AJMAL MIAN, J.---Leave to appeal was granted from the judgment dated 16-12-1982 passed by a learned Single Judge of the High Court of Sindh in Civil Revision Application No.190 of 1973 maintaining the judgments and decrees dated 14-12-1971 and 22-6-1973 passed by the learned Civil Judge, 1st Class, Khairpur, and the learned Additional District Judge, Khairpur, in First Class Suit No.6 of 1968 and Civil Appeal No.2 of 1972, respectively, whereby the appellant and respondents Nos.4 to 9's suit was dismissed on the ground that the same was barred under section 25 of the Displaced Persons (Land Settlement) Act, 1958, hereinafter referred to as the Act of 1958, and Section 41 of the Administration of Evacuee Property Act, 1957, hereinafter referred to as the Act of 1957, respectively, to consider the question, whether the Courts below were justified in holding so though according to the appellant the suit property had never been treated as evacuee property by the Custodian of Evacuee Properties.
2. The facts to be noted are that the agricultural land bearing Survey Nos.467, 458, 469 and 470 measuring 6.27 acres, situated in Deh Theri Taluka Khairpur, hereinafter referred to as the land, belonged to one Kanderomal who sold the same to two Hindus, namely, Bhai Prem and Newand. 1t is the case of the appellant that his and respondents Nos.4 to 9's ancestors riled a pre-emption suit against the aforesaid two Hindu purchasers of the suit land being Suit No. 22 of 1938-39 in the Court of Sub-Judge, Khairpur, which was decreed on 22-6-1941, hereinafter referred to as the suit of 1941.
In consequence of the execution of the decree, the possession thereof was given to the appellant and respondents Nos.4 to 9's ancestors. It is also the case of the appellant that besides the suit land there was some other land, which was subject-matter of the aforesaid pre-emption suit and which was also included in the pre-emption decree but as a result of a family partition, the suit land fell to the share of the appellant and respondents Nos.4 to 9 (i.e. The co-plaintiffs in the suit referred to herein below). It appears that in 1966 respondent No.2 served a notice inter alia upon the appellant calling upon him to hand over the possession of the suit land to respondent No.3 who was allotted the suit land on 20-10-1966 as an evacuee property. Thereupon, the appellant and respondents Nos.4 to 7 filed an appeal against respondents Nos.2 and 3 under Section 18 of Act of 1958 before the Deputy Collector and Deputy Settlement Commissioner (Land). Khairpur, claiming the suit land as non-evacuee on the basis of the aforesaid pre-emption decree passed in 1941. The above appeal was upheld by an order dated 3-6-1967 and the allotment of the suit land in favour of respondent No.3 was set aside and it was held that the same belonged to the appellant and respondents Nos.4 to 7. It was also ordered that entries to that effect may be made in the Revenue Record. Against the above order, `respondent No.3 filed Revision No. S. 185-2-16 Reh/Reader/67 before the District Judge, Khairpur, acting in the capacity of Settlement Commissioner (Lands), Khairpur Division, which was accepted on 17-1-1968 and the aforesaid order of the Deputy Collector and Deputy Settlement Commissioner (Land) dated 3-6-1967 was set aside and it was held that the suit land had been consistently shown as belonging to Kanderomal and that the survey numbers of the suit land and the area did not tally with the survey numbers and the area mentioned in the aforesaid decree of 1941. Thereupon, the appellant and respondents Nos.4 to 7 filed unsuccessfully the aforesaid suit, civil appeal and civil revision. After that they obtained leave to appeal from this Court for consideration of the above-noticed question.
3. Mr. S. M. Sadiq, learned A.S.C. Appearing for the appellant, has contended that as admittedly th;; suit land had never been treated as an evacuee property prior to 1-1-957 but factually was allotted in 1966 without any jurisdiction, the Civil Courts were competent to entertain the suit and, therefore, the three Courts below erred in non-suiting the appellant and respondents Nos.4 to 7.
Whereas Mr. Sabihuddin, learned A.S.C. Appearing for the contesting respondent No.3, who is now represented by his legal representatives, has contended that the subject-matter of the suit of 1911 was different from suit land, and in any case the appellant and respondents Nos.4 to 7 by their acts or omissions by not filing an application under section 22 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, have lost their right, if any, in the suit land and that the respondent No.3 had legally acquired the same as it was part of the evacuee property pool.
4. In order to appreciate the above contentions, we may refer to the relevant provisions of Act of 1957, namely, subsections (2) and (3) of Section 2, Sections 3, 22 and 41.
It may be observed that subsection (2) of Section 2 inter alia, defines the 1 term "evacuee" as mean; any person who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories, or who acquires or has acquired, on or after the aforesaid date, by way of allotment or lease or by means of unlawful occupation or other illegal means, any right to, interest in or benefit from any property which is treated as evacuee property under any law for the time being m force in India, or who is resident in any place in the territories now comprising India or any area occupied by India and is unable to occupy, supervise or manage in person his property in Pakistan, or whose property in Pakistan has ceased to be occupied, supervised or managed by any person or is being occupied, supervised by a person (whether duly empowered in this behalf by him or otherwise) whose authority or right so to do on or after the aforesaid date has not been accepted or approved by the Custodian. It may further be observed that remaining portion of the definition deals with the evacuee business or undertaking and joint stock companies and :or the purpose of the above case, it is not necessary to refer the same.
5. It may further be noticed that the term "evacuee property" has been defined in above subsection
(3) of Section 2 as means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity) and includes--
(a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same; or
(b) property of an evacuee obtained by transfer or after the first day of March 1947, until the transfer is confirmed by the Custodian.
It may also be noticed that the items mentioned in provisos (i) and (ii) to the above subsection (3), namely, any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of an evacuee, or any property belonging to a joint stock company the registered office of which was situated before the 15th of August, 1947, in any place in the territories now comprising India and continues to be so situated after the said date, have been excluded from the ambit of the evacuee property.
It may also be pointed out that section 3 of the Act of 1957 prohibits the treating of any property as an evacuee on or after January, 1957, by providing in subsection (1) that nothwithstanding anything contained in the 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 It further provides that nothing contained in the above 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 dale mentioned therein for treating such persons as evacuee or such property as evacuee property; or
(b) to any properly which is occupied, supervised or managed by a person whose authority or right so to do after .The twenty eighth day of r February, 1947, has not been accepted or approved by the Custodian.
It may also be observed that Section 22 of the Act of 1957 provides remedy to the interested persons in the property treated by the Custodian or Rehabilitation Authority as evacuee property by laying down that any person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that:--
(a) the property is not evacuee property; or
(b) his interest in the property has not been affected by the provisions of the Act.
It also provides that an application under the above subsection (1) shall he made within the prescribed period being a period of not less than 30 days from the prescribed date. Whereas subsection (3) thereof provides that on receiving an application under section (2) the Custodian shall hold a summary inquiry in the prescribed manner and after taking such evidence as may be produced shall pass an order, stating the reasons therefore, rejecting the application or, allowing it wholly or in part on such terms and conditions as he thinks fit to impose.
It may be pointed out that Section 41 bars the jurisdiction of the Court' by providing that save as expressly provided in the Act no Civil or Revenue Court or any other authority have jurisdiction:--
(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what 1 right or interest, if any, an evacuee has in any such property;
(b) to question the legality of anything done under this Act by or it the instance of the Custodian; or
(c) in respect of any matter which the Custodian is empowered by or under; his Act to, determine.
It may further be pointed out that subsection (2) of section 41 of the Act of 1957 lays down that whenever any question such as referred to the in clause (a) oft subsection (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given and the decision of the; Custodian on the question stated shall be conclusive.
It may also be observed that subsection (3) of the above section provides; that no decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March, 1947, and the fifteenth day of October, 1949, shall be binding on the Custodian or affect any right or interest of any evacuee in any property affected by such decision, decree or order unless it is accepted or approved by the Custodian. It may also be pointed out that subsection (4) of the above Section 41 prohibits the Court or other authority from- granting an injunction or order in relation to any proceeding before the Custodian under the Act, or anything done by or at the instance of the Custodian under the Act. However, subsection (5) provides that nothing in the foregoing subsection shall prevent adjudication by a Civil Court of a dispute between the evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval.
6. Before touching upon merits of the above contentions, we may also refer to Sections 4, 5 and 25 of the Act of 1958, and Sections 1 and 2 of the Evacuee Property and Displaced Persons (Repeal)
Act, 1975, hereinafter referred to as the Act XIV of 1975. It may be observed that Section 4 of the Act of 1958, empowers the Central Government by a notification to acquire any land within the Federal Capital or situated in any of the Provinces arid upon such notification the right, title and interest of any evacuee or persons claiming through him in the land specified in the notification, shall with effect from the date of such publication, be extinguished and the land shall vest wholly and absolutely in the Central Government free from all encumbrances. It also provides that the Central Government shall prescribe the extent to which and the period within which any charge created by the Custodian on land acquired under subsection (1) or subsection (2) of above Section 4 or any decree granted by a Civil or Revenue Court against such land, shall be satisfied or such compensation as is determined by the High Court under subsection (3) of Section 43-A of the Act of 1957, shall be paid and the manner in which it shall be satisfied or paid.
It may also be observed that Section 5 contemplates constitution of Compensation Pools which inter alia include land acquired under above Section 4 apart from the other items mentioned in clauses (b) to (g) of the subsection (1) of 8 Section 5. However, the proviso to above subsection (1) excludes the land attached to charitable, religious or educational trusts or institutions from becoming part of any pool constituted under the above section. It may further be noticed that subsections (2) and (3) of Section 5 provide the forums for adjudication on the question whether any land is attached to a charitable, religious or educational trust or institution. The above subsections are not relevant for the controversy in issue.
It may also be observed that Section 25 bars the jurisdiction of the Courts by providing that save as otherwise provided in the Act no Civil or Revenue Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other Authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act.
7. Adverting to the Act XIV of 1975, it may be stated that the same repealed the various enactments mentioned in subsection (1) of Section 2 which inter alia included the Act of 1957 and the Act of 1958. However, subsection (2) of the above Section 2 of Act XIV of 1975 provided that upon the repeal of aforesaid Acts and Regulations, all proceedings which immediately before such repeal, may be pending before the authorities appointed there under shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the. Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid. Whereas subsection (3) lays down that any proceedings transferred or remanded to an officer in pursuance of subsection (2) shall be disposed of by him in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings relate. It may also be noted that subsection (4) of the above section 2 provided that final order passed under subsection (3) shall be executed by the Board of Revenue of the Province in accordance with the provisions of the Act or Regulation hereby repealed to which the proceedings related.
8. Coming to the merits of the case, it may be observed that both the learned A. S. Cs. Appearing for the parties, have candidly conceded that the aforesaid orders dated 3-6-1967 arid 17-1-1968 passed by the Deputy Collector and Deputy Settlement Commissioner (Land), and the District judge acting in the capacity of the Settlement Commissioner (Lands) passed upon appellant's and respondents Nos.4 to Ts appeal and respondent No.3's revision were without jurisdiction as both of them could not have adjudicated upon the question, whether the land is an evacuee property or not. In this regard, reference may be made to the case of Mir Dastgir Ali and 2 others v. Additional Deputy Commissioner and Additional Settlement Commissioner (Lands) and 2 others PLD 1982 Kar.
508 decided by Naimuddin, J. (as his Lordship then was) sitting as a Single Judge of the High Court of Sindh which is on all four support the above concession made by the learned A. S. Cs.
9. Reverting to the question whether the Civil Court had jurisdiction to adjudicate upon the above question, it may be pertinent to recapitulate the pertinent facts which are proved or admitted. It is an admitted position that though the official respondents in their written statement had averred that the kind has all along been treated as evacuee property but nothing was produced to support the above averment. On the contrary, the evidence brought by the contesting respondent No.3 proved the factum that the land was in possession of the appellant and respondents Nos.4 to 7 at the time when the land was allotted to him on 20-10-1966. In para 10 of his written statement in the suit wherein he was arraigned as defendant No.2, he had averred that the land .Vas brought ...
Central Pool in 1961-1962. It may be pertinent to reproduce the above para, which reads as follows:- - "10. That the contents of para. No.10 of the Plaint, are based on lack of knowledge and misinterpretation of the existing law, which shows that once the property declared as evacuee can only be decided by Custodian, hence the settlement authorities, have acted quite judicially and in consonance of existing legal position.
(a) That the aforesaid property belongs to Evacuee and was brought in central pool in 1961-62. Had the same belonged to Pakistani Muslims, the same would have been agitated?
(b) That it would be wrong to say that the above suit property was treated as evacuee property in 1966 for the first time, the fact is that the suit land throughout stands in the name of the evacuee and the same was included in central pool in 1961-62.
(c) That the suit property was fraudulently kept concealed from authorities, the authorities realizing that some evacuee properties were kept hidden, promulgated an Ordinance under Martial Law Regime, calling upon all to declare such hidden evacuee properties but the plaintiffs did not care for strong worded Ordinance even. The local authorities no more caring about the influence of the plaintiffs unearthed the aforesaid evacuee property after the Record of Rights and communicated such information to the Custodian who ordered the same to be brought in central pool in 1961-62."
It may also be pointed out that respondent No.3's Attorney Muhammad Jamil in his deposition before the learned Civil Judge had deposed as follows:-- "--- In 1966 also the Tapedar prepared the mashirnama while giving us possession. I have filed the mashirname. I do not know if the Mukhtiarkar gave notice to the plaintiff after allotment order handed over the possession to us. The plaintiff filed appeal before the Settlement Commissioner. I was a party before that proceeding which was against the notice. Tapedar is still alive. Plaintiffs have were present when the possession was handed over to me. Sobha, Gaji and some others were haris on the land in 1960-61. I cannot say if its loung was hart. I do not know if the suit land was allotted to any other mohajir prior to us, nor did I try to know. It is not a fact that we were never given possession of the land."
10. It is, therefore, evident that these was nothing before the Courts below to indicate that the land has been treated as evacuee property by a competent authority prior to January, 1957. On the other hand, the evidence brought on record as stated hereinabove indicated that the land was first brought into compensation pool as per averment of respondent No.3 in his written statement in 1961-62 and it was allotted to him on 20-10-1966 and the possession thereof was allegedly taken from the appellant and respondents Nos.4 to 7. If factually the land was the subject-matter of the suit of 1941, the mere fact that in the Revenue Record the name of Kanderomal continued to appear, would not divest the ownership in the land if vested in the appellant and respondents Nos.4 to 7.
11. The resume of the various provisions of the Act of 1957 and of the Act of 1958, referred to hereinabove, indicates that the jurisdiction to take over any property as an evacuee property or to allot the same as a part of compensation pool to any claimant, was vested in the Custodian or the Settlement Authorities provided the person and the property fell within the purview of the definitions of the terms "evacuee" and "evacuee property" and not otherwise.
It may also be observed that the status of a person or of a property as an evacuee or as an evacuee property was to be determined with reference to the various target dates provided for in the Act of 1957, namely, in clauses (a) and (d) of subsection (2) of Section 2 and in clause (b) of subsection (3) of Section 2 the target date was on or after first day of March, 1947, for constituting any person as an evacuee or the property as an evacuee property on the happening of the contingencies mentioned therein, whereas in proviso (ii) to sub-clause (b) of subsection (3) of Section 2 for the purpose of excluding property belonging to a joint stock company from the ambit of the definition-of "evacuee property" the target date provided for having a registered office o: such a company situated m any place in the territories of then comprising of India was before the fifteenth day of August, 1947. It may further be observed that subsection (7) of Section 3 provided first day of January, 1947, as the target date by providing that no person or evacuee not treated as evacuee or as evacuee property immediately before first day of January, 1957, shall be treated as an evacuee or an evacuee property subject to the exclusion of the cases mentioned in subsection
(2) thereof, namely.
(a) any person or any property in respect of which action had commenced or the proceedings were pending;
(b) any property which was occupied, supervised or managed by a person whose authority or right so to do after twentieth day of February, 1947; ',, had not been accepted or approved by the Custodian.
It may also be pointed out that subsection (3) of Section 41 provided period commencing from first day of March, 1947, and expiring on fifteenth of October, 1949, as the period during which if any decision, decree or order of any Court or authority in respect of any evacuee or evacuee property had not been given/passed, was not-binding on the Custodian.
It is, therefore, evident that the functionaries under the Act of 1957 and the Act of 1958 did not enjoy unfettered and unbridled power to treat any person, or property as an evacuee or evacuee property, but they were to act within the bounds delineated in the relevant provisions of the relevant statute.
However, Act of 1957 provided two modes of adjudicating upon the I question whether any person or property was an evacuee or was evacuee property or not, namely, (i) either by filing an application under section 22 by the person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authority as an evacuee property within the period prescribed under subsection (1) of above Section 22 or (ii) upon a reference to be made by a Court or authority to the Custodian if the question arose before it, whether any person was or was not evacuee or whether any property was or was not evacuee property or what right, or interest, if any, an evacuee had in any such property. In the instant case it is true that the appellant and respondents Nos.4 to 7 had not involved section 22 of the Act of 1957 by filing of an application but opted to file an appeal before the Deputy Collector/Deputy Settlement Commissioner (Lands) and then a suit, an appeal and a revision in the Civil Court but, in our view, the facts and circumstances of the present case demanded that the learned Civil Judge should have stated the question with relevant particulars under subsection (2) of section 41 of the Act of 195'7 for adjudication by the Custodian as the question arose when the above provision was still operative as the latter was repealed in 1975. Since the present proceedings can be treated as in continuation of the proceedings in the suit, which was instituted in. 1968, we are inclined to hold that the case can be remanded to the learned Civil Judge with the: direction to state the question in terms of the above provisions of the Act of 1957 for adjudication by the notified officer concerned under subsection (2) of section 2 of the Act XIV of 1975.
12. However, Mr. Sabihuddin has contended that the appellant and respondents Nos.4 to 7 by their own acts or omissions by not invoking proper remedy nave lost their remedy, if any, available under the Act of 1957 or under any other law. Reliance was placed by him on the two cases of learned Single Judges of the Peshawar High Court and the Lahore High Court, namely. Abdul Hakeem v. Custodian of Evacuee Property/Member. Board of Revenue-11, N.-W.F.P. And 45 others PLD 1983 Pesh. 140 and the case, oil' Muhammad Nawaz and others v. Abdullah and others 1988 CLC 1285. The above cases to some extent support his above submission but the above cases do not refer to the provision of subsection (2) of Section 41 of the Act of 1957 which enjoins the Court and the authority by providing that "it shall state the question with relevant particulars and remit it to the Custodian for decision" in respect of the matter referred to in clause (a) of subsection (1) of the above section already referred to hereinabove. .
13. We would therefore, allow the above appeal and set aside the judgments/decrees passed by the Courts below and would remand the case to the learned Civil Judge with the direction to state the question in terms of subsection (2) of section 41 of the Act of 1957 to the notified officer concerned under subsection (2) of Section 2 of Act XIV of 1975 for adjudication, and upon receipt of such a decision to decide the suit in accordance with law.
14. We may observe that we have purposely refrained from commenting upon the questions whether the land is the same which was the subject-matter of the suit of 1941 and whether the land was devolved upon the appellant and respondents Nos.4 to 7 etc. As we are remanding the case.
The appeal stands disposed of in the above terms, but there will be no order as to costs.