' This petition is directed against the orders, dated 8-11-1973 and 8-6-1974 passed respectively by Deputy Custodian of Evacuee Property, Karachi, and Custodian of Evacuee Property, Sind.
2. The dispute in this matter started with an application made by the petitioners under section 3 read with sections 20, 22 and 33 of Pakistan Administration of Evacuee Property Act XII of 1957 in respect of Property No.R.B.2/8 admeasuring an area of 3,078 sq.yds., Karachi. The petitioners had claimed in their petition that the said property was owned jointly by Gul Bai Sohrabji S.Chenoy and Bai Hirabai and Mr.J.H. Dinshaw of whom the first two were alleged to be Indian Nationals and evacuees and their interest in the plots was evacuee. The application was moved before the Custodian and notice was issued to respondents Nos. 3 and 4 and thereafter respondent No.8 joined the proceedings as intervenor as they claimed to be in possession and purchaser of the property for valuable consideration. The petitioners had prayed in the said application that 50$ share in Plot No.R.B. 2/8 and R.B. 3/8 had vested in the Custodian being an evacuee property on the ground that the respondents Nos.3 and 4 had no right to recover rent of evacuee share in the property and they should submit accounts to the Custodian and should be restrained from executing any deed of sale or agreement in respect of evacuee share of respondents Nos. 1 and 2.
3. The petitioners had argued before the Deputy Custodian that Plots Nos. R.B 2/8 and 3/8 admeasuring 2,885 sq. yds. and 3,078 sq.yds was a private trust property in which the share of Bai Gulbai and Bai Hirabai to the extent of 50 per cent, is evacuee property and that the trustee managing the evacuee share at Karachi has not obtained the approval of the Custodian to supervise and manage as required under section 3(2) (b) of Act XII of 1957. It was therefore claimed by the petitioners that the property is in unauthorised possession of the trustees and the trustee has no right to transfer the property.
4. The respondents Nos. 3 and 4 took the position that the trustee was in the position of the owner of the property and residence of the beneficiaries outside Pakistan or their inability to manage their share does not affect the right of the trustee because the trustee is virtual owner. It was further contended that the property was never treated as evacuee property before 1-1-1957 and therefore it could not be treated as evacuee property. Further contention of respondents Nos. 3 and 4 was that N.E.Dinshaw held the property in trust under the orders of the Court from 1923 till his demise as a trustee owner and the property therefore vested in him and hence he did not require any acceptance or approval from the Custodian for holding the said property.
5. Respondent No.8 had contended that the property vested in the sole trustee who alone could deal and manage the property and therefore he was not such a person who was unable to supervise his property in Pakistan as the trustee was resident of Pakistan and that the beneficiaries could not manage or supervise the property and even the Pakistani beneficiaries could not manage the said property. Respondent No.8 had further contended that the interest of Bai Gulbai and Bai Hirabai vested in the Custodian of Enemy Property.
6. The Enemy Property Management Board was made a party in those proceedings before Deputy Custodian of Evacuee Property but the Board did not choose to appear. The Deputy Custodian took note of the fact that the said property was entered in the evacuee property register as a Parsi property and they were never attempted to be disposed of. He further observed that the share of the beneficiaries has vested in the Additional Custodian of Enemy Property and by virtue of the powers under rule 185 (1) (b) of Defence of Pakistan Rules, 1971 made under section 3 of Defence of Pakistan Ordinance, 1971 the Enemy Property Management Board took over the half portion of plots representing the share of respondents Nos.1 and 2, the legal heirs of late Nawajbai, the owner of the said property. It was further observed by Deputy Custodian that the Enemy Board had agreed to an agreement of sale, dated 1-6-1965 relating to the Indian residents and the same had been approved by the Custodian of Enemy Property. From that fact the Deputy Custodian held that at no time the property was declared or treated as evacuee property and the respondents Nos. 1 and 2 never became evacuee being Parsis as otherwise their shares in the property could not have been taken over by Custodian of Enemy Property. Deputy Custodian of Evacuee Property held that he had no jurisdiction over the properties in dispute as he could not interfere with the order of the Custodian of Enemy Properties which order could not be questioned in any Court of law. Relying upon the case of PLD 1964 SC 74 Abdul Khaliq v. Kishan Chand the Deputy Custodian held that since no appeal or revision in respect of the said property was pending before 1-1-1957 therefore it cannot be declared as evacuee property after 1-1-1957. He therefore dismissed the application of the petitioners.
7. The petitioners thereafter appealed to the Addl. Custodian of Evacuee Property, Sind, under section 43(1) of Act XII of 1957 in respect of the above properties. The Additional Custodian heard the parties and by his order, dated 27-3-1974 he held that the appeal was not maintainable because the application filed by the petitioners before Deputy Custodian of Evacuee Property was not maintainable in law and therefore the order of the Deputy Custodian was coram non judice and it was set aside. He, however, observed that it would be open to the petitioners to approach Deputy Settlement Commissioner to press their claims, if any, as was done by a tenant of building in dispute in Nazar Ali's case, namely, 1973 SCMR 441.
8. It is necessary to point out here that the petitioners have not challenged in any manner the order passed by the Additional Custodian of Evacuee Property on 27-3-1974 as referred above and therefore this order remains in the field.
9. The respondents Nos. 1 to 4 and 8 filed revision application under section 43 of Act XII of 1957 and prayed for setting aside of the order of Additional Custodian, dated 27-3-1974. The Custodian of Evacuee Property Sind, by his order, dated 8-6-1974 disposed of the revision application by observing "it was admitted position that these properties, namely R.B. 2/8 and R.B. 3/8 had not been declared or treated as evacuee property and it is also admitted that it has not been allotted or transferred by Settlement Department nor could they transfer now. He further observed that this question is purely a matter of civil nature for which the parties can approach the proper forum, if they so choose. This application cannot be entertained by Custodian Authorities it is disposed of accordingly"
10. The petitioners felt aggrieved against the said order of the Custodian and petitioners had filed this petition in 1974.
The petitioners Nos. 2 to 12 who claimed to be in possession of 225 sq. yds of R.B. 2/8 in the form of 13 shops and had allegedly applied to the Deputy Settlement Commissioner for transfer of the property in their favour on 27-7-1974 but no decision on their application had been taken so far, were joined as co-petitioners on 31-5-1979 by permission of the Court.
11. Before dealing with the matter further, it would be pertinent at this stage to refer to certain admitted facts of the case. One Edulji Dinshaw was co-owner of R.B. 2/8 and R.B. 3/8 measuring respectively 2,885 sq.yds and 3,078 sq.yds. in Aram Bagh Quarters, Bunder Road, Karachi. He made one will on 10-11-1911 and added two codicils on 9-4-1914 whereby he appointed three persons as executors of his will, one of them was N.E. Dinshaw. By the said will 1/18th share of the property of Edulji Dinshaw was bequeathed to his daughter Nawajbai which was to be managed by N.E.
Dinshaw upon trust. Edulji Dinshaw died in May, 1914. On 19-12-1916 N.E.Dinshaw by a registered Indenture created a trust in favour of Nawajbai in respect of 1/18th share of the property left by Edulji Dinshaw. On 28-7-1921 part of the said trust was revoked by N.E. Dinshaw but we are not concerned with the same as the revocation was not in respect of the present properties. On 9-8- 1944 Nawajbai and her four sis tern entered into an agreement that on the death of Nawajbai the property should be distributed between her four sisters and in case any one of the sisters died earlier then to her survivors.
' The petitioner No. 1 through its members in occupation of part of the said plots petitioners Nos.2 to 12 had taken over 13 shops in 1948 from son of Rafi who had constructed the said shops after Rafi- uddin and Nawabuddin had taken the sub-lease of 140 sq. yds. out of Plot No.R.B. 2/8 from one Tikamdas Wadoomal who was himself a tenant of Nawajbai. The son of Rafiuddin, namely, Shafiuddin had taken rent from the petitioners Nos. 2 to 12 upto 13-5-1962 and on '29-5-1962 the petitioners Nos.2 to 12 obtained ten years lease of 140 sq.yds. plus 85 sq. yds. from J.H. Dinshaw, respondent No.3. Thereafter the petitioners Nos. 2 to 12 purchased the structures of the shops from Shafiuddin for Rs .35,000.
12. Another important fact to be mentioned is that respondent No.8 had entered an agreement with the trustees of the estate of Nawajbai in June, 1965 for the purchase of the disputed Plots Nos.R.B.2/8 and R.B. 3/8 for a consideration of Rs.8,00,000 and respondent No.8 had paid Rs. 50,000 to the seller as earnest money while Rs.7,50,000 was to be paid later. In 1966 the half portion of the disputed plots being the share of Bai Gulbai and Bai Hirabai was declared to be Enemy Property and it was taken over by the Custodian of Enemy Property by notification, dated 5-6-1973 issued under rule 185(b) of Defence of Pakistan Rules. The said notification had also taken note of the fact that the entire property had been agreed to be sold under registered agreement, dated 1-6-1965 between J.H. Dinshaw and Moulana Noorul Hassan and Bashiruddin of Muslim Mercantile Association in consideration of Rs.8,00,000 and it was further stipulated that the Additional Custodian of West Pakistan Property Management Board shall receive payment of half of the total consideration amounting to Rs.4,00,000 representing the enemy share from the representative of Muslim Mercantile Association and transfer the title in the property to the buyers.
' On 28-1-1980 J.H. Dinshaw and Additional Custodian of Enemy Property, Islamabad, executed in conveyance Deed in favour of respondent No.8 of the entire disputed property, namely R.B.2/8 and R.B. 3/8 after receiving the balance of consideration of Rs.7,50,000 from respondent No.8.
' It may further be relevant to note that on 20th September, 1974 High Court of Sind had granted permission to J.H. Dinshaw to sell the disputed property to respondent No.8. The said J.H. Dinshaw had been appointed a trustee by Sind Judicial Commissioner Court on 16-10-1926 under the trust deed dated 11-11-1916 and then again on 25-7-1974 same J.H. Dinshaw had been appointed a trustee by Sind High Court under the same trust deed, dated 11-11-1916.
13. It has been brought on record in these proceedings that respondents Nos. 1 and 2 died in India in 1952 and 1955 and their successors were also residents in India. It is further admitted position that the respondents Nos. 1 and 2 have been treated as enemies and their shares of 50% in the disputed plots has been treated as enemy property after 1966 and under the Defence of Pakistan Rules of 1971 notification in that ,respect has also been issued by the W.P. Enemy Property Management Board. Therefore the respondents Nos. 1 and 2 and their successors were residents of India in 1950 and were therefore obviously evacuees as defined under section 2(2) of A.E.P. Act (XII) of 1957. So far there can be hardly any dispute.
14. However, the basic question is whether the disputed property is evacuee property or not and further that even if it was an evacuee property then whether it can be treated as evacuee property now in spite of the fact that it was not treated as evacuee property before 1-1-1957. The answer to the last question will depend upon the question whether it is occupied, supervised or managed by a person whose authority or right as to do after 28-2-1947 has not been approved by the Custodian as visualised in section 3(2) (b) of Act XII of 1957. Mr. Khalid M.Ishaq says that the respondent No.3 is managing 50% of the property without having that right of management as a trustee approved by the Custodian.
15. The counsel for petitioner No.1 submitted that the order of Custodian of Evacuee Property, dated 8-6-1974 has failed to take notice of the issue that the authority of the person managing the property had not been confirmed by the Custodian of Evacuee Property and the case was therefore not covered by section 3 (1) of Act XII of 1957 but was covered by section 3 (2) (b) of the same section as it was a property where to the extent of 50% share the beneficiaries resident in India had the right, which was being managed by an alleged trustee, but the same had not been got accepted or approved from the Custodian of Evacuee Property and hence the property to the extent of 50% share was being managed by respondent No.3 as trustee without approval of the Custodian. It is correct that both Dy. Cust. and Cust. of E.P. have omitted to consider this point in detail.
16. Mr. Shah Jamil Alam suggested a simple answer to the problem. He argued that it is accepted by the petitioners that the property is trust property and the trustee namely respondent No. 3 is a Pakistani and the respondents Nos.1 and 2 are merely beneficiaries and since trustee is in the position of an owner in respect of trust property as provided in section 3 of the Indian Trusts Act and also held in AIR 1931 P.C.196, therefore, the property is being managed by the owner himself and not by a person who is authorised by the owner and hence no approval or acceptance by the Custodian of Evacuee Property was necessary. He submits that property has never been treated as evacuee property by Custodian before 1-1-1957 and hence section 3(1) of Act XII of 1957 completely exempts this property from being treated as evacuee property.
17. Mr. Khalid Ishaque on the other hand contended that the definition of evacuee property in section 2(2) (3) of Act XII of 1957 is wide enough to include the property in which an evacuee has any right or interest as a beneficiary. He therefore contended that since respondents Nos.1 and 2 are admittedly entitled to 50% share in the property as beneficiaries and they are admittedly evacuee therefore 50% of this property is evacuee property. He relied upon PLD 1967 Lah. 459 where in the case of all the trustee of a property having migrated to India, it was held that the property was evacuee property and it continued to bear that character in spite of the fact that new trustees were appointed for that property by the Civil Court. Mr. Shah Jamil Alam distinguished the said case on the basis that all trustees in that case had migrated from Pakistan and hence no owner was available while in the present case the sole trustee who was in the position of owner was available in Pakistan. I agree that the distinction pointed out by Mr. Shah Jamil Alam is correct.
18. Mr. Fazeel, however drew my attention to PLD 1968 Lah. 1050 where a Division Bench held that the beneficiaries of trust land in dispute having migrated to India such trust land was covered by the definition of Evacuee Property and it was further held that since the land in that case had remained in an authorised possession after partition and their control and management had not been approved by the Custodian, therefore, the bar of section 3(1) did not operate as a bar to declare such property as evacuee property after 1st January, 1957. A further observation made in that case was that the effect of section 3(1) of Act XII of 1957 was nullified by section 3(2) of Displaced Persons (Land Settlement) Act LVII of 1958. But the last observation, however, is not applicable in the present case because the cited case dealt with agricultural land while the present case before me is in respect of urban land.
'However, the observations of the Division Bench in the above-cited case that since most of the beneficiaries of the trust property in dispute had migrated to India after partition and there was no body left to inherit the property in dispute it squarely became an evacuee property in view of section 2(3) of Act XII of 1957, are quite pertinent.
19. I respectfully agree with the observations made in the cited case, Mr. Shah Jamil Alam wanted to distinguish PLD 1968 Lah. 1050 on the ground that in that case all the beneficiaries had left for India while in the present case the petitioners had asked for only 50% share in the property to be declared as evacuee property and hence the trustees could continue to manage the rest of the property. In my view this submission is not correct. Since the property in which an evacuee has a right as a beneficiary can be treated as evacuee property according to the definition of evacuee property in section 2(3) of Act XII of 1957, therefore, it is clear that any specified share of a beneficiary who is an evacuee in a property can be treated as an evacuee property, In fact the legislation has made fundamental departure in the matter of trust properties when it has allowed a property to be treated as evacuee property even on the basis of an evacuee having a beneficial interest in the said property.
20. Mr. Shah Jamil Alam is absolutely right that a trustee is to be treated as the owner of the property as held in AIR 1931 P.C.196 but our legislature departed from that principle and enacted that even that property in which a beneficiary has any right or interest can be declared as evacuee property if the beneficiary is an evacuee. This is a special law in spite of the fact that the beneficiary is not the owner of the trust property, in ordinary conception of the trust, but is entitled merely to the benefits of the trust property. Therefore, the property to the extent of the interest of beneficiary who was resident in India could be treated as an evacuee property.
21. I cannot agree with the distinction which was urged by the learned counsel for the respondents that a property could be treated as an evacuee property only if the entire set of beneficiaries had migrated to India. The law does not warrant that distinction. In fact, it defines evacuee 'property meaning, 'any property in which an evacuee has any right or interest whether personally or as a trustee or a beneficiary etc'. The expression, 'any right', would mean that even if the beneficiary. merely having right in respect of a portion of the property or a share of the property then the property to the extent of the said right or share could be declared as evacuee property. I am therefore of the view that applying the law as laid down under section 2(3) of Act XII of 1957 and following the dictum laid down in PLD 1968 Lah. 1050, a trust property in which an evacuee has a beneficial interest could be treated as evacuee property to that extent. But application of that principle in the present case is a different matter.
22. The nature of the alleged trust in the present case is not clear. The will made by Edulji has not been produced nor the 2 codicils have come on record. Only para. 7 of the will has been reproduced where the property is shown to be bequeathed to Nawajbai which was to be managed by her brother Nadirshaw upon trust, and upon the death of Nawajbai same was to be settled upon the surviving sisters of Nawajbai. One does not know whether the trust was to continue thereafter or not. Moreover the trust relied upon by the respondents is the trust created in 1916 by N.E. Dinshaw who was not the original owner of the property, but was only holding the same as manager upon trust. What right he had in the will of Edulji for creating the trust in question is not known and, therefore, one cannot give a definite finding in respect of the basis of the trust or the nature of the original trust. Same requires a probe. Then again one does not know about the actual time of death of Nawajbai and her survivors at that time and hence no definite opinion can be expressed in respect of the same at this stage. Since these matters have not been duly considered by any tribunal as far, therefore, the same cannot be decided in this extra-ordinary jurisdiction. And since this matter of trust appears to be a central issue, therefore, the controversy can be resolved only after the parties have led their evidence in this respect.
23. The next limb of the argument of Mr. Shah Jamil Alam is that the trustee being the owner he did not require the approval of his right to manage the share of those beneficiaries who were residents in India.
' I do not see any force in this argument. Section 3(2) (b) provides as under: "Nothing in subsections 1 shall apply to any property which is occupied, supervised or managed by a person whose authority or right so to do after 28-2-1947, has not been accepted or approved by the Custodian."
'If a trustee has the right to manage the trust property to the extent of the interest of the beneficiaries by virtue of his being a trustee, then on the incidence of the beneficiaries having become evacuees he does not continue to have the right of managing the property to the extent of the beneficial interest of the evacuee.
24. Mr. Khalid Anwar had submitted that the appointment of the respondent No.3 as a trustee by the High Court saved the 'property from the incidence of being an evacuee property. I do not agree with this view because the High Court did not hold that the property was not evacuee property and in fact such question was never raised before the High Court. Moreover in PLD 1967 Lah. 459, it was held that "If a trust property becomes evacuee property, then it continues to be such even though new trustees are appointed by Civil Court". The submission of the learned counsel of respondent in the present case before me is therefore of no force.
25. Mr. Khalid Anwar had also submitted that the case of petitioners Nos. 2 to 12 suffers from lathes inasmuch as this petition was filed in 1974 while the petitioners Nos.2 to 12 joined in 1979 only. Simple answer to that objection by Mr. Fazeel is that late joining of petitioners Nos.2 to 12 in this petition does not in any manner prejudice the respondents because the matter had been properly brought before the High Court by the Petitioner No.1, earlier and late joining of petitioners Nos.2 to 12 would thus cause no prejudice to respondents. I agree with counsel of Petitioners Nos.2 to 12.
26. Mr. Khalid Anwar had also contended that the petitioner No.1 had no existence in law when it filed the petition in 1974 as it was not a registered firm and it had been registered as a firm after the filing of this petition. The objection was based on section 69 of the Partnership Act which bars the filing of a suit by a partnership firm which is not registered. Mr. Khalid Ishaque replied that the bar of section 69 could not apply to an application made before Custodian or this Court as section 69 only bars a suit while the application before the Custodian is not a suit. Counsel further submitted that filing of an application before Custodian for treatment of property as evacuee property is not a matter arising out of a contract and hence section 69 is no bar. He relied upon PLD 1960 Kar. 774 where it was held that application under section 20 of Arbitration Act by an unregistered firm is not hit by the bar of section 69 of Partnership Act. I respectfully agree with the said view and therefore I do not accept the objection of Mr. Khalid Anwar in respect of competency of the petitioners in raising the matter of the evacuee nature of the property before the Custodian or before this Court.
27. The petitioners have mainly relied on the dictum of their Lordships of the Supreme Court as laid down in 1973 SCMR 441. In that case the Supreme Court had held that clause (b) of subsection (2) of section 3 of Act XII of 1957 excludes from the operation of subsection 1 property which is being managed by an agent whose authority so to do has not been approved by the Custodian. In that case the property had been purchased by a Muslim from an evacuee and he had got the same confirmed from Custodian of Evacuee Property. But thereafter the purchaser appointed his attorney and then went to India. On the application of a tenant that the property was evacuee property copy of that application was sent by the Custodian to Deputy Settlement Commissioner for necessary action. In the meantime, on account of notification by the Central Government under section 3 of Displaced Persons (Compensation and Rehabilitation) Act of 1958, all evacuee property had vested in the Government and was being dealt with by the Settlement Authorities.
These authorities held that property to be evacuee property. In that case the, attorney applied for approval of the power of attorney to the Custodian, but same was refused on the ground that Custodian had no jurisdiction as property had been taken over by Government. The petition before High Court also failed. In appeal Supreme Court held that the authority which had been given by the purchaser of the property to his attorneys in Pakistan having not been approved by the Custodian and the purchaser having left for India the authority of the attorney needed the approval or acceptance from the Custodian and the same having not been obtained the property was being managed by unauthorised persons and therefore it can be treated as an evacuee property within the provision of section 3 (2) (b) of Act XII of 1957 and therefore the Supreme Court had dismissed the Civil Appeal filed by Nazar Ali the purchaser of the property in that case.
28. Mr. Shah Jamil Alam distinguished that case on the basis that the manager was an attorney appointed by evacuee owner and hence authority was rightly considered to be needed to be approved, but that in the present case the trustee was the owner and himself managing the property and hence he did not need any approval of his authority from Custodian. But as I have already observed, we do not have the necessary material to come to a finding about the nature and basis of the trust, I cannot give a finding in this respect. The case of Nazar All does appear to be relevant and could probably be helpful in the resolution of the dispute provided this petition was competent. But there appears to be unsurmountable difficulty for the petitioners.
29. Mr. Khalid Anwar has pointed out that petition is not competent because the petitioners have not felt aggrieved against the order of the Additional Custodian of Evacuee Property who had held that the petitioners' application before the Deputy Custodian was not competent in law. Contention appears to be sound. However, Additional Custodian had also observed that the petitioners could move an application before Deputy Settlement Commissioner for allotment in the light of Nazar Ali's case, but this portion of the order of the Additional Custodian cf Evacuee Property is merely in the nature of an observation. It only concerns Settlement Authorities but is not binding upon the Settlement Authorities at all who act independently of the Custodian in the matter of allotment. In any case it does not provide any relief to the petitioners vis-a-vis the Custodian Department.
Therefore the last portion of the order of the Additional Custodian of Evacuee property was hardly of any help to the petitioner No.1 and, hence it is surprising that the petitioner No.1 did not challenge the order of the Additional Custodian of Evacuee Property. The application of the petitioner was under sections 20, 22 and 32 for treatment of the property as evacuee property as well as under section 3 of Act XII of 1957, on the ground that half of the property was evacuee property owned by Indian Nationals and it was being managed by unauthorised persons and hence they should be restrained from recovering any rent or from transferring the property and should be made to submit accounts to the Custodian. The Deputy Custodian had rejected their application and they had filed appeal before Additional Custodian of Evacuee Property, but even he did not provide any relief to the petitioner No.1 in respect of their prayers but merely made an observation that it was open to the petitioners to move the Settlement Authorities. This observation was hardly of any consequence as the Additional Custodian of Evacuee Property did not even forward the application of the petitioners to the Settlement Authorities as was done in the case of Nazar Ali. The order of the Addl. Custodian of Evacuee property was consequently almost similar to the order of the Deputy Custodian of Evacuee Property. But the petitioners never felt aggrieved against the order of the Additional Custodian of Evacuee Property and did not move the Custodian of Evacuee Property in revision against that order. Even in the High Court the petitioners did not pray for declaring the order of Additional Custodian of Evacuee Property to be without lawful authority.
Therefore, they are quite satisfied with that order.
30. Once the petitioner No.1 was satisfied with the order of Additional Custodian of Evacuee Property and have allowed it to assume finally then why do they feel aggrieved against the orders of the Deputy custodian of Evacuee Property and Custodian of Evacuee Property which are not materially different in effect with the order passed by the Additional Custodian of Evacuee Property.
31. The Custodian has passed a very short order. The operative portion of the said order is only to the following effect:- "This application cannot be entertained by the Custodian Authorities. It is disposed of accordingly."
' If the Custodian by the expression "this application" refers to the application made before him by the respondent No. 1 to 4 and 8 then this order means that he had disposed of their revision application as incompetent and has maintained the orders of the Deputy Custodian and Additional Custodian of Evacuee Property and in that case the petitioners can hardly have any grouse as the Custodian has not provided any relief to the opponents of the petitioners in the operative portion of the order and has in effect dismissed their revision application.
32. But if the operative portion of the order of the Custodian referred in the above para. is read as referring to the original application made by the petitioners themselves then, again the operative part of the order of Custodian only means that he is agreeing with the Deputy Custodian and Additional Custodian of Evacuee Property that the application of the petitioners was incompetent and he is thus not passing any fresh order against which the petitioners can feel aggrieved. The operative part of the order of the Custodian being similar to the order of the Additional Custodian of Evacuee Property, which the petitioners have never challenged, the petitioners cannot in fairness challenge the operative part of the order of Custodian who has merely maintained the order of the Additional Custodian of Evacuee Property and hence to this extent the petition appears to be uncalled for and incompetent. may be stated that the order of Deputy Custodian of Evacuee Property was in effect similar to the order of Additional Custodian and had in fact merged in that order.
33. Let us now analyse the other parts of the order of the Custodian of Evacuee Property. Custodian had observed, "It is admitted position that this property has not been declared or treated as evacuee property from 1-1-1957". No exception can be taken to this observation as it is admitted position that the .property in question was never declared as Evacuee Property till 1-1-195'7.
Custodian then proceeds "and it is also admitted that it has not been allotted or transferred by Settlement Department, nor could they transfer now". Even this portion to the extent of facts is a correct statement of fact as the property had remained unallotted till the application was filed by the petitioners. Therefore, this factual part of the observation by the Custodian is again unexceptionable and cannot be challenged. Then Custodian referring to the Settlement Department observes. "Nor could they transfer now". This portion is a mere expression of unsolicited opinion and it is not binding upon the Settlement Department or upon the petitioners or respondents as the Custodian cannot bind any person with his opinion on a point which is not within his jurisdiction. The application for transfer by Settlement Authorities had to be disposed of on its own merits. Moreover mere observations of the Custodian do not have the binding effect like the observations of the Supreme Court which have been held to be binding upon the other Courts.
Therefore, the petitioners can hardly sustain a petition for a declaration that certain observations of the Custodian are without lawful authority when in fact those observations do not have a binding effect. Such an exercise would be futile and_ hardly deserving the use of the extraordinary constitutional powers of the High Court. These observations of the Custodian are not of any consequence and could be ignored by the Settlement Authorities. The last observation of the Custodian was, "this question is purely a matter of civil nature, for which the parties can approach the proper forum": These observations are again of no consequence as the Custodian has no jurisdiction to tender advice to the parties as to what they should do, nor the Custodian has any business to suggest forums to the parties. These are mere innocuous remarks which are neither here nor there, and they are certainly not decisive of the matter and hence they cannot provide any basis for filing a constitutional petition. No body can feel aggrieved with such remarks and hence the petition is not competent to this extent.
34. The net result appears to be that the petitioners having failed to challenge the order of Additional Custodian of Evacuee Property they cannot challenge the order of the Deputy Custodian of Evacuee Property which had merged in the unchallenged order of the Additional Custodian of Evacuee Prop.'ty and similarly the petitioners cannot be allowed to challenge the order of the Custodian of Evacuee Property as the same is similar to the order of the Additional Custodian of Evacuee Property to the extent of the operative' part of the order. If any part of the observations of the Custodian is challenged then the challenge is uncalled for because the observations noted above of the Custodian have no binding effect upon anybody and they should have therefore, been ignored by the petitioners. The petition, therefore, is not competent and deserves to be dismissed.
35. This Petition is not directed against the Settlement Authorities and, therefore, no direction or declaration can be claimed against them in respect of petitioners' claim of transfer of the disputed property. In fact I do not find anywhere a mention whether the petitioner No. 1 had applied to the Settlement A authorities for the transfer of the disputed property. It is only the petitioners Nos. 2 to 12 who have alleged that they applied for allotment of the property but even they had not applied individually but through committee of tenants. However, I do not intend to comment on that aspect of the case as the same has not received consideration from. the competent authority and dispute of allotment is not. before me. I do not want to express an opinion or to tender any advice, but if the petitioners can really sustain their applications before Settlement Authorities for transfer, then they may try their luck there on the basis of Nazar Ali's case.
36. In view of the above discussion the submission of Mr. Khalid Ishaq, that Revision before Custodian was incompetent as it was filed by dead persons, is hardly of any consequence.
Moreover the revision was filed by 3 other persons as well whose existence is not denied.
37. In respect of the submissions made by Mr. Ali Ahmed Fazeel that the property could not be declared as enemy property as definition of Enemy Property under rule 172/4 of Defence of Pakistan Rules, 1971 did not include evacuee property, it is sufficient to state, at this stage, that the property having never been treated as evacuee property, the same could, prima fade, be declared as enemy property as the L alleged 50% owners known up to that time were the residents in India.
Whether it can now be treated as evacuee property is a difficult question to answer particularly in view of the fact that the petitioners did not pursue diligently their application under Order XXXIX,'rules 1 and 2, C.P.C. against transfer of property by respondents Nos. 1 to 4 and 9, to respondent No.
8. Further difficulty in the way of the petitioners is that sale-deed is by the non-evacuee co-sharers to the extent of one-half and, therefore, to that extent the sale cannot be challenged.
38. With the observations the petition is dismissed.