These are four connected appeals under subsection (4) of section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the common question involved relates to the Interpretation of subsections (3) and (4) of section 4 of the said Act.
2. The Divisional Evacuee Trust Committee of Evacuee Trust Plots, Karachi through a press advertisement dated 7th July 1965, invited schemes for development of plots bearing survey Nos.
182. 183. 200 and 201, situate in the Artillery Maidan Quarters, Karachi. The appellants submitted detailed plans and their highest bid at the rate of Rs. 700.00 per sq. Yd. Was on 17th November 1965, accepted by the Committee. On 9 February 1965, the Evacuee Trust Board decided to give to the appellants 99 years leases of the said plots, which decision was conveyed to the appellants on 25th May 1966, following which, on 1 September 1967, four separate leases were executed in favour of the appellants by the Board and duly registered.
3. On 19th December 1966, the said Board filed an application under subsection (3) of section 4 of the said Act before the Chief Settlement Commissioner, seeking an order that two of the aforesaid four plots, namely, plots Nos. 182 and 201 were evacuee properties attached to a charitable, religious or educational trust. In this application four respondents were cited, who are also respondents in these connected appeals, as the Settlement Authorities had issued Provisional Transfer Orders of these plots in their favour. Some time later, the occupants of the remaining twoth st plots bearing, Nos. 182 and 200 also filed applications before the Chief Settlement Commissioner for deter--mination of the status of the property in their occupation, their contention being that these plots, though evacuee, were not attached to any charitable, religious or educational trust and, therefore, did not vest in the Board. All the applications were consolidated and disposed of by a single order dated 29th April 1968, by which order the Chief Settlement Commissioner held that the aforesaid plots were attached to Raibahadur Moolchand Dharmada Trust No. 2, which trust was for religious, charitable and educational purposes. Against this order, appeals were filed in this Court by the said transferees and the occupants of the said plots under subsection (4) of section 4 of the said Act, and by an order dated 12th May 1971, this Court set aside the order dated 29th November 1968 and remanded the case back to the Chief Settlement Commissioner for rehearing.
While these matters were pending rehearing, after remand, the appellants made identical applications under section 23 read with section 4 (3) of the said Act for being impleaded as a party to the proceedings. Applications were heard together and dismissed by the Settlement Commissioner, acting as Chief Settlement Commissioner, by an order dated 19th January 1972 on the grounds that the appellants had not applied for being impleaded as a party to the previous proceedings under subsection (3) of section 4 and the appeals under subsection (4) of section 4 of the said Act before the High Court and that the interests of the appellants are only subsidiary and that the principal party affected had been duly represented. The present appeals are directed against this order dated 19th January 1972.
4. Mr. Akhtar Mahmood, the learned counsel for the appellants, has with considerable force, argued that neither of the reasons advanced by the Settlement Commissioner were sufficient to deprive t e appellants of their right to be heard before a final order was made, adjudicating upon the status of the property. As regards the argument that the appellants had failed to apply for being impleaded as a party to the previous proceedings, he contended that the law does not prescribe any time limit for being impleaded as a party and, therefore, no time limit could be imposed. Ha further argued that his clients, tile appellants, did not become a party to the previous proceedings, because they were not cited by any body or any party and their interests could not have been adversely affected, as no notice was given to them. The position now, he went on to say, was different inasmuch as his clients had chosen to be a party and they have a right to be heard by the Settlement Commissioner before the question relating to the status of the property is adjudicated upon by him. He further contended that the appellants were "persons interested" within the meaning of subsection (3) of section 4 of the said Act and, therefore, entitled to be heard before any order is made. The appellants wore, admittedly, 991 years lessees, of the properties, the status of which was being determined by the Settlement Commissioner and to my mind, if it is held that the property was not attached to a charitable religious or educational trust such determination would certainly affect the appellants' interests as leases in their favour would be then of no legal effect. Even if, we apply the test of a propel party under Order I, rule 10, C. P. C. The appellants were in the A said proceedings such a party as they would be affected by an order made therein. Even the Settlement Commissioner, in his impugned order, admits that the appellants had subsidiary interests. The appellants were, therefore, entitled to be heard as at least their subsidiary interests would be affected and it would be a poor consolation to the appellants to be told that their interests would be protected by the principal party affected Mr. Ismail Munshi and Mr. Ishtiaq A.I, the learned counsel for the respondents 2 and 3, contended that to be an interested person within the meaning of subsection (3) of section 4 of the said Act, the appellants had to show that they were legally interested, when the proceedings were first initiated by the Chief Settlement Commissioner on 9th December 1966 and that since the appellants acquired their leasehold rights only on 1st September ? 967, when the proceedings for the determination of the status of the property were pending before the Chief Settlement Commissioner, no rights accrued to the appellants under the leases on account of doctrine of lis pendens and reliance was expressly placed on section 52 of the Transfer of Property Act. When it was pointed out to the learned counsel that the section applies only to proceedings before Courts and that, in any event, the said Act must be. By virtue of provisions contained in section 36 thereof, given effect to notwithstanding its inconsistency with any other law, for ,the time being in force, the learned counsel foil bank upon Corporation she doctrine of lis pendens independent of section S2. I have not been able to appreciate how the principles underlying section 52 are attracted in the present case. The doctrine of lis pendens does not make alienation, made during Trust the pendency of a suit or proceeding, void but only that Property such alienation will not effect the rights of other parties to such r a suit or proceeding In the present case, in so far as the Trust Fakeruddin is concerned, the leasehold rights in the plots have been transferred by it to the appellants and they are bound by such alienation. If they are so bound, then at least, in so far as the Trust is concerned, an interest in favour of the appellants has been created by them in the disputed lands, though, in so far as the respondents, in pending proceedings are concerned, such transfer will not have any effect, so as to deprive them of the benefits of an adjudication by the Settlement Commissioner if the adjudication is in their favour. In any event, this question assumes only an academic interest, as the proceedings under subsection (3) of section 4 of the said Act instituted by the Trust and the respondents are all subsequent to the decision of the Board dated 9th February 1966 when it was decided to give to the appellants 99 years leases and its communication to the appellants on 25th May 1966. The appellants were, therefore, legally interested persons .As from 25th May 1966, on which date there were, admittedly, no proceedings pending before any Authority or Court.
5. More important and, perhaps, not free from difficulty is the preliminary objection raised on behalf of the respondents that no appeal lies under subsection (4) of section 4 against an order refusing to implead the appellants as a party to the proceedings under subsection (3) of section 4 of the said Act before the Chief Settlement Commissioner. To appreciate this question, it is necessary to reproduce subsections (3) and (4) of section 4 of the said Act which read as follows:- "(3) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner, whose decision thereon shall be final and shall not, except as provided in subsection (4) be called in question in any Curt. Provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being heard.
(4) Any person aggrieved by an order under subsection (3) may, within thirty days of this order, prefer an appeal to the High Court."
6. Mr. Akhtar Mahmood on behalf of the appellants, with considerable ingenuity, contended that two kinds of orders are contemplated by subsection (3), namely, an order determining she status of the property and an order whether a person be impleaded as a party car not and since subsection (4), which provides for an appeal frown an order made under subsection (3), an appeal would lie from one of the two orders contemplated, namely, refusing to implead a party. The learned counsel emphasised the fact that in subsection (4) the words are "an order" and not a final order. The question, therefore, that arises for consideration is whether the language of subsection
(3) contemplates two kinds of orders as contended by the counsel and, if so whether subsection
(4) makes appealable both then orders so contemplated by subsection (3). An analysis of subsection (3) would show that jurisdiction was being conferred on the Chief Settlement Commissioner to determine the question whether an evacuee property was attached to a charitable, religious or educational trust or not, and such determination by the Chief Settlement Commissioner was to be final and not to be called in question in any Court except for an appeal provided for in subsection (4). Subsection (3) further goes on to direct the Chief Settlement Commissioner that he will not determine the question of the status of the property without giving the persons interested a reasonable opportunity of being heard. To my mind, the order contemplated is only one namely, to determine the status of the property after giving the persons interested a reasonable opportunity of being heard and that the latter part only provides for the manner in which the Chief Settlement Commissioner will exercise the jurisdiction conferred upon him. The subsection (3) does not contemplate two distinct and separate orders, as contended by the learned counsel. Even if one were to assume with the learned counsel that the subsection does contemplate two different orders, the question will still remain for consideration as to the order made appealable under subsection (4). To my mind, the order referred to in subsection (4) and made appealable is an order determining the status of the property and not any other order; that this is so will be indicated by the fact that it is to this order that finality has been given in subsection
(3) with the exception that it may be questioned in appeal under subsection (4). The order which has been made appealable is an order determining the status of the property which is otherwise final except fort subsection (4). I may here add that I was impressed by a further argument of Mr. Akhtar Mahmood that if this be so the result would be that on determination of the status of the property by the Settlement Commissioner in this case without hearing his clients, if the decision be adverse, the appellants would be, as a party aggrieved, entitled to come in appeal before this Court and in view of the provisions contained in subsection (3), that the appellants being an interested party should have been heard, this Court will have no alternative but to set aside the order and direct the Settlement Commissioner to hear the appellants and decide the status of the property. First of all it may not necessarily be that this Court would, in that event, be bound to set aside the order with the directions mentioned above, for this Court, in appeal, might as well on material on record come to the conclusion that the decision on the question of status of the property was otherwise wrong. Be that as it may, I am here concerned with interpretation of subsections (3) and (4) of section 4 of the said Act and if I am correct in my reading that the appeal contemplated by subsection (4) is an appeal against an, order determining the status of the property only, then I am, notwithstanding what the learned counsel described as an embarrassing situation that may arise, bound to give effect to it.
7. For reasons aforesaid these appeals will be dismissed, but, in the circumstances of the case, there will be no order as to costs.