' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the dismissal by the High Court of the appellants' Constitutional (Writ) Petition which had arisen out of complicated facts and chequered history of the case involving questions relating to settlement and evacuee laws. It would be advantageous to reproduce the leave grant order which contains the details of the essential facts and features of the case. It reads as follows:-- "The petitioners, who were defendants in a declaratory suit, seek leave to appeal from the judgment of the High Court, Peshawar, dated 10-2-1990, dismissing their writ petition against the order dated 25-2-1989 rendered by the. Deputy Commissioner, Karak, as notified Officer under section 2(2) of Act XIV of 1975 (respondent No,53 herein) whereby he declared the land in dispute as non-evacuee and accepted the plaintiffs-respondents as owners thereof.
' This case has a chequered history. The land in dispute was mortgaged long before the partition of Sub-Continent by one Sardar Shah in favour of Johan Khan etc., who are the ancestrals of the plaintiffs-respondents. In the year 1912 the mortgagor sold away equity of redemption to one Rana Ram and after his death his widow Mst. Maya Devi transferred the land by way of sale to Tapasi Ram and Lakshmi Chand who subsequently became evacuees. Consequently, the land was treated as an evacuee property and allotted to Mst. Rukia Begum against her verified claim, who sold it to Awal Hussain and others. The latter further alienated it to the petitioners.
' It is to be noticed that throughout this period in the revenue record the respondents were shown as mortgagees. However, without their knowledge and without payment of mortgage money the mortgage was redeemed by the Central Government and redemption Mutation No,10620 sanctioned on 21-6-1968. On 16-9-1971 the respondents filed a declaratory suit challenging this mutation and claimed that the land not having been redeemed for a period of more than 60 years, they became full fledged owners thereof. The Civil Judge decreed the suit on 17-6-1972, but the District Judge accepted the petitioners' appeal on the ground that the property having been treated as evacuee property, the Civil Court lacked jurisdiction and directed that the plaint be returned to the respondents for its presentation before proper forum. The matter was then taken to the Rehabilitation Authority and the Deputy Custodian, Karak. In the meanwhile, the evacuee laws were repealed and the Deputy Custodian vide his order dated 30-3-1976 returned the case, which again fell for adjudication before the Civil Court. The respondents failed before the Civil Judge as well as the District Judge. Their revision before the High Court was disposed of on 15-11-1980 and with the consent of the parties the case was sent back to the Civil Judge, to make reference to the Custodian for determination of the nature of the property, but no such determination was made by him, and the matter was again lifted before the High Court in revision (C.R.352/84). In the course of its hearing, the learned counsel for the parties agreed that the case be referred to the Settlement Commissioner/Notified Officer.
' The Notified Officer on the basis of the material before him maintained that 60 years period of limitation for redemption of the land expired much prior to .The year 1947 and a title matured in favour of the respondents who all along remained in possession of the land. The redemption of the land and all subsequent mutations were also adjudged, as void. Against this decision, the petitioners invoked the writ jurisdiction of the High Court and urged that respondent No,53 was not the notified officer. This contention, however, was repelled by the High Court and a finding recorded that the respondents became owners of the land by prescription much before the migration of the non-Muslim evacuees to India, meaning thereby that the land was not available for allotment to the petitioners' predecessor-in-interest.
' We have heard the learned counsel for the parties. In support of this petition, it has been argued that over the years the property remained in the hands of non-Muslim who became evacuee and by virtue of section of the Pakistan Administration of Evacuee Property Act, 1957, with effect from 1- 3-1947 the land came to vest in the Custodian of Evacuee Property; thus was rigthly treated as an evacuee property, and allotted to Mst. Rukia Begum against her claim for agricultural land. That during this entire period the respondents never raised any objection or obtained declaration of their rights from the Custodian under the evacuee laws. In these circumstances, in the submissions of the learned counsel for the petitioners, the respondents'. Move to establish their title was wholly untenable. The argument that respondent No,53 was not duly appointed as Notified Officer, has also been repeated before us.
' The contentions raised by the learned counsel need further examination."
' After lengthy, arguments and citation of array of authorities which would presently be noticed the points that have emerged for consideration and decision are as under:--
(a) What is the implication of section 14-A added to the Displaced Persons (Land Settlement) Act, 1958.
(b) Whether in the present case when it is asserted from the respondents' side that the said mortgage had matured in their title to the property long time before the partition and the non- Muslim also having failed to make any attempt to redeem the property before Partition, could the property have gone into the compensation pool at all the argument being that it was not at all evacuee property, therefore, section 14-A could not be attracted to it.
(c) Whether the non-Muslim had any interest, right or title in the property under mortgage with the respondents' side at the time of Partition so as to make him evacuee and the property evacuee property.
' Both the learned counsel having been allowed time to cite case-law on the point and the Court Library Assistant also having made research the following judgments were cited and noticed during the arguments:--
1. Adam Khan v. Zarin Shah C.P. 215-P and C.P. 224-P of 1991, decided on 13-5-1992.
2. Ghulam Muhammad v. Custodian, Evacuee Property, Punjab (West Pakistan), Lahore 1992 SCMR 120.
3. Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063.
4. Malik Muzaffar v. Muhammad Sher 1991 SCMR 1865.
5. Ghulam Abbas v. Lal Din 1988 SCMR 1182.
6. Samar Gul v. Central Government PLD 1986 SC 35.
7. Azizuddin v. Muhammad Ismail 1985 SCMR 666.
8. MA. Hafeez Khan v Riaz Ahmad 1983 SCMR 803.
9. Jalal Shah v. The Custodian PLD 1981 SC 262.
10. Muhammad Hussain v. Muhammad Sharif 1981 SCMR 350.
11. Civil Appeal No, 57-P of 1972, decided on 27-4-1980.
12. Muhammad Ghiasuddin v. Khan Alam 1980 SCMR 146.
13. Ahmad Khan v. Rasul Shah PLD 1975 SC 311.
14. Maj. Mehtab Khan v. Rehabilitation Authority PLD 1973 SC 451.
15. Faqiria v. Custodian, West Pakistan, Lahore 1972 SCMR 43.
16. Muhammad Din v. Govenrment of Pakistan 1970 SCMR 94.
17. Khair Din v. Chief Settlement and Rehabilitation Commissioner, Lahore 1970 SCMR 92.
18. Subedar Muhammad Tufail v. The Chief Settlement Commissioner, Lahore 1970 SCMR 73.
19. Muhammad Khan v. The Chief Settlement and Rehabilitation Commissioner PLD 1962 SC 284.
20. Maqbool Ahmad Qureshi v. The Government of Pakistan PLD 1989 FSC 89.
21. Muhammad Rafiq v. Mst. Noor Begum 1989 CLC 2292.
22. Dost Muhammad v. Pir Zaman Shah PLD 1987 Pesh.
125.
23. Syed Ata Hussain Shah v. Lal Din 1986 MLD 433.
24. Muhammad Hussain v. Settlement Commissioner PLD 1984 Lahore 139.
25. Mst. Hassan Jan v. Mst. Hassan Jan PLD 1984 Pesh.
202.
26. Muhammad Hussain v. Custodian, Evacuee Property 1980 CLC 593.
27. Muhammad Shafi v. Ghulam Qadir PLD 1978 Lah.
71.
28. Sher v. Fazal Karim PLD 1974 Note 41 at p.77.
29. Suleman v. Custodian, Evacuee Property, West Pakistan, Lahore PLD 1971 Lah.
77.
30. Muhammad Nawaz Khan v. Muhammad Amin PLD 1969 Lah.
622.
31. Muhammad Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1968 Lah.
1339.
32. Ramzan v. Chief Settlement and Rehabilitation Commissioner PLD 1968 Lah.
258.
33. Azam Ali v. The Custodian of Evacuee Property PLD 1968 Lah.
148.
34. Muhammad Yousaf v. The Chief Settlement and Rehabilitation Commissioner PLD 1963 Lah.
590.
A recent judgment of this Court in CPs. 215-P and 224-P of 1991 dated 13th May, 1992 on the interpretation of section 14-A was also noticed. The research made in this case by all concerned has made it easy to answer the aforenoted questions. The cases of Adam Khan; Ghulam Muhammad; Ghulam Abbas; Muhammad Hussain; Muhammad Din; Khair Din; Subedar Muhammad Tufail; Muhammad Rafique, Syed Atta Hussain Shah; Muhammad Nawaz Khan; Muhammad Ali; Ramzan and Muhammad Yousaf already noted particularly the cases of Ghulam Muhammad and that of Adam Khan and others contain enough discussion which would furnish answer to the first question regarding general implication of the said provision: The second question can also be answered with reference to the cases noticed under section 14-A. Particularly in the case of Muhammad Din the High Court had held that such property would be treated as evacuee property and would form part of the compensation pool. It was treated as also having vested in the Custodian from 1947. The only right conceded to the mortgagee was a charge over the property created by section 14-A. This view having been challenged before this Court the High Court judgment was upheld.
The last question also stands answered in the case of Muhammad Din. A point was raised before the High Court which was repelled by it namely, that the right of the mortgagor is not property but only a right to sue. Agreeing with the High Court this Court held that the equity of redemption by itself is immovable property within the meaning of Transfer of Property Act. That being so, it was assumed that the non-Muslim had a right in the property in question. It would follow from all this that not only he himself was evacuee but also that the property in question was evacuee. In addition to these questions the learned counsel for the respondents also raised two ancillary points. Firstly, that in none of these cases the period of 60 years having expired before partition no occasion arose to examine; whether, the mortgagee by efflux of time had not become owner without resort to the Courts. In this behalf he confessed that he has not been able to find any clear authority to support his contention, but, relied on Sher and others v. Fazal Karim and others PLD 1974 Note 41 at page 77. Obviously as the note "shows there is not enough material therein to assess the circumstances in which certain observations were made. However, we do not exclude the possibility that there might be some such case but that would also be of no help in this case because a general trend in our own case-law is to the contrary and secondly the peculiar statutory legal position is contained in section 14-A and other evacuee laws particularly Act XII of 1957.
' Be that as it may, it seems there was some conflict of authority till 1962 when in Muhammad Khan v. The Chief Settlement Commissioner PLD 1962 SC 284 this Court clarified the position regarding local mortgages of properties owned by non-Muslims. It was held that only the equity of redemption was owned by the evacuees and the evacuee property in this context would be confined to that interest. The Government or the allottees of the lands which were in possession of the local mortgagees were, it was further D held, required to redeem the property. This demanded insertion by enactment, of section 14-A in the Displaced Persons (Land Settlement) Act, which reads as follows:-- "Section 14-A. Allotment of certain lands under mortgage etc.--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 any evacuee, the allotment shall be deemed to be valid.
' Provided that-- ' the mortgage money due to the mortgagee shall be charge on such land;H
(2) The Settlement Authority may declare that the land which is subject to a mortgage shall remain subject to a charge until 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 following amongst other consequences would flow from section 14-A, a somewhat extraordinary legislation:- A. The non obstante clause excluded the application of all other laws relating to mortgages and other connected matters which were in conflict with section 14-A.
B. Not only this some of the observations in the case of Muhammad Khan by this Court also having been noticed as going beyond the policy and philosophy of laws relating to rehabilitation, evacuees and settlement of displaced persons, the non obstante clause also excluded the decisions of the Courts which were contrary to section 14-A. This provided a very wide and deep protective umbrella to the statutory dispensation contained in section 14-A. It did not make any distinction between the matured and unmatured mortgage& Straight, simple and forceful language used in section 14-A did not permit any distinction. C. It seems that the touchstone of the entire provision came to be recognized, after its enactment, as the act of the Custodian in treating property as evacuee and its actual physical allotment which was declared valid. These two conditions having been satisfied the provision itself took care of all other laws and judgments whether past or in future. It is in this view of the matter that almost all the cases of section 14-A protected in one way or the other the interest of the evacuee mortgagors. It however accepted one principle enunciated by the Supreme Court in the case of Muhammad Khan that. The Govenrment or the allottee was required to redeem the property and further that the equity of redemption was owned by the evacuee, an obligation was created in section 14-A that the mortgage money shall remain as a charge on the property. Not only this a mechanism was devised in its various subsections to compel the Settlement Authorities and indirectly the allottees also to take proceedings for ascretaining the amount and establishing the charge on the one hand and redeeming the properties on the other.
D. Next point raised by the learned counsel for the respondent has been answered while dealing with already visualized the other three questions. However, it is further commented that it is not correct to assume that in all cases of the period of 60 years having matured the mortgagees would automatically become owners. Besides this being an unequitable and unjust approach to the entire controversy to say the least, the owner in this line of argument is not even conceded a right of hearing. Therefore, on the one hand it would be just and proper that some certification of maturity of title is obtained by the mortgagees, it is also necessary to visualise that many cases which the mortgagors themselves filed, would succeed. In this behalf learned counsel for the respondents cited more than couple of instances in which notwithstanding maturity of time and so-called assumptive title the mortgagor would definitely succeed in getting back the property by formal redemption on basis of acknowledgments or on other technical grounds. One obvious is the example of ex parte decree not being set aside till the end on account of some serious folly of the defendant/mortgagee.
' In the light of the foregoing discussion this appeal is allowed, the impugned judgment is set aside, the property shall be treated as evacuee and validly allotted, subject to the charge as provided in section 14-A, if there is redemption so far.
On announcement of the judgment we asked the learned counsel for the appellants to show cause as to why the proceedings under section 14-A for determining and acknowledging the charge and for redeeming the property should not be commenced forthwith. He agreed that the intention of the law G was that in all such cases such proceedings shall be commenced on or without an application. He accepted this proposition as well as the necessity to redeem in this case provided it is not already done. There shall be no order as to costs.