1. SALAHUDDIN AHMED, J.-This appeal by special leave of this Court is from the order of a Division Bench of the then High Court of West Pakistan, Lahore Seat, dismissing the appellants' writ petition and refusing to interfere with the impugned orders dated the 26th of October 1963, and 17th of December 1956, passed respectively by the Rehabilitation Commissioner and the Deputy Custodian (General).
2. The appellants are the refugees who were allotted evacuee lands in village Bindaur, District Rahimyar Khan and have been in possession of the lands for a long time. Originally, these lands as well as other lands in villages Bindaur and Kokari were jointly owned by Muslims and non-Muslims.
3. In the year 1937 or 1941 in accordance with a private partition between the Muslim and non-Muslim owners, the entire lands situated in village Kokari were left in the ownership and possession of the non-Muslims while in village Bindaur the area shown by portions A and B in Annexure 'D' at page 77 of the paper book came to be separately owned and possessed by Muslim owners, and portions C and D thereof fell to the ownership and possession of non-Muslims. It was further agreed between the parties to this partition that the deficiency in their shares, if any, would be made good from the remaining joint lands if and when they were brought under cultivation. These facts are admitted and there is no dispute about them.
4. In the year 1956 miscellaneous applications were submitted to the Collector, Rahimyar Khan by Khan Ataullah Khan and Asmatullah Khan, predecessors of respondents 10 to 13 and respondents Nos. 6 to 9 respectively, stating therein that there was some deficiency in their shares, as a result of the aforesaid private partition, and therefore, in accordance with the agreement between the Muslim and non-Muslim owners the deficiency should be made up. Similar miscellaneous applications were also sub--mitted before the Deputy Custodian, Bahawalpur, asking for permission to be given to the Revenue Department to make up the deficiency. Their case was that they were joint proprietors of vast areas of agricultural lands situated in village Bindaur and Kokari, with some non-Muslim evacuees, who had effected a private partition as a result of which the parties to the partition had entered into possession of certain lands. The respondents, however, had got lands which were less than their due shares, and they, therefore, asked for making up the deficiency from the lands in village Bindaur.
5. On the 7th December 1956, the Deputy Custodian (General), directed the Deputy Custodian, Bahawalpur to permit the Revenue Department to make up the said deficiency in such a manner that the total area in possession of the petitioners before him, should become equal to 11/16 share to which they were entitled. It was also ordered : "their possession will, however, be not disturbed".
6. This order was passed without impleading the allottees as parties.
7. On the 26th of April, 1957, the respondents applied to the Assistant Collector, Ist Class, Rahimyar Khan, claiming partition of the land by making good the deficiency from the lands in village Bindaur.
8. By his order dated the 29th October 1957, the Assistant Rehabilitation Commissioner gave 11/16 share of land in villages Bindaur and Kokari amounting to an area of 828 kanals and 4 marlas to the respondents. On appeal preferred by the appellants, the Deputy Rehabilitation Commissioner, remanded the case to the Assistant Rehabilitation Commissioner for a fresh decision after hearing the parties. The Assistant Rehabilitation Commis--sioner reheard the matter and maintained his original order dated the 29th October 1957.
9. The appellants again preferred an appeal before the Deputy Rehabilitation Commissioner and the latter on the 28th September 1954, set aside the order of the Assistant Rehabilitation Commis-- sioner regarding an area of 458 kanals and 14 marlas and directed that these be left in possession of the appellants and confirmed to them while the remaining 341 kanals and 6 marlas should be handed over to the respondents. It was further ordered that the deficiency in the share of the respondents should be made out of the lands held as 'Maqbooza Malkan'.
10. The revisional applications from this order were filed by the respondents and some of the Muslim owners before the Rehabili--tation Commissioner, who by his order dated the 26th October 1963, set aside the order of the 28th September 1959, of the Deputy Rehabilitation Commissioner and restored that of the Assistant Rehabilitation Commissioner dated the 29th October 1957.
11. In the meantime on the 3rd of December 1960, a civil suit was filed in the Court of Senior Civil Judge, Rahimyar Khan, by Sardar Ahsanullah Khan, Sardar Usmatullah Khan and Abdullah Khan for a declaration that they were the owners of the entire disputed land i.e. 800 kanals and 4 marlas and that the appellants had do right in this area. An issue was framed by the civil Court "whether the land in dispute is an evacuee property or not?" The civil Court referred the issue for decision under section 41 of Act 12 of 1557 to the Deputy Custodian, Evacuee Property. The Deputy Custodian, on the basis of the appellate order of the Deputy Rehabilitation Commissioner dated the 28th of September 1959, held that an area of 458 kanals and 10 marlas which had fallen to the share of the non-muslims under the appellate order of the Deputy Rehabilitation Commissioner was evacuee property.
12. Mian Bakhsh and others filed appeals from this order which were dismissed by the Custodian, Evacuee Property, on the 28th of November 1963.
13. The appellants filed writ petition in the High Court challeng--ing the orders dated the 26th October 1963, and the 17th December 1956. As regards the order dated the 17th December 1956, passed by the Deputy Custodian (General), the High Court held that the challenge was too belated to be entertained and there was no ground for setting it aside. It was observed that the order was rightly passed in exercise of the powers under clause 'O', subsection (2) of section 20 of Ordinance XV of 1956 correspond--ing to Clause 'W' of subsection (2) of section 25 of the (Administration of Evacuee Property) Act XII of 1957.
14. The High Court, however, construed the order of the Deputy Custodian (General) dated the 17th December 1956, to mean that the latter had ordered that the deficiency was to be made good from the lands in village Bindaur. The Court held that the entire deficiency of 800 kanals was rightly made up to the respondents from the lands adjoining their holdings in village Bindaur.
15. The appellants have been aggrieved by the orders dated the 29th October 1957, and the 26th October 1963, passed respectively by the Assistant Rehabilitation Commissioner and the Settlement and Rehabilitation Commissioner. Under the former order 828 kanals and 4 rnarlas in village Bindaur were given to the respon--dents, and under the latter order. The order of the Deputy Rehabilitation Commissioner dated the 28th September 1959, was set aside and the order dated the 29th October 1957. Of the Assistant Rehabilitation Commissioner was restored. The Deputy Rehabilitation Commissioner on the 29th September 1959, had set aside the order of the Assistant Rehabilitation Commissioner dated the 29th October 1957, and directed that 458 kanals and 14 marlas in village Bindaur be, left in possession of the appellants.
16. It has been contended that the High Court misconstrued the order of the Deputy Custodian dated the 17th December 1956. The Deputy Custodian had directed that the deficiency should be made up in such a manner that the total area in possession of the respondents should become equal to 11/16 in share but their possession should not be disturbed. He never ordered that the deficiency was to be made up from lands in village Bindaur.
17. There is substance in this contention. The operative portion of the order of the Deputy Custodian, dated the 17th of December 1956, is as follows :---- "After the consideration of all the reports and papers on record, I direct the Deputy Custodian, Bahawalpur, to permit the Revenue Department to make up the deficiency in such a manner that the total area in possession of the petitioners shall become equal to 11/16th share to which they are entitled. Their possession will, however, not be disturbed. This will complete the partition the result of which can in due course be incorporated in the revenue record."
18. It is evident that the learned Judges of the High Court fell into error when they thought that the Deputy Custodian had ordered the deficiency to be made up from lands in village Bindaur. On the contrary the order specifically stated that the possession of the respondents in regard to the lands already in their possession be not disturbed.
19. It has next been contended that the impugned partition is against law and the aforesaid agreement between the Muslim and non-Muslim owners. The partition is to be effected in the manner prescribed under clause (w) of subsection (2) of section 25 of the Pakistan (Administration of Evacuee Property) Act, 1957, read with paragraph 15, Chapter 1, Part II of the Rehabilitation and Settlement Scheme No. 1. They are as follows :---- Section 25(2) without prejudice to the generality of the provisions contained in subsection (1), the Custodian may,--------------------------------------------------------------------------- --------------------------------------------------------------------------------------
(w) partition or permit a Rehabilitation Authority to parti--tion any property or rights therein if a share in such property or rights consists of evacuee property ; Paragraph 15 of the Scheme; "The competent Rehabilitation Authority will partition joint khatas of Muslims and non-Muslims in West Pakistan in the manner prescribed below where there is no hissadari qabza and allot evacuee area of the partitioned land to the claimants under the Rehabilitation Settlement Scheme :--
(1) A Rehabilitation Authority may either of its own motion, or on an application made to it in this behalf, order in writing the partition of the shares of an evacuee out of joint property.
(2) -------------------------------------------------------------------------------------- ---------
(3) -------------------------------------------------------------------------------------- ---------
(4) -------------------------------------------------------------------------------------- --------- It is thus apparent that partition is to be effected of the joint khatas of the Muslims and non- Muslims where there is n hissadari qabza. In the impugned partition lands already parti--tioned and separately possessed by the evacuees, and subsequently by the allottees were directed to be taken away from them for the' purpose of making up the deficiency, although there were joint lands still available for the purpose. This was neither legal nor fair.
20. The impugned partition is also in contravention of the afore said agreement which stipulated that the deficiency in the shares of the parties, if any, would be made good on a future date from the remaining joint land, when they were brought under cultivation.
21. We find little force in the contention advanced on behalf of the respondents that the lands in villages Bindaur and Kokari having been confirmed to refugees, there was only a small quantity of un-reclaimed lands left in the two villages, and these were hardly sufficient to make up the deficiency. The confirmation, if any, is a subsequent event and at the time the impugned order of the Deputy Custodian dated the 28th September 1959, was passed, 18050 kanals in Mauza Bindaur were joint and unparti--tioned and were, thus, available for making up the deficiency as ordered. In all fairness and according to all the known canons of partition, the deficiency could and should have been mad good from the "Maqbooza Malkan" lands in village Bindaur Such a course was also imperative under the aforesaid agreement between the Muslim and non-Muslim owners. The non availability of sufficient "Maqbooza Malkan" land is no justification to resort to the inequitable course of compelling the appellant to part with the reclaimed lands upon which they have spent money and labour to improve them. The duty rests with the Settlement Authorities to make up the deficiency of the respon--dents from lands in village Bindaur which were `Maqbooza Malkan', even if this process require reopening of some of the transactions respecting the lands. Much of the confusion arose in this matter on account of the unfortunate misreading and misconception of the order of the Deputy Custodian, dated the 17th of December 1956.
22. The admitted facts are that Muslim and non-Muslim owners as a result of the aforesaid private partition came to possess specific land in villages Bindaur and Kokari and they ceased to be joint.
23. Upon the promulgation of the Settlement Laws the lands of the non-Muslims, who evacuated to India, became evacuee property and unless there was a conscious declaration to the contrary as a result of the prescribed procedure, the lands continued to remain evacuee. All that the Custodian could do in such circumstances was to direct the Rehabilitation Authorities to partition and separate the shares of the evacuees from those of the non-evacuees in the case of lands that had remained joint and not divided and separately possessed by them. Therefore, under the law the only property which could be thus dealt with was the joint undivided lands in village Bindaur, and the deficiency must be made good from these lands alone. In our opinion the order of the Deputy Rehabilitation Commissioner dated the 28th September 1959, was correct and in accordance with law, and it should have been left to rule the field.
24. We, accordingly, allow the appeal but make no order as to costs. We direct that the appellants shall retain the disputed 458 kanals and 14 marlas in village Bindaur. If the appellants lay claim to lands in excess of the said 458 kanals against their verified claims, such claim will be determined in accordance with the law prevailing at the time.