This petition filed under Article 199 of the Constitution by Qabil Shah and others, petitioners herein, seeks the quashment of order dated 6-7-1976 of the Deputy Commissioner/Deputy Custodian of Evacuee Property Kohat, respondent No.2 herein, and order dated 25-11-1976 of the Additional Custodian of Evacuee Property Peshawar Division, respondent No.l herein.
2. The facts giving rise to this Constitutional petition are that the suit land was originally owned by Muhammad Khan and Feroz Khan who alienated the same in favour of Diala Mal and Arjan Das for Rs.70 through sale Mutation No.842 attested on 14-1-1916. However, in the record of rights of 1918-19 and such record prepared thereafter, instead of sale, the said sale mutation was incorporated as of mortgage and this entry continued to exist even after the evacuation of the aforesaid non- Muslim vendees. The suit property was acquired by the then Central Government and was transferred to Wazir son of Khanan a claimant displaced person in lieu of his verified claim in accordance with the provisions of Displaced Persons (Land Settlement) Act, 1958. The said Wazir died and his inheritance mutation No.56 was attested in favour of his son Rahim Badshah on 14-2- 1974 in respect of the suit land. The said Rahim Badshah alienated the suit land in favour of one Aslam Khan son of Khanzada through sale Mutation No.60 attested on 9-4-1974. The said Aslam Khan on the very same day sold the suit land to the petitioners herein for Rs.30,000 through sale Mutation No.68 attested on 9-4-1974. In the meantime a correction in the Revenue record of 1973- 74 was made by an order of the Revenue Officer dated 14-2-1974 according to which the entry of mortgage in favour of the aforesaid non-Muslim vendees was changed into that of sale in their favour. Abdul Hanan respondent No.6 herein claiming to be the sole survivor of the original vendees Muhammad Khan and Feroz Khan and claiming that the suit land was under mortgage, filed an application for redemption of the same on 9-3-1974 in the Court of Deputy Commissioner/Deputy Custodian Kohat wherein the petitioners herein were also made parties and they submitted a written statement therein contesting the said application. But this application was dismissed in default on 2--12-1975 under Order IX rule 3 C.P.C. But the same was restored on 6- 7-1976 on the application of the respondent No.6 submitted on 30-12-1975. Thereafter the learned respondent No.2, on conclusion of the case, by order dated 6-7-1976 accepted the application and ordered the redemption of the suit land in favour of respondent No.6 without payment of any mortgage amount. The petitioners herein, aggrieved by this order, filed an appeal in the Court of Additional Commissioner/Additional Evacuee Property Peshawar Division, but the same was also dismissed on 25-11-1976.
3. The petitioners in this writ petition have challenged both the aforesaid orders of learned respondents Nos.2 and 1 on the grounds inter alia that the property was declared evacuee on the basis of sale in favour of the non-Muslim and it could not subsequently be held as a mortgage. The petitioners had also challenged the aforesaid orders on the other ground that at the time of repeal of the Evacuee Property and Displaced Persons Laws it was not a pending case and proceedings could not be initiated before the Deputy Custodian for redemption of the same. This plea was taken by them on the mistake which occurred in the supply of the copy of the application for redemption wherein the date of institution was wrongly mentioned as 29-1-1975 whereas the application has been presented on 9-3-1974. The petitioners, therefore, withdrew from this ground but took up the other plea that Deputy Commissioner Kohat was not a notified officer under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and as such he could not entertain the application for redemption of the suit land.
4. 1 have heard learned counsel for the parties at great length who have also led me through the entire record of the case.
5. It has been admitted by the learned counsel for the petitioners that the entry in the Revenue record after the sale Mutation No.842 attested in favour of Diyala Mal and Arjan Das was that of mortgage and not sale and these entries continued in the Revenue record even when the property was acquired by the Central Government for transfer to claimants. It can, therefore, be safely concluded that the Central Government had acquired only the mortgagee rights of the displaced non-Muslim and the same could only be transferred to the claimants. The correction in the Revenue record made by Fard Badar No.297 attested on 14-2-1974, copy Annexure D, was made by the Revenue Authorities and not by any authority appointed under the Evacuee Property Laws. The suit land had already been acquired by the Central Government in the year 1963 and at that time it was under mortgage with the non-Muslim evacuees and ownership was with the Muslims. This land could only be treated as evacuee property by the authorities appointed under the provisions of the Pakistan Administration Of IA Evacuee Property Act, 1957. Since the suit land had been acquired by the Central Government before the attestation of the Fard Badar, the Revenue Authorities had no jurisdiction to make any. Order with regard to it. Its status could only be changed by the authorities appointed under the aforesaid Act of 1957. However, the authorities appointed under the Act of 1957 also could not change the status of this property to declare it as evacuee property (Besides the only mortgagee interest of the non-Muslim) after 1-1-1957 under section 4 thereof.
6. The suit land being owned by Muslims and the evacuee interest therein of only mortgage, the same could be redeemed by the mortgagors at any time under the law. Thus the proceedings initiated by respondent No.6 for redemption of the suit land were quite in order and were not illegal or irregular in any way. The learned respondents Nos.l and 2 had the jurisdiction under the aforesaid Act of 1957 to discharge evacuee interest of mortgage and redeem it in favour of respondent No.6.
7. In so far as the other ground of the petitioners with regard to the respondent No.2, not being a notified officer is concerned, it is also devoid of any force for the reason that after the coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance NoXV of 1974 and subsequently of the Evacuee Property and Displaced Persons Laws (Repeal) Act NO.XIV of 1975, the Deputy Commissioner/Additional Deputy Commissioner of each district had been notified as Deputy Custodian under the aforesaid Act of 1957 and as such he had jurisdiction to entertain the proceedings with regard to redemption of mortgage.
8. It shall thus be seen that there was neither any illegality nor any error of jurisdiction in the authority of the learned respondents Nos.l and 2 to entertain and adjudicate upon the proceedings with regard to the redemption of the suit land in favour of the respondent No.6 I do not find any merit in this petition which is dismissed with no order as to costs.