' MUHAMMAD AFZAL LONE, J.---This appeal by leave to appeal arises out of the judgment dated 20- 5-1978 rendered by a Division Bench of the Lahore High Court, whereby order dated 24-6-1976 passed by the Custodian of Evacuee Property, declaring the land in dispute as non-evacuee property, was set aside.
2. The dispute between the parties relates to the land, measuring 1,741 kanals, 16 marlas, situate in village Madh Hassan, Tehsil and District Rahimyar Khan, which, according to the jamabandi for the year 1904, was owned by the non-Muslims to the extent of 2/24 share and the rest of it belonged to the predecessors-in-interest of the appellants, the details whereof are given as under: "Karim Bakhsh and IChawand Ditta in equal shares 4/24 shares, Jangla 9/24 shares, ' Sojla and Rattan in equal shares 9/24 shares, ' Haman Mal, Adiamal Nahmal and Nad Ram non-Muslims in equal shares, 1/24 shares and ' Manu Ram, non-Muslim 1/24 shares."
3. It is discernible from the record before us that, vide Mutation No,71 attested on 26-104903, 4/24 share of the land owned by Karim Bakhsh and Khawand Ditta, whb were then minors, was sold to Haman Mal conditionally till they attained majiirity and ratified the sale. In those proceedings, before the Revenue Officer, Karim Bakhsh was represented by his mother Mst. Fazal and Khawand Ditta by his uncle Ilahi Bakhsh. Evidently, the sale on behalf of the minors was void. Presumably, for the reason, as indicated by the mutation proceedings dated 29-6-1904, this mutation was acted upon in the Revenue Record "Basiga M,alguzari". Likewise, in respect of 18/24 share owned by Jangla, Sojla and Rattan, 'Mutation No,124 was sanctioned on 28-4-1904 in favour of Haman Mal holding that they were absconders. This mutation was also sanctioned "Basiga Malguzari' obviously in pursuance of section 71 of the Punjab Land Revenue Act, 1887. Under this section, after the land revenue of a holding is in arrears, the Collector may transfer the holding to some other land-owner of the estate, who is not a defaulter on the condition of his paying arrears before being put into possession of the land. The transfer has to either till the end of the agricultural year in which the defaulter pays to the transferee the amount of the arrears, which the latter paid to the Collector, or for a term not exceeding 15 years from the commencement of the agricultural year next following the date of the transfer. Seemingly, recourse to section 71 had to be made by the land revenue authorities for the reason that Muslim owners aforesaid were absent from the village, arid payment of the land revenue fell into arrears. It appears that the land continued to remain in possession of Haman Mal even long after the expiry of the period envisaged by section 71, but throughout the names of the Muslim owners were shown in the Revenue Record in the column relating to ownership.
4. In the context of the controversy raised before us another event worth consideration is the commencement of proceedings under section 145, Cr.P.C., by Essa Mal, a nephew of Haman Mal against Rehm Ali s/o Jangla, resulting in affirmation of the possession of the non-Muslims by order dated 23-6-1930 passed by the Criminal Court. Thereafter, the non-Muslims brought a criminal case under section 447, P.P.C.., against Rehm Ali, who was convicted on 14-12-1932. This conviction resulted in re-affirmation of the possession of the non-Muslim. Another transaction worth mentioning is the sale by Haman Mal to Major Saheb Yar Khan of 1/24 share of his proprietary rights in the land and 11/24 of the possessory rights. This sale was evidenced by Mutation No,1, entered on 6-7-1934, and sanctioned on 25-11-1935. On the death of Major Saheb Yar Khan, the land devolved on his two sons, namely, Muhammad Ibrahim, respondent No,2 herein, and Atta Muhammad. The latter sold his share to respondents Nos. 3 and 4.
5. It will be seen, as observed earlier, that all along in the land revenue record in the "ownership column" the names of the appellants, predecessors-ininterest continued to figure. The non- Muslims made an effort to have their names deleted and also succeeded in getting Mutation No,4 entered in this behalf, but it was cancelled on 15-12-1938. Earlier, on 2-2-1936 Sojla and others filed a suit against Major Sahab Yar Khan, on the basis of their title, for possession of the land measuring 346 kanals, 4 marlas, forming part of joint Khata. It was claimed that they left their village in search of work and 11 years ago gave their land to Asir Mal defendant, for cultivation, subject to the condition that he would pay the land revenue and further pay their share of income to them on their return to the village, but in their absence he alongwith Haman Mal made unsuccessful attempt to get the land alienated in their names. This suit was dismissed on 19-12-1938, and a finding given that the land was in adverse possession of non-Muslims. Sojla and others did not challenge the dismissal of their suit through appeal. This decree, thus, attained finality. However, it was not given affect in the Revenue Record and the names of the Muslims owner continued to appear therein. It is to be noticed that respondent No,2 and others also made a move to have their names substituted for that of Rehm Ali and others on the plea that they were out of possession since long, the possession of Haman Mal, and for that matter of the vendee from him became adverse to them and matured into title in their favour by prescription. But, Mutation No,404 got entered by them in this respect was rejected by the Assistant Commissioner, Rahimyar Khan, vide his detailed order dated 16-4-1956.
6. One Haji Muhammad Qamar, who is not a party to the appeal before us, moved the Collector, Rahimyar Khan, that the appellants were in possession of the evacuee property unauthDrizedly.
This application was forwarded by him to the Deputy Custodian Evacuee Property under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, and his opinion solicited as to whether the land could be allotted to the informer. The Deputy Custodian returned back the file to the Collector and maintained that the matter pertained to the Settlement and Rehabilitation Department. The Deputy Custodian's order is dated 17-1-1961. Earlier on 9-5-1960, the joint khata of the Muslims and non-Muslims was partitioned, with the result that the entire area covered by Mutations No, 71 and 124 was treated as evacuee property. This led the appellants to apply on 11-1- 1961 to the Deputy Custodian, under section 22 of the Pakistan (Administration of Evacuee Property)
Act for declaration that the agricultural land, measuring 1,741 kanals and 16 marlas, comprising their 22/24 share in the khata was not an evacuee property. On the basis of the material before him, the Deputy Custodian held that the appellants' rights in the land in dispute were not affected by Mutations Nos.71 and 124; sale made by Haman Mal, in so far as it related to the land claimed by the appellants, was declared void and his possession not considered adverse to the appellants.
The Deputy Custodian's decision is dated 14-4-1962, which was referred by him to the learned Custodian for confirmation.
7. Respondent No,2 and the vendees from Atta Muhammad preferred two separate appeals against the orders of the Deputy Custodian. These appeals and Reference made by the Deputy Custodian were heard together. The learned Custodian largely relied upon the Civil Court's judgment dated 19-12-1938, and came to the conclusion that the Muslim share-holders i,e, predecessors-ininsterest of the appellants lost their title in the land long before partition due to adverse possession of the non-Muslims. Consequently, by his order dated 27-5-1963 the leartlied Custodian accepted the appeals, declined to confirm the order of the Deputy Custodian and dismissed the appellants' application under section 22 of the Act.
8. Aggrieved by the order dated 27-5-1963, the appellants filed Writ Petition No, 671-R/63, which was accepted on 6-4-1973 by a Division Bench of Bahawalpur Circuit of the Lahore High Court, and the order of the learned Custodian declared as without lawful authority and of no legal effect.
Resultantly, it became incumbent upon the Custodian to decide the appeals and the Reference afresh. The reasons which prevailed with the High Court in interfering with the orders of the Custodian were that the land had been transferred to the non-Muslims "Basiga Malguzari", but no finding was recorded on the issue whether such transfer at its inception was lawful and if it was lawful when did the transferee's possession become adverse to the real owners. The High Court noticed that section 71 was never adverted to by any of the authorities below 'at any stage of this protracted litigation and the fact that the non-Muslims, who were co-sharers and held possession within defined limits, was ignored.
9. Pursuant to the remand order, after rehearing the case, the learned Custodian vide his order dated 24-6-1976 confirmed the Deputy Custodian's order dated 14-4-1962 and dismissed the appeal of the respondents on the ground that Mutations Nos.71 and 124 having been sanctioned "Basiga Malguzari', the possession of Haman Mal was permissive and not on account of trespass into the land. It was maintained that real owners neither abandoned the land permanently nor the non-Muslims occupied the same against their wishes, but held it on payment of land revenue, on their behalf, and consequently their names continued to be entered in the Revenue Record, as owners.
10. Muhammad Ibrahim, respondent and the two vendees from Atta Muhammad, then filed Writ Petition No,1118/R/76 to assail the validity of the Custodian's order. In the opinion of the learned Division Bench, which heard it, the possession of the non-Muslims was open, hostile and stood established by the Civil Court's judgment dated 19-12-1938, even if the initial possession was permissive and as co-sharers, by hostile steps of the non-Muslims, it became adverse to the real owners. It was held that though the Civil Court's decree related to the land measuring 346 kanals, 4 marlas, its rationale would apply to the rest of the land as well. It was further observed that some land in the meanwhile was allotted to non-Muslims against which the appellants never agitated.
This factor also influenced the decision of the High Court to draw an inference as to the loss of title of the real owners.
11. It is evident from the record before us, that Haman Mal acquired the possession of the land by virtue of Mutations Nos.71 and 124 "Basiga Malguzari" envisaged by section 71 of the Land Revenue Act. Even if he was already in possession, under a different character, upon his induction into the land "Basiga Malguzari" his possession became relatable to subsistence of a lawful title in the predecessors-in-interest of the appellants. Subsection (6) of section 71 of the Punjab Land revenue Act, 1887, lays down: "When the transfer was for a term, the holding shall, on the expiration of the term, be restored by the Collector to the defaulter free of any claim on the part of the Government or the transferee for any arrear of land-revenue or rates and cesses due in respect thereof."
Subsection (2) specifies the period to transfer, which as already observed, may be till the end of the agricultural year in which the defaulter-landlord pays the amount of arrears to the transferee. If it is not so, the transfer can last for a maximum period of 15 years.
12. Subsection (6) enjoins a duty upon the Collector to take back the possession from the transferee after the expiry of the term, and restore it to the land-owner. Anomalously, the period of transfer is not specified in the two mutations. This was an omission on the part of the Collector. But, the land-owners could hardly be blamed for this failure of the Collector, nor would it immune him to carry into effect the provisions as to the restoration of possession. At the most, the transfer would be deemed to have enured for the maximum period of 15 years and thereafter in no case the Collector could disregard his statutory obligation, resulting in deprivation of the land-owners of the possession. The true owners, who had no control over the exercise of powers by the Collector, could not be made to suffer an injury for his neglect. The provisions of section 71 are confiscatory in character and in derogation of right to possess and enjoy one's property. In this view of the matter, it is abhorrent to permit generation of mischievous consequences from the Collector's inaction, resulting in destruction of the rights of a true owner in his property by setting up a title in the transferee through adverse possession. The question is, what is the nature of the possession of a "transferee" of the holding under section 71. It is obvious that the possession is taken over from the land-owner by the Collector and passed on by him to the "transferee", who has to clear the arrears of land-revenue. After the expiry of the term of transfer, the Collector is required to retrieve the possession and restore it to the land-owner. The defaulter land-lower can pay to the transferee the arrears and get back the possession through the Collector at the end of the agricultural year in which payment is made. Upon the scheme of the section it can well be presumed that the "transferee" holds the land on behalf of the Collector; his possession is permissive and arises out of his agreement with the Collector, in pursuance of section 71. The possession commencing under the authority of Collector does not transform into hostile one and ripen into title by mere length of occupation. Thus, the possession which in its inception is referable to operation of law and subservient to the title of the real owner, is to be presumed to continue as it began.
13. Even if it is assumed that a licensee can by prescription convert his permissive possession into an absolute ownership of the property, then a very clear cut and a positive disclaimer of title of the real owner and an adverse claim to his knowledge is essential. Such evidence is not forthcoming from the record, for throughout, in the Revenue Record the appellants' predecessors-in-interest where continuously shown as owners of the land; the attempts made for deletion of their names failed, and the possession of the non-Muslims all along bore the character of "Basiga Malguzari".
The High Court has not at all attended to the provisions of section 71 and wrongly considered the Criminal Court's decision, in the proceedings under section 145, Cr.P.C., and in the case under section 447, P.P.C., as evidence of such disclaimer completely divorced from the vivid restrictions under section 71 on the transferee's possession. It also overlooked the object and ingredients underlying the criminal proceedings under these provisions. It is correct that there was also a decree of the Civil Court holding the non-Muslims in adverse possession, but that decree was in respect of an area measuring 346 kanals, 14 marlas only. We are unable to understand as to how the rationale of the decree could be extended to rest of the land, which was not subject-matter of the suit and the title of the real owners extinguished. We regret our inability to subscribe to the reasoning in this respect, which prevailed with the learned Judges in the High Court. It is clear to us that regarding the land other than the one covered by the Civil Court's decree, there was no clog on the title of the appellants. As regards the allotments, we are informed that these were made pendente lite and not confirmed.
' For all these reasons, the impugned judgment is set aside, and the order of the learned Custodian dated 24-6-1976, in so far as it relates to land other than one covered by the Civil Court's decree dated 19-12-1938, is restored. The parties are left to bear their own costs.