This petition impugns the order dated 19th December 1964 passed by the Settlement Commissioner, by which he set aside the order of the Additional Settlement Commissioner dated 26th November 1963 and maintained order of the Deputy Settlement Commissioner partitioning the non-evacuee share of Narumal Tirlokchand to the extent of eight annas.
2. The dispute relates to units marked A-50, A-48, and 49, B-99, B-20, B-23, B-28, B-62, B-22, B-234 and B-247. These units represent the evacuee share of eight annas in the joint properties situated in Mirpurkhas while the remaining eight annas share was owned by Narumal Tirlokchand and now represented by Ishwarlal, his executor. Unit marked A-5U was transferred to petitioner No. 2 on 28th November .1959 against his C. H. Form while unite marked B-99 and A-48-49 were transferred to petitioner No. 1 on 26th November 1959 against his L. H. Form and to petitioner No. 3 against his N. C.
H. Form in 1960, respectively. Units marked B-20, B-23, B-28, B-62 and B-22 were purchased in auction by petitioner No. 1 in 1960. Units marked B-234 and B-247 were also purchased in auction by petitioner No. 4 on 30th November 1960. I may mention here that these numbers do not tally with the numbers indicated in the list annexed to the order dated 29th May 1962 of the Deputy Settlement Commissioner, Mirpurkhas but there appears to be no dispute with regard to them as respondent No. 2 has not denied their correctness while replying to the contents of paras. 1, 2 and 3 of the petition. I would, on the assumption that they represent the evacuee share, decide this petition.
3. Upon an application filed by Narumal Tirlokchand to partition his non-evacuee share, the Deputy Settlement Commissioner vide order dated 29th May 1962 partitioned it in a manner that the properties in possession of the occupants for 12 years were treated as evacuee while those disposed of by earmarking and auction were treated as non-evacuee, with the result that the transfer of the units referred to above was cancelled. On appeal, the Additional Settlement Commissioner, Hyderabad, vide order dated 30th January 1963 remanded the case to the Deputy Settlement Commissioner with the following observations:- "Having regard to the above findings, I am of the view that the learned Deputy Settlement Commissioner should issue a notice to all the transferees of the properties in question and ask them to show cause as to why the transfers in their favour be not cancelled on the ground that one-half share In the property was non-evacuee. He should at the same time reconsider the application of respondent No. 1 for the division of his one-half non-evacuee share in the said properties and Implead all the transferees of the properties in question. He should also ensure that the Department interest is fully safeguarded and notice issued to the Department's Advocate in the matter. With these observations I allow the appeal and set aside the order of the learned lower Court dated 29th May 1962.
This order also disposes the appeal No. Additional Settlement/A-980/62 which is also directed against the same order."
4. An argument was raised before the Additional Settlement Commissioner as to the lack of power to partition the properties but this was repelled. The Deputy Settlement Commissioner on remand of the case to him after slight modifications upheld the partition of the joint properties as under :- "Taking into consideration the above facts I therefore hold the partition which was affected under the order dated 29-5-1962 with the slight modification in the list of only Ward `A' of Mirpurkhas. In my previous order the properties bearing Nos. A-307 and A-307/1 were taken into evacuee pool and house Nos. A-308 and A-309 were taken into non---evacuee pool. From the perusal of Office record I found that Houses Nos. A-307 and A-307/1 have not yet been disposed of to any one and are lying in the balance. Whereas houses Nos. A-308 and A-309 have been disposed of on C. H.
And N, C. H., forms. If they are taken into evacuee pool this will safeguard the Interest of the occupier (sic) wham the properties have been transferred. Accordingly the houses Nos. A-307 and A-307/1 is taken into non-evacuee pool in the share of Narumal Trilokchaud and A-308 and A-309 in the evacuee share. The value of all these houses is equal and would not affect the interest of the either party fin any way. Similarly the house No. A-307/2 is also taken into evacuee pool and it has been transferred on N. C. H. Form. In its place house No. A-324 is given to Mr. Narumal into non--- evacuee share as the value of both these houses is also equal and situated in the same locality."
He, however, maintained the partition of the rest of the properties as shown in the list annexed to the order dated 29th May 1962. On appeal against this order the Additional Settlement Com-- missioner vide order dated 26th November 1963 held that the partition was illegal and observed in this context as under:- "Admittedly, after acquisition of evacuee shares the properties in question comprised -- non- evacuee share and -- 'acquired evacuee share'. The properties in question could not, therefore be partitioned under Act XII of 1957. It could not be done under Act XXVIII of 1958 either, as there were no provision in it, corresponding to section 13 and section 23(w) of Act XII of 1957. The Settlement authorities are thus not competent to effect partition of non-evacuee and acquired evacuee shares in the said properties."
Being thus aggrieved, respondent No. 2 invoked the revisional jurisdiction of the Settlement Commissioner who allowed the revision and upheld the partition of the joint properties vide order dated 19th December 1964.
5. The learned counsel for the petitioner again impugned the order of the Settlement Commissioner on the ground that he wrongly upheld the partition of the joint properties inasmuch as in the absence of a specific power to partition the properties which were acquired under section 3 of the Act, the Settlement Commissioner was not competent to partition them. In support of his contention he relied on Abdul Ghani v. Settlement and Rehabilitation Commissioner, Hyderabad Division (1971 Law Notes 222). And the order of the Supreme Court in Civil Appeal No. K-22/66 refusing to grant leave in the same case against the judgment of the High Court. The dictum laid down in these two cases is that section 8(2) of the-Displaced Persons (Compensation and Rehabi- -litation) Act, 1958 does not empower the Settlement authority to partition the property and this power is exclusively possessed by civil Courts which, in the absence of express provision, does not empower the Settlement authority to exercise it. The learned counsel for the respondent with a view to surmount this difficulty pleaded that the joint properties were never acquired under section 3 of the Act as in terms of clause (iii) of the Notification dated 21st August 1959, proceedings in regard to these properties were pending before the Custodian under the Pakistan (Administration. Of Evacuee Property) Act. 1957: He invited my attention to para. 3 of the counter-affidavit, in which it is stated that the executor of the will of deceased Narumal had applied for partition of the joint properties in 1956 and again had made a similar application on 28th December 1958 before the Assistant Custodian and in reply thereto had received a letter dated 31st December 1958 from him saying that the matter was receiving attention and that he would be informed of the decision. The petitioners ,have disputed the genuineness of the letter of the Assistant Custodian dated 31st December 1958. It is also for the first time produced in this Court. The file which is supposed to contain this letter is not forthcoming. Before the Settlement Commissioner the file was also not produced and he has opined that it is not possible to say whether any proceedings were pending before the Custodian at a time when this notification was issued. He has disposed of the revision on the assumption that the property was so acquired. At this stage, it is not possible to decide this question which solely depends on evidence and 'lf the respondent relied on the exception it was for him to affirmatively establish it. Not having done so, he cannot take refuge under that notification.
Accordingly the impugned order lacks legal validity.
6. In the result, for the foregoing reasons I would declare the impugned order as without lawful authority and of no effect. The petition is allowed with no order as to costs.
S. A. H.