ZAFFAR HUSSAIN MIRZA, J.--These five appeals by leave arise out of a consolidated order, dated 19th December, 1982, whereby five separate civil revisions filed by the appellants were dismissed by a learned Single Judge of the Lahore High Court, Multan Bench, Multan. The decision in these appeals turns upon common questions of fact and law, therefore, all these appeals would be governed by this common judgment.
2. The dispute between the parties relates to Khasra No. 610, measuring 2 Kanals and 10 Marlas, situated outside Harm Gate, Muslim, Ward No. 8, Multan. On various 'portions of it constructions have been erected, which according to the Excise Department's record bear Nos. 2257, 2258, 2259, 2260 and 2261. According to the case of the appellants, the aforesaid property was owned and possessed by their predecessor---in-interest, A.I Muhammad, who had let out the various units of the said property to the respondents and one Mali Shah. It is said that initially Mali Shah raised a controversy with A.I Muhammad by seeking allotment of unit No. 2261 as evacuee property which led to prolonged litigation before the Custodian Authorities. This litigation was commenced with an application filed by A.I Muhammad under section 18 of the Pakistan Administration of Evacuee Property Ordinance, 1949, for a declaration that he is the owner in possession of the Khata comprising two shops bearing No. 2261 and that this property was not evacuee property. This application was resisted by the Rehabilitation Authorities as well as Mali Shah. By order dated 17th March, 1955, the Deputy Custodian, Multan, on the basis of inquiry held by him, came to the conclusion that the Khata in question bearing No. 2261 was recorded in the revenue record as Khasra No. 610 and the this property belonged to A.I Muhammad. Accordingly the learned Deputy Custodian declared the said property as non-evacuee property of A.I Muhammad. Mali Shah sought to challenge the order but his appeal was dismissed by Deputy Custodian (General), Lahore, vide order dated 14th March, 1956, wherein the learned Officer held that Khasra No 610, as a whole was non-evacuee property of A.I Muhammad. It will be pertinent to quote the operative part of the order passed in appeal which was in the following terms:- "I declare that the plot of land including two shops mentioned in Property Tax Register as No. 6261 R.N. Khasra No. 610, belongs to A.I Muhammad and that it is not an evacuee property."
3. The controversy as to the status of the property was eventually brought before the Custodian of Evacuee Property, Lahore, who dismissed the revision filed against the order passed by the Deputy Custodian (General) and also dismissed the repeated review petitions. In one of the orders dated 14th February, 1958, on a review application by Mali Shah, the learned Custodian referred to the statement of Mr. Muhammad Dawood, Rehabilitation Officer, stating that "from the evidence on record it has been clearly found by the original and the appellate Courts that Khasra No. 610 is non-evacuee property and there is nothing on the record to show that this is not correct".
4. Thus,' the status of the property was finally determined with the conclusion of the litigation before Custodian Authorities and the property was declared to be non-evacuee property. However, it seems that when the settlement operations commenced Mali Shah got another opportunity to agitate his claim that the property comprising the Khata was evacuee property as he made an application for transfer of the same in his favour. His request was turned down by a detailed order of the Deputy Settlement Commissioner, dated 1st September, 1960 on the ground that in view of the declaration of the property to be non-evacuee property by the Custodian Authorities, the Settlement Department had no jurisdiction to deal with it. After exhausting all remedies before higher Settlement Authorities. Mali Shah eventually filed a constitutional petition in the erstwhile High Court of West Pakistan, Lahore, but his petition was dismissed for want of locus standi. Thus the claim of Mali Shah finally stood rejected.
5. Meanwhile, however, the respondents or their predecessor-in---interest obtained transfer of units in their respective occupation in the course of settlement operations by misrepresenting the same to be evacuee property. The appellants, on coming to know about these transfers moved the competent authorities in the Settlement Department and obtained orders that the P.T.O. And P.T.D.
Issued in favour of the respondents be cancelled vide order dated 15th November, 1969. It was thereafter found that no P.T.D. Or P.T.O. Had been issued in respect of units Nos. 2257 and 2258, but such documents issued in respect of units Nos. 2259 and 2260 were cancelled vide. Deputy Settlement Commissioner, Multan's Letter No. 3352-54lMiscelaneous, dated 18th December, 1969, addressed to the transferees of the property units Nos. 2259 and 2260, in which it was stated that these units were "situated on Khasra No. 610 which has been declared as non-evacuee property".
The said transferees sought restoration of their transfer documents by an application to the Custodian, but this application was not entertained and they were informed that they may seek remedy with the Additional Settlement Commissioner concerned, as the Custodian had closed the case already. The said respondents, however, did not pursue any further remedy with the result that the cancellation orders of their transfer documents attained finality.
6.Thereafter, the appellants sought demarcation of Khasra No.610, which was now finally declared to be their property, and the Custodian by his order dated 31st January, 1970, forwarded the case to the Deputy Settlement Commissioner for demarcation. The case was returned by the latter Officer to the then Custodian Mr. Justice (Rtd.) Zakiud Din P.I, who by his order, dated 6th July, 1972, once again directed that the demarcation should be carried out as Khasra No.610 had been held to belong A.I Muhammad. Finally the Chief Settlement Commissioner, on the ground that the property having been declared as non-evacuee' property was no longer a part of the compensation pool, suggested that the appellant should go to the civil Court for any further relief.
7. After unsuccessfully challenging the order of the Chief Settlement Commissioner in a writ petition, the appellants filed five suits for possession against the respective respondents in each of these appeals. These suits were resisted by the respondents mainly on the plea that the subject property having been transferred through P . T . Din favour of the respective respondents, the civil Court had no jurisdiction to entertain and try the suits. It was also denied that the appellants were the owners of the disputed property. The trial Court finding the issue relating to ownership against the appellants dismissed the suits on 22nd March, 1979. The appellants sought to challenge the decision of the trial Court but their appeals failed before the District Judge on 18th January, 1981.
Thereafter, they filed revision petitions which were dismissed by the High Court by the impugned order in this appeal.
8. Now the decision of the Courts below turned on the question that the Custodian's declaration only related to property unit No. 2261, which was part of the Khasra No.610 and as such the rest of the units forming part of the remaining area comprised in Khasra No.610 were not affected by the non-evacuee character of the portion declared by the Custodian. Leave was granted to consider the contention of the appellants that their claim before the Custodian Authorities no doubt related to unit No.2261 but it was based on the premise that the said unit was part of Khasra No.610, with the result that the findings recorded as to the non-evacuee - character of the said unit, necessarily referred to Khasra No.610 which was declared to be non-evacuee property and this question could not be reopened by the civil Courts.
9. Now the main basis of the suits filed by the appellants was that the subject-matter of the suits comprising the various units of the property formed part of Khasra No. 610 which was declared to be non-evacuee property by the Custodian Author-ties and the transfer documents issued by the Settlement Authorities in favour of the respondents, having been cancelled, the appellants were entitled to a decree for possession. The Courts below Including the High Court, however, rejected the case of the appellants on the ground that the Custodian Department gave a declaration of non-evacuee status in respect of property unit bearing No. 2261, which formed only a small part of Khasra No.610, as the property of A.I Muhammad, consequently the disputed properties in the suits could not be held to be non-evacuee property of A.I Muhammad. It has, therefore, been urged in support of the present appeals that this approach of the Courts below was wholly misconceived and contrary to the record and evidence. The submission is that portion of the property comprised in No.2261 was declared as non-evacuee on the basis that it formed part of Khasra No. 610 which was the property of A.I Muhammad, and since the disputed property also formed part of Khasra No.610, the appellants were not required to prove their title as against respondents beyond that on any further basis.
10. On a careful perusal of the impugned judgment of the High Court it will be observed that the learned Judge was greatly impressed by the fact that the proceedings commenced by A.I Muhammad before the Deputy Custodian through application under section 18 of the Pakistan (Administrative of Evacuee Property) Ordinance, 1949, pertained only to property bearing No.2261 which has been allotted as evacuee property to Mali Shah and, therefore, this application did not relate to entire Khasra No.610. Learned Judge then referred to the operative part of the order of the Deputy Custodian, Multan, and has concluded there from that the declaration granted by the Deputy Custodian was confined to only the portion of property bearing No.2261 and not the entire Khasra No.610. Similarly reference was made by the learned Judge to the appellate order passed by the Deputy Custodian (General), Lahore, dated 14th March, 1956 and held that since the appeal of Mali Shah was dismissed and the original order of the Deputy Custodian was maintained the effect was the same, with, the result that the declaration of non-evacuee status and the findings of ownership of A.I Muhammad only related to the portion of the property bearing No. 2261 and did not extend to whole Khasra No. 610. Finally referring to .The order, dated 14th February, 1958, passed by the Custodian of Evacuee Property, the learned Judge expressed the opinion that the recital in this order to the effect that Khasra No.610 was non-evacuee property was liable to be ignored as this statement was not admissible under the Evidence Act and in any case the orders of the Deputy Custodian, Multan, and the Deputy Custodian (General), Lahore did not pertain to Khasra No.610 as a whole. On the basis of this analysis the learned Judge finally arrived at the conclusion that since the proceedings related only to a portion of Khasra No.610, A.I Muhammad could not be held to be the owner of entire Khasra No.61G, The learned Judge also gave no significance to the observations made in order dated 6th July, 1972, passed by Mr. Zakiuddin P.I, J. (as he then was) as Custodian, to the effect that Khasra No.610 belonged to A.I Muhammad and was owned by him. The learned Judge observed that this statement was a part of the narrative portion of the order and the facts were not correctly stated before the learned Custodian. In this view of the matter the learned Judge in the High Court came to the conclusion that there was no evidence of title of A.I Muhammad in respect of the entire Khasra No.610.
11. Learned counsel for the respondents supported the view taken by the learned Judge in the High Court. From the impugned judgment it is quite clear and the fact was not disputed before us that the properties, which formed the subject-matter .Of the five suits bearing Excise and Taxation Register Nos. 2257, 2258, portions of 2259 and 2260 were all located in and were parts of Khasra No.
610. It also appears that the disputed properties were treated as evacuee properties forming part of compensation pool and transferred to the respondents. Indeed the main plea in defence taken by the respondents in the suits was, as reflected in the judgment of the trial Court, that portion of the property in dispute in each respective suit having been transferred through P.T.D. In favour of each respondent (defendant), the civil Court had no jurisdiction to try .The suit. In view of these undisputed facts, the respondents were resisting the suits filed by the appellants on the plea that the title to the property did not vest in the appellants, but the properties being evacuee properties formed part of the compensation pool and stood transferred to them. None of the Courts below adverted to this aspect of the case, although it seems that appellants were able to prove that the transfers made by the Settlement Department in favour of the respondents were cancelled by the Chief Settlement Commissioner, on the basis that the Custodian had declared Khasra No.610 to be non-evacuee property of A.I Muhammad. Before us also no claim to the disputed property was asserted on the basis on any P.T.O. Or P.T.D. Issued in favour of the respondents. Therefore, there was no question before the Court and indeed no issue was raised whether the property in suit was evacuee property. In the circumstances we are unable to see the significance attached by the High Court to the scope of the proceedings under section 18 of the Pakistan (Administration of Evacuee Property) Act, 1949, and the extent of the property involved therein. As between the parties to this dispute the question was whether the appellants had established their title on the basis of which they could obtain a decree for possession against the respondents. This issue was to be determined on the preponderance of evidence in favour of the case of the appellants, which is the recognized standard of proof of a fact in issue in a civil proceeding. From the pleas raised by the respondents in their defence it is quite clear that they were claiming through the Settlement Department by virtue of the alleged fact of the property being originally evacuee property. The Courts below, however, totally ignored the fact that both the Custodian as well as the Settlement Authorities did not recognize or assert that the property was evacuee property forming part of the compensation pool. This is clear from the fact that transfer orders and documents were set aside by the Settlement Authorities. The learned Courts below also ignored the fact that the Deputy Custodian, Multan, strongly relied upon the evidence of Patwari which showed that the Khata bearing No.2261 was entered in the revenue record as Khasra No.610, which was property belonging to A.I Muhammad. The Deputy Custodian (General), Lahore, once against made a thorough inquiry, with particular reference to the revenue record in respect of Khasra No.610 and on the basis of the additional evidence recorded his findings in the following words: "There are two distinct Khasras Nos. 610 and 610/1. Khasra No. 610/1 definitely belongs to Shiv Charan Das and others evacuee. (See Exh. R.A.A and Exh. A.B.) No. 610 is the village Abadi according to Exh.
R.A.B. And Exh. A.A. The evidence led by A.I Muhammad, therefore, finds support from the Revenue records and the statement of the Patwari R.W.I. He is the owner of a portion of the Abadi Deh, and, therefore, of the property in dispute."
The learned Custodian in his order dated 14th February, 1958, reproduced the statement of the representative of the Rehabilitation Authority that Khasra No.610 was non-evacuee property. As the Custodian Authorities declared property unit No.2261 to be the property of A.I 'Muhammad on the basis that it formed part of Khasra No. 610 which was owned by him, there is no question of any portion of Khasra No.610 to have been treated as evacuee property. This knocks out the basis of the defence plea that the property has been transferred to the respondents by the Settlement Authorities. On a preponderance of evidence the issue ought to have been decided in favour of the appellants, because the respondents claimed through the Custodian or the Settlement Authorities whose admissions are binding on them, with the result that they were estopped from pleading that A.I Muhammad had no title to the land. The transfers made by the Settlement Authorities were cancelled on the basis that the property was non-evacuee property of A.I Muhammad. This was sufficient title qua the respondents on the basis of which decrees for possession could be based against them in favour of the appellants. If any portion of the property which was subject-matter of the suit was not a part of Khasra No.610 and was evacuee property, it is for the relevant authorities to take suitable action, but in the circumstances narrated above the appellants' action could not be resisted by the respondents because their transfers had been cancelled and as compared to the appellants they had no better title to remain in possession of the property.
12. In the light of the above discussion the claim of the appellants to possession of the property in dispute has to be accepted. From the record it appears that the plaintiffs had sought a decree for possession of the disputed property in each suit after removal of structures erected by the respective respondents (defendants) in each suit. The appellants had also sought the relief of compensation for use and occupation by the respondents during the time they were in wrongful possession of the property. However, no issue was framed by the trial Court on the, question whether the appellants are entitled to compensation. This question was not agitated before or adverted to be any of the courts below. In the circumstances the prayer with regard to compensation cannot be granted. The appeals are otherwise allowed with costs with the result that the suits for possession are decreed.