M.S.H. QURAISHI, J.-- Appellant Syed Azizuddin claimed title to the agricultural land measuring 257 Acres 32 Ghuntas, situate in Deh Quboyagan and Deh Shahdadpur, Taluka Shahdadpur, District Nawab Shah, by purchase from Boolchand, a non-evacuee. A question arose whether the land was non-evacuee property or hidden evacuee property. The Custodian, by his order dated 14-6-1974, held that it was non---evacuee property but his order was quashed in its constitutional jurisdic-- tion by the High Court by the impugned judgment dated 6-3-1983, on the ground, inter alia, that it was hit by the principle of res judicata, the earlier decisions of the High Court on the question being of a binding nature. Leave was accordingly granted to consider whether the order of the Custodian was hit by the principle of res judicata in view of the earlier judgments of the High Court.
2. The disputed land along with some urban property had been jointly owned by Naraindas and his eight sons, namely, Natharlal, Gagandas, Boolchand, Lokomal, Vessumal, Dharmomal, Phatumal and Kessumal. The first to sons, namely, Natharlal and Gagandas, separated from the joint family under a partition arrived at on the basis of an award on 16-9-1943 and registered with the Sub- Registrar, Shahdadpur. By this partition, agricultural lands measuring 30 Acres 39 Ghuntas in village Quboyagan and to houses in Shahdadpur town were given to Natharlal and 30 Acres 20 Ghuntas of agricultural land in village Quboyagan together with one house in Shahdadpur town went to Gagandas. The agricultural lands so acquired by the to brothers, were, however, leased out by them to their father Naraindas. A further partition, by a deed registered with the Sub-Registrar, Shahdadpur, was effected on 2-7-1946, whereby the next to sons, namely, Boolchand and Lokomal, also separated from the joint family. Boolchand got 31.17 Acres of land in Deh Shahdadpur together with the lease hold rights for the un expired period of lease of the lands taken by Naraindas from his to sons, and 1/4th share in houses Nos. 616 and 617 in Shahdadpur town, while Lokomal received 27.18); Acres of land and 1/4th share in House No. 616 in Shahdadpur. The rest of the property remained joint with Naraindas and his remaining four sons who were minors.
3. According to the appellant, a third partition took place on 21-12-1946, whereby the entire property of the family, as originally held, was re-distributed, in the result of which Boolchand got the entire agricultural land measuring 257 Acres 32 Ghuntas while the others received shares in the urban properties. Naraindas signed the deed for himself and his four minor sons and by Boolchand and Lokomal. Natharlal and Gagandas who had separated in 1943 were neither party nor signatory to this deed. It is to be noted that this third partition was neither registered nor did the Revenue authorities at the same upon at that the. Instead, on the death of Naraindas in August 1947, the property owned by him and his minor sons was mutated, vide mutation No. 74 dated 6-11-1947, in the name of his widow Mst. Murlibai and the minor sons, namely, Vessumal, Dharmomal, Phatumal and Kessumal. All the sons of Naraindas, except Boolchand, admittedly migrated to India and became evacuee.
4. The case of appellant Syed Azizuddin is that he, on 2-5-1949, purchased the disputed land from Boolchand by a sale agreement for the consideration of Rs.36,092 of which he paid Rs.15,000 vide receipt dated 2-5-1949 and the balance of Rs.21,092 vide receipt dated 22-7-1949. It is to be noted that this agreement is not on record and according to the appellant's pleading in the civil Court, Boolchand who lost it took it away but he executed another agreement on 21-4-1953. No sale-deed was, however, executed in pursuance of this agreement. The third partition deed of 21-12-1946 was also not in evidence. A photocopy of the same was produced for the first the on 28-8-1967.
However, Lokomal and Vessumal, it is stated, visited Pakistan in July 1949 and made a statement on 21-7-1949 before the Mukhtiarkar Shahdadpur to the effect that the disputed land had been given to Boolchand according to a partition deed effected three years back and that they had no objection if the same was entered in his name. The land was accordingly mutated the, same day in the name of Boolchand. The next day, Boolchand made a statement before the Mukhtiarkar admitting the sale made by him of the entire land in favour of the appellant and expressing no objection if the same was mutated in the appellant's name. The land was thereupon mutated in the name of the appellant on 22-7-1949. Both the entries, were, however, cancelled by the Special Mukhtiarkar on 22-1-1950 and 25-2-1950 on the ground that they had been made without the requisite permission of the Custodian.
5. On 17-10-1949, the appellant filed application No. 510 of 1949 under section 12 of the Pakistan (Protection of Evacuee Property) Ordinance (XVIII of 1948) before the Deputy Custodian for confirmation of the sale. In support of the application he also filed affidavits including one by Boolchand dated 23-6-1950 in which the latter admitted the transaction of sale and delivery of possession of the land to the appellant. The Deputy Custodian, however, by his order, dated 9-3- 1953-expressed doubt if the case was tenable under section 16. The Ordinance having been substituted by the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), the appellant made another application (No. 1513 of 1953) under section 17 of this Ordinance (XV of 1949) for a certificate permitting registration of the sale. The Deputy Custodian (Mr. S.M. Mir) by order, dated 9-4-1953 granted such permission subject to the approval of the Additional Custodian, on the ground that the vendor was non-evacuee and as such both parties were amenable to the execution and registration of the sale. The Additional Custodian (Mr. S. Riazuddin Ahmad) by his order, dated 20-4-1953 agreed with this and as such held that no approval was necessary. The appellant's earlier application No. 510 of 1949 later came up for decision before another Deputy Custodian, namely, Mr. Hibatullah, on 31-8-1953 who rejected the same for the reason that there was no registered document pertaining to the transaction and that there was no evidence to show that full consideration had been paid. He also declined to grant permission to the appellant to sue for specific performance under section 12(3) or for registration under section 17 of Ordinance XV of 1949. He consequently directed that "the properties in question will be evacuee properties" within the meaning of section 2(3)(b) of the said Ordinance. The appellant's appeal was, however, allowed by Mr. S. Riazuddin Ahmad, Additional Custodian, on 10-12-1953, for the reason, as earlier given by him, that the vendor not being evacuee, the question of confirming the agreement of sale did not arise.
6. It appears that Boolchand did not oblige in the matter of execution of the sale-deed. The appellant, therefore, instituted Civil Suit No. 24 of 1953 on 17-12-1953 for specific performance of the sale agreement. During the pendency of the suit, the appellant discovered that Collector's permission was necessary under section 5(2) of the Sind Rural Credit and Land Transfer Act (XLIX of 1947). He accordingly obtained such permission on 17-7-1954. The suit was then decreed on 31-7- 1954 subject to payment of Rs.11,000 to Boolchand at the the of registration of the sale. The appellant appealed against the condition of payment but his appeal was dismissed as the-barred.
Consequently, the Special Deputy Collector, on 8-9-1954, cancelled the revenue entries made on 22-1-1950 and 25-2-1950, and restored the entries made on 21-7-1949 and 22-7-1949 in favour of Boolchand and the appellant, respectively.
7. The matter appears to have rested there until 27-3-1964 when an application was made by Muhammad Ismail and others respondents, before the Settlement Commissioner for correction of the Revenue record and transfer of the property to the evacuee pool and for allotting the same to them in lieu of their claim. When the appellant received notice of this application, he challenged it through Writ Petition No. 464 of 1964 but the same was summarily dismissed on 21-8-1964 as being premature. The appellant moved this Court through a Civil Petition, wherein an ad interim stay was also issued in his favour on 25-8-1964 but before that date, the Deputy Settlement Commissioner had on 22-8-1964, disposed of the application of Muhammad Ismail and others, treating the share in the property of the sons of Naraindas other than Boolchand, to be concealed evacuee property, taking the same in the evacuee pool and directing that steps be taken to allot the property against pending claims. The Deputy Settlement Commissioner also declared the revenue entries in Deh Quboyagan and Deh Shahdadpur made in favour of the appellant and Boolchand to be void.
8. This order of the Deputy Settlement Commissioner was challenged by the appellant through, Writ Petition No. 994 of 1964 but the same was dismissed on 22-4-1969 (Judgment reported in PLD 1969 Kar.. 586). The learned Single Judge held that-- (1)the facts were prima facie against the execution of the third partition deed dated 21-12-1946 between the members of the joint family headed by Naraindas which appeared "to have been forged to save the agricultural lands of Natharlal and Gagandas in the joint family headed by Naraindas or being declared or treated as evacuee property" and that, therefore, B,oolchand would seem to have no right or title in any of the agricultural lands except those given to him under the second partition deed, dated 2-7-1946; (2)since the character of the land had been concealed from the competent authority, the appellant could not claim protection under section 3(1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) as the matter fell under subsection (2)(b) of that section and section 3 of the Displaced Persons (Land Settlement) Act (XLVII of 1958); (3)the order, dated 9-4-1953 of Mr. S.M. Mir, Deputy Custodian, and the orders of the Additional Custodian (Mr. S. Riazuddin Ahmad) could be confined to the property which was the right of Boolchand and could not be extended to the property to which Boolchand had no legal or valid title; and (4)the Deputy Settlement Commissioner who was also Rehabilitation Authority under the Pakistan Rehabilitation Act (XLII of 1956) by virtue of the Provincial Government's notification, dated 1-6-1959, was under section 22 of Act XII of 1957 competent to make an order treating the disputed land as evacuee property.
The learned Judge, therefore, categorically held that the appellant could not "in these proceedings" claim relief as regards lands which belonged to Boolchand's mother and his brothers. However, he added "that this judgment will not preclude the petitioner from taking such steps as he may be advised, under the laws relating to evacuee property, and settlement of displaced persons, to enforce his claim to these lands if he has any such claim at all".
9. The order of the Single Bench was upheld by a Letters Patent Bench which dismissed the appellant's L.P.A. No. 79 of 1969 in limine on 2-5-1969. The learned Judges of the Bench, in repelling the contention that the Deputy Settlement Commissioner was bound to refer the question of the nature of the property for adjudication to the Custodian, expressed the view that as the interests of the evacuee members of the joint family had by operation of law become evacuee property and vested in the Custodian, there was no question which required a reference to be made to the Custodian for adjudication. The learned Judges further held that no declaration could be spelt out from the various orders passed by the Custodian authorities, that the provision of section 17 of Ordinance XV of 1949, under which the appellant had moved his second application before the Custodian authorities, did not grant any such declaration, that the entire land was not evacuee property nor was it in the exclusive ownership of Boolchand and that the provision of section 3 of Act XII of 1957 could not be invoked to help the appellant.
10. The appellant then moved this Court for leave to appeal through C.P.S.L.A. No. 65 of 1969 in which leave was granted on 28-1-1970 but the appeal (No. 2-K of 1970) was dismissed as withdrawn on 13-2-1974.
11. It so happened that after the dismissal of the Letters Patent Appeal, the appellant had also applied, on 11-11-1969, to the Custodian under section 22 of Act XII of 1957, for a declaration to the effect that the disputed land was non-evacuee. This application was accepted on 14-6-1974 as earlier mentioned, and the entire disputed land was declared to be non-evacuee. In reaching this conclusion the learned Custodian acted upon the assumption that-- (1)by the deed of composition, dated 21-12-1946 which was signed by "all the parties interested" and "acted upon", Boolchand became the sole exclusive owner of the disputed land and nobody from amongst the members of the joint Hindu family or their heirs ever questioned the genuineness of the family settlement;
(2) "the widow of one Naraindas who was a party to the settlement, set up a claim but the same was rejected by the Revenue authori--ties in view of the family settlement arrived on 21-12-1946;"
(3)mutation proceedings such as made in the name of Boolchand on the statement of Lokomal and Vessumal, on the basis of the family settlement, "have been always held legal under the Revenue law" and "these entries made in favour of Boolchand in 1946 in the revenue record were not only legal and correct but cannot be made even a subject-matter of controversy by this Department because this transaction pertains to a period prior to 1-3-1947"; (4)the decree obtained by the appellant made him "exclusive legal owner of the property in question"; (5)the order of the Deputy Settlement Commissioner, dated 22-8-1964 was illegal, null and void; and (6)"all the authorities including the Custodian, Rehabilitation and Settlement accepted the family settlement as perfectly genuine."
The learned Custodian also rejected the respondents' plea of limitation for, the reason that the appellant had been contesting the matter throughout. He further held that the property not having been treated as evacuee property on or before 1-1-1957, could not be declared evacuee property.
12. The order of the Custodian was challenged by Muhammad Ismail and others through Writ Petition No. 955 of 1974, which was accepted by the impugned judgment of the High Court, dated 6-3-1983. The learned Judge held that the order of the Custodian was hit by the principle of res judicata as the earlier orders passed by the High Court were "binding" on him. Nevertheless, he proceeded to examine the case on merits also and held that the Custodian's order could -not be sustained for the reasons that-- (1)the provisions of sections 49 and 50 of the Registration Act had not been taken into consideration in giving effect to the unregistered partition deed of 21-12-1946 which is against the earlier registered partition deeds; (2)there was no evidence before the Custodian to show that any mutation in favour of Boolchand existed prior to 1-3-1947 and that in fact the first mutation had been entered .On 21-7-1949 and that to without the approval of the Custodian; (3)the Custodian had "in utter contravention of the decision of this Court given in W.P. No. 494/64 and L.P.A. 79/69, by which the order, dated 22-8-1964 of the learned Deputy Settlement Commissioner (Land), Shahdadpur was held valid and legal, declared the said order as illegal, null and void"; and .(4)Boolcharid had never come forward before the Custodian or the High Court to support that the third partition, dated 21-12-1946 was genuine and had been acted upon by all members of the joint family.
13. The main controversy on which leave was granted is thus whether the earlier decisions of the High Court operated as a bar, on the) principle of res, judicata, to the exercise of jurisdiction by the Custodian for determining the nature of the property. In this connection Mr. S.M. Zafar, learned counsel for the appellant, submitted that the Custodian had; under section 22 of Act XII of 1957, exclusive jurisdiction to determine the nature of the property, that any determination by the Settlement authorities in regard to the nature of the property would not bind the Custodian nor could the previous decisions of the High Court operate as res judicata in the matter of such determination by he Custodian and that in any case, the High Court in its order, dated 22-4-1969 had left it open for the appellant to enforce his claim to the lands in dispute under the relevant laws. He further submitted that:- (1)The property not having been treated as evacuee property upto 1-1-1957, the same could not be treated as such property after that date under section 3 of the said Act.
(2)In the background of the litigation concerning the property, the same could not be held to be concealed evacuee property so as to attract the provision of section 3(2) of the Displaced Persons (Land Settlement) Act (XLVII of 1958).
(3)The respondents, Muhammad Ismail and others, being rank outsiders, had no locus standi to invoke the constitutional jurisdiction of the High Court to challenge the determination made by the Custodian.
14. A dispute concerning the evacuee nature or otherwise of a property could be brought in to ways before the Custodian for his determination. One is under section 41(2) of Act XII of 157 by a --Court or any other authority where a question arises whether any property is or is not evacuee property or what right or interest a. Any, an evacuee has in such property. In such situation, the Court or the authority shall state the question with relevant particulars and remit it to the Custodian for his decision. The other is under section 22 of the said Act, where under any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian. The Act bars every Civil or Revenue Court or other Authority from exercising jurisdiction to entertain or adjudicate upon any such question.
15. The appellant, as already mentioned, had moved the Custodian authorities first in 1949 for confirmation of the sale of the land in his favour and again in 1953 for the grant of a certificate permitting registration of the sale and in both proceedings the Additional Custodian had held that the vendor not being evacuee, the question of confirmation of the agreement of sale did not arise.
However, the decision given by the Additional Custodian cannot be pressed into service because if the owner be held to be non-evacuee, the same would not per se be sufficient to exclude his property from being treated as evacuee property as was held by this Court in Hajiran Sughra v.
District Judge & Settlement Commissioner 1969 SCMR 686. Moreover, as noted by the High Court in the earlier proceedings, there had been no determination as to the extent of the property of Boolchand and as such the property not properly established to be his own, cannot be treated to be non-evacuee. Then the transaction on the basis of which the appellant was claiming was only an agreement to sell. In Ghulam Muhammad v. Custodian of Evacuee Property PLD 1966 (W.P) Lah.
953 it had been held that a non-evacuee cannot claim relief on the basis of an agreement to sell executed in his favour by an evacuee as an agreement to sell does not create any right, title or interest in immovable property, that where the non-evacuee vendee had not applied for a declaration that the property was not evacuee and had only sought confirmation of the transaction, such confirmation, even if accorded, could not confer any right and that the Custodian could, in that event, only direct him under section 16 of Act XII of 1957 to file a suit for specific .Performance of the agreement and it was only when such decree had been obtained and then confirmed by the Custodian that the property could cease to be an evacuee property. The appellant, therefore, on the basis of the orders passed by the Additional Custodian (Mr. S. Riazuddin Ahmad) could not advance his case that the entire property was non-evacuee property and to this extent the observation made by the High Court in the earlier round that the orders of Mr. S. Riazuddin Ahmad could not be interpreted to spell out a declaration that the entire land was exclusive ownership of Boolchand and non-evacuee property is not open to exception. The appellant had, no doubt, obtained a decree from the Civil Court but as no confirmation of the decree had been sought from the Custodian, that decree, to, was not executable in the absence of a competent decision in regard to the nature of the property. For such decision, the matter had to be referred to the Custodian either by the Court or the Settlement Authority under section 41 or by the appellant under section 22 of the Act.
16. The High Court had in the earlier round expressed that no question requiring a reference to the Custodian arose for adjudication as in the view of the learned Judges, the share in the property other than that of Boolchand had by operation of the law become evacuee property. It is true 'that the Court is not bound to make a reference to the Custodian merely because a question as to the nature of the property is raised before it. In Muhammad Ishaq Haji Dost Muhammad v. Abdul Ghani PLD 1960 Kar.. 155 and Settlement Commissioner v. Ghulam Hussain Brohi PLD 1970 Kar.. 51, a distinction had been drawn between the terms "arise" and "raised" and it had been expressed that a question can arise even without raising and at the same the, a question cannot be said to arise merely because it is raised, as a plea may be irrelevant, inadmissible or without substance, and that the question can be said to arise only if it is material and well-founded. However, since section 22 is not controlled by section 41(2), a person claiming right or interest in the property could prefer a claim before the Custodian notwithstanding the refusal by the Settlement Authority or the Court to make a reference, and the Custodian, if the matter fell within his jurisdiction, was competent to determine the nature of the property and in such determination he would not be bound by any decision, decree or order of any Court or Authority and his determination would be conclusive, subject, of course, to the revisional power of the High Court under section 43-A (the section was repealed with effect from 1-1-1961) or review by the High Court in its constitutional jurisdic--tion. The exclusive nature of the jurisdiction of the Custodian in this regard was highlighted by this Court in Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 and reiterated in Muhammad Hashim v. Muhammad Asghar PLD 1970 SC 326 and it was held that with respect to the nature of the property, neither the Civil Court nor the Settlement authorities have any jurisdiction to record a binding determination and that if the property be not evacuee and not vesting in the Central Government, the Settlement authorities could not grant to themselves jurisdiction to deal with it. In this connection it was also held in Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner PLD 1965 SC 356 that the Settlement authorities have no power to decide which property should or should not come into the compensation pool or adjudicate whether the property was rightly treated as included in the compensation pool. The jurisdiction of the Custodian was, therefore, not affected by the judgments, or observations if any contained therein, of the Settlement authority or the High Court in the earlier round. Those proceedings were neither directed against nor in continuation of any order of the Custodian nor were the Custodian a party thereto. The view taken by the learned Single Judge in the impugned judgment that the order of the Custodian passed on 14-6-1974 was hit by the principle of res judicata because of the earlier orders of the High Court, is, therefore, not sustainable in law.
17. It was contended on behalf of the respondents that the appellant having himself invited the jurisdiction of the High Court in the earlier round in regard to the nature of the property, was bound by its decision and as such estopped by conduct from invoking the Custodian's jurisdiction. In Amanullah Khan v. Chotey Khan 1978 SCMR 14, where a tenant had preferred a second appeal in the High Court which had been dismissed, and had later challenged the competency of that appeal, it was held that he, having invoked the jurisdiction and invited the decision, was disentitled by conduct to seek leave to appeal. That ruling we are afraid cannot be interpreted to bar the appellant's remedy before the exclusive forum for deciding the nature of the property.
18. It was also contended on behalf of the respondents that after the issue of notifications under section 4(2) of Act XLVII of 1958 in 1959 and 1960, the property stood vested wholly and absolutely in the Central Government and the jurisdiction of the Custodian in respect of property covered by the said notifications had ended.Rahim Bakhsh v. Ahmad Bakhsh PLD 1964 SC 189 this Court had ruled that the acquisition of evacuee property under the notifications by the Government extinguishes rights and interest of evacuee owners. In Abdul Karim v. Mohini Bai 1972 SCMR 537 it had been held that where no application for confirmation of sale of evacuee property had been filed before its acquisition by Government but had been filed long after the notification, the property was no longer evacuee and as such the Custodian had no jurisdiction to consider the question of confirmation of the sale. But these rulings are not applicable in the present case where the appellant had actually moved the Custodian for confirmation of the sale and where the property is not shown to have been treated as evacuee property before the issue of the notifications.
19. Nevertheless, the protection under section 3 of Act XII of 1957 is not available. The appellant had no doubt in his very first application (No. 510 of 1949) made before the Deputy Custodian disclosed the details of the property but he had claimed that it was not evacuee property though he had also prayed that if the same be considered to be evacuee land, the sale made in his favour be recognized. It was, therefore, for the Custodian to have examined whether he considered the land to be evacuee before deciding the question of confirmation of the sale. The Additional Custodian to whom the matter went twice did not perform his duty and instead, without any inquiry, held that the question of confirmation of the sale did not arise as the property being of a non-evacuee vendor was not evacuee, which was not a correct view in view of 1969 SCMR 686 (supra).
20. It is to be noted that the case of the appellant was based upon the third partition affected on 21-12-1946, whereby the entire agricul--tural land of the family of Naraindas had come to the share of Boolchand from whom he had purchased the same. Now if the existence and validity of this third partition were established, no part of the land would be evacuee. Therefore, without an adjudication as to the existence and the validity of the instrument of the third partition, the Settlement authorities could not treat any portion of the disputed land to be evacuee and an adjudication, if any, made by the Settlement authorities or a Court in regard to the efficacy or otherwise of the third partition would not bind the Custodian. For this reason, to, the matter was open for a decision by the Custodian notwithstanding the decision arrived at by the Settlement authorities or for that matter by the High Court.
21. From the above discussion it is clear that the Custodian was not debarred from entertaining and deciding the question of the nature of the property on the application of the appellant made under section 22 of Act XII of 1957 and his decision in this regard was conclusive and subject only to review by the High Court in its constitutional jurisdiction.
22. However, since the impugned judgment of the High Court had proceeded on merits also, we may examine if the same requires any correction by this Court. The High Court held that the Custodian's order was in disregard of the provisions of the Registration Act and that he had proceeded on certain assumptions of law and fact which were erroneous or unwarranted.
23. The third partition though said to be by a written instrument had not been registered. Under section 17(1)(b) of the Registration Act (XVI of 1908), non-testamentary instruments, other than instruments of gift of immovable property, which purport to operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property are compulsorily registrable. Under section 48, a document registered under the Act relating to any immovable property "shall take effect against any oral agreement or declaration relating to such property, unless where the agreement or declaration has been accompanied or followed by delivery of possession and the same constitutes a valid transfer under law for the the being in force." Under section 49 a document required to be registered under the Act, but not registered, shall not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property. Under section 50 every document of the kind described in section 17(1)(b) affecting immovable property shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property. In this view of the law, it was ruled in Subbarao v.
Mahalaskshmamma AIR 1930 Mad. 883 that the fact of partition may be proved by oral evidence but the deed embodying the terms of the partition cannot be proved for want of registration and it was inadmissible to prove partition though it may be received in evidence of a division in status. To the same effect are the decisions in Kishan Chand v. Dina Nath AIR 1933 Lah. 574 and Nepal R.I v.
Paras Ram AIR 1937 All.
16. In Ramnagina v. Harihar AIR 1966 Patna 179 it was held, in respect of partition of family property under the Hindu law, that "A partition of immovable properties between coparceners or co-owners can be made orally and is not required to be in writing; but, if there is an instrument effecting a partition of immovable properties, it comes under S.17(1)(b) of the Indian Registration Act and is compulsorily registrable under that clause". The deed, dated 21-12-1.946, whereby the third partition is said to have been effected was thus compulsorily registrable and the same having not been registered could, therefore, not take effect against the earlier registered partitions.
24. This legal aspect of the matter had not been examined at all by the learned Custodian. On the other hand, the deed had been accepted as valid on the assumption that (1) it had been signed by "all the parties interested" and (2) "it had been acted upon". Now, both the assumptions are factually incorrect. The document, a copy of which has been furnished, shows that it had not been signed by Natherlal and Gagandas, the to brothers, who had separated in the result of the first partition effected on 16-9-1943 which was by a registered document and which had been duly acted upon. The' to brothers had taken their share of the property and then had leased out the same in favour of their father. Having thus separated from the family property, they had naturally not figured in the second partition of 2-7-1946. No explanation is available nor any effort made by learned counsel for the appellant to show as to how the share of the land of these to brothers could have been made subject-matter of the third partition when they were neither party to it nor signatory to the deed recording that partition. There is also nothing to show that the third partition had in fact been "acted upon". No entry was made in the revenue record on the basis of that partition until the Partition .Of the Sub-Continent or even during the lifetime of Naraindas who is said to have died after the Partition in 1947. On the other hand, on his death the mutation of inheritance that was entered on 6-11-1947 was in favour of his widow and the four minor sons who alone had succeeded to the property of Naraindas, the other four brothers having already separated by the first and the second partition. The entry made in the revenue record on 21-7-1949 in favour of Boolchand in respect of the property was merely on the basis of a statement of the same date purported to have been made by Lokomal and Vessumal, and although they made mention of a partition deed but no such deed was produced. In fact the deed does not appear to have been produced before the Revenue authorities even subsequently and according to learned counsel for the respondents it was produced for the first the through a photostat copy of the same on 5-9-1967 and the original on 16-5-1974, that is, long after the death of Naraindas and the migration of his sons other than Boolchand to India. The assumption that the document had been acted upon was, therefore, not warranted.
25. The second assumption that the widow of Naraindas, who was a party to the settlement, had set up a claim, which had been rejected by the Revenue authorities in view of the family settlement of 21-12-1946, is also not supported by any material on record before us. As the facts of the case show, there was also no basis for the learned Custodian to assume that an entry had existed in favour of Boolchand in terms of the third partition, since 1946. As already pointed out, such entry had been made for the first the in his favour on 21-7-1949. Then the assumption that the entries of mutation made "have been always held legal under the revenue law" is also not correct. In the first instance entries made in the revenue record, though not inadmissible in evidence, are not conclusive evidence of title. In Nageshar Baksh v. Ganesha AIR 1920 P C 46, the Privy Council, in respect of entries in the Settlement Records, held that although the same were important evidence of the matters recorded but could not be conclusive. A similar view had been expressed in Gangabai v: Fakirgowda AIR 1930 P C 93 in respect of entries made under section 7 of the Bombay Land Revenue (Amendment) Act (1913). Reference may also be made in this regard to this Court's pronouncement in Ghuiam Rasool v. Chief Administrator of Auqaf PLD 1971 SC 376 to the effect that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record. Secondly, the revenue entry made for the first the on 21-2-1949 was ineffective having been made in contravention of section 17 of Ordinance XV of 1949 in the absence of a certificate from the Custodian that the property was not evacuee property. Similarly the entry made in favour of the appellant on 22-7-1949 was also violative of section 17 in the absence of confirmation of the transaction by the Custodian.
26. The next assumption that the decree obtained by the appellant in his suit for specific performance had made him "exclusive legal owner" of the property in question was also unwarranted. For, if the property by evacuee, then its transfer would not confer any right or interest unless the same was first confirmed by the Custodian under section 12 of Ordinance XVIII of 1948.
Section 14 of that Ordinance totally ousted the jurisdiction of a Court to entertain or adjudicate on any claim in any such property. The succeeding' legislations contained similar provision in that regard. The Deputy Custodian on 31-8-1953 which refusal had not been upset by the Additional Custodian had refused the appellant---s plea for permission to sue for specific performance. The suit had thus been instituted neither with permission of the Custodian nor had the decree been approved by him. The decree, therefore, in view of PLD 1966 Lah. 953 (supra) would not impart any validity to the transaction.
27. The learned Custodian had also fallen into a serious error in remarking that "all the authorities including the Custodian, Rehabilitation and- Settlement, accepted .The family settlement as perfectly genuine". In fact no prior adjudication on that family settlement had taken place before the Custodian authorities. When the matter came for the first the before the Deputy Settlement Commissioner on 22-8-1964, neither Boolchand appeared before him nor was the family settlement produced. Instead reliance was placed on the statement of Lokomal and Pessumal made before the Mukhtiarkar on 21-7-1949 to support the entry made in favour of Boolchand but the plea was not accepted for factual and legal reasons and it was held that "Whatever the facts, there is no doubt that to persons, Lokomal and Pessumal, both evacuee, gave their statements before the Mukhtiarkar, Shahdadpur on 21-7-1949 transferring not only the property that stood in their names before their migration but also the lands of their brothers, viz., Gagandas, Natharmal, Dharmomal, Phatumal, Kessumal and their mother Moolibai". The High Court, to, in the earlier round, as already seen, had not accepted the instrument of the third partition to be a genuine or valid document. It is unfortunate that the learned Custodian did not care to consider the views expressed in respect of this instrument by the Deputy Settlement Commissioner and the High Court before making his remark. Even though the Custodian was not bound by such views but he was not expected to have ignored them. Perhaps he was not aware of the observation made by one of his own predecessors in In the matter of Lahore Electric Supply Company Ltd. PLD 1956 Custodian (Pb. ) 12 to the effect: "Under section 18, Evacuee Property Ordinance, the Custodian has to hold an enquiry and apply his own mind to the question involved in the petition, but I am perfectly prepared to consider the judgment of the High Court with all the respect due to it."
28. The conclusion reached by the learned Custodian in regard t the existence and the validity of the instrument of the third partition dated 21-12-1946 was thus without proper factual or legal basis and as such he had clearly exceeded his jurisdiction in reaching the same. His order, therefore, was liable to judicial review in the constitutional jurisdiction by the High Court and, had been rightly quashed. The basis for Boolchand's acquiring the land other than what had come to him in the result of the second partition, dated 2-7-1946, having thus, disappeared, the excess property which belonged to the other members of the family who had become evacuees, had, therefore, constituted evacuee property and no claim could be laid to the same by the appellant on the basis of his alleged transaction with Boolchand. He not having disclosed the true nature of the property cannot seek protection under section 3 of Act XII of 1957. The provision of section 3(2) of Act, XLVII of 1958 would become applicable.
29. In regard to the contention advanced on behalf of the appellant as to the absence of locus standi of the respondents to have invoked, the constitutional remedy, it would suffice to refer' to this Court ruling in PLD 1965 SC 698 (supra) that "If the rights of a person can be affected or if a person can gain an advantage as regards his rights by getting a declaration it cannot be said that the declaration cannot be granted to him for want of locus standi". The Deputy Settlement Commissioner in favour of the respondents had made an order and as such the doors of the constitutional jurisdiction were not barred to them.
30. In the result, the appeal is dismissed with costs.