SHAFIUR RAHMAN, J.---Leave to appeal was granted to the plaintiff to examine whether the High Court could while exercising revisional jurisdiction under section 115, C.P.C. On entirely new grounds, not earlier taken up by any of the parties, hold that the sale made by the Muslim owners to evacuee was hit by the Punjab Alienation of Land Act (Act XIII of 1900)--hereinafter referred to as the Act, and further that the property could not be declared or treated as evacuee without reference to the Custodian, having ever been made on the subject.
The plaintiff had at a public auction conducted by the Settlement Department purchased land measuring 4 kanals for Rs.3,200 out of which he had sold away 1 kanal leaving with him 3 kanals in all. He instituted a civil suit on 5-9-1974 contending that he was in possession of the property and the defendants/respondents were interfering with it. He sought an injunction and also the alternative relief of possession of the land against the defendants/respondents. The suit was contested by the defendants on two grounds mainly. Firstly, as regards the original owners or their successors-in---interest were concerned, it was pleaded that the Settlement Department as Custodian had no power to auction it. Secondly, it belonged to Muslim owners and the plaintiff could claim no interest in respect of it. Badshah Khan/vendee from the Muslim owner claimed the protection of being a bona fide purchaser.
This contest led to the framing of the following issues:----
(1) Whether the plaintiff is entitled to the decree for permanent injunction against the defendants?
O.P.P.
(2) Whether the form of the suit is incorrect? O.P.P.
(3) Whether the defendant No.2 is bona fide purchaser of the suit property': O.P.D.
(4) Whether the defendant has improved the property; if so to how much they are entitled? O.P.
(5) Whether the suit is within time? O.P.P.
(6) Whether the suit is deficient in Court fee? O.P.D.
(7) Whether the Court has the jurisdiction to try the suit? O.P.D.
(8) Whether the auction, if any, conducted by the Custodian in favour of the plaintiff is void and ineffective on the rights of the defendants? Defendants? O.P.D.
(9) Whether the plaintiff has a cause of action? O.P.P.
(10) Whether the suit is bad for non-joinder of necessary parties? O.P.D.
(11) Whether defendant No.1 has prescribed title to the suit property by adverse possession? O.P.D.
(12) Relief."
3. After evidence had been led and trial concluded, the trial Court held the material issues proved in favour of the plaintiff and found the bona fide purchaser not entitled to any protection or cost of improvements. The claim was decreed. The appeal against it was dismissed.
4. The High Court while in revisional jurisdiction noted that Sardar Khan, the predecessor-in-interest of Ayub Khan (respondent No.1), the contesting owner of the land, had made the following alienations, all by registered sale--deeds, but had not parted with the possession of the land:----
(i) An area of 1 Kanat and 16 Marlas in favour of Palwa Ram vide registered sale-decd No.86 dated 9-9-1929 for the consideration of Rs.1,960
(ii) An area of 3 Kanals 3 Marlas in favour of Kamran Das and Qaisar Das vide registered sale-deed No.87 dated 9-9-1929 for Rs.2,000.
(iii) An area of 2 Kanals and 2/1-2 Marlas in favour of Maing Raj vide registered sale-deed No. 88 dated .9-9-1929 for Rs.1,268.
(iv) An area of 1 Kanal in favour of Utam Chand vide registered sale-deed No. 89 dated 9-9-1929 for Rs.600.
(v) An area of 2 Kanals and 4 Marlas in favour of Lachhman Das vide registered sale-deed No.90 dated 9-9-1929 for a consideration of Rs.1,400.
(vi) An area of 17 Marlas in favour of Kala Ram and Hari Chand vide registered sale-deed No.91 dated 9-9-1929 for Rs.500 and
(vii) An area of 18/1-2 Marlas in favour of Himmat R.I vide registered sale--deed No.92 dated 9-9- 1929 for Rs.590."
It next noted section 3 of the Act as adopted in N.-W.F.P. By Regulation No.1 of 1904 and then came to the conclusion that such sales were prohibited under the law, they were not effective, they had no legal efficacy and instead alienations were made also to Muslim owners including Badshah Khan. The High Court also concluded with regard to the state of affairs, after these alienations had beers made, as hereunder:------ "The aforesaid resume of the facts on record is clearly, indicative that although Sardar Khan or for that matter his sucessor-in-interest did alienate certain part of land in the disputed khasra number to the non---Muslim evacuees the same was not treated as evacuee property apparently due to the bar created by the Land Alienation Act, as discussed earlier so much so that even after partition of the sub--continent vide Mutation No.3811 attested on 15-12-1950, Mutation No. 3852 attested on 13-2-1952, Mutation No.6068 attested on 30-6-1969, the property in suit khasra number left by the successors- in-interest of Sardar Khan on their respective death further devolved on the legal heir of the latter. Even vide Mutation No.3811 attested on 15-12-1956, Mutation No.3852 attested on 13-2-1952, Mutation No.6068 attested on 30-6-1969, the property in suit khasra number left by the successors-in---interest of Sardar Khan on their respective death further devolved on the legal heirs of the latter. Even vide Mutation No.6176 attested on 15-10-1972 Ataullah Khan etc. The legal heirs of Muhammad Ayyaz Khan son of Sardar Khan the original owner sold an area of 1 Kanal and 19 Marlas to Fazl-e-Subhani etc. For a consideration of Rs.7,000. Evidently these subsequent transactions could take place only if the property in suit still stood in the names of legal heirs of Sarder Khan the original owners. Statement of Asmatullah Patwari Exh.P.W.2/1 further indicates that even in the jamabandi for the year 1970-71 the entire suit khasra number is shown to be owned and possessed by the legal heirs of Sardar Khan the original owner."
Finally, in view of provisions of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957), the High Court found that the Settlement Authorities could not after 1957 treat it as evacuee property.
5. After hearing the learned counsel for the parties we find that in revisional jurisdiction in deciding questions of fact or law not earlier raised, there is likelihood of committing an error as one has been committed. On the assumptions and findings recorded be the High Court in the revisional jurisdiction for the first time namely, that sales had in fact been made by the Muslim owner in favour of Hindus who became evacuee and who are non-agriculturalists, which sales for that reason could not be given effect to, another unnoticed provision of law quoted and relied upon so heavily by the High Court came into operation. It is section 14 of the Act, which reads as hereunder:- ---- "14. Effect of permanent alienation made without sanction.--Any permanent alienation which under section 3 or 3-A is not to take effect as suck, until the sanction of a Deputy Commissioner is given thereto shall, until such sanction is given or if such sanction has been refused, take effect as a usufructuary mortgage: in form (a) permitted by section 6 for such term not exceeding twenty years and on such conditions as the Deputy Commissioner considers to be reasonable."
6. On the facts accepted by the High Court as established and the law, the legal consequence contained in section 14 of the Act followed as a matter of course without the intervention of any authority. The vendors had to accept the position of the non-agriculturalists' alienees as a usufructuary mortgage for twenty years. It is not shown that at any stage the vendors accepted the alienees as usufructuary mortgagees. On the contrary, the finding of the High Court is that it was never acted upon in any manner whatsoever. Therefore, this provision of law will require its implementation and effect and unless it is shown to have taken place, the vendors cannot prevent anyone coming in the place of the alienees as mortagees from possessing the land.
7. The vendees, to be treated as usufructuary mortgagees, being evacuee the land vested in the Custodian under section 6 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance N0.XV of 1949). In view of section 5 of the same Ordinance, the effect of such vesting has been described as hereunder, at page 713 of M. Mahmood's commentary on the Limitation Act (1987 edition):----- "The perusal of section 5, Pakistan Administration of Evacuee Property Act, 1957, clearly lays down that provision of the Act and rule or order made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. This clearly freezes the rights of the parties with regard to the evacuee property as they stood at the time of the vesting of the property in Custodian i.e. 1st day of March, 1947. It is true that Custodian steps into the shoes of evacuees and has only equity of redemption, but limitation for redeeming the property shall cease to run against the Custodian by virtue of saving provision contained in section 5 of the Pakistan Administration of Evacuee Property Act. The obvious intention of the sweeping provision of section 5 of the Pakistan Administration of Evacuee Property Act is that once the property has vested in the Custodian, it shall not be taken away from him by any order or by operation of any other law. Where the period of 60 years had not elapsed on the 1st of March, 1947, when the property vested in the Custodian and it is only subsequent to this date that period of 60 years had expired, it cannot be said that limitation continued to run against the Custodian even after 1st day of March, 1947, when the property stood vested in the Custodian. Even otherwise period of limitation stops running in favour of Custodian by virtue of section 13 of the Limitation Act."
Section 7 of the same Ordinance made provision for surrender of such properties and on the strength of deeming clause to "hold or to have held, as the case may be, such property on behalf of the Custodian". The exact words being as hereunder.----- "7. Holding of evacuee property and its surrender.--
(1) Every person who is, or has at any time after the twenty-eighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian.
(2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, intimate to the Custodian in writing his willingness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property, and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid.
(3) The provisions of subsection (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority."
The Act XII of 1957 continued its evacuee character on the strength of clause (b) of subsection (2) of section 3 of that Act. It reads as hereunder:----- "3. Property not to be treated as evacuee property on or after 1st January 1957.--(1)
Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in subsection (1) shall apply--
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February, 1947, has not been accepted or approved by the Custodian."
8. As regards the bona fide purchaser, he had a duty to look to the registered deeds. Enquiry through the Revenue record was not sufficient and in the absence of having made any enquiry and looked up section 14 of the Act, his interest cannot be held to be bona fide or protected.
9. In view of these facts and the state of law, the appeal is accepted the judgment of the High Court is set aside and that of the trial Court and the first Appellate Court modified that in terms of section '14 of the Act, the plaintiff shall be entitled to possess the land unless sanction accorded by the Deputy Commissioner or other proceedings in accordance with law take place. No order is made as to costs.