1. S.A NUSRAT , J.---This appeal by special leave is from the judgment of a division bench of the Lahore high court, dated 16-121974 whereby a constitution petition of appellant challenging the custodian---s order dated 28-5-1974 was dismissed in limine.
2. The dispute relates to 6 Marlas and 148 sq. Ft. Of land being the plinth area of a house No. SE-9/R- 75, Brandreth Road, Lahore (hereinafter referred to the disputed land). It is not necessary or relevant to refer to the previous history concerning the disputed land because admittedly it was finally purchased by Lala Bulakimal and Sons as part of the estate of the insolvent Ch. Fazal Elahi Dalgar in a Court auction and was conveyed to the said vendee under a registered sale-deed, dated 13-6-1939 executed in their favour by the Official Receiver of the Lahore High Court. It is also not disputed that the house on the disputed land was constructed by the predecessor-in-interest of the parties namely, Sh. Ghulam Mustafa in 1923, who then held the land as its lessee. The sale- deed dated 13-6-1929 provided that in order to resolve ail kinds of disputes Lala Bulakimal and Sons were to convey the area of the disputed land to Sh. Ghulam Mustafa who had constructed a house thereon and the sale-deed was executed subject to this condition. Later by Mutations Nos.
3. 4866, 4867 and 4868 duly sanctioned by the Revenue authorities on 29th June, 1942, disputed land was entered in the Revenue record in the name of Mst. Sardar Begum. The said mutation entries are shown to have been male on the basis of statement of one Lala Kirdar Krishan, who had appeared before the Revenue authorities, and a registered "TAMLEEK" dated 13th June, 1939 produced by him as also on confirmation by him that the possession of the land was with Mst.
4. Sardar Begum.
5. The present dispute arose in 1972 when the appellant sought transfer of the land under Settlement Scheme No. VIII by filing an L.H. Form on plea that the land belonged to Lala Bulakimal and Sons and was evacuee property. The Deputy Settlement Commissioner having noticed that the land stood in the name of Mst. Sardar Begum in the record of rights as non-evacuee property, and not being satisfied as to its evacuee character made a reference to the Deputy Custodian under section 41(2) of the Pakistan (Administration of Evacuee Property) Act XII of 1957 on 7th February, 1972. Mst. Sardar Begum died during the pendency of the proceeding before the Deputy Custodian on 19th January, 1973, leaving behind the respondents Nos. 2 to 8 as her legal representatives, who were, therefore, brought on the record. The said reference was answered by Deputy Custodian by his order, dated 1st November, 1973 holding the disputed land was evacuee property belonging to Lala Bulakimal and Sons. The respondents 3 to 8 filed a revision application before the Custodian, Evacuee Property, Lahore, who allowed the same by his order, dated 25th May, 1974 and order of the Deputy Custodian holding the disputed land to be evacuee property was set aside. This order was challenged by the appellant before the Lahore High Court by a constitutional petition which was dismissed on 16th December, 1974 as per impugned judgment.
6. Leave to appeal was granted to examine the contentions:-
(1) whether the evacuee character of the site in dispute fell to be determined under clause (b) of subsection (2) of section 3 of the Pakistan (Administration of Evacuee Property) Act XII of 1957 and, therefore, did not fall within the prohibition created by subsection (1) ibid, the former provision being in the nature of Exception to subsection (1); and
(2) whether the finding that Mst. Sardar Begum was the transferee of the site in dispute was not based on any legal evidence. The section 3 of the Pakistan (Administration of Evacuee Property)
7. Act XII of 1957, on which reliance has been placed is reproduced hereunder:-
(3) "Property not to be treated as evacuee property on or after January, 1957.--(1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in subsection (1) shall apply
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such persons as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1974, has not been accepted or approved by the Custodian."
8. It was admitted by Major Ishaq Muhammad Khan, learned counsel for the appellant, which was also an admitted position before the learned Custodian, that no overt at treating the disputed land as evacuee property was ever taken by the Rehabilitation or Custodian Authorities upto the 1st of January, 1957. However, it was contended by him that by virtue of a notification issued by the Custodian Punjab, date': 23-12-1947 possession of all evacuee properties is deemed to have vested in the Custodian and, therefore, the disputed land was automatically treated as evacuee property and no further action treating it as evacuee property was necessary. This contention was raised in full realization of the legal position that the provision contained in clause (b) of subsection (2) ibid, would be attracted only if the property was 'evacuee property' because then alone the question would arise with regard to its occupation, supervision or management by a person, in whose authority or right so to do after the twenty-eighth day of February, 1974 had not been accepted or approved by the Custodian.
9. The learned counsel referred to the Custodian, Evacuee Property, West Pakistan v. Mst. Doreen Barkat Ram and another 1971 SCMR 387 and Muhammad Alam Khan and 3 others v. Mahmud Ahmed and 2 others 1974 SCMR 92 in support of his contentions which are, however, absolutely irrelevant as it was nowhere held therein that a general notification was sufficient for the purpose of treatment of any property as evacuee.
10. The scope and true import of above subsection (3) had come up for consideration before a Full Bench of the Lahore High Court in the case of Syed Ali Iqtidar Shah Dara and others v. The Custodian, Evacuee Property, West Pakistan Lahore PLD 1964 Lah. 27 wherein even the argument of Major Ishaq Muhammad Khan, learned counsel for the appellant, who had then appeared for the department, that both under section 4 of the Act VII of 1948 of former West Punjab Province and section 7 of Ordinance No. XV of 1949 all evacuee properties are held on behalf of the Custodian and have thereby been treated as evacuee property was repelled. In interpreting the words "not treated" used in subsection (1) ibid it was held that even mere vesting of property in the Custodian was not sufficient and it was necessary that the competent authorities must have done some overt at in respect of some specific property namely, that any particular person or any particular property must have been treated by a competent authority as evacuee or evacuee property. The judgment in the above case was later approved by this Court in the case of Custodian, Evacuee Property, West Pakistan v. Rais Ghazi Muhammad PLD 1973 SC 537.
11. It was next contended by the learned counsel that the disputed land was a concealed evacuee property and therefore the question of its treatment as evacuee property did not arise. All the relevant entries in the Revenue record pertained to the period prior to the independence of the country, and even thereafter the said property was not treated as evacuee property at any stage whatsoever.
12. It was shown in the ownership as well as possession of Mst. Sardar Begum in all Revenue records and this being the position it could not be said that the property in question was a concealed one.
13. It was stated on behalf of the respondents before us, which was not disputed by the learned counsel for the appellant, that Messrs Lala Bulakimal and Sons had stayed over in Pakistan after partition and Mst. Sardar Begum had filed to suits against them which were contested by them but no claim was laid to the disputed land nor entries in the record of rights were challenged. The matter whether or not the disputed land had ever been treated as evacuee property on or before 1-1-1957 and determination of its status as evacuee property or otherwise lay within the exclusive jurisdiction of the Custodian. The issue was decided by the learned Custodian, on the basis of the relevant entries in the Revenue record as also the evidence available before him. The learned High Court, in the circumstances, rightly declined to go into the question whether the findings of the learned Custodian were erroneous on factual plain. In doing so, the learned High Court rightly followed the dictum laid down by this Court in Muhammad Hussain Munir v. Sikandar and others PLD 1974 SC 139, and no exception can be taken to the same; nor are we inclined to go into evidence and disputed questions of fact at this stage.
14. Having heard the learned counsel and after going through the record, I am satisfied that the learned High Court had rightly refused to interfere with the order of the learned Custodian and dismissed the Constitutional Petition of the appellant following the judgment of this Court in the case of the Custodian, Evacuee Property, West Pakistan v . Rais Ghazi Muhammad.
15. In this view of the matter, I find no merits in this appeal and would dismiss the same with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.