' Ajmal Mian, J.--The petitioner through this petition has impugned the order, dated 10th September, 1975, passed by respondent No,2, i,e, the Deputy Commissioner, Nawabshah and order dated 27th December, 1975 passed by respondent No,3, i,e, the Commissioner Sukkur, Sukkur Division at Sukkur. The relevant facts leading to the filing of the above petitions are that the agricultural land, bearing Survey Nos.72, 76, 77 and 79, situated in Deh Darras, Tapo and Taluka Moro, District Nawabshah was allotted to the petitioner on 4th Apri1,1971 in lieu of his claim. In pursuance of the above allotment the possession was given to the petitioner as averred in the above petition. It seems that on 3rd June,1972 mutation was also effected in the revenue record. It further seems that respondent No,1 presented an application to the then Chief Minister, Sind, stating therein, that the land was purchased by his father Haji Moharram under a sale agreement executed on 1st February,1947 for Rs,6,825, who had made part payment, a request was made that mutation in the revenue record should be made in his favour. The above application was forwarded by the then Chief Minister, Sind, to the Deputy Commissioner, Nawabshah, who by his impugned order, dated 17th May, 1975 accepted the above application. The petitioner being aggrieved by the above order had filed an appeal before the Commissioner, Sukkur Division, which was dismissed by his aforesaid order: dated 27th December, 1975. The petitioner being aggrieved by the above two orders has filed the present petition.
2. In support of the above petition, it has been urged by Mr.Shakir Naqashbandi, learned counsel for the petitioner, that the status of the land was determined as an evacuee in-as-much as the Deputy Custodian in 1955 dismissed the respondent No,1's application under section 18 of the Pakistan Administration of Evacuee Property Ordinance, 1949 for declaration that the land was non-evacuee and an appeal filed against the above order was also dismissed by the Additional Custodian in 1957, and, therefore, the respondents Nos. 2 and 3 had no jurisdiction to mutate the name of respondent No,1 on the basis of the above application presented to the then Chief Minister, Sind. On the other hand it has been urged by Mr. Abdul Majeed Khan, learned counsel for respondent No,1 that under section 45 of the West Pakistan Land Revenue Act, respondents Nos. 2 and 3 were obliged to mutate the name of respondent No,1 in pursuance Of a decree passed by the Sub-Judge, Naushero-Feroze on 29th September,1958 in Suit No,17/58, and, therefore, the inpugned orders cannot be said without jurisdiction.
3. It may be observed that admittedly the land in question was treated as an evacuee land after the partition of India, which fact has been even admitted by respondent No,1 in his application addressed to the Chief Minister, Sind, as reflected in the impugned order of respondent No,2. It is also an admitted position that respondent No,1 filed an application under section 18 of the Pakistan Administration (Evacuee Property) Ordinance, 1949 for a declaration that the land in question was wrongly treated as an evacuee and that it was non-evacuee land which application was dismissed by the Deputy Custodian and the status of the land as evacuee was maintained.
Against the above order, he filed an appeal, which was also dismissed by the Additional Custodian, in 1947. It may be pointed out that both the learned counsel for the parties were unable to give the dates of the above two orders, but these orders have been referred to in the application filed by respondent No,1 before the then Chief Minister, Sind, and also in the judgment of the learned Sub- Judge referred to hereinabove. It is also an admitted position that respondent No,1 did not file a revision or any other competent proceedings to get the above two orders set aside. However, it has been urged by Mr. Abdul Majeed Khan respondent No,1 had filed the above Suit No,17/58 before the Sub-Judge, Naushero Feroze, which was decreed. It has also been urged by him that to the above suit respondent No,1 had impleaded the Deputy Custodian Evacuee Property as a party and, therefore, the above decree is binding on the Custodian Department. It may be observed that in the above suit though respondent No,1 while narrating the facts stated that the Deputy Custodian and Additional Custodian had passed the above adverse order, but had not sought any declaration of setting aside the above two orders. He sought a general declaration that since the transaction had allegedly entered into before 1st March,1957 and as such he was in possession, he was protected under section 53-A of the Transfer of Property Act, and therefore, his possession could not be interfered with.
4. In our view the above judgment passed by the learned Sub-Judge, Naushero Feroze in the above suit cannot nullify the above two orders passed by the Deputy Custodian and the Additional Custodian as the same orders were admittedly within their jurisdiction. It may again be pointed out that respondent No,2 himself had approached the Deputy Custodian for declaration that the land in dispute was non-evacuee. He also approached the Additional Custodian through an appeal, against the above order of the Deputy Custodian. We are inclined to hold that respondent No,1 was not entitled to urge either before the learned Sub-Judge or now before us that the above two orders were without jurisdiction. Since the two impugned orders have been passed by respondents Nos.2 and 3 on the basis of the above judgment passed by the learned Sub-Judge purporting to declare evacuee land as non-evacuee, the same are without jurisdiction, and therefore, the above two impugned orders cannot be sustained.
It was also urged by Mr.Abdul Majeed Khan that since the sale agreement was entered into allegedly in February, 1947, it did not require any confirmation from Custodian of the Evacuee Property. It will suffice to observe that the very fact that respondent No,1 had approached the Deputy Custodian for a declaration that the land was non-evacuee clearly indicates that the land was treated as an evacuee property, and, therefore, the same could not have been taken out of evacuee pool without having an order of a competent forum. Furthermore, a sale agreement in respect the land in question of the value involved could not have transferred the ownership in respect of the land without filing a suit for specific performance with the permission of the Custodian and without getting a sale-deed registered nor it could have prevented the vesting of the Hindu Evacuee's interest in the land in the Custodian after the Hindu owner left Pakistan after partition of India.
5. For the aforesaid reasons, we allow the above petition and declare two impugned orders as without jurisdiction and of no legal effect with no order as to costs.