1. ' J. Misc. No,3/1984 is an application under section 12(2), C.P.C. Filed by Government of Sindh, while J.Misc. No,17/1987 is an application filed by Mrs. Khalida Hyder. Both these applications are aimed at setting aside the judgment and decree in Suit No,1235/1980 passed by this Court on 5-3-1980.
2. The facts forming the background of these applications may be briefly narrated as under:-- ' basis of an Agreement of Sale dated 27-3-1978 which was alleged to have been executed by the Defendants in favour of the Plaintiff. By this agreement the Plaintiffs had agreed to purchase 241 acres--33 Ghuntas of agricultural land situated in Deh Beti Amri, Taluka and District, Karachi, which is now located in K.DA. Scheme No,33 of Board of Revenue Sindh. The price was settled at Rs,3,86,840 i,e. Rs,1,600 per acre. The Defendants were shown to be Hindus residing at Warah and Wagan in District Larkana. The summons were served by the Bailiff on the identification of Riasat Ali, a man of the plaintiff. None of the Defendants appeared to contest the suit. Hence the suit was decreed on 4-3-1980.
3. The judgment has been attacked on a number of grounds, but those which are material are; that the land was treated as an evacuee property as early as 11-2-1966, when Notification was issued by Chief Settlement Commissioner whereby this land was treated as 'building site'. The relevant Gazette Notification has been produced. Even before this land was treated as 'evacuee property' by the Rehabilitation Authorities, who had allotted the same to Syed Hamid Rehmani, father of applicant Mrs. Khalida Hyder and had been recovering lease money from him. Once the property is treated as 'evacuee property' it cannot be transferred by its evacuee owner until and unless he obtains a non-evacuee A certificate from the Custodian, not only with respect to his person, but also with respect to the said 'evacuee property'. Reference in this connection may be made to 1969 SC MR 686 (Mst. Hajiran Sughran v. The District Judge and Settlement Commissioner, Hyderabad and others) where it was held that "if the entries in the register of evacuee properties are correct then the fact that the Custodian Department had even assessed the rent to be realized from the evacuee occupant would show that the property in dispute had in fact, been used for the purposes of the Administration of Evacuee Property Act, 1957, consciously and would, therefore, amount to treating the property as evacuee property. The property could not be excluded from the compensation pool merely on the ground that its original owner had been declared a non- evacuee finally by the order of the Evacuee Property Enquiries Tribunal. The mere declaration of the owner as a non-evacuee is not sufficient, for this purpose."
2. ' In 1975 SCMR 123 (Naraindas and 2 others v. Pakistan Ministry of Rehabilitation and 2 others) it was held that where an evacuee migrates to India and remains there for about a year before his return to Pakistan on temporary permit, such person having become evacuee, there was no provision under the law which makes him a non-evacuee on his return to Pakistan.
3. ' In PLD 1973 SC 451 (Maj. Mehtab Khan v. The Rehabilitation Authority and another) it was held that once property has been acquired under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, or under section 4 of the Displaced Persons (Land Settlement) Act, 1958, the right, title and interest of any evacuee stands extinguished from the date of the publication of the notification and the property vests wholly and absolutely in the Central Government free from all encumbrances and which ceases to be evacuee property. Even the Custodian could not have dealt with these lands thereafter by confirming the sale or by treating the Hindu evacuee as non- evacuee.
4. It is, therefore, clear that the property of a person, who has migrated to India after 1947 would become an evacuee property and if it is treated as an evacuee property by the Rehabilitation Department, Custodian Department or any other concerned Department of the Government, the evacuee owner could not exercise any right or control over the same until and unless he got declared himself and such property as non-evacuee before the said property was transferred into compensation pool. After the property was transferred into the compensation pool, it vested in the Central Government and would not revert back to the evacuee.
5. ' Applicant Mrs. Khalida Hyder has produced copy of the revenue evacuee register, notice of demand and challans through which the lease money was paid to the Government. Syed Hamid Rehmani, father of applicant Mrs. Khalida Rehmani was a claimant displaced person from. India. He held entitlement certificate QPR-5 which was subsequently converted into MR-5. He could not get the lands in suit which were leased to him, allotted against his MR-5, because a ban had been imposed on allotment of evacuee agricultural lands against the claims in Karachi. Later on the land on lease with him was declared as 'building site' by the Chief Settlement Commissioner (W.P.) by the Notification issued on 11-2-1966 under section 2(3)(b) of the Displaced Persons (Land Settlement) Act 1958 and the lessees in possession were given the right to purchase the land on payment of its price as determined by the Board of Revenue Sindh. The Gazette Notification has been produced. Syed Hamid Rehmani applied for sale of land to him, but the Settlement Commissioner, Karachi dismissed his application. He filed Const. Pent. No,S-6/77 in the High Court challenging the said order. The writ petition was allowed on 10-2-1986 and the case was remanded for reconsideration to the Notified Officer under section 12 (2) of the E.P. & D.P. (Repeal) Act, 1975.
6. The copies of the petition, correspondence the order of Settlement Commissioner and the judgment of the High Court have been produced. On remand the case was taken up by the Notified Officer, where plaintiff Mohammad Aslam intervened and submitted an application that the Notified Officer should not pass any order in respect of this land, because a decree had been given by the High Court. It is the decree in Suit No,1235/1980 which is subject matter of these J. Misc.
7. Applications. Finding this judgment as clog in his way, the applicant has filed this application under section 12 (2), C.P.C.
8. ' The second ground of attack against the judgment in Suit No,1235/1980 is that this Agreement of Sale was fraudulent and collusive. The reasons for treating it collusive have been given which in short are that the consideration of the land is inadequate i,e. Only Rs,6,000 per acre for a piece of land which is within Scheme-33 and was declared 'building site' long back. Purchasers Muhammad Aslam and others belong to Rahim Yar Khan, while the sellers belong to Warah and Wagan Town of District Larkana. The consideration has not passed through a pay order or a cheque, but is said to have been paid in cash. No registered Sale-Deed was executed. So far as Suit No,1235/1980 is concerned, the summons thereof were not properly served. The report of the Bailiff shows that he did not know the Defendants, but they were identified to him by the man of the Plaintiff. The summons which were sent by registered post came back with the endorsement that the Defendants were not available at the address given therein. The signatures on the Agreement of Sale appear to be written by one person and in one handwriting. The Vendors' names, their parentage and their signatures on the agreement and the three receipts differ from one another.
9. Even their names do not tally with the names of their Khatedars. All these facts show that fraud has been committed upon the Court in obtaining the ex parte decree in the above suit.
10. Having been satisfied that this Court had no jurisdiction to entertain the suit and pass the above judgment, in view of the legal position that the land was an evacuee property and that the original evacuee owner had no right to deal with it and having further come to the conclusion that the Agreement was forged suit c was fraudulent and that the summons were not served on the Defendants, I am of the clear view that the judgment is liable to be set aside. Hence I allow J. Misc.
11. No,3/1984 as well as J.Misc.No,17/1987 and set aside the ex parte judgment dated 4-3-1981 passed in Suit No,1235/1980. The costs of both these applications shall be borne by the Plaintiff in Suit No,1235/1980.