' ABDUL SHAKURUL SALAM, J.--This is an appeal against the judgment of the learned Division Bench of the Lahore High Court in L.PA. No,80 of 1970, dated 24-4-1984.
1. The relevant facts for the disposal of this appeal are that an area measuring 75 kanals situated in village Bonga Khan Singh in Tehsil Depalpur District Okara was mortgaged by evacuees in favour of the predecessor-ininterest of the appellants on 18-4-1888. On 9-9-1959 the appellants filed an application under section 22 of the Pakistan Administration of Evacuee Property Act (XIl of 1957) for a declaration that the land in dispute was not evacuee property. The application was rejected by the Deputy Custodian of the Evacuee Property, Lahore vide order, dated 10-9-1960. However, appeal was accepted by the Addl. Custodian vide order, dated 20-4-1961. On the motion of the Rehabilitation Authority, the learned Custodian of the Evacuee Property took up the matter and rejected the contention that the land in dispute mortgaged having not been redeemed for more than 70 years was not evacuee property. The order of the Additional Custodian dated 24-4-1971 was set aside and the order of the Deputy Custodian dated 10-9-1960 was restored. It was further directed that the appellants will be "entitled to remain in possession till Rs,250 are paid to them.
This amount may be paid by the Deputy Rehabilitation Commissioner, Montgomery and on payment of this amount, he will be entitled to recover possession of this land and to give its possession to the allottees". This is vide order dated 5-12-1962. This was challenged through a Constitutional petition in the Lahore High Court which was dismissed by a learned Single Judge vide, order dated 1-4-1979 and the L.PA. Dismissed by a learned Division Bench of the said Court vide order dated 24-4-1984.
2. The appellants were granted leave to appeal to examine whether "in the context of relevant provisions and cases relied upon in the impugned judgment, the time would also run in the cases like the present one relating to right of foreclosure/redemption wherein suit property was mortgaged by the non-muslim evacuee owner".
3. Contention of the learned counsel for the appellants is that the mortgage dated 18-4-1888 having not been redeemed within 60 years as prescribed by Article 148 of the Limitation Act, 1908, the Custodian successorin-interest of the evacuee mortgagor lost every right in the land and it became non-evacuee vesting in the Muslim mortgagees the appellants.
4. Some statutory provisions relevant for resolution of the point may be quoted as below:-- Pakistan (Administration of Evacuee Property) Act, (XII of 1957). S.2(2) "evacuee" means any person:--
(a) who, on account of the setting up of the Dominions of Pakistan and Indian, 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;
(3) "evacuee property" 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).
"S.5.Act to override other law".--(1) The provisions of this Act and any 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;
(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from any property shall apply, or be deemed ever to have applied, to evacuee property. S.7 Vesting of evacuee property in custodians. (i) All evacuee property shall vest and shall be deemed to have vested in the Custodian with effect from the first day of March, 1947.
S.8 Certain rights not to be extinguished.--(1) Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupancy or tenancy rights, or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights on the occupancy tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee property and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of--
(a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee; or
(b) the Custodian.
(2) Where any person acquired or has acquired any rights in respect of any property by reason of his being in possession of that property whether in pursuance of a grant, lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any why affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property. S.10. Holding of evacuee property and its surrender,--(1) Every person who is, or has at any time after the twenty eight 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 and whose authority or right to occupy, supervise or manage such property after the twenty-eight day of February, 1947, has not been accepted or approved by the Custodian, shall, as soon as may he but not later than such date as may be notified by the Central Government in the official Gazette, 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 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.
S.16. Exemption from legal process. --(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force".
5. The aforesaid provisions of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), are the latest in the series of similar provisions of earlier statutory instruments. A perusal of the aforequoted provisions clearly shows that any property in which an evacuee had interest, the same shall become evacuee property and shall vest in the Custodian with effect from 1-3-1947.
Sections 2(2 & 3) and 7. The Act is to override other laws to the contrary. Section 5. Rights of the evacuee are not to be extinguished. Section 8. All persons in possession of evacuee property shall hold the same on behalf of the Custodian. Section 10. Property vesting in the Custodian shall be exempt from legal process and the Custodian was not to be divested of such property by operation of any law. Section 16. The result is that after 1st of March, 1947, rights and interests of the evacues in any property left by them were frozen and came to be vested in the Custodian. Nobody could claim any right or accretion of any right in respect of evacuee property after the aforesaid date of 1-3-1947. Therefore, the claim of the appellants that they having remained in possession after 1-3-1947 time will continue to run against the evacuee and on completion of 60 years period the evacuee lost every interest or right in the property and so also the Custodian is untenable.
Reliance of the learned counsel for the appellants on "Muhammad Khan and others v. Chief Settlement and Rehabilitation Commissioner, West Pakistan and another" (PLD 1962 SC 284) to the effect that the right, title and interest of the appellants (mortgagees) has not been acquired by notification issued under section 4 of the Act" is not the whole truth as the observation is followed by "unless the appellants' mortgage is redeemed either by the Government or by the allottee"; of course, till then the appellants were held "entitled to retain possession under the mortgage". The operative order is to the following effect: "The appeal is, consequently, allowed and a direction issued to the respondents, prohibiting them from dispossessing the appellants of the property in dispute until the mortgage in their favour is redeemed by due process of law".
' This is exactly what the learned Custodian had ordered in the impugned order, directing further that the mortgage money be paid by the relevant authority.
6. After the aforesaid decision, the Displaced Persons (Land Settlement) Act (XLVII of 1958) was amended by the Displaced Persons Laws Amendment Ordinance (XIII of 1964) whereby section 14- A was inserted in the former Act. It is to the following effect: ' S.14-A. Allotment of certain lands under mortgage etc. --(1) Notwithstanding anything contained in any law for the time being in force or in any judgment of any Court, where a person has been allotted, under any Scheme prepared under section 14, any land which was at any time before the commencement of this Act subject to a mortgage created by an evacuee, the allotment shall be deemed to be valid.
' Provided that:- ' The mortgage money due to the mortgagee shall be charged on such land;
(2) The Settlement Authority may declare that the land which is subject to a mortgage shall remain subject to a charge until the mortgage is redeemed, and any such charge shall be deemed to be a charge created by the Custodian under subsection (4) of section 4.
(3) The Collector of the district within which the land referred to in subsection (1) is situated or, if any such land is situated in more than one district such Collector as the Chief Settlement Commissioner, may direct shall, with the assistance of such Revenue Officers as the Collector may think fit, assess the amount of the charge referred to in subsection (2).
' Provided that if the amount of any such charge has, before the commencement of the aforesaid Ordinance, been determined by the Custodian or any competent authority, such amount shall be deemed to be the amount validly assessed.
The effect of the amendment was that the rights of the mortgagee were effaced and instead was created a mere charge. A case involving the point in issue came up before the Full Bench of the Lahore High Court in "Muhammad Nawaz Khan and others v. Muhammad Amin and others" (PLD 1969 Lah. 622), wherein it was laid down at page 631 of the report that "the effect of the proviso to subsection (1) of section 14-A is to efface the mortgagee rights held by the petitioners (Muslim mortgagees) in the land in question (of non-Muslim evacuees) and in their stead to create a mere charge on the land to the extent of the mortgaged sum". This judgment was approved by this Court in the case of "Subedar Muhammad Tufail v. Chief Settlement Commissioner and others" (1970 SCMR 73), so also in the case of "Muhammad Hussain v. Muhammad Sharir (1981 SCMR 550). In the subsequent case "Jalal Shah and others v. Custodian and others" (PLD 1981 SC 262) it was observed at page 264 that "it is not disputed that after the "Partition of the Sub-Continent" the appellants could not have prescripted against the Custodian according to the relevant law on the subject". In other words the law of limitation ceased to operate as against the evacuee or the Custodian.
7. In view of the statutory provisions and procedents quoted above, there is no escape from the conclusion that the appeal has no force. It is, therefore, dismissed but as nobody has appeared to oppose the appeal there shall be no order as to costs.