' ALI HUSSAIN QAZILBASH, J.--This is an appeal by leave from the order of a learned Single Judge of the Lahore High Court, dated 14-11-1979, whereby the Regular Second Appeal filed by the appellant was dismissed in limine.
2. The facts as alleged in the plaint are that property bearing No,S-VI-7-S-2, Lodge Road, Old Anarkali, Lahore, is an evacuee trust property and respondent No,2, namely, the District Evacuee Trust Committee, is legally entrusted to manage the same. The appellant is in occupation of one room, one kitchen, a gallery and a small courtyard on the third storey of the suit property; that respondent No,1 fraudulently claimed the transfer of the portion in occupation of the appellant and other occupants and thus an application for the ejectment of the appellant and other occupants was filed by respondent No, 1 in the Court of the Rent Controller on the basis of a P.T.O. Issued to him which was subsequently cancelled by the Deputy Settlement Commissionter, Centre-II, Lahore. The petition for ejectment was contested by the appellant alleging that he is in possession of the suit property in his own right and that there did not exist any relationship of landlord and tenant between the parties. The Rent Controller, however, on 15-4-1969, determined the existence of relationship of landlord and tenant between the appellant and respondent No,1 and passed an ex parte order of ejectment against the appellant. The dispossession of the appellant from the suit property was, however, stayed temporarily and in the meantime the appellant filed a suit in the Civil Court for a declaration to the effect that the appellant was in exclusive possession of one room, one kitchen, a gallery and a small courtyard of the suit property in good faith and on his own account and that he was not a tenant under respondent No,1. As a consequential relief, a prayer was also made to restrain respondent No,1 by way of a permanent injunction from interference in any way in the peaceful enjoyment and possession of the appellant over the suit property.
3. The suit was contested and on the basis of the pleadings the learned Civil Judge, 1st Class, Lahore, framed as many as ten issues. After recording the evidence, the learned trial Court dealing with the issue whether respondent No,1 was a lawful transferee of the property in dispute or a portion thereof, held that respondent No,1 was the transferee of the suit property and that documents Exs.D.2 and D.3 have created doubt about the truth of cancellation order dated 2-7- 1960 and that had the P.T.O. Been cancelled and property declared as trust property, the Trust Board would have certainly claimed rent from its occupiers and thus answered the said issue against the appellant. Similarly, the issue in regard to the cancellation of the P.T.O. As alleged by the appellant was also answered in the negative. So far as the issue 'whether the property in suit has been declared as evacuee trust property' it was also decided against the appellant for lack of evidence. As for the denial of tenancy by the appellant qua the suit property, this issue was also decided in the negative and thus the suit was dismissed as per judgment dated 12-2-1977. The appeal taken by the appellant before the learned Additional District Judge, Lahore, was also dismissed on 21-10-1978 and same was the result of his regular second appeal.
4. Leave in this case was granted to consider whether respondent No,1 could, in the circumstances, obtain the ejectment of the appellant in pursuance of a P.T.O. Issued to him which stands cancelled since long and the property declared to be evacuee trust property.
5. The learned counsel for the parties heard. Besides the property in dispute in this case, it's another portion was also a subject-matter of protracted litigation between the alleged allottee-transferees and the Trust Board before the Settlement authorities and the Civil Courts. The litigation about this portion of the property ultimately reached this Court in Civil Appeal No,278 of 1969 filed by Haji Niaz Muhammad against Muhammad Din Qureshi and others, which was heard and decided on 7-5- 1975 and while dismissing the appeal it was observed: "In the instant case, the very character of the property on which depended the basic question of its availability for transfer was in dispute and remains yet to be determined. The authorities pressed into service are not relevant having no bearing whatever on the case before us. No doubt ordinarily once PTD is issued, the Settlement Authorities would become functus officio and subsequent litigation would fall within the competence of Civil Courts, but in the instant case as stated earlier, the basic question of the availability of the property for transfer which goes to the root of the matter is yet to be determined and is before a competent forum authorised by law. Unless the nature of the property as being non-trust property is determined in the first instance it could not be deemed to have formed a part of the compensation pool so as to be available for transfer. In this view of the matter, the first order of transfer of the property dated 28-11-1959 made by the Deputy Settlement Commissioner in favour of the appellant in the purported exercise of his powers was without jurisdiction as rightly held by the High Court. A perusal of the record shows that the controversy as to the nature of the premises as its having been treated as trust property at one stage is not without basis. The Chief Settlement Commissioner, vide his Letter No,9003-Sett- CSRC/60, dated 10-10-1960 called for a list of such evacuee properties attached to charitable religious and educational trusts or institutions as had been irregularly transferred. In response to this letter, which exists at page 4 of Part II of the Paper Book, a statement of trust properties in Old Anarkali area was submitted and exists at page 14 of Part II of the Paper Book. The disputed property is included in this list and is mentioned at Serial No,10. We may not however, be understood to have given a finding in this regard and only wish to highlight that the controversy is very much in issue and is pending before the competent authority."
6. After the above judgment, the Evacuee Trust Property Board moved the Chairman of Evacuee Trust Property Board where Haji Niaz Muhammad and other occupants excluding, of course, the appellant, were arrayed as respondents. The Chairman after considering the matter threadbare held: "The facts, therefore, are that the property in dispute was owned by the said Technical School of which the founders and objects have been mentioned in the Supreme Court record. The founders were Hindus. The object was the betterment of Hindu community. The property, therefore, was exempt from tax in terms of the Corporation Record. Thus, it had all the vestiges of a trust property."
' The petition was thus accepted on 15-1-1976. In the same order, the transfer of a portion in the name of Haji Niaz Muhammad was kept intact by the Chairman because a P.T.D. Was issued in his name. The above order was impugned by way of an appeal by Manzur-ul-Haq and others before the Joint Secretary, Ministry of Religious Affairs, who after hearing the parties vide order dated 15-3- 1979 held the entire property as evacuee trust property and thus set aside the order of the Chairman whereby he had validated the transfer of Haji Niaz Muhammad relating to half portion of property No,S-VI-7-S-2. It seems that Haji Niaz Muhammad did not agitate the matter further and thus the order treating the whole property as evacuee trust property attained finality.
7. A perusal of the record shows that during the pendency of the proceedings in respect of the other portion of the suit property, respondent No,1 once again approached the Deputy Settlement Commissioner, Lahore, claiming to be the transferee of the property in suit but this application was disposed of on 20-9-1976 holding that the Chairman, Evacuee Trust Property Board, has since declared the property in dispute as trust property. Respondent No,1 thereafter did not press the matter before the Settlement authorities.
8. The above narration of facts which are not disputed by respondent No,1 has clinched the matter once for all qua his claim. Since the property had all along been treated as evacuee trust property, it did not form part of the compensation pool, therefore, the Deputy Settlement Commissioner had no jurisdiction to treat the disputed portion to be an evacuee property and transfer it )as such to respondent No,1. Obviously, therefore, the P.T.O. Issued on 2-4-1960 in the name of respondent No,1 had no legal sanction, was without jurisdiction and rightly recalled by the Deputy Settlement Commissioner on 2-7-1960. The receipt of letter of cancellation dated 2-7-1960 has not been specifically denied by respondent No,1. The record shows that respondent No,1 neither challenged the letter of cancellation of the P.T.O. Dated 2-7-1960 nor did he challenge the order of the Deputy Settlement Commissioner dated 20-9-1976 informing him that the property in his possession has since been declared as evacuee trust property by the Chairman, Evacuee Trust Property Board. The perusal of the record also shows that the appellant tried to bring on record certified copies of the orders passed by the Chairman, Evacuee Trust Property Board, treating the property to be evacuee trust property, and of the Deputy Settlement Commissioner dated 0-9-1976, in the appellate Court; but the same was refused on flimsy grounds. Moreover, the grounds of appeal filed by the appellant against the judgment of the Additional District Judge; Lahore, dated 21-10-1978, show that the appellant had given the relevant portion of the judgment of the Supreme Court in Civil Appeal No,278 of 1969 in the case of Haji Niaz Muhammad v. Muhammad Din Qureshi and others verbatim but it seems that the learned Judge has altogether ignored the observations so made by this Court.
9. The sum-total of the above is that there is overwhelming evidence on the record to establish that the property in dispute was an evacuee trust property and thus it could not be transferred to respondent No,1, and respondent No,1 could not claim ownership over the suit property on the basis of P.T.O. Issued to him on 2-4-1960 which was subsequently recalled on 2-7-1960 and, therefore, could not roceed against the appellant for his ejectment from the suit property. ##TR##
10. As a result of the above, the appeal is accepted with costs throughout and the judgments and decrees of the Courts below are set aside.