' MAHBUB ALI KHAN, J.---In this petition moved under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, M/s. Roshan Khan, Haibat Khan and Hakam Khan sons of Bostan Khan Swati of Mansehra have asked for the issuance of an appropriate order; (a) that the two shops shown in the post settlement revenue record of Mansehra Urban by fields Nos. 255 and 256, corresponding to the pre-settlement record of Mansehra Urban by Khasra No, 3097/1006 and entered in the Custodian record as shops Nos. 206/C and 207/C are the ancestral property of the petitioners since the lifetime of their grandfather named Amir Khan son of Mir Baz Khan and (b) the order of Custodian, Evacuee Property, West Pakistan camp at Peshawar dated 1-10-1969 passed in suo motu Revision Petition No, 38 of 1963 is void and ineffective against the aforesaid rights of ownership of the petitioners with regard to the said shops.
2. The facts relating to the property in dispute as available on the case file are as under:-- ' In the Land Settlement of 1872 this property had been shown by Khasra No, 703 in "Mahal- Mansehra" followed by the second settlement Of 1904-5 (copy Annexure A) wherein the suit property measuring 18 Marlas was given Khasra No, 1006 and in the settlement record of 194647 by many Khasra Numbers including 255 and 256 measuring 4-1/2 Marlas: The shamilat land of village Mansehra, measuring 1,069 Kanals 12 Marlas (including Khasra No, 1006 of the two shops, measuring 18 Marlas as recorded in Annexure A) had been divided into Khewats/Khatas of the village proprietors including Khewat No, 87 owned by Amir Khan s/o Mir Baz Khan as shown in Annexure B. In the Jamabandi of 1907-8 Amir Khan is recorded in exclusive possession of 10 Marlas out of 18 Marlas in Khasra No, 1006 which was converted into arable 'Bari' from non-arable `Banjar- Qadeem'. Field No, 1006, however, remained recorded as `Shamilat-Deh' and in possession of the said Amir Khan as Hissadar owner in the next following Jamabandis of 1911-12 and 1915-16 (copies Annexures D & E). On the foot of Mutation No, 3342 partition of the entire `Shamilat-Deh' took place on Court order (Annexure F) and a portion of Khasra No, 1006 measuring 9 Marlas was re-named by Khasra No, 397/1006 and made Shamilat of 'Tad Faiz Talab' of village Mansehra. It, however, remained in 'Hissadari' possession of the petitioners' aforesaid grandfather named Amir Khan.
These entries had been followed in the succeeding Jamabandis of 1924-25, 1930-31, 1938-39, 1940- 41 (copies Annexures G, H, J & K). In the settlement record of 1946-47 of Mansehra Urban, copy Annexure Khasra No, 397/1006 had been represented by two new Khasras viz.; No, 256 measuring 63 square yards, 5 square feet equal to two Marlas and 255 measuring 71 square yards; 5 square feet equal to 2 Marlas and recorded in the 'Hissadari' possession of Bostan Khan. The inheritance of Amir Khan had devolved on Bostan Khan vide Mutation No, 9772, dated 4-4-1939 (copy Annexure M). The pedigree-table of Bostan Khan as recorded in the Land Settlement of 1946-47 in Shamilat of 'Taraf Faiz Talab' is Annexure 'N'. Ainar Nath etc. Hindus were recorded as tenants of the two shops shown by Khasra Nos. 255 and 256 without payment of any rent being purchasers.
3. In the year 1952 Bostan Khan moved a claim (No, 103 of 1952) under section 18 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, i.e,, Ordinance No, XV of 1949 before the Deputy Custodian, Hazara for a declaration that the two shops mentioned in Khasra Nos. 255 and 256 were not evacuee property. The Deputy Custodian vide his order, dated 22-5-1954 (copy Annexure '0') gave the desired declaration and decided that the shops in question were non- evacuee property. Consequently, the Deputy Rehabilitation Commissioner, Hazara in order, dated 29-4-1974 (copy Annexure P) made a direction to the allottees of Shops Nos.206/C and 207/C (in view of the aforesaid decision of the Deputy Custodian, Hazara dated 22-6-1954) that they should make future payment of rent of the two shops to the owner earned Bostan Khan. Thereafter in the year 1955, Bostan Khan instituted Suit No,588/1 on 24-10-1955 for the ejectment of tenant Muhammad Ilyas from Shop No,207/C. This suit ended in compromise on 16-1-1956 in the Court of Sub-Judge, Mansehra whereby Muhammad Ilyas agreed to vacate the said shop in favour of Bostan Khan. Subsequently in the year 1957 one Nasir Khan s/o Sara Khan filed a complaint on 20- 7-1957 under section 33 of Pakistan, Administration of Evacuee Property Act, 1957 before the Deputy Custodian of Evacuee Property, Peshawar (No,142 of 1957) which was dismissed on 14-6-1960 for want of prosecution.
4. The Custodian of Evacuee Property subsequently in revision petition (suo motu) No,38 of 1963 set aside the order dated 26-4-1960 of Deputy Custodian Evacuee Property, Peshawar and in consequence thereof held in his order dated 1-10-1969 (copy Annexure R), that the two shops bearing Nos.206/C and 207/C were evacuee property. Against the said order of the Custodian Bostan Khan filed a revision petition before this Court on 13-12-1970 which remained pending before the High Court for a period of about 15 years as the record/files relating to the order of the Deputy Custodian, Peshawar dated 26-41960 (as mentioned in the Custodian's judgment dated 1-10-1969 Annexure R) and of suo-moto Revision Petition No,38 of 1963 could not be made available in spite of every effort made by the office of the Registrar High Court. The Revision petition was ultimately withdrawn on 28-1-1986 by order of the Court with permission to file a writ petition in the cause.
Bostan Khan had died in the meanwhile. The instant Constitutional Petition (No,89 of 1986) was thereafter filed in this Court by his sons Roshan Khan etc. For declaring the said order of the Custodian Evacuee Property, dated 1-10-1969 as without lawful authority and of no legal effect.
5. We have heard at length Qazi Abdur Rashid, Advocate on behalf of the petitioners and Khawaja Nazir Ahmad, Advocate for the respondents.
6. The chequered history of the suit property which dates back to the Land Settlement of 1872 shows that initially it formed a part of Shamilat of village Mansehra measuring 1,069 Kanals 12 Marais in toto which had been later on divided in the year 1915-16 on Court order and fell into Hissadari possession of Amir Khan s/o Mir Baz Khan, the grandfather of the petitioners. Amir Khan remained in possession thereof as such during his lifetime. He had died somewhere in the year 1939 and was succeeded by his son Boston Khan who came in Hissadari possession of this property on the foot of inheritance. Mutation No,9772 dated 4-4-1939. As in the settlement record of 1946-47 (Annexure-L) the names of Amar Nath etc. Hindus had appeared in the cultivation column as tenants without payment of rent being vendees, the petitioners' father, namely, Bostan Khan in the year 1952 moved an application under section 18 of Ordinance No,XV of 1949 before the Deputy Custodian Evacuee Property, Hazara District for a declaration, that the shops in question were owned by him and it was not evacuee property. Muhammad Ilyas etc. Including Amar Nath and others were made respondents in this petition which was registered as Case No,103 of 1952 (Annexure 0). A notice was issued to Rehabilitation Department by the Deputy Custodian but nobody appeared on behalf of the Department to contest the petition excepting a "written-note" sent to the Court on 18-5-1954 by an Assistant Rehabilitation Commissioner, that the shops in question being evacuee property of the non-Muslims were properly allotted to the then occupants under the Pakistan Rehabilitation Ordinance, 1948. The learned Deputy Custodian after recording evidence in the matter came to the conclusion by his judgment dated 22-6-1954, that the Hindus were only `karaya dars' in the shops in question and had no title/right or interest in this property. He at the same time declared the property as non-evacueee. The applicant could not be, however, given possession of the shops in view of the bar placed by section 19(a) of Ordinance XV of 1949 as the property by that time had been made subject of an allotment order under the Pakistan Rehabilitation Ordinance, 1948. The Deputy Rehabilitation Commissioner, Hazara on the strength of the aforesaid order passed by the Deputy Custodian, in his letter 2210-13/ARC/20 dated 29-7-1954 (Annexure P) directed the tenants to make payment of rent of the said shops to the owner Bostan Khan in future. Muhammad Ilyas tenant of Shop No,207/C thereafter in the year 1957 filed a complaint under section 18 of Act XII of 1957 before the Deputy Custodian, Evacuee Property, Peshawar on 20-7-1957 against Bostan Khan, that the decision obtained by him in Case No, 103 of 1952 from the Court of Deputy Custodian Hazara on 20-6-1954 in respect of the suit shops was based on fraud and collusion and Bostan Khan was, therefore, liable for punishment under section 33 of the Act. He further contended that the shops had been sold in favour of Amar Nath and Hans Raj sons of Gokal Chand Hindu on the basis of registered deed, dated 2-7-1934 and were thus evacuee property. This complaint was registered as Miscellaneous Revenue file No,141 of 1957. It remained pending before the Deputy Custodian Evacuee Property for about three years and was decided on 14-6-1960 with the following order:- "Respondent is present whose statement was recorded. The D.R.C. Is neither turned up personally nor sent any representation in spite of service of notice. The plaintiff has already withdrawn this application. No further. Action appears necessary especially in view of the fact that the Rehabilitation Authorities have no objection against the title of the respondent. The case shall, therefore, be consigned to record room. Sd/-D.C.
Dt. 14-6-1960."
6. Thereafter in the year 1963 the Custodian Evacuee Property, West Pakistan at camp Peshawar again re-opened the matter on a complaint against Bostan Khan by invoking his suo motu revisional powers conferred by subsection (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957, i.e,, Act XII of 1957. Bostan Khan on a show-cause notice appeared before the Custodian and contested the complaint. The allegations made against him were, "that the two shops in dispute belonged to K.B. Muhammad Hussain Khan who had sold the same to Amar Nath, Hans Raj through two registered sale-deeds dated 27-8-1934 and 29-6-1934 for a sum of Rs,12,000. The sale transactions were given effect to in the relevant record and the non-Muslims vendees remained in possession thereof as owners till they migrated to India during the communal disturbances of 1947. Bostan Khan respondent with the connivance of Patwari concerned got his name entered in the Revenue Record as share-holder with Amar Nath and Hans Raj evacuees and subsequently secured a declaration from the Deputy Custodian, Peshawar on the 26th of April, 1960 that the said two shops were not evacuee property and belonged to him."
7. The learned Custodian did not agree with the contention raised on behalf of Bostan Khan, that he was a co-sharer in the joint Khata and the shops sold by K.B. Muhammad Hussain Khan were different from those claimed to be owned by this person. In the view held by the learned Custodian, the land over which the shops in dispute were erected had been shown in the Revenue Record in the ownership of the descendants of `Faiz Talab Khan' to the extent of 2/3rd share and other owners to the extent of remaining 1/3rd share. The Custodian further observed that Bostan Khan inherited the property of his late father Amir Khan through Mutation No,9772 sanctioned on the 22nd April, 1939 and it was strange that his name could not be mentioned in the subsequent Jamabandi of 1940-41 which for the first time appeared in the Jamabandi of 1948-49 after the migration of the non-Muslims. That the respondent had also failed to establish that the shops sold by K.B.
Muhammad Hussain Khan were different from those claimed by him. That he had not produced any copy of sale-deed through which the shops were sold. In this view of the matter the learned Custodian having been not convinced with the claim of Bostan Khan held, that he had secured a non-evacuee declaration from the Deputy Custodian Evacuee Property, Peshawar on the 26th April, 1960 on the basis of misrepresentation and concealment of facts. He, therefore, vide his judgment and order dated 1-10-1969 set aside the said declaration and held the property in dispute was an evacuee property which had since become a part of the Evacuee pool. The Settlement and Rehabilitation Authorities were, therefore, directed to dispose it of in accordance with the Settlement law and procedure. This order was impugned by Bostan Khan before the High Court in the Revision Petition No,2 of 1970 and subsequently by his successors-in-interest, i.e,, the present petitioners in this writ petition.
8. Amir Khan and after him his son Bostan Khan were undoubtedly co-sharers of the Shamilat land on a part of which the present property had been constructed. They had remained in possession of the site underneath the suit shops as Hissadars for quite some years before Amar Nath etc. Were recorded in possession of these shops in the Settlement Jamabandi of 1947-48 as `Karaya daran'.
They did not, however, make payment of any rent being purchasers of the property. Admittedly there is no sale document in favour of the said Amar Nath etc. By the aforesaid predecessors-in- interest of the petitioners. The two registered sale-deeds mentioned in the judgment of the Custodian, dated 29-6-1934 and 27-8-1934 had been executed by K.B. Muhammad Hussain Khan.
A perusal of the sale-deed, dated 29-6-1934 registered on 2-7-1934 (copy placed on the record of case file No,141 of 1965 at page 15, titled Nasir Khan v. Hans Raj etc.) shows, that the property which is a Pacca built shop with Katcha `Tehkhana', consisting of three rooms has been sold by the said Muhammad Hussain Khan to Amar Nath and Hans Raj sons of Gokal Chand. This property was previously mortgaged with one Deena Nath Hindu for Rs,3,200. The shop mentioned in this document is described by boundaries and it is not certain that the subject-matter involved in the aforesaid registered sale-deed was the present two shops in dispute. The witnesses examined by the Custodian were at variance on this issue as their statements show. It is strange that the Custodian had found fault (in his judgment dated 1-10-1960 Annexure R) with Bostan Khan for not producing copies of sale-deeds through which the shops were sold. The two registered sale-deeds referred in his judgment dated the 27th August, 1934 and 29th June, 1934 had been allegedly executed by K.B. Muhammad Hussain Khan in favour of Amar Nath etc.And Bostan Khan or his father Amir Khan for that purpose being not a party to the said documents and the transaction involved therein, how could Bostan Khan be expected to have these deeds in his possession or to produce them before the Custodian during the proceedings aforesaid. The registered sale-deed (copy placed on the case file No,141 of 1957 at page 15) as mentioned before had been written on 29-6-1934 and registered on 2-7-1934, meaning thereby, that it is a different deed then the two described by the Custodian in page 2 of his judgment (Annexure R). It was for the complainant of the aforesaid petition to have proved, that the shops sold by K.B. Muhammad Hussain Khan were the same which are now in dispute. The learned Custodian had thus wrongly placed onus on the shoulders of Bostan Khan by making an observation that the respondent had failed to establish that the shops sold by K.B. Muhammad Hussain Khan were different from those claimed by him.
Similarly no inferencee could be drawn against Bostan Khan on this plea, that although inheritance mutation of Amir Khan bearing No,9772 had been sanctioned on the 22nd April, 1939 but the name of Bostan Khan could not be mentioned in the subsequent Jamabandi of 1940-41 and it for the first time appeared in the Jamabandi of 1946-47 after the migration of the non-Muslims. This legal proposition escaped from the notice of the learned Custodian that the moment Amir Khan breathed his last the property devolved on his son notwithstanding the fact that an inheritance mutation was subsequently entered and attested or given effects to in the revenue papers.
9. Section 3(1) of Act XII of 1957 states that, 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". Subsection (2) provides, that, "nothing in subsection (1) shall apply (a) to any person in respect of whom or 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".
10. After obtaining a decision by Bostan Khan in Case No,103 of 1952 from the Court of Deputy Custodian Hazara on 22-6-1954 the Deputy Rehabilitation Commissioner, Hazara in his letter dated 29-7-1954 (Annexure P) directed Muhammad Ilyas etc. Occupants of the two shops to accept the ownership of Bostan Khan and make payment of rent to the said owner in future, meaning thereby, that subsequent to the decision of Case No,103 of 1954 by the Deputy Custodian on 22-6-1954 the shops in question were never treated as evacuee property and this was admittedly much before the crucial date, i.e,, the 1st day of January, 1957 as envisaged in section 3 (1) of the Act ibid. Similarly, no action had commenced against Bostan Khan in appeal or revisions in respect of the suit property after the aforesaid decision made by the Deputy Custodian nor such proceedings were pending before any forum immediately before 1-1-1957 as required by section 3(2) (a) of this Act It is true that in the Settlement record of 1947-48 Hans Raj etc. Were recorded in occupation of these shops as `Karaya daran' (in the cultivation column) without payment of rent being purchasers of the property, but mere entries made in the revenue papers showing the said evacuees-owners of the property through purchase cannot be made basis for holding that the property had been "treated" as evacuee within the meaning of section 3(1) of Act XII 1957 which requires that the treating of property as evacuee must be by a competent authority, i.e,, by Custodian or Rehabilitation Department. It was almost after the lapse of three years from the final decision of the Deputy Custodian recorded in Case No,103 of 1952 on 22-6-1954, that Nasir Khan filed a complaint under section 33 of Act XII of 1957 against Bostan Khan etc. On 20-7-1957 before the Deputy Custodian Evacuee Property, Peshawar (Annexure 0) which too was subsequently withdrawn and dismissed as such on 14-6-1960. The filing of this complaint on a much subsequent date than mentioned in section 3(1) of the Act ibid cannot be said to meet the requirement of subsection (2)(1)(a) of section 3 of the Act, as no such proceedings were pending immediately before 1-1-1957 for treating these shops as evacuee property. The learned Custodian in this view of the matter could not take this case in suo motu revision under section 43(4) of Act XII of 1957 and make a decision thereupon as he did on 1-10-1969 in the Revision Petition No, 38 of 1963 by setting aside the order of the Deputy Custodian Evacuee Property, Peshawar dated 26th April, 1960 (as mentioned in his judgment) which in fact was pronounced on 14-6-1960. The impugned order of the Custodian is not only incorrect about the actual date of decision by the Deputy Custodian Evacuee Property, Peshawar of Miscellaneous Revenue Case No,141 of 1957 which was 14-6-1960 but there is also no mention in his judgment about the fate of the order passed by the Deputy Custodian, Hazara under section 18 of Ordinance No,XV of 1949 in Case No,103 of 1952 on 22-6-1954 wherein the suit shops had been declared non-evacuee property and in the ownership of Bostan Khan in his own rights. As the suit shops had been declared non-evacuee property on 22-6-1954 by the Deputy Custodian, Hazara and no further proceedings in respect of this property were thereafter pending before any forum immediately before the relevant date, i.e, 1-1-1957 as, mentioned in section 3 of Act XII of 1957, the Custodian could not afterwards in the year 1963 invoke his suo motu revisional jurisdiction under section 43(4) of the Act ibid and pass an order with regard to such property. The learned counsel for the petitioners in this view of the matter has rightly placed reliance on the following precedent cases:--
(a) Syed Ali Iqtidar Shah Dara and 6 others v. The Custodian, Evacuee Property, West Pakistan, Lahore PLD 1972 Lah.
798.
(b) Abdul Khaliq Abdur Razaq -- appellants v. Kishen Chand and others -Respondents PLD 1964 SC 74.
11. After the impugned decision of the Custodian in suo motu revision case under section 43(4) of Act, 1957 on 1-10-1969, Bostan Khan moved a revision petition under section 43(a) of Act XII of 1957 before this Court on 13-12-1970 which was registered as Civil Revision No,2 of 1970. This petition was admitted to full hearing on 20-1-1970 by a Division Bench. The petition thereafter remained pending with the Court upto the year 1986 for want of relevant record from the Custodian office which could not be made available in spite of strenuous efforts made by the petitioner and the office of the Registrar. Ultimately on 28-1-1986 the petition was withdrawn on technical grounds with permission of the Court to file a writ petition in the cause. In the meanwhile Bostan Khan died. The instant writ petition was afterwards filed by Roshan Khan etc. His sons on 31-12-1986. Throughout this period of about 15 years Bostan Khan himself and after his death his sons had been genuinely prosecuting the claim before the High Court and the case could not be disposed of as the relevant record pertaining to the revision petition from the office of the Custodian could not be procured. Sufficient correspondence had been made by the office of the Registrar of this Court with the quarters concerned which is on record and there is no allegation that the petitioners had any doing in the delay so caused or the record was withheld by the concerned authorities in collusion with them.
The bona fides of the petitioners could be adjudged by this fact, that their father Bostan Khan had been pleading the cause right from the year 1952 and contesting throughout his claim before every competent forum. In this background of the case we notice, that the petitioners had not been guilty of any purposeful laches at any stage of the litigation with regard to the property in dispute or abandonment of their claim in respect thereof.
12. Khawaja Nazir Ahmad, Advocate the learned counsel for the respondents at the end desired, that the case may be sent back to an officer notified under section 2 of Act XII of 1975 for decision afresh as the learned Custodian in his judgment, dated 1-10-1969 (recorded under section 43(4) of Act XII of 1957 in Suo Motu Revision Petition No,38 of 1963) did not set aside the order of the Deputy Custodian, Evacuee Property, Peshawar passed on 14-6-1960 (Annexure '0') and the order of Deputy Custodian, Hazara recorded in Case No,103 of 1952 on 20-6-1954 under section 18 of Ordinance No,XV of 1949. That the Custodian in his impugned judgment has set aside an order allegedly passed by the Deputy Custodian Evacuee Property, Peshawar on 26-4-1960 which never existed. It is correct that the judgment of the learned Custodian suffers from these patent defects but as we have held before (in paras. Nos.9 and 10 of this judgment) that the suit shops had not been 'treated' as evacuee property before the 1st day of January, 1957 and no action was in the offing or proceedings pending immediately before the said date for treating such property as evacuee within the meaning of sections 3(1) and 2(1)(a) of Act XII of 1957, the learned Custodian had therefore, no jurisdiction to reopen this matter in suo motu revision under section 43(4) of the Act ibid and make a decision thereupon, remitting of the case back to the lower forum for the purposes aforesaid after almost two decades shall be as such of no use.
13. In this view of the matter which we take, the instant writ petition shall succeed with consequence that the impugned order passed by the learned Custodian in Suo Motu Revision Petition No,38 of 1963 on 1-10-1969 with regard to the shops in dispute is declared without lawful authority and of no legal effect. We shall not make any order as to costs in view of the peculiar circumstances of the case.