1. ' By this judgment the following petitions shall be disposed of:- ' Constitutional Petition No.S.1191/74, {{TABLE}} ft rt 1256/74, It It " 1257/74, II II a 1429/74, tt 11 1287/74, ti 1176/74, {{TABLE}} ' In all these petitions the order of the Custodian, the respondent No.1, dated 27-6-1974 has been challenged, whereby the application for confirmation of exchange under sections 16 and 17 of the Ordinance XV of 1949 originally filed by late Haji Muhammad Ishaq in respect of properties of which petitioners claim to be the transferees from the Settlement Department has been granted.
2. ' In petition No.S.1191/74 the peitioners have stated that evacuee plots bearing No.G.R.E 664/1,2 & 3 situated at Karachi were purchased by the petitioners in an auction held on 11-6-1960, by the Settlement Authorities at Karachi. On approval of the auction and on payment of the auction price P.T.O. dated 27-8-1962 was issued in the peitioner's name. However, during 1965 the petitioners Nazim was made a respondent in the proceedings which had been initiated on behalf of Muhammad Ishaq under sections 16 and 17 of the Ordinance XV of 1949 with regard to an exchange allegedly made by him on 1-5-1961 at Delhi for his land measuring 4,65,000 sq. yards out of a big plot in an area known as Kharera New Delhi with Karachi Evacuee Property belonging to Paradab Dayal Das and three other Hindu evacuees permanently settled in India.
3. ' In Petition No.1256/74 the petitioners are displaced persons and on 28-7-1948 they purchased plot bearing No.A M 281 III-B-18, Karachi, measuring 960 sq. yds. with possession in their firm's name known as International Trade Agency from its original owner Balram Dayaldas while he was at Karachi, and was a Pakistani citizen, and had not migerated to India. It is alleged that the sale was confirmed by an order of the Additional Custodian dated 13-5-1951, and a charge of Rs.25,575/9/7 was created on the property.The petitioners thereafter, sold out 2/3 share in the charge to Muhammad Yasin. Again on 20th September, 1960 the parties entered into another agreement to settle their shares and got the said plot transferred jointly in their names under P.T.0 dated 5-11- 1960 and obtained the transfer order dated 14-6-1974 in the same manner. These petitioners were also made parties in the proceedings filed by late Muhammad Ishaq as stated above.
4. ' In Petition No.1257/74 the petitioner's predecessor-in-interest and mother late Qamar Jehan was a claimant displaced person and being in possession of a portion of evacuee house bearing No.C.S. No.G.R.E-530/1 Gurumandar, Karachi applied for its transfer under scheme No.1 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The other occupant of the house had also applied for transfer, and the matter remained under litigation which resulted in a settlement whereby it was agreed that half of the house in possession of Mst. Qamar Jehan be transferred to her, and the other half be transferred to the other occupant. Accordingly transfer price was paid and P. T. D. dated 25-3-1964 was issued in their names. In 1967 notice of proceedings initiated by late Muhammad Ishaq was published in Daily Dawn to which Mst. Qamar Jehan joined as respondent No.5. During the pendency of those proceedings Mat. Qamar Jehan by a registered deed transferred her half share to the petitioner which was duly notified to the Additional Custodian.
5. ' In Petition No.1429/74 petitioner No.2 was a partnership firm of Sh. Muhammad Yaseen the predecessor-in-interest of petitioner No.1 (a) to 1 (h). Under an agreement of sale, dated 30th August, 1948 he agreed to purchase plot No.A.M.281 measuring 960 sq. yards situated in the Artillery Maidan Quarter from its Hindu owner Balram Diyaldas respondent No.14 who is alleged to be present in Pakistan at that time and had not migrated. In pursuance of the agreement, the petitioner No.2 obtained possession and raised permanent construction at a sub stantial investment. The agreed price was Rs.60,000 and since the petitioner No.2 had not paid 80% of this price, permission for filing a suit for Specific Performance was refused, but by order dated 13-11- 1956 a charge for Rs.25,575/9/9 with interest at 6% was created in favour of the petitioner No.2. The original petitioner No.1 & 2 entered into an agreement under which Sheikh Muhammad Yaseen purchased 2/3 share of the charge so created and the Additional Custodian (Judi.) by order dated 29-7-1954 allowed Muhammad Yaseen's name to be substituted as holder of 2/3 of the charge created on the plot in place of International Trading Agency. The petitioners have alleged that they have made additions and alterations paid taxes, and are in continous possession and occupation of the building. A P.T.O., dated 5-11-1960 was issued in the joint names of Muhammad Yaseen and M/s. International Trading Agency. In 1965 Muhammad Yaseen came to know of the proceedings and claim made by late Muhammad Ishaq the predecessor in interest of the respondent No.2 to 11 and on their application they were impleaded as party in the said proceedings before the Custodian.
6. ' In Petition No.1287/74 the petitioner's predecessor in interest and father late Haji Munshi Raza Khan was a displaced person and being in possession of evacuee house bearing No.CS No.GRE/530/1 Gurumandar, Karachi applied for its transfer under settlement scheme No.1, However, Mst. Qamar Jehan the other occupant of a portion also made a claim resulting into a litigation which ended in a settlement whereby half of the portion was transferred to him. Accordingly on 25-3-1964 P.T.D for their separate shares was issued. In 1967 notice of proceedings initiated by late Haji Muhammad Ishaq was published in Daily Dawn, inviting the transferees of the subject property to join the said proceedings. The petitioner therefore, joined proceedings as respondent No.6 before the Custodian.
7. ' In Constitution Petition No.1176/74 the petitioner is a statutory Body established under the provisions of West Pakistan Cooperative Board Dissollution Act II of 1966 as successor of West Pakistan Cooperative Development Board Lahore. Plots bearing Nos.267, 268, 269, 288, 289, 290 and 291 situated at Victoria Road, now known as Abdullah Haroon Road, Karachi were acquired by the Government of Pakistan under Notification No.F/6(6) 57-P-II dated 8-2-1957. In the records of right Hindu evacuee Bhai Partab Diyaldas was recorded as the owner of these plots. The said plots were transferred to K.D.A., who constructed building thereon known as "Super Market Building". K.D.A. transferred the said building to West Pakistan Cooperative Development Board which paid on 25- 4-1963 a sum of Rs.15,74,500 being the cost of super structure. The petitioners also paid transfer price, interest and settlement fee in respect of these plots amounting to Rs.10,25,762.50, Rs.1,25,905 and Rs.5,109 respectively to the Settlement & Rehabilitation Commissioner. The petitioners were therefore, joined the proceedings initiated by late Haji Muhammad Ishaq which inter alia related to these plots. All these petitions were originally filed against the official respondents and legal heirs of late Haji Muhammad Ishaq. In petition No.1429/74 besides the aforestated respondents the Hindu evacuees have also been joined as respondents. During the pendency of these petitions the legal heirs of Ghulam Aulia filed application for joining them as respondents which was granted on 6-11-1977. Thereafter, certain respondents died whose legal heirs have been brought on record.
8. ' The facts of the procedings filed by late Haji Muhammad Ishaq in which the petitioners in the aforestated petitions were joined as respondents are as follows:- ' Late Haji Muhammad Ishaq through his attorney Haji Hafeezuddin filed an applicatiqn under sections 16 and 17 of the Ordinance XV of 1949 before the Deputy Custodian Evacuee Property, Karachi on 14-6-1951 for permission to get the Exchange Deed registered which he had entered with Bhai Partab Dayal Das, Kashab Lakumal Kriplani, Balram Dayaldas and Radhabai Naraindas Manwani on 1-5-1951 at Delhi and for its confirmation. It was alleged that he was the owner of a big plot of land measuring 11 lacs sq. yards situated at New Delhi in the area known as Kharera. Out of this property he exchanged 4,65,000 sq. yards with Bhai Partab Dayal Das and three other Hindu evacuees who are permanently settled in India. It was stated in the application that the Hindu evacuees have executed a general power of attorney in favour of his two relations to act on their behalf. It was further stated that price of Delhi land was Rs.9,75,000 while the Karachi property was evaluated at Rs.9,00,000. Muhammad Ishaq alleged that he received Rs.75,000 in cash and delivered the possession to those evacuees.The particulars of the Karachi Properties which were exchanged and were subject-matter of the application are as follows:-
(a) Open plots of land bearing S. Nos. 267, 268, 280, 289, 290 and 291. Sheet No.A.M. of Artillery Maidan Quarter, Victoria Road, Karachi.
(b) Bungalow at Survey No.120 J.M. Quarter, Muhammad All Jinnah Road, Karachi.
(c) Two bungalows bearing S.No.530/1, 530/2 Sheet G.R.E. Garden Quarter, Karachi.
(d) A plot of land bearing S.No.664, Sheet Garden East, Jail Road, Karachi".
9. ' The Agreement of exchange was made at Delhi on 25-12-1949, the Deed of Exchange was executed on Ist May, 1951 and registered on 5-5-1951. A certified copy of the general power of attorney executed by the Hindu owners in favour of the relations of the applicant was stated to have been filed with the application. On 15th June, 1951 the said attorney of the Hindu evacuees filed a written statement before the Deputy Custodian admitting the applicant's claim for confirmation of the exchange and the registration of the deed of exchange. The application was opposed by the Pakistan General Hawkers Union (Registered) Saddar, Cloth Market, Karachi, who contended that the transaction contravened in the Notification dated 10-1-1950 under Ordinance XV of 1949 as amended by Notification dated 9th April, 1951 restricting the transfer of evacuee property. It was also averred that on the dates when the agreement of exchange and deed of exchange were executed. Haji Muhammad Ishaq was not a refugee, nor his property situated in New Delhi evacuee property and that permission for the registration of the deed of exchange by the Custodian of the Evacuee Property Delhi was obtained by misrepresentation and supression of material facts. Four other persons namely M.Muhammad Ahmad, Shamsul Haq, Muhammad Faizuddin Rahmani and S.Khalil-ur-Rahman who were in possession of the vacant plot bearing survey Nos.288, 289' and 290 raised objections as those of Pakistan General Hawkers Union. On 4th March, 1952 late Haji Muhammad Ishaq replied to both the objections and asserted that objectors were not parties to the proceedings, and they had no locus standi to object the confirmation of the exchange. During the pendency of these proceedings, the learned Dy. Custodian ordered late Haji Muhammad Ishaq to produce (1) the requisite income-tax clearance certificate, (2) Notification in the official Gazette of the property in India having been treated as evacuee property prior to transaction, copy of Certificate permitting registration of exchange in India, Notice under sub-rules
(4) & (5) of rule 20 the Indian Evacuee Property Rules, (5) Certified copy of order confirming transfer of property in Indian, and (6) affidavit to the effect that the property in India was not declared as non-evacuee subsequent to the Notification, and that the same has not been released or restored since then. As Haji Muhammad Ishaq could not produce all these documents and absented himself for one reason or the other, the learned Deputy Custodian on 22-11-1962 dismissed the application. Haji Muhammad Ishaq went up in appeal to the Additional Custodian (Judl). The appeal remained pending for more than one year and was dismissed on 28-4-1953 on the ground that in essence the application before the Deputy Custodian of Evacuee Property was under section 17 of 'the Ordinance for the grant of a certificate for the registration of a deed of exchange and no appeal lay from that order. Haji Muhammad Ishaq invoked the Revisional Jurisdiction of the Custodian Evacuee Property, Karachi. The petition was dismissed by Mr. Mansoor Alam, the then Custodian of the Evacuee Property who affirmed the view expressed by the Additional Custodian. However, by an order dated 21-12-1954 Mr. Mansoor Alam suo motu issued notice to the Rehabilitation Commissioner, Karachi and to the parties to appear before the Deputy Custodian of Evacuee Property, to show cause as to why the order dated 22nd November, 1962 dismissing the application for confirmation of the Exchange deed and its registration may not be revised. In the order it was observed that although at the time when the Deputy Custodian passed the order there was every justification for it, but the position has since then changed, and the policy in the matter of such exchange has been relaxed. The learned Custodian placed reliance on the Notification dated 30th August, 1954 whereunder the exchange in question was not restricted and could be considered for confirmation.
10. ' After the issue of notice the hearing of the case was fixed on 1-3-1955 which continued to be adjourned and eventually arguments were heard on 13-10-1956 and order was reserved. On 30-10- 1956 Mr. Mansoor Alam the learned Custodian passed an order that in view of the contention of Haji Muhammad Ishaq that the exchange is not prohibited under law a reference shall be made to the Central Government. He accordingly made a reference to Mr. Y.A. Khan the Deputy Secretary by means of which he made a querry to the Ministry of Refugees and Rehabilitation, as to whether the exchange in question between the Urban Property in Karachi and the agricultural land in Delhi should be allowed or not. It was pointed out that the latest Notification restricting such transactions was silent and that is why clarification of the Central Government was sought. On 14-12-1956 Mr. Y .A .Khan referring to Notification dated 10-4-1956 replied that the Ministry has no objection to the confirmation provided it is otherwise unobjectionable. In the meantime Muhammad Ishaq had in support of his claim placed before the Custodian a copy of the deed of exchange and a copy of the order of the Deputy Custodian (General) Punjab Lahore dated 5-12-1955 in appeal No.3/54 whereby a similar exchange was confirmed in his favour by Mr. Abdul Majeed Asghar. On 2-3-1957 Mr. Muhammad Buksh A.Memon who had succeeded Mr. Mansoor Alam passed an order observing that under Notification No.F-9(4) 56-B, dated 11-4-1956 transfer of any urban immovable evacuee property by exchange with such immovable property which has not been treated as evacuee property under any law for the time being in force in India is prohibited, but there was no prohibition whatsoever for transfer by exchange of urban immovable evacuee property in Pakistan with any agricultural property in India. According to the learned Custodian the exchange was valid and must be confirmed, and that he would have immediately set aside the order of the Dy.
11. Custodian dated 22-11-1952 but another complication had arisen in the meantime namely the open plots situated in Saddar had been acquired by the Central Government for constructing a multi-storeyed building to rehabilitate the refugees. He accordingly thought it fit to stay his hand till the matter was clarified by the Government as granting, sanction for the exchange would have obstructed the construction and rehabilitation work. With regard to the remaining property involved in the exchange the learned Custodian thought that there will be no objection to sanction the exchange and to issue the requisite certificate for registration of the exchange deed, but as the deed was a consolidated one, he cannot pass order piecemeal because the deed of exchange was one and could not be vitiated. For these, reasons he postponed the announcement of the final order in the case; for a week. Haji Muhammad Ishaq challenged this order in Writ Petition No.131/57 which was dismissed on 14-6-1958. Haji Muhammad Ishaq filed Latter's Patent Appeal against the judgment passed in the Writ Petition. During the hearing of the appeal a statement was filed on behalf of the Custodian and Government of Pakistan in which it was stated that if Haji M. Ishaq withdrew the appeal and moved the Custodian to decide the pending Revision Petition No.239 of 1955 the Custodian will hear and decide the matter according to law not influenced by any observation contained in judgment passed in the Writ Petition No.131/75. Upon this statement Haji Muhammad Ishaq withdrew the appeal which was dismissed on 10-4-1963.
12. ' In the year 1965 the matter came before the learned Custodian and he directed late Haji Muhammad Ishaq to implead the transferees of Karachi properties. Some of the transferees were joined but some other were left out. In the meantime the learned Custodian was replaced by another Custodian Mr. Manzoor Elahi and he took the view that the learned Dy. Custodian while passing the order dated 22-11-1952 did not allow late Haji Muhammad Ishaq to produce evidence and this by order dated 26-5-1967 remanded the case to the Additional Custodian, Karachi for disposal with direction that parties be given opportunity to lead evidence. When the matter came up before the learned Additional Custodian, a notice was published in Daily Dawn and served other transferees of Karachi properties joined the proceedings as respondents and submitted their objections. Before the Additional Custodian documents were produced and statement was recorded. Hafeezuddin son of Fariduddin, Salahuddin son of Ghulam Aulya, Abdul Rahman and Haji Muhammad Ishaq who was suffering from disability and was unable to speak were examined. The learned Additional Custodian by his order dated 28-2-1974 refused to confirm the exchange on the ground that despite repeated orders respondents Nos. 3 to 10 did not produce the claim verification order passed in favour of late Haji Muhammad Ishaq by a competent authority under the provision of Registration of Claims (Displaced Persons) Act of 1958 and it was presumed that he must have got the subject land also included in the claim filed by him. Both the parties challenged this order before the Custodian. In those proceedings the respondents instead of producing the claim verification order in favour of late Haji M.Ishaq produced the verification order passed by the Deputy Claims Commissioner, Karachi in favour of the legal heirs of Ghulam Aulia including Salahuddin for the properties of late Ghulam Aulia, and it was stated that late. Haji Muhammad Ishaq had not filed any claim at all. From this order of claim verification dated 27-8-1959 it transpired that the land in New Delhi actually belonged to Ghulam Aulia and late Haji Muhammad Ishaq and Muhammad Suleman were benami owners. This was also confirmed by late Haji Muhammad Ishaq before the claim authorities. The learned Custodian therefore, dismissed the Revision Application filed by the petitioner and allowed the Revision of the respondent i.e. the legal heirs of the Muhammad Ishaq and confirmed the exchange by the impugned order dated 27-6- 1974.
13. ' Mr.Maroof Ali Khan the learned counsel for the petitioners has contended that in the absence of any documentary evidence to show that Haji M.Ishaq was the owner of the New Delhi property, exchange with the evacuee property of Hindus at Karachi was not competent. In this regard the learned counsel has referred to the evidence produced before the Additional Custodian in which Khasra and Khatoni were produced. According to the learned counsel as it is authenticated by the High Commission of Pakistan in India as required by sections 78 and 84 of the Evidence Act, it is not admissible in evidence. The same objection has also been raised in respect of certified true copy of the exchange deed registered with the Registrar at New Delhi. The learned counsel contended that Khasra and Khatoni are public documents and unless the same are proved in terms of the provisions of the Evidence Act they cannot be accepted in evidence before a Court or Tribunal. The learned counsel has referred to Muhammad Usman v. Lal Muhammad PLD 1975 Kar. 352 where in an appeal from the judgment of the Election Tribunal, the question came for consideration about the admissibility of birth certificate which was issued by the Ajmer Municipality and because the same was not authenticated in terms of sections 78 (6) of the Evidence Act, it was held to be inadmissible. In M/s. Bengal Friends & Co. v. Gour Benode Saha & Cc. Calcutta and another PLD 1969 SC 477 the copies of extract from the Register of Miscellaneous. Cases mentioned in the Court of Third Presiding Magistrate Calcutta pertaining to a criminal complaint were held inadmissible, as they did "not bear certificate of genuines and accuracy by a Represen tative of the Government of Pakistan in India as required by section 86 of the Evidence Act". With regard to copies of application for export of Coeltar to East Pakistan in 1948 and licences for export purported to have been granted by the Government of India, as well as two telegrams received from some customers in East Pakistan it was observed that they "stand at still lower footing as they are not copies of any judicial record, and could not be received in evidence without proof of signature and handwriting of persons alleged to have been signed or written them as required by section 67 of the Evidence.
14. Act".
15. ' Mr. Muhammad Sharif the learned counsel has contended that the proceedings before the Custodian are not governed by the provision of Evidence Act, and the same is not applicable, and therefore, for any non-compliance of the provisions of the Evidence Act, the order cannot be said to have been passed without lawful authority. The learned counsel relied on Mst. Moselle Ellias v.
16. Khawaja Ahmed Said PLD 1959 Kar. 760 where it was held that "section 86 of the Evidence Act does not relate to 'the admissibility or otherwise of a copy of a judicial record of a foreign country. It merely enables the Court to raise a presumption that judicial record of a foreign country is genuine and accurate if it bears a certificate as required by that section". It is thus plain that the genuineness of the record is certainly capable of being proved by other means. The absence of the certificate merely excludes the raising of a presumption. The section nowhere says that a copy of judicial record of a foreign country is not admissible in evidence, unless it bears the certificate as required by it". The documents which have been questioned are not judicial records. They are public documents, and were produced to establish that the land was in the name of Muhammad Ishaq. In fact the land was recorded in the name of Muhammad Ishaq but from evidence it is established that he was benami of Ghulam Aulia. The fact that his name was on record seems to have been established by the private respondents by producing oral evidence also. The Additional Custodian and the Custodian have accepted this evidence and have not given finding that he was not competent to file this application for exchange. In Muhammad Usman's case although it was held that the copy of the birth certificate was not admissible in evidence, the Court considering the fact that oral evidence of the applicant's father including a medical certificate of X-Ray Specialist to prove the age at the relevant time was accepted by the Court below, it was observed that determination of age is a question of fact, and if the learned Judge relying on other evidence on record given its finding it cannot be vitiated in that proceedings, which was in the nature of second appeal. Somewhat similar situation has arisen in the present case. Whether Muhammad Ishaq's name appeared in the records of rights or not is purely a question of fact. On the basis of evidence on record which included the oral testimony of witnesses, the order of verification of claim, which makes reference to the order of the Collector, in 1939, the registered deed of exchange supported by the witness before whom it was executed the Additional Custodian and the Custodian have given finding in favour of the respondent. The proceedings Constitutional Petitions are completely different from appeal, and finding of fact, unless they are found to be completely perverse and not based on any evidence at all cannot be disturbed. As the finding is no A solely based on the inadmissible documents, but on other evidence on record, neither such a finding can be struck down nor the order can be said to have been passed without lawful authority.
17. ' The other leg of argument challenging the competency of Haji Muhammad Ishaq is that he and Suleman are the benami of Ghulam Aulia who was the real owner of the property. In this regard Mr. Maroof All Khan the learned counsel for the petitioners has referred to the Verification Order and stated that in 1939 land was declared to belong to Ghulam Aulia and Muhammad Ishaq and Suleman were held as benamidars. He further stated that Muhammad Ishaq is nephew of Ghulam Aulia and that he and Suleman not his legal heirs, therefore, these persons have no title on the land. According to the petitoners themselves Ishaq was a benamidar, therefore, his name would have appeared in the record of right, although it is a different question, whether he was a real owner or not. The petitioners have not produced any evidence to show that Haji Muhammad Ishaq had ceased to exercise any authority on the property or that he had been dispossessed or Ghulam Aulia had at any time objected to the Benami character and possession of Muhammad Ishaq. In fact the son of Ghulam Aulia has appeared as witness and did not object to the application filed by Haji Muhammad Ishaq, but supported the application for confirmation of exchange. Mr. Muhammad Shari! the learned counsel for the respondent has contended that a benamidar could enter into a transaction of exchange and even sell the property. A benamidar is a ostensible owner and has title to the property. In this regard the learned counsel has referred to Narain Roy and others v. Hanumantram A I It 1930 Nag. 273, where it was held that "a benamidar or an ostensible owner can by transfer pass a good title to the property in the transferee admits of no doubt.
18. Section 41, Transfer of Property Act expressly recognises such transfers to be valid and not voidable on the ground that the transfer or was not authorised to make the transfer 'provided that's transferee after taking reasonable care to ascertain that the transferor had power to make the transfer has acted in good faith". It was further held that a benamidar was entitled to file a suit for recovery of the amount on the basis of mortgage. Reliance was placed on Gurnarain v. Sheo Lal Singh AIR 1918 P C 140, Bhola Parsad v. Ram Lall I L R 24 Cal. 34, Raoji v. Mahadev I L R 22 Bom. 672 and Yad Ram v. Umroo Singh I L R 21 All.
380. it is well-settled that a Benami owner is an ostensible owne of the property apparently enjoying all the rights, incidents, and privileges of a real owner with his implied or express consent such person can sell, mortgage, or transfer the property and even file suit for claim arising out of or relating to such property, provided the transferee has acted with care and in good faith. In the present case the evacuee owner of the property at Karachi have not objected to the title or the claim of Haji Muhammad Ishaq. Even the real owners have not challenged his action, and therefore, it is not possible for the petitioner to challenge the deed of exchange on this ground.
19. ' The next contention of the petitioner was that the transaction of exchange was made at Delhi by a Muslim with Hindu in respect of the property owned by him in Pakistan who had migrated to India, and therefore, in view of the prohibition under law, the application could not be granted. The facts are that agreement of exchange was made at New Delhi on 25-12-1949. The deed of exchange was executed on 1-5-1949 and it was registered on 5-5-1951 at New Delhi. The learned counsel for the petitioner first contended that Pakistan (Dealing in Immovable Evacuee Properties) Ordinance XI of 1949 prohibited any sale, proposal for sale, exchange or other dealings relating to any immovable evacuee property and any agreement made before the promulgation of this Ordinance or during its currency was not to be accepted and such agreement executed or registered in contravention of this Ordinance was to be null and void. This Ordinance was enforced on 26-7-1949 for a period of two months and the Central Government was authorised to extend this period by Notification for another period or periods not exceeding two months at a time.
20. ' Mr. Maroof All Khan as referred to the Notifications issued from time to time from which it seems clear that the last Notification was issued on 8-12-1949 extending the life of the Ordinance for a period of one month beginning from 11-12-1949. It may be noted that Ordinance XV of 1949 was enforced on 15-10-1949.
21. ' Mr.Muhammad Sharif the learned counsel for the respondents contended that as the Ordinance was a temporary, legislation with the efflux of time it died its natural death. The learned counsel has referred to the case of Muhammad Sharif PLD 1960 Lah. 236 where it has been held that where a temporary statute expires it is deemed never to have existed except for transaction past and closed and even section 6 of the General Clauses Act does not apply to temporary legislation.
22. Ordinance XI of 1949 came to an end on 10-1-1950. The prohibition under Ordinance XI of 1949 expired with the life of the Ordinance itself. The deed of exchange was executed on 1-5-1951 and registered on 5-5-1951 i.e. after the expiry of the Ordinance, therefore, the prohibition imposed under Ordinance XI of 1949 cannot be applied to the deed of exchange. By that time Pakistan (Administration of Evacuee Property) Ordinance XV of 1949 had come into force which governed the field. It has therefore, to be examined whether the deed of exchange was hit by the provision of Ordinance XV of 1949. In this regard reference can be made to section 15 which provided that the Central Government by notification declare the area and period during which sale, creation of interest or encumbrance of any property shall be prohibited and except with the prior approval in writing of the Custodian no such transaction shall be made during the prohibited period. In this regard Notification dated 10-1-1951 was issued which prohibited transfer of properties. The transfer and exchange prohibited by the Notification reads as follows:- "(2) Transfer of any urban immovable evacuee property, and such urban immovable property as a person intends to alienate in anticipation of his becoming an evacuee.
(b) by exchange, with such urban immovable property as is not treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or if it is so treated, is not situated in any of the following areas, namely: ' The Province of East Punjab, Himachal Pardesh, Delhi.........................
23. ' At the time when the deed of exchange was made between the parties and application for its confirmation was filed this Notification was in operation. This Notification was considered by the learned Custodian and it also fell for consideration in Writ Petition No.131/57 where Yaqoob Ali, J. (as he then was) observed that: "If there was an exchange between any kind of the properties situated in West Pakistan with agricultural property situated in India or the aforesaid Provinces of India, there was no bar to it, under the notification. This was possibly a lacuna in the Notification and continued to be repeated, in a number of subsequent Notifications until it was removed in the latest Notifi cation dated 6-4- 1957. In the last mentioned notification the word 'urban' has been dropped so as to include all kinds of immovable properties with its perview."
24. ' This being the nature of prohibition at the relevant time, it has to be considered, whether the property of the respondent at New Delhi was an agricultural property. It is correct that in the application under sections 16 and 17 filed before the Custodian, the nature of the property has not been stated at all. However, in the deed of exchange it is clearly mentioned to be an agricultural property, and its particulars are given in Schedule 'A' to the deed. It is thus clear that the prohibition imposed under law could not be a bar to the exchange.
25. ' The learned counsel for the petitioner contended that as the deed of exchange was neither executed nor registered in Pakistan, the same could not be confirmed. In this regard reference has been made to the Custodian Evacuee Property West Pakistan, Lahore v.Rais Ghazi Muhammad PLD 1973 SC 537. In this case property was purchased in Pakistan by an unregistered sale-deed dated 6th June, 1947 written on 2 Anna non-judicial stamp paper. It was held that the document in question could not be received in evidence as it offended the provision of section 54 of the Transfer of Property Act and therefore, the transfer could not be confirmed by the Custodian. In the present case, the Deed of Exchange was executed at new Delhi and was registered there. Haji Muhammad Ishaq had filed application seeking permission to register it, in Pakistan. Therefore, in my opinion, the authority cited is not applicable to the present case. The learned counsel for the petitioner has not shown any provision of law under which a conveyance deed or document creating any interest in immovable property in Pakistan can not be executed outside Pakistan: The restriction imposed by the Registration Act is that document which should be compulsorily registere under section 17 should be registered in Pakistan within a specifie date. Section 23 provides that subject to sections 24, 25 and 26 document other than a Will shall be accepted for registration provided it is presented for that purpose within four months of the date of it execution. Section 24 deals with cases where several persons execute document at different times, such document may be presented fo registration within four months from each execution. Under section 25 an extension upto four months may be granted provided due to urgen necessity or unavoidable accident, the document could not be presented within the specified period. The extension is restricted to a period o four months only and on payment of fine. Section 26 is the relevant provision which deals with documents executed outside Pakistan affecting immovable property situated in Pakistan. It reads asunder; .26, "When a document purporting to have been executed by all or any of the parties out of (Pakistan) is not presented for registra tion till after the expiration of the time herein-before prescribed in that behalf, the registering officer, if satisfied--
(a) that the instrument was so executed, and
(b) that it has been presented for registration with in four months after its arrival in (Pakistan), may on payment of the proper registration fee, accept such document for registration."
26. 'A bare reading of this provision makes it plain that it admits for registration documents executed outside Pakistan effecting immovable property situated in Pakistan. It does not require fresh execution in Pakistan. The pre-condition for registration of such documents are that the registering officer has to satisfy himself that the party or parties have executed it and it has been presented for registration within four months of its arrival in Pakistan. Once these two conditions are satisfied the document may be registered irrespective of the fact that it was executed outside Pakistan.
27. ' Now reverting back to the facts of the case, it may be noticed that section 17 of Ord. XV of 1949 had placed a bar on the registration of a document dealing with evacuee property. Haji Muhammad Ishaq therefore, filed application under sections 16 and 17 for confirmation of exchange deed and issuance of certificate for its registration.
28. ' Mr. Maroof Ali Khan and Mr. Khalid M. Ishaque the learned counsel for the petitioners contended that the order for suo motu revision dated 21-12-1954 was illegal, and without jurisdiction, and therefore, all subsequent proceedings based on the said order were also without lawful authority.
29. Reference has been made to Yousuf Zai's case PLD 1958 SC 104 and Mansab Ali's case PLD 1971 SC 124. It may be recalled that while dismissing the Revision Application by order dated 21-12-1954 the learned Custodian by a separate order of the same date ordered for suo motu revision on a completely different ground namely that in view of the Notifications, it was possible to consider the respondent's claim for confirmation of exchange. The petitioners have challenged the jurisdiction of the Custodian on the grounds firstly that after the Revision Application was dismissed suo motu jurisdiction to revise could not be exercised and secondly, the suo motu proceedings did not survive the repeal of Ordinance XV of 1949. Mr. Muhammad Sharif the learned counsel has contended that considering the nature of the proceedings, the object of the legislation and the circumstances in which the Revision Application was dismissed, the learned Custodian had the jurisdiction to suo motu revise the order. The application was dismissed for non-prosecution, as according to the learned Additional Custodian the respondent was not able to produce necessary documents to substantiate his claim. The Revision against this order was also dismissed without considering the merits of the case. Section 36 (4) of the Ordinance XV of 1949 conferred revisional power in the Custodian. In Sun Green & Co. Ltd. v. Qamar Din Hashwani and others PLD 1958 SC 144 the purpose and object and the manner in which the Revisional Power can be exercised has been laid down as follows:- "The aim and purpose of the Evacuee Property Ordinance is wholly different. It is clear that the primary duty of the Custodian of Evacuee property is to place himself in possession of all evacuee property with the object that it should not be used in an unauthorised manner by unentitled persons, but that it should be applied by due process of law to the relief of distress among refugees and the rehabilitation of economic conditions in the country at large. For the due discharge of these functions it is essential that the Custodian should have the widest power that may be necessary for the ascertainment of what is and what is not evacuee property. It is unnecessary to emphasise the diffi culties which by the nature of the circumstances, or by the art and guile of those who are interested to retain evacuee property for their own illegal profit, might lie in the way of a Custodian in discharging his functions. It might require a series of proceedings before the truth might at last stand revealed."
30. ' In Sahib Rai's case PLD 1957 SC 63 the following observation was made on the jurisdiction of the Custodian to review conferred under Ordinance XV of 1949: "It will be seen that the substantive law does not require that for the purposes of review, a Custodian or an Additional Custodian should be moved by any party in that behalf. This was not to be expected, since these authorities do not exercise purely judicial powers. It will be evident from the fact that all evacuee property vests in the Custodian by virtue of section 6 of the Ordinance, that the power which he and his substitutes and subordinates exercise is essentially an executive power, for carrying out the purposes of the law, namely the ascertainment, seizure and administration of evacuee property.Bearing in mind the conditions which resulted from the sudden shifts of population between Pakistan and India which occurred in the immediately following the partition and that for the purpose of the exercise of the Custodian's powers, evidence of title to abandoned properties was not always readily available, it must necessarily be assumed that the provision for the review in section 36 of the Ordinance was intended to cover review by the Custodian acting suo motu on the basis of information coming to his notice otherwise than from parties directly interested in the properties in question."
31. 'It is thus clear that the Custodian has been vested with their widest possible powers of Revision and Review and he could himself initiate proceedings for suo motu revision if any fact material fo determination of a case comes to his notice. In the present case although the Additional Custodian had dismissed the application which order wa .confirmed by the Custodian as on the material before the Additions Custodian no other order could be passed, in view of the notification the learned Custodian perhaps thought that the case required reconsideration as for an exchange in respect of agriculatural propert in India there did not seem to be any prohibition. There is no bar in law that after exercising revisional power the Custodian cannot exercis his suo motu revisional jurisdiction.
32. ' The learned counsel for the petitioner referred to Khushi Ram Atmaram Jaisinghani v. Custodian of Evacuee Property and others PLD 1965 SC 453. In this case, the question before the Supreme Court was whether the Custodian.'s power of review under section 43 (6) of Act XII of 1957 which was taken away by Ordinance LXII of 1962 was still available in regard to pending proceedings. On construction of the saving clause in Ordinance LXII of 1962 it was observed that it clearly spelled out a different intention as according to it review application pending immediately before the promulgation of the Amending Ordinance remained unaffected, and therefore, the power of suo motu review was not intended to be saved. In the present case, Ordinance XV of 1949 was repealed by the Pakistan (Administration of Evacuee Property) Ordinance, 1956. This Ordinance was also repealed by Pakistan (Administration of Evacuee Property Second) Ordinance, 1956. Again by the Pakistan (Administration of Evacuee Property) Act XII of 1957, this second Ordinance of 1956 was also repealed. There is nothing in the repealing Ordinances or the Act XII of 1957 from which a contrary intention may be deduced that the pending proceedings are not saved. The rule laid down in Jaisinghani's case will not be applicable to the present case, which is completely distinguishable, as there the repealing provision of the Ordinance clearly showed the intention of the Legislature not to continue with the suo motu power of Review.
33. ' The learned counsel for the petitioner further contended that as the suo motu proceedings were not at the instance of any party no right is created in favour of any party, and therefore, after the repeal no party can insist on continuing the suo motu proceedings. In support of this contention reliance has been placed on Jaisinghani's case which as stated earlier and for reasons stated above is completely distinguishable. In my humble opinion the suo motu Revisiona proceedings initiated by the learned Custodian on 21-12-1954 wer pending at the time when the Ordinance. XV of 1949 was repealed an there being no intention to discontinue such proceedings, the same wa validly continued. Consequently the contention of the learned counse that all subsequent orders passed on the basis of the Order date 21-12-1954 are illegal, and void is not tenable.
34. ' Mr. Maroof Ali Khan the learned counsel contended that no Income-tax Certificate was filed by the respondents therefore, the exchange could not be confirmed. He has relied on Commissioner of Income-tax v. Ashfaq Ahmed and others PLD 1973 SC 406. The observations in this case do not support the petitioner's contention. It was also held that "in our opinion, there must be a subsisting certificate as required under section 20 (3) (a) (ii) of the Act 1957 corresponding to section 16 (3)
(a) (ii) of the 1949 Ordinance on the date when the confirmation is sought for or is granted". The respondents had produced an Income-tax Certificate dated 9-12-1968. The learned Additional Custodian after considering the evidence came to the conclusion that it was not a forged certificate. It was for a period of six months, but a the matter could not be decided within that period it expired. If th case would have been decided within six months possibly no objection could have been raised to its validity. Mere expiry of a valid certificat during pendency of the proceedings will not prevent the Custodian from confirming the transaction provided there is no other objection.
35. The acceptance of such certificate by the Custodian and Additiona Custodian does not render the impugned order illegal.
36. ' Mr. Maroof Ali Khan has contended that as the property has been acquired under section 3 of the Displaced Persons (Compensation. & Rehabilitation.) Act, 1958 the Custodian had no jurisdiction to decide the matter, and confirm the exchange deed. In this regard the learned counsel has referred to four Notifications issued by the Central Government which are reproduced as follows:-
(1) "S.R.O. 383, 8th August, 1949 (Gazette, Extraordinary, 8th August, 1959).-- In exercise of the powers conferred by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to acquire, with immediate effect, all evacuees properties within the Federal Capital other than--
(i) agriculatural land; and
(ii) the evacuee property for the acquisition of which proceedings under any law other than the said Act have been taken and are pending".
(2) S.R.O. 573, 30th November 1959, (Gazette, Extraordinary, 30th November, 1959).-- In exercise of the powers conferred by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to acquire, with immediate effect, all evacuee property (other than agricultural land) within the Federal Capital, with regard to which any proceedings were pending under the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), on the 8th August, 1959, and are not so pending on the date of this notification.
(3) S.R.O. 488 (K).--In exercise of the powers conferred by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958), the Central Government is pleased to acquire with immediate effect, all evacuee property (other than agricultural land) within the Federal Capital, with regard to which any proceedings were pending under the Pakistan (Administration of Evacuee Property) Act 1957 (XII of 1957), on the Ist December, 1959, and are not so pending on the date of this notification.
(4) S.R.O. 1816 (K).-- In exercise of the powers conferred by subsection (1) of section 3 of the Displaced Persons (Compensation and Rehabilitation, Act, 1958 (XXVIII of 1958), the Central Government is pleased to acquire, with immediate effect all evacuee property (other than agricultural land) within the Federal Territory of Karachi with regard to which any proceedings under the Paktstan (Administration of Evacuee Property) Act, 1957 (XII of 1957) were pending on the first day of May, 1960 or were commenced. On any date subsequent to 8th August, 1959, and have been finally disposed of before the date of this notification.
37. (Gazette of Pakistan, Extraordinary, dated 29-12-1960)."
38. ' The learned counsel for the petitioner further contended that as held in M. Ghulam Muhammad's case PLD 1966 Lah. 953 these Notifica tions read together lead to the conclusion that the subject properties were acquired.The First Notification dated 8-8-1959 acquires all evacuee properties within the Federal Capital with the exception of agricultural land. It also does not apply to evacuee properties which are subject-matter of pending proceedings which have been taken for its acquisition under any law other than the Displaced Persons (Compensation and Rehabilitation)
39. Act, 1958. The learned counsel for the parties have not produced the Notification dated 12-9-1959 which amends the notification dated 8-8-1959. In Nazarali v. Secretary Ministry of Rehabilitation 1973 SC N R 441 while referring to the Notification dated 8-8-1959 it was observed as follows:- "In accordance with the notification the property in dispute would stand acquired by the Government on 8th August, 1959. There was a subsequent notification of 12th September, 1959, which purported to be an amendment of the first notification and in which it was stated that property with respect to which any proceedings were pending before the Custodian would not be covered by the notification of 8th of August, 1959."
40. ' The petitioners, therefore, cannot press notification dated -8-1959 for ousting the jurisdiction of the Custodian as proceedings under Act XII of 1957 were pending.
41. ' The notification dated 30-11-1959 and subsequent notifications clearly demonstrate that tue evacuee properties which were subject-matter of any- proceeding under Act XII of 1957 were not acquired. Such properties were acquired progressively after the pending proceedings had terminated. The observation in Nazar Ali's case completely destroys the petitioner's objection. Even otherwise subsequent notifications completely nullify the effect of the first notification, so far it relates to pending proceedings specified in the subsequent notifications. Under section 21 of the General Clauses Act where a power to issue notification order or rule is conferred then that power includes the power to add, vary or rescind it. The first notification therefore, stands amended as stated above.
42. ' A close scrutiny of these Notifications issued from time to time makes it plain that the intention of the Government was not to acquire properties in respect of which any proceedings under Act XII of 1957 were pending. M. Ghulam Muhammad's case cited by the learned counsel for the petitioner is completely distinguishable. In that case the first Notification was issued in respect of land allotted under the Rehabilitation Scheme. The second Notification was issued in respect of all the evacuee land, therefore, it was held that the Notification issued earlier related to the land which had been allotted and the second Notification dealt with the remaining lands which were evacuee properties.
43. Here the Notifications are completely different in nature, and context and therefore the Rule laid down in M. Ghulam Muhammad's case is not applicable. In view of the Notifications governing the present case the evacuee properties in respect of which proceedings under Act XII of 1957 were pending were not acquired. In the present case proceeding was pending before the Custodian when Mr. Muhammad Bakhsh Memon passed the order on 2-3-1957 against which a Writ Petition was filed which was disposed of on 14-6-1958. Against this judgment Letters Patent Appeal was filed which was disposed of on 10-4-1963 on statement made on behalf of the Custodian. The case was taken up by the Custodian for hearing the pending revision who passed the order on 26-5- 1967 directing the Additional Custodian to hear the matter on merits which was ultimately decided by him on 28-2-1974. Against this order Revision was filed before the Custodian of Evacuee Property Sind which was decided by the impugned order dated 27-6-1976. This clearly shows that th proceedings initiated in 1951 continued under the provisions of Act XII of 1957 till it was decided on 27-6-1974. The properties have been J subject-matter of pending proceedings, continuously and therefore, by these Notifications the properties were not acquired, and the Custodian had the jurisdiction to decide the matter.
44. ' It was also argued on behalf of the petitioners that the power of attorney executed by Radhabai Naraindas in favour of Keshab Lokumal Kriplani has been not produced.It was not necessary to produce that power of attorney here. It must have been produced befor the Registrar at New Delhi who after satisfaction would have allowed the exchange deed to be executed by her attorney. So far the power of attorney executed by Haji Muhammad Ishaq in favour of Hafizuddin is concerned its certified copy was produced as is evident from the order of the Addl. Custodian. These objections are therefore of no consequence Relying on Nazarli's case 1973 SCMR 441 the learned counsel for the petitioner contended that the power of attorney executed by the evidance the owners in favour of the nominee of Haji Ishaq is not legal and Operative as such authority has not been accepted or approved by the Custom. This contention must fail as the authority was not to manage the proper but merely to complete the transaction.
45. ' Mr. Abdul Satter, the learned counsel for the Custodian did not support the impugned order on the ground that notice of proceedings was not issued to the Rehabilitation Authorities. He has relied on Zahid All v. Chief Settlement Commissioner, Lahore PLD 1969 Lah . 850 where the order of the Custodian confirming the sale was held to have vitiated for want of statutory notice as contemplated under rule 12(5) of the Pakistan Administration of Evacuee Property Rules, 1950. In the first paragraph of the order of the Additional Custodian it has beftn stated that after Mr. Mansoor Alam had- dismissed the revision application of Haji Muhammad Ishaq on 27-12-1954, he "issued a notice to the Rehabilitation Commissioner, Karachi and to other parties to show cause why the order dated 22-11-1952 dismissing the application for confirmation of exchange deed and its registration may not be revised None of the petitioners or the learned counsel for the Custodian have challenged this observation as incorrect. Further it may be noted that all the transferees of the properties in dispute were joined as parties before the Additional Custodian/Custodian. In these circumstances the contention of Mr. Sattar has no force.
46. ' Besides the aforestated contentions certain facts and contentions in Petition. No.1176/74 are some what different from the other petitions. As stated earlier the properties which are subject-matter of this petition were requisitioned and acquired by the Government of Pakistan by Notification No.F-16 (6)/57-P-II, dated 8-2-1957 issued under section 8 of the Pakistan Rehabilitation Act, 1956.
47. ' Section 8 (1) empowers the Central Government to requisition any movable or immovable property not used for religious worship, for the purpose of the Act. Section 8 (2) authorises the Central Government to use the requisitioned property and to acquire by serving notice on the owner or where the owner is not traceable or ownership is in dispute by publication in the official Gazette. The consequences of acquisition have been stated in sections 8 (3) & (4) which run as follows:- "(3) Where a notice of acquisition is served on the owner of the property or published in the official Gazette under subsection (2) then at the beginning of the day on which the notice is so served or published, the property shall vest in the Central Government free from any mortgage, pledge, lien or other similar encumbrance, and the period of the requisition thereof shall end.
(4) Whenever in pursuance of subsection (1) or subsection (2) the Central Government requisition or acquires any property, the owner thereof and any person having a charge, pledge or lien or other encumbrances on such property shall be paid such compensation as the Government may, having regard to the provisions, so far as may be applicable of subsection (1) of section 23 of the Land Acquisition Act, 1984, determine and the compensation so determined shall not be called in question in any Court."
48. 'Under these provisions the property may be acquired on payment of compensation to any person who is the owner, mortgagee, or holding any lien, charge or encumbrance. The nature of the encumbrance wil be similar to mortgage or charge. This interpretation is in consonanc with the language of sections 8 (3) & (4). The words "similar encumbrance" following the words "mortgage, charge, lien" lead to the conclusion that the encumbrance on the property should be similar t the particular preceeding words. The interpretation will be governed by the rule of ejusdem generis i.e. where general words immediately follow specific words are closely associated with specific words their meaning should be restricted by reference to the preceeding words.lt $iay be mentioned that exchange is a legally recognised method of transfer of property. Section 118 of the Transfer of Property Ac defines "Exchange" as mutual transfer of ownership of one thing fo ownership of another. For a valid exchange there should be mutua consent of both the owners of the properties.
49. In exchange either bot the things should be properties or monies. There can be no exchang between properties and monies. It will amount to sale which has bee defined by section 54 of the Transfer of Property Act as "transfer o ownership in exchange for a price, paid or promised, paid or par paid or part promised". It is pertinent to note that subject to section 119 of the Transfer of Property Act each party to the exchange has the rights and subject to liabilities of a seller in respect of property which he gives and that of a buyer which he takes. This right is conferred on the parties by section 120 of the Transfer of Property Act which refers back to section 55 which enumerate the rights and liabilities of buyer and seller, section 55 (6) creates a charge in favour of a buyer to the extent of the sellers interest in the property for the money paid in anticipation of the delivery. The statutory provision entitles a buyer, if he has not improperly declined to accept delivery of the property, to a charge on the property. This charge create a right in the buyer (charge-holder) to receive payment out of the specified property. Such a charge is not a mortgage but it confers right to realise claim by enforcing it by sale of the specified property as in the case of simple mortgage. In Muhammad Iqbal v. Additional Settlement Commissioner PLD 1971 SC 318 while discussing the nature of the charge created in favour of the sellers under section 55
(4) of the Transfer of Property Act the following observation was made:- "Thus a charge, which a vendor obtains under the Transfer of Property Act, is not only different in its origin and nature from the simple vendor's lien given by the Courts of equity in England to an unpaid vendor but it stands on some what higher footing and "can be enforced by the sale of the property under section 100 of the Transfer of Property Act read with Order XXXIV, rule 15 of the Code of Civil Procedure as in the case of a simple mortgage," as was pointed out by the Privy Council in the subsequent case of Raja Kooharlakota Venkata Jagannatha Rao Garu v. Maharajah Ravu Venkata Kumara Mahipati Surya Rao Bahadur 63 I A 304.
50. ' It is true that in a charge there is transfer of any interest in the property but by operation of law a right is created in the charge-holder to receive payment out of the property specified, and this right can be enforced in the same manner as a simple mortgage by a preliminary decree for sale, vide Ram Raghubir Lal and others v. United Refineries (Burma) Limited and others 60 I A 183. For all practical purposes, therefore, the charge created by subsection (4) of section 55 of the Transfer of Property Act partakes substantially of the same manner. Even though such a charge does not create right in rem it is a jus ad rem and not a money claim simpliciter.
51. ' Even though a charge created under section 55 (4) of the Transfer of Property Act is not an interest in property it is a right to receive payment out of a specific property."
52. ' These observations equally apply to the charge created under section 55 (6) in favour of a buyer.
53. Haji Muhammad Ishaq had a charge on the property subject to confirmation of a deed of exchange. Considering the .nature of acquisition as discussed hereunder, the right of an owner to claim compensation was preserved. The learned counsel for the petitioner on the basis of several authorities cited by him contended that as the property has vested in the Central Government free from encumbrances, the private respondents have no right or interest in the property. This contention is not well-founded as section 8 (4) of Pakistan Rehabilitation Act, 1956 contemplates payment of compensation to owner and charge-holder. I need not discuss the authorities cited by the petitioner's counsel as they are completely irrelevant and deal with acquisition under section 3 of the Displaced Persons (Compensation Rehabilitation) Act which does not provide for payment of compensation. Haji Muhammad Ishaq had claimed the disputed property not on the basis of any mortgage, lien or charge on the property. He was claiming ownership of the property under the exchange.
54. His claim for ownership depended on the confirmation and registration of the deed of exchange.
55. This claim of ownership was under dispute and he could not claim compensation till such time his title had perfected. Section 8 (2) of Pakistan Rehabilitation Act contemplates service of notice of acquisition, in the case of disputed ownership by publication in the official Gazette. Section 8 (4) provides payment of compensation to the owner in the manner provided by section 23 of the Land Acquisition Act, so far as may be applicable. Therefore, in case of disputed ownership compensation may be paid to the person who has been declared owner.
56. ' Mr. Akhtar Mahmood the learned counsel for the petitioner has stated that if the confirmation of exchange does not affect the right of the petitioner as the owner of the property, then he has no dispute with the Custodian's impugned order. Mr. Muhammad Sharif and Mr. Iqbal Ahmed the learned counsel for the private respondents have stated that if the exchange is confirmed these respondents will not claim the property, but will seek their remedy for realization of compensation in terms of section 8 (4) from the Government. The statement make the matter simple and the entire exercise of the private respondent is for claiming compensation. In any event, even on the confirmation of the exchange deed in private respondents cannot claim the property as it stands acquired and vests in the Central Government. As a consequence of acquisition only compensation is to be paid to the owner or the charge-holder.
57. ' Although the learned counsel for the parties restricted their arguments to the payment of compensation which depended on the confirmation of the exchange, I had to keep this matter reserved till such time other connected petitions dealing with exchange were argued. As I have maintained the order of Custodian confirming the deed of exchange Petition No.1176/74 is dismissed subject to the statement and consent of the private respondents that they will have no right to the properties in dispute (in Petition No.1176/74) and on the basis of the Custodian's impugned order they would only claim compensation which shall be decided by the appropriate authority according to law.
58. ' In the result, Petitions Nos.1191/74, 1256/74, 1257/74, 1429/74, 1287/74 and 1176/74 are dismissed with no order as to costs.
59. ' Before parting with the judgment I must place on record my appreciation for the valuable assistance rendered by Mr. Muhammad Sharif and Mr. Maroof All Khan Advocates, whose arguments were adopted by all other Advocates appearing for the petitioners and private respondents in these petitions.