in favour of Abdul Ghaffar and, therefore, on these facts it could not be said that the property had been treated as an evacuee property. Moreover, the Deputy Commissioner as a Settlement Authority had passed a conscious order on 27th February, 1968, excluding the shares of the Muslims from the evacuee property and this was done after notice to the appellants and the appellants have not been able to get the same order set aside so far. In these circumstances I find that the judgment and decree of the learned District Judge, Jacobabad is based on correct principles and appreciation of the relevant law and, therefore, the present IInd Appeal is dismissed.