1. ANWARUL HAQ, J. This petition for special leave to appeal is directed against an order made by a learned Stable Judge of the Peshawar High Court on the 9th of April 1970, whereby the second appeal presented by the petitioners was dismissed, with the result that the judgment w d decree of the trial Court dismissing their suit for a declaration of ownership in respect of agricultural property situate in village Jatti Payan in Tehsil and District Peshawar, were maintained.
2. From the lengthy narration of facts given in the petition as well as in the judgments under challenge, it appears that the entire area in dispute was owned by two non-Muslim brothers Ram Singh and Anup Singh. The petitioners claimed that they had purchased the 1/6 share of Rain Singh by means of a sale effected in their favour in the year 1941 and evidenced by a receipt executed by Ram Singh in Gurmukhi. They claimed the remaining land in dispute on the ground that it had been sold by Ram Singh's brother Anup Singh in favour of Abdul Jalil and others, and that Ram Singh had pre-empted this sale as a benamidar for the petitioners or their predecessors-in-interest. It is remarkable, however, that although the sale by Ram Singh was effected in 1941 and his pre- emption suit in respect of the sale made by his brother Anup Singh was decreed in 1942, yet the transfers in favour of the petitioners were not reflected in the revenue records until July 1947 when a mutation of sale was entered. The mutation was however, rejected in October 1947 in view of the promulgation of evacuee laws. In appeal the Collector sanctioned the mutation on 3-10-48, but the Custodian refused to recognise the alienations. The petitioners filed an application on 7-1-61 under section 22 of the (Administration of Evacuee Property) Act XII of 1957 claiming that they were the owners of these properties, but this application was rejected, by the Custodian by his order dated the 30th of September 1961, holding that mutations entered and attested after the 1st of March 1947 were ineffective for the purpose of conferring any title.
3. Aggrieved by this order of the Custodian of Evacuee Property, the petitioners filed a suit for declaration of their ownership on 5-2-62. As already stated the suit was dismissed by the trial Court, and the dismissal has been maintained in appeal by the District Court as well as by the High Court.
4. It is contended by the learned counsel for the petitioners that in negativing the claim of the petitioners to the property in suit the Courts below have misread the evidence produced by the petitioners in the shape of Gurmukhi receipt executed by Ram Singh is the year 1941, and they have also failed to give effect to the provisions of section 3 of Act XII of 1957 according to which no property could be declared to be evacuee property if it had not been treated as such immediately before the 1st of January 1957. In the alternative it is submitted that if the Courts below had come to the conclusion that they had no jurisdiction to interfere with the orders passed by the learned Custodian of Evacuee Property in the exercise of his exclusive jurisdiction under section 22 of Act XII of 1957', then they should not have examined the factual aspect of the matter so as to record a finding adverse to the petitioners.
5. After hearing Mr. Khalil-ur-Rehman at some length, we are of the view that no justification is made out for our interference in the matter. The trial Court has held that it had no jurisdiction to question the order passed by the Custodian regarding the evacuee nature of the property, and this finding has not been reversed by the appellate Courts. The learned counsel for the petitioners also does not challenge the correctness of this finding. Such being the case, the petitioners' suit was rightly dismissed on this ground alone.
6. As regards the factual aspect of the matter, we do not think it necessary to add our own opinion on the findings recorded by the Courts below, for the reason that the matter does appear to be one within the exclusive jurisdiction of the Custodian of evacuee property. The proper remedy for the petitioners was to challenge the order of the learned Custodian by way of a writ petition under Article 98 of the former Constitution or Article 201 of the Interim Constitution of the Islamic Republic of Pakistan.
7. We also say nothing about the legal effect of the findings of fact recorded by the Courts below as that may be a matter for consideration by the High Court in case the petitioners institute any writ petition in this behalf.
8. For the foregoing reasons the petition fails and is hereby dismissed.