This R.S.A. Under section 100, C.P.C., is by Nazar Hussain Shah, the subsequent vendee defendant No,2, and arises out of a suit for declaration, filed by Mst. Jindo Mai and 8 others legal, heirs of Saleem Khan.
2. The material facts arc: that Mst. Jindo Mai and 8 others instituted a suit for declaration to the effect that they were owners of the suit land (comprehensively described in the plaint and hereinafter referred to as 'land') by means of registered sale-deed dated 26-8-1983. It was alleged therein that Ghulam Abbas, herein respondent No,10, was the owner of the said land. By means of a registered sale-deed noted above, he transferred the land in consideration of Rs,3,000 in favour of Saleem Khan predecessor-in-interest of the plaintiffs. It was further pleaded that the sale was entered into the Revenue Record by means of Mutation No, 885 which was attested on 28-9-1964. It was in the pleadings that the aforenoted mutation was reviewed by the Revenue authorities on the ground that Ghulam Abbas Shah has made the sale of agricultural land measuring 17 Kanals 19 Marlas in favour of different vendees and so he was not competent to make the sale of the whole of his entitlement in favour of Saleem Khan. It was alleged that taking the benefit of this order, Ghulam Abbas Shah made the sale of the land in favour of Nazar Hussain Shah and Nazar Hussain Shah in order to perfect his fraud filed a suit for declaration in Civil Court, on the basis of this sale- deed against Ghulam Abbas Shah who filed a concessional statement in his favour. It was averred that in this manner the consent-decree in favour of Nazar Hussain Shah was manipulated.
3. The suit was contested. Ghulam Rasul Shah and Nazar Hussain Shah subsequent vendee took up the position; that the plaintiff was in possession of suit land and so the suit was incompetent under proviso to section 42 of the Specific Relief Act; that no sale was made in favour of Saleem Khan predecessor-in-interest of the plaintiffs.
4. On the pleadings of the parties, the learned trial Court framed the necessary issues. The parties led their evidence in order to prove their respective pleas. Upon the consideration of the evidence adduced by both the parties, the learned Civil Judge by judgment dated 6-1-1977 decreed the suit by holding that defendant No,1, had transferred the land in dispute in favour of Saleem Khan the predecessor-in-interest of the plaintiffs through registered sale-deed dated 26-8-1963; that defendant No,2 was not a bona fide purchaser. It was further concluded that the possession was delivered to Saleem Khan but later on defendant No,2 had taken forcibly the possession of the land and plaintiffs were entitled to the decree for possession. The trial Court directed the plaintiffs to make correct valuation for the purposes of jurisdiction and the court-fee after taking into consideration, the plea of possession and to pay court-fee within the prescribed time. Issue No,6 'on limitation' and issue No,8-A 'on description of property' were not pressed into service and so were left undecided.
5. Feeling aggrieved with this decision, Nazar Hussain Shah the subsequent vendee filed an appeal which was dismissed by the learned District Judge, Mianwali by means of judgment dated 23-1- 1978. The appellant has challenged the validity/propriety of these decisions in this regular second appeal.
6. In impeaching the decisions of the two Courts below, the learned counsel for the appellant concentrated his assault on the question of 'nature' of the suit and 'limitation' only, in the following manner;Firstly that the respondent-plaintiffs have filed a suit for declaration simpliciter without claiming the relief of possession in spite of the fact that the respondent plaintiffs were out of possession at the time of filing of the suit. An objection was raised that in the aforesaid circumstances, the suit was hit by proviso to section 42 of the Specific Relief Act and was liable to be dismissed on this ground alone. Secondly, that the valuation for the purposes of jurisdiction and court- fee was fixed to be Rs,200 and so no court-fee was affixed on the plaint. It was argued that in fact the plaint filed by the respondents was `no plaint' in the eyes of law in view of the aforesaid ground. Neither the trial Court nor the Ist appellate Court had the authority to grant any opportunity to the plaintiffs to value the suit for the purposes of court-fee and make up the deficiency after the expiry of limitation. Reliance was placed on Mst. Walayat Khatoon v. Khalil Khan and others (PLD 1979 S.C. 821).
7. On the other hand, the learned counsel appearing on behalf of the respondents supported the impugned decisions. In reply it was represented that the question regarding court-fee had been finally settled in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289).
8. I have heard the learned counsel for the parties at considerable length and find no substance in the contentions of the learned counsel for the appellant. It is on the record that neither Ghulam Abbas Shah, the original owner filed an appeal against the decision of Ist Court nor he has come into the second appeal against the decision of the 1st Appellate Court. It is Nazar Hussain Shah who has in fact taken over the cudgels. It was Ghulam Abbas Shah who was required to controvert the sale having been made in favour of Saleem Khan by means of registered sale-deed. This has not been done. From these facts it is established that the sale-deed in favour of Saleem Khan has not been seriously challenged. In the context of aforesaid circumstances, it is quite clear to me that the findings of the two Courts below holding that the plaintiffs were vendees with consideration of suit land is not open to any exception.
9. Now remains the question as to whether the suit was barred under proviso to section 42 of the Specific Relief Act and the first Court had no authority to grant the relief of possession; that the plaintiffs had been dispossessed by the appellant. This question came up for consideration in Karamat All and another v. Muhammad Younus Haji and others (PLD 1963 S.C. 191). In this case the appellants-plaintiffs had filed a suit for declaration for title without claiming relief of possession.
The suit was dismissed by the 1st Court, The decision of the original Court was maintained by the 1st Appellate Court as well as the High Court. The appellants-plaintiffs in that case, filed appeal before the Supreme Court; the appeal was accepted. The case was remanded to the trial Court for enabling the appellant to make necessary amendments to the plaint and thereafter for disposal of the suit in accordance with law and in the light of the observations contained therein. The question as to whether the suit was barred under section 42 ibid was dealt with by the Supreme Court in the following words.
"The question as to whether the suit was barred under section 42 of the Specific Relief Act now remains to be considered. It is admitted that the tenant judgment-debtor had succeeded in getting possession restored under subsection (8) of section 37-A of the Act before the appellants instituted the suit out of which the present appeal arises. In the circumstances, the seeking of the relief by way of delivery of possession had become a necessary consequential relief which should have been claimed in their suit. Evidently this was not done to avoid the payment of ad valorem court-fee. Learned counsel appearing for the appellants, however, contends that his appeal should not fall on that ground alone if it suceeds on the other grounds, for, even this Court can permit him to amend his plaint and pay the necessary court-fees. The land consisting of some 3-1/2 acres, it is said, is a valuable piece of property and the appellant's claim thereto should not be defeated mainly on this technical ground, particularly, since both the Courts below the High Court had come to a clear finding that the appellants were not the benamidars of the decree-holders but had actually auction-purchased the property with their own money and in their own name. That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Keramat All himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer. This was sometime in 194445 and, as such the claim of the appellants to possession has clearly become barred by limitation.The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide Md. Zahoor All Khan v. Mst. Thakooranee Rutta Koer (11 MIA 468). That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt this Court would be reluctant to allow an amendment, which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances. Of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakoorane Rutta Koer (AIR 1921 P.C. 50)."
10. Judged from the aforenoted enunciation of law by the Supreme Court, I have no hesitation in coming to the conclusion that the Trial Court had ample power under Order XLI, Rule 33, C.P.C. To grant the relief of possession to the plaintiffs, whose title in the property in dispute and right to recover the possession was found established. The objection raised by the learned counsel for the appellant seems to be mere fetish of technicalities and had no nexus with the principle that the Courts are required to do the substantial justice between the parties.
11. In the light of foregoing reasons, I find no reason to interfere with the decision of the two Courts below within the warrants of section 100, C.P.C. In result the appeal fails and is accordingly dismissed. The appellant shall bear the costs of the proceedings.
Appeal dismissed.
1991 CLC 298 [Lahore] Before Mian Allah Nawaz, MUHAMMAD KHAN---Petitioner versus SETTLEMENT COMMISSIONER and others---Respondents Writ Petitions Nos. 188-R, 290/R, 291/R and 292/R of 1982, heard on 28th July, 1991.
(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)- ----Ss. 10 & 11---Constitution of Pakistan (1973), Art.199---Resumption of allotment---Validity--- Petitioners were allotted land in question in their capacity as refugees from Jammu and Kashmir for maintenance purposes, which was sold to them subsequently and they were in possession thereof-- Authority resuming such land had passed the order without application of mind and without taking into consideration facts and circumstances of case---Orders in question, were not speaking orders by any standard---Authority resuming such land did not address itself to discover or fmd out the law under which it initiated proceedings and passed the order in question---Such order being totally without jurisdiction could not be sustained and was struck down. [p. 301] A Ghulam Muhammad and another v. Ahmad Khan and another PLD ' 1991 SC 391; Abdur Rahim and others v. Hassan Muhammad and others NLR 1984 SC J 6 and Muhammad Baran and others v.
Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691 ref.
(b) Constitution of Pakistan (1973)- ----Art. 199---Constitutional jurisdiction, exercise of---Orders passed without jurisdiction were liable to be struck down in Constitutional jurisdiction of High Court, which was intended to keep various functionaries of State within the defined orbit of their authority. [p. 301] A
(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)- --Ss. 10 & 11---Constitution of Pakistan (1973), Art. 199---Mixed question of law and fact could not be examined in Constitutional jurisdiction of High Court. [p. 302] B
(d) Displaced Persons (Land Settlement) Act (XLVII of 1958)- ----Ss. 10 & 11---Constitution of Pakistan (1973), Art.199---Allotment of land for maintenance---Respondent's application for cancellation of such land---Authority cancelling such land had no jurisdiction in the matter---Respondent could seek his grievance redressed before appropriate forum---Any observation made by High Court in present order, would not affect such determination. [p. 302] C Dr. A. Basit for Petitioners.
Ch. Muhammad Rafiq Khan for Respondent No,5.
Sh. Abdul Aziz for Respondent No,6.
Hamid Ali Mirza for Settlement Department. Date of hearing: 28th July, 1991.
' These four constitution petitions bearing No,188/R, 290/R, 291/R and 292/R, all of 1982, are inter- connected and arise out of the orders of the Deputy Commissioner dated 10-4-1982 and 27-4-1982, whereunder, the allotments in favour of petitioners were resumed in favour of the Federal Govt. And are so being disposed of by a Single judgment.
2. The facts, in brief, common to all these petitions are that Muhammad Khan, petitioner in W.P.
No,188/R-82 is the father of petitioners namely Nizam Din in W.P. No,290/R-82, Alam Din and Ahmad Din in W.P. No,291/R-82 and Siraj Din in W.P. No,292/R-82. These petitioners had come from the State of occupied Jammu and Kashmir and were allotted agricultural land in revenue estate Rasul Nagar, Tehsil Wazirabad for the purpose of maintenance grant. The orders of allotment in their favour, respectively, are detailed below:- Petitioners in W.P.No, Land measuring Date of order of allotment, W.P. No,188/R-82 129 !Canals 12 Marlas 30-7-1957 W.P. No,290/R-82 106 " 5 " 2-6-1957 W.P. No,291/R-82 113 " 7 " 5-3-1962 W.P. No,292/R-82 30 " Through decrees dated 18-3-1980 of Civil Court in suits of pre-emptions.
3. These petitioners submitted applications in 1975 to the Ministry of Kashmir Affairs for the purchase of land allotted to them. It was on 31-10-1977 when the applications were accepted and the petitioners were directed to deposit the price of land determined by the Ministry of Kashmir Affairs. Accordingly they paid the price and so became owners of the land.
4. The dispute erupted on 10-5-1980 when one Mian Fatal Hussain, herein respondent in all the petitions, submitted a joint application alleged therein that neither the petitioners were refugees from occupied Jammu and Kashmir State, nor they had verified claims and so the allotments secured by them were fraudulent in nature; that the land allotted to the petitioners was situated in urban area and so could not be granted to them for maintenance purposes. This application was addressed to the Settlement Commissioner (Land), and was withdrawn by the applicants on 14-1- 1981 and so was dismissed as having been withdrawn. This was not the end of the matter. The cudgel was now taken by one Manzoor Hussain, herein respondent No,6 in W.P. No,188/R-82, who submitted an application to the same effect to the Deputy Commissioner, who on 5-8-1980 sent a confidential memorandum to the Settlement Commissioner (Land) Lahore to the effect that the allotments in favour of the petitioners were with respect to land which was urban in nature and so the orders of allotments in their favour were null and void. He recommended that the cases be registered against the present petitioners. The learned Settlement Commissioner in reply to this memorandum also sent a secret message permitting the Deputy Commissioner to take appropriate action. Equipped with this guidance, the Deputy Commissioner proceeded to pass order dated 10-4-1982 by which he cancelled the allotment of the petitioners and Rabokar was issued to the same effect on 27-4-1982. These are subject-matter of challenge in these four writ petitions.
5. The learned counsel appearing on behalf of the petitioners impeached the validity/propriety of the impugned order on the following grounds:- Firstly,that the Deputy Commissioner passed these orders absolutely in a clandestine and surreptitious manner. Neither the petitioners were summoned nor any opportunity of hearing was provided to them. As such these orders were in defiance of the principle of natural justice "Nobody shall be condemned unheard." Secondly,that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Settlement Authorities became functus officio from 1-7-1974 and so the matters concerning allotments became past and closed transactions. These transaction could not be reopened by the Settlement Authorities after the target date noted above; Thirdly,that the allotments were made to the petitioners as refugees from Jammu and Kashmir State as maintenance grants that the sale transactions were made by the Ministry of Kashmir Affairs; that the applications were given under the provisions of Sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. It was contended that these allotments were excluded from compensation pool under para. 4-A of the West Pakistan Rehabilitation Settlement Scheme, 1956 and so provisions of Displaced Persons (Land Settlement) Act, 1958 including Sections 10 and 11 thereof were not applicable to the facts of these cases. Reliance was placed on Ghulam Muhammad and another v. Ahmad Khan and another (PLD 1991 SC 391).
Fourthly, that the order passed by the Deputy Commissioner was stereotype in nature and passed without application of mind. As such, according to the learned counsel these orders were devoid of any legal efficacy.
6. The learned counsel (Mr. Muhammad Rafique Khan) appearing on behalf of Mian Fazal Hussain, respondent, supported the stand taken by the petitioners and stated that he had withdrawn the application and so there was no warrant for continuing the proceedings.
7. The learned counsel Sh. Abdul Aziz, appearing on behalf of respondent Manzoor Hussain, stated that he had also given application to the same effect alleging therein that the land allotted to petitioners was situated in Rasul Nagar, which was an urban area. According to him this land could not be granted to the petitioners and so the initial orders of allotment in favour of the petitioners were totally illegal and bereft of legal authority. He placed reliance on the rule laid down in Abdur Rahim etc. v. Hassan Muhammad etc. (NLR 1984 SC J 6) and Muhammad Baran and others v.
Member (Settlement & Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 SC 691).
8. The learned counsel appearing on behalf of official respondents stated with fairness that he was not in a position to support the impugned order as it was passed without jurisdiction.
9. I have heard the learned counsel for the parties at considerable length. From the examination of impugned orders it is crystal clear that the Deputy Commissioner has passed the order without applying his mind to the facts and the circumstances of the case by relying upon the report of the Addl. Deputy Commissioner (G). The orders are not speaking orders by any standard. The facts are not disputed that the petitioners were allotted the land in the capacity of refugees from Jammu and Kashmir for maintenance purposes; that this land was sold by the Ministry of Kashmir Affairs to them; that they had been in possession of the land allotted to them. In such circumstances these allotments could not have been undone by stroke of pen without undertaking any inquiry in respect of factual allegations. Even the Deputy Commissioner did not address himself to discover or find out the law under which he initiated proceedings and passed the impugned orders. Such order in my considered view is totally without jurisdiction and cannot be sustained. It is a well- settled principle of law that the orders passed without jurisdiction are liable to be struck down in constitutional jurisdiction of this Court, which is intended to keep various functionaries of the State within the defined orbit of their authority.
10. In the light of foregoing reasons I have no difficulty in reaching the conclusion that the orders passed by the Deputy Commissioner in all the four cases were wholly without jurisdiction. These are declared as such and are thus quashed.
11. Before closing this judgment I feel it necessary to examine the contention of the learned counsel for Manzoor Hussain, respondent, that the land allotted to petitioners was situated in urban area and could not be allotted to them. This is a mixed question of law and facts and cannot be examined in constitutional jurisdiction of this Court at this stage. However, this does not foreclose this question as in Shamrooz Khan v. Muhabbat Khan (1989 SCMR 819), it was held:- "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fa7al Khan and others (PLD 1975 SC 331). On no principle, known to the constitutional jurisdiction, the power of the Tribunal to adjudicate any matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The custodian of the record is the best Judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court."
This judgment was followed in S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation and Secretary to Punjab Govt). And others (1990 CLC 1174) and was further reiterated in Muhammad Baran and others v. Member (Sett. & Reh.)
Board of Revenue, Punjab and others (PLD 1991 SC 691).
12. In the light of rule laid down in the above noted authorities, it is quite clear to me that respondent, Manzoor Hussain, in W.P. No, 188/R-82, can seek his grievance redressed before the appropriate forum under the law. Any observation made in this order shall not affect such determination. With the above observations these writ petitions are accepted. There shall be no order as to costs.
Petitions accepted.
1991 CLC 303 [Lahore] Before Munir A. Sheikh, J MUHAMMAD HUSSAIN and others---Petitioners versus MUHAMMAD SHAFT-Respondent Writ Petition No,6197 of 1991, heard on 28th July, 1991.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 13---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.10 & 11--- Ejectment application---Transfer orders passed by Settlement Authorities--Legality and validity of transfer orders passed by Settlement Authorities could not be questioned and gone into during ejectment proceedings. [p. 305] A
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S.13---Civil Procedure Code (V of 1908), 0.1, R.3---Landlord being owner of building, instead of filing separate ejectment petition against each of the occupant, filing one ejectment petition by joining all the occupants of property---Such course was not prohibited altogether---Rent Controller, however, could order separate trials---Where no order for separate trial had been passed by Rent Controller, in his discretion, no objection could be raised by tenants when no prejudice was shown to have been caused to them on that account. [p. 305] B
(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-- ----S. 30---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Preamble-- West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Non-serving of notice under S.30, Displaced Persons (Compensation and Rehabilitation) Act 1958-Effect-After repeal of Settlement laws in 1975 by Act XIV of 1975, no notice was necessary before filing ejectment application---Ejectment application itself could be construed to be a notice to tenant. [p. 305] C
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 13--Civil Procedure Code (V of 1908), 0.1, R.3---Landlord owning one building joining all the tenants in occupation of such building in one ejectment application---No issue having been got framed by the tenants on the point of multifariousness, such plea would be deemed to have been abandoned. [p. 306] D
(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction, exercise of--- Ejectment of tenants ordered by forums below---No case had been made out for interference in constitutional jurisdiction as the orders passed by forums below did not suffer from any jurisdictional defect---Equity was also against tenants who had not paid any rent to landlord since the time P.T.D. Was issued to him---Ejectment order passed by forums below was maintained in circumstances. [p. 306] E Sharif Hussain Bokhari for Petitioners.
ORDER In this Constitutional petition order dated 28-10-1989 passed by the Rent Controller, Gujrat, accepting the eviction petition of respondent No,1 and the order dated 21-2-1991 passed by the learned Addl. District Judge, dismissing the appeal of the petitioner against the said order of the Rent Controller have been challenged.
2. Learned counsel for the petitioners raised the following contentions:-
(i) That no notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation)
Act (XXVIII of 1958) was served at the relevant time after the transfer of property in favour of the respondent;
(b) That the petitioners were not occupying the premises as tenants under the Rehabilitation Department;
(c) That the ejectment petition suffered from multifariousness inasmuch as there was misjoinder of causes of action and the parties. His precise argument was that each occupant of different portion of the same property should have been proceeded against separately instead of joining all of them in one ejectment petition. For the foregoing reasons it was submitted that the issue regarding existence of relationship of landlord and tenant between the parties was not correctly decided and should have been answered in favour of the present petitioners and ejectment petition dismissed.
3. I have gone through the statement made by petitioner No,3 Jan Muhammad when he appeared as witness on behalf of the petitioners as R.W.5 in which he categorically stated that they were in possession of the property since 1949-50. He also stated that they were refugees from Jammu and Kashmir and that they had not paid any rent to any person though PTD had been issued to the petitioners. The ejectment petition was filed in 1987 after the repeal of the settlement laws. In this view of the matter, the petitioners became owners by operation of law on the transfer of property in favour of respondent No,1 and by virtue of Section 30 of the Act, no further overt act was necessary to bring into existence relationship of landlord and tenant between the parties.
4. Learned counsel for the petitioners attempted to argue that since the petitioners were not in possession as envisaged by Section 2(6) of the Act, as the petitioners were not acknowledging the Rehabilitation Department as their landlord, therefore, the respondent was obliged to file a regular civil suit for possession instead of filing an ejectment petition. He, however, when questioned argued that since the petitioner No,3 stated in his statement that the petitioners were in possession of the property as refugees from Jammu and Kashmir their attempt was to show that the property in dispute in their possession was not available for transfer to any other person according to the Settlement laws. If the petitioners were claiming to be in "possession" of the property for the purpose of exemption of the same from transfer under the Act, such possession would be sufficient to constitute possession as envisaged by the Act so as to bring into existence relationship of landlord and tenant between the parties once the property was transferred to the respondent. It may be observed here that in ejectment proceedings legality and validity of transfer orders passed by the Settlement authorities could not be questioned and gone into.
5. As regards multifariousness, the argument has no force. The building was one and instead of filing the separate ejectment petition against each of the occupants, the respondent filed one ejectment petition by joining all the occupants of the property which course of action is not prohibited altogether. It was for the Rent Controller to have ordered for separate trials and if such an order was not passed by him in his discretion, no objection can be raised by the petitioners as no prejudice has been shown to have been caused to them on that account as the case of the petitioners alongwith others was identical.
6. After the repeal of Settlement laws in 1974 according to the law declared by the Supreme Court no notice was necessary before filing the ejectment petition. The argument based on this plea has no force. Even otherwise the ejectment petition itself could be construed to be a notice to the petitioners and since the order has been passed after the expiry of period of 90 days and no prejudice has been caused to the petitioners on that account as they were posted with the knowledge through the ejectment petition that the property has been transferred to the respondent to whom the petitioners admittedly did not pay any rent as is evident from the statement of R.W. 5 who is petitioner No,3.
7. Before parting with this order it may be mentioned that no issue was got framed by the petitioners on the point of multifariousness which plea shall be deemed to have been abandoned.
No case has been made out for interference in Constitutional jurisdiction as the orders passed by the two Courts below do not suffer from jurisdictional defect. The equity is also against the petitioners who have not paid any rent to respondent No, 1 since 1969 when the PTD was issued to respondent No,
1. The writ petition fails which is hereby dismissed in limine.
Petition dismissed.
1991 CLC306 [Lahore] Before Malik Muhammad Qayyum, J Mst. MUMTAZ NASIM---Petitioner versus ADDITIONAL DISTRICT JUDGE and others---Respondents Writ Petition No,773 of 1988, heard on 20th July, 1991.
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Requirement of premises by landlady for use of her son; both for residential as well as business purposes---Appellate Court while deciding appeal, was oblivious of the fact that property was needed not only for the residence of landlady's son but also for his business---In the house occupied by landlady not only she but the family of her brother, who was a co-sharer with her, was also living-Landlady's assertion that a separate house was required by her for the use of her son could not be deemed to be mala fide---Finding of Appellate Court was thus, not sustainable in circumstances. [p. 309] A Arshad Umar and another v. Begum Nazrul Askari PLD 1985 SC 38 ref.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 13---Requirement of premises for the need of landlady's son---In ejectment application, need spelt out was landlady's own and not of her son---In evidence, however, landlady stressed need of her son---Effect--- Requirement of children was in the nature of the extention of personal requirement of landlord/landlady herself; thus even if in ejectment application, requirement of any of the children was not specifically stated, landlady would still be entitled to spell out such need in evidence. [p.
309] B
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)--- ----S. 15--Constitution of Pakistan (1973), Art. 199----Constitutional jurisdiction, exercise of--- Interference in findings recorded by Appellate Court--Extent---Where judgment of Appellate Court was based upon consideration which had no relevance, same would stand vitiated--Appellate Court's view that there was no corroboration of the statement of attorney of landlady, was of no consequence for, there was no legal requirement that apart from the statement of landlord or his attorney, some other evidence must be led by landlord to prove his personal use---Where statement of landlord or his attorney was confidence inspiring and it was not rebutted by tenant by leading any evidence, same would be sufficient to sustain the finding on the issue of personal use- --Judgment of Appellate Court was declared to be without lawful authority and of no legal effect-- Order of Rent Controller directing ejectment of tenant would thus, stand restored. [p. 309] C Muhammad Siddique v. Mistri Muhammad Aslam PLD 1975 Lah. 308 rel. Irshad Ahmad Qureshi for Petitioner.
Nemo for Respondents Nos.1 and 2.
Malik Muhammad Nawaz for Respondent No,3.
Nemo for Respondents Nos.4 and 5.
Date of hearing: 20th July, 1991.
JUDGMENT This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the judgment of the District Judge, Kasur dated 16th of December, 1987, whereby he set aside the order of the Rent Controller dated 11th of May, 1987, and dismissed the application for ejectment filed by the petitioner against respondents Nos.2 to 5 herein.
2. The ejectment petition was instituted by the landlady on 22nd of April, 1985, seeking the eviction of respondents Nos.2 to 5 from property No,B-IV8R-39 situated in Gandam Mandi, Kasur, on the allegation that respondent No,2 was a tenant in respect of the property under her at a monthly rent of Rs,500 and that he was a defaulter in payment of rent; and sublet the premises to respondents Nos.3 to 5 and also that the premises were required by the petitioner bona fide and in good faith for her use. This application was contested by respondents Nos.2, 3 and 5 by filing written statement. The Rent Controller, after framing the necessary issues, recorded the evidence of the parties and by means of his order dated 11th of May, 1987, came to the conclusion that the property in question was required by the petitioner bona fide and in good faith for the use of her son. As a consequence of this finding, an order of ejectment was passed against the respondents.
3. Aggrieved by this order, an appeal was filed by respondents Nos.2 and 3 before the District Judge, who reversed the finding of the Rent Controller on issue No,6, and held that the petitioner had failed to prove that the property was required by her for the use of her son bona fide and in good faith. Therefore, while accepting the appeal, he dismissed the petition for eviction.
4. This petition was on 11th June, 1991 allowed ex parte but on an application (C.M. No,1 of 1991) filed by the respondents, the ex parte order was set aside and the arguments of the learned counsel for the parties have been heard.
5. The learned counsel for the petitioner submitted that District Judge while reversing the finding of the learned Rent Controller on issue of personal use has acted contrary to law declared by the superior Courts and has also misread the record. It was further pointed out that the judgment of the District Judge is based upon conjectures and grounds which are wholly untenable. The learned counsel also argued that the lower appellate Court has failed to take notice of the reasoning which had prevailed with the Rent Controller for taking a contrary view of the matter.
6. The learned counsel for the respondents on the other hand stated that in the ejectment petition the petitioner had sought the eviction of the premises for her own use but during the course of evidence the need set up was for that of her son and in view of this contradictory stand the ejectment petition was liable to be dismissed. It was also contended that the property in question was non-residential in nature having been let out to respondent No,2 as a shop and therefore, could not be got vacated for residential purposes. The next point urged by the learned counsel for the petitioner was that a finding of fact has been recorded by the District Judge by not believing the evidence led by the petitioner that the premises were required by her for the use of her son and such findings were not liable to be interfered with by this Court in exercise of its constitutional jurisdiction.
7. In support of her case that the property was required by her bona fide and in good faith for her own use, the petitioner had examined her brother and attorney Muhammad Afzal as A.W.3, who deposed that son of the petitioner had grown up and sitting idle and the premises were required by the petitioner for her use, both for the purposes of business as well as residence. The Rent Controller, while holding that the landlady had succeeded in proving her case, had relied upon the statement of this witness and also noted that there was no effective rebuttal. However, these findings were reversed by the District Judge mainly on the ground that neither the landlady herself nor her son, who had to use the property, had appeared as a witness. The insistence of the District Judge that the landlady and her son should have appeared as witnesses runs counter to the law declared by the Supreme Court of Pakistan in Arshad Umar and another v. Begum Nazrul Askari (PLD 1985 SC 38). It is also to be seen that Muhammad Afzal, who appeared as A.W.3, was not only the attorney of the petitioner but also her real brother and was, therefore, in a position to depose about the facts from his own knowledge.
8. A perusal of the judgment of the District Judge shows that he did not apply his mind to the facts of the case. The premises in question were required by the petitioner for the use of her son; both for residential as well as business purposes. The District Judge, while deciding the appeal, was oblivious of the fact that according to the petitioner, the property was needed not only for the residence of her son but also for his business. In these circumstances, the occupation of a part of another residential house was of no consequence. Furthermore, according to the finding of the District Judge himself, in the house occupied by the petitioner not only she but also the family of her brother, who is a co-sharer with her, was living in house. In these circumstances, the assertion of the petitioner that a separate house was required by her for the use of her son cannot be said to be mala fide. It is thus obvious that the judgment of the District Judge is not sustainable.
9. So far as the contention of the learned counsel for respondents Nos.2 to 5 that the stand taken by the petitioner in the ejectment petition and during the course of evidence was contradictory is concerned, suffice it to say that this contention cannot prevail in view of the judgment in Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081), wherein it was held that the requirement of the children is really in the nature of extension of the personal requirement of the landlord himself and therefore even if in the ejectment petition it was not specifically stated that the requirement is for the occupation of any one of his children, the landlord would still be entitled to spell this need in evidence.
10. As regards the objection of the learned counsel for the contesting respondents that this Court cannot interfere with the findings recorded by the District Judge, as already held the judgment of the District Judge is contrary to law declared by the superior Courts and cannot be sustained. Even otherwise, the judgment is based upon consideration which has no relevance and therefore stands vitiated. It is also to be noticed that there is no finding recorded by the District Judge that the evidence led by the petitioner was not of any credit. On the other hand, he has merely observed that there was no corroboration of the statement of attorney of the petitioner. There is no legal requirement that apart from the statement of the landlord or his attorney, some other evidence must be led by the landlord to prove his personal use. If statement of the landlord or his attorney is confidence inspiring and is not rebutted by the respondents by leading any evidence, it is sufficient to sustain the finding on the issue of personal use. Muhammad Siddique v. Mistri Muhammad Aslam (PLD 1975 Lah. 308) refers).
For the reasons aforesaid, this petition is allowed, the impugned judgment of the District Judge is declared to be without lawful authority and of no legal effect, with the result that the order of the Rent Controller dated 11th of May, 1987, stands restored, with no order as to costs. The respondents are allowed one month's time to vacate the premises in question.
1991 CLC 310 [Lahore] Before Khalil-ur-Rehman Khan, J MUHAMMAD SIDDIQUE---Petitioner versus BASHIR HUSSAIN and others---Respondents Writ Petition No,599-R of 1975, heard on 31st July, 1991.
(a) Rehabilitation Settlement Scheme--- ----Para. 7(5)---Minor's relationship with person holding allotment-EffectMinors were to be considered as allottees in the area in which their relatives were holding allotments---Respondent allottee's relationship with person holding allotment in particular area stood established from the pedigree table produced in previous petition filed by the petitioner himself as also from the pedigree table annexed with the present petition wherein he was shown to be allottee's brother's son---Respondent whether to be treated as a sitting allottee under para. 7(5), Rehabilitation Settlement Scheme. [p. 312] A Provision of para. 7(5) Rehabilitation Settlement Scheme is a beneficial provision intended to rehabilitate and settle the refugees in compact families. Respondent allottee was admittedly minor at the time of Partition as well at the time when claim was submitted and verified. This claim remained pending satisfaction throughout since 1952.
Had the allotment been made earlier, the question that respondent allottee was not a minor could, admittedly not be raised. Merely because the allotment was made in the year 1963 and the Authorities were not in a position to satisfy the claim earlier, would not furnish sound basis to refuse settlement of respondent alongwith his other family members in the same village. The consistent practice of the Settlement Department was to interpret the laws on the subject with reference to the position obtaining in the year 1947. Moreover, the use of the word "for the purpose of allotment" in the sub-para would indicate that it was not the time of allotment that was to be considered as an overriding factor. Respondent could take benefit of the provision of para. 7(5) of the Scheme. [p.
313] B
(b) Rehabilitation Settlement Scheme--- ----Para. 7(5)---Transfer of Property Act (IV of 1882), S.41---Constitution of Pakistan (1973), Art.199- --Constitutional jurisdiction, exercise of---Respondent when minor had been allotted land in question, which was valid and in accordance with provisions of para. 7(5), Rehabilitation Settlement Scheme---Interference with such allotment was not warranted---Respondent allottee having sold land in question, after allotment, bona fide purchaser for value viz; vendee respondent would be deprived of his holding if interference was made---Decision of Settlement Authority was upheld in circumstances. [p. 313] C Kh. Muhammad Farooq for Petitioner.
A.R. Shaukat and Shahzad Jehangir for Respondents. Ch. Muhammad Altaf Khan for Department.
Date of hearing: 31st July, 1991.
JUDGMENT The facts briefly stated are that Muhammad Yameen Khan was allotted land measuring 24 Kanals 7 Marlas at Khata No,13/287, RL-II of Chak No,2/1.L Tehsil Okara on 30-7-1963. He sold the entire land in favour of Bashir Hussain respondent vide mutation No,180 dated 4-8-1973.
Muhammad Siddique petitioner who was an allottee of the same Chak challenged the allotment by filing an appeal before the Deputy Settlement Commissioner on the plea that Muhammad Yamin Khan was a non-allottee and as such could not claim preference against a sitting allottee.
The appeal was accepted vide order dated 20-11-1963 and the revision petition filed before the Addl: Settlement Commissioner by Muhammad Yamin Khan was ultimately got dismissed as withdrawn vide order dated 7-11-1964. Bashir Hussain respondent-vendee then filed a revision petition before the Settlement Commissioner and the same was accepted vide order dated 7-4- 1965 holding that Yamin was a minor at the time of allotment and since his uncle Abdul Sattar was allottee of the Chak, Yameen Khan could also be treated as a sitting allottee under para. 7 sub- para. (5) of the Rehabilitation Settlement Scheme. This led to the filing of a Constitutional petition (W.P. 1012/R/65) which was accepted vide order dated 2-5-1973 and the matter was remanded for fresh decision by the Settlement Commissioner.
2. The learned Settlement Commissioner in pursuance of the remand order heard the parties and vide an order dated 14-4-1975 upheld order dated 7-5-1965, and maintained allotment in favour of Muhammad Yamin Khan made on 30th July, 1963, hence this present Constitutional petition.
3. The learned counsel for the petitioner argued that the impugned order of the Settlement Commissioner is not sustainable as the learned Officer has failed to keep in view the observations recorded in the remand order. It was added that Muhammad Yamin Khan cannot be treated as a sitting allottee as firstly; in the order dated 10-11-1954 he was held to be a non-allottee and secondly Muhammad Yamin Khan having born on 2-1-1939 was not minor at the time of receiving allotment i,e. 30th July, 1963 and hence he cannot avail the provisions contained in sub-para (5) of par a. 7 Part II of the Rehabilitation Settlement Scheme. The learned counsel explained that according to the pedigree-table Annexure R 2 with the previous petition Muhammad Yamin and Abdul Sattar were not connected through a common ancestor.
4. The learned counsel for the respondent-vendee argued that according to pedigree-table (Annexure R 2 with the previous file) it stands established that Muhammad Yamin and Abdul Sattar were related to each other and the same thing stands also proved by the pedigree-table (R 2 with the present petition) as it shows that Maula Bakhsh had 3 sons namely, Ashiq Ali, Younas Ali, Abdul Sattar and Muhammad Yamin is son of Ashiq Ali, brother of Abdul Sattar. He submitted that Muhammad Yamin was admittedly a minor at the time of partition as well as at the time of submission of the claim for the land abandoned in India and the said claim was filed through a relative. He argued that in order to receive the benefit of para. 7(5) of the Scheme the age at the time of allotment would not be relevant factor.
5. I have considered the respective submissions of the parties. The fact that Muhammad Yamin is related to Abdul Sattar stands established from the pedigree-table produced in the previous petition by the petitioner himself. As per pedigree table Annexure R2 with this petition Muhammad Yamin is shown to be his brother's son. The position so reflected by the pedigree-table is not controverted. This being the position the question that arises is whether Muhammad Yamin can be treated as a sitting allottee of the village under para. 7(5) of the Scheme. This sub-para reads as under:- "For the purposes of allotment of land under the Rehabilitation Settlement Scheme, widows, unmarried daughters and minors should also be considered as allottees in the village in which their relatives hold allotments. The term relatives implies brothers sisters uncles, first cousins and guardians in the case of the minors."
6. The first thing to be seen is that this is a beneficial provision intended to rehabilitate and settle the refugees in compact families. Muhammad Yamin Khan was admittedly minor at the time of partition as well at the time when claim was submitted and verified. This claim was pending satisfaction throughout since 1952. Had the allotment been made earlier, the question that Muhammad Yamin was not a minor could, admittedly be not raised. Merely because the allotment was made in the year 1963 and the authorities were not in a position to satisfy the claim earlier, would not furnish sound basis to refuse settlement of Muhammad Yamin alongwith his other family members in the same village. It is also pertinent to note that the consistent practice of the Settlement Department is to interpret the laws on the subject with reference to the position obtaining in the year 1947. Moreover; the use of the word "for the purpose of allotment" in the sub- para would indicate that it is not the time of allotment that is to be considered as an overriding factor. I, therefore, agree with the learned Settlement Commissioner that Muhammad Yamin can take benefit of the provision of para. 7(5) of the Scheme. In this view of the matter, the fact that order dated 10-11-1954 in which Muhammad Yamin was considered a non-allottee depicts the factual position and not the position which will prevail under the provisions of the aforesaid para.
7. Be that as it may, in the circumstances of the case I do not find it a fit case to interfere at this late stage in extraordinary jurisdiction as the petitioner has already obtained alongwith his two brothers allotment of land in the village and as regards the pending units if any, it is the petitioner alone and not his two brothers who is objecting to the allotment of only 24 acres to the respondent. If interference is made the respondent who is bona fide purchaser for value will be deprived of his small holding.
' For the reasons given above there is no merit in this petition, the same is dismissed. The parties to bear their own costs.
Petition dismissed 1991 CLC 313 [Lahore] Before Munir A. Sheikh, J KALIM ULLAH-Petitioner versus FEDERAL GOVERNMENT and another-Respondents Writ Petition No,733-R of 1978, heard on 13th Jul, 19Q1:
(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)--- ----S. 8---Constitution of Pakistan (1973), Art.199---Treating any property to be evacuee trust property---Essentials---Before a property could be treated to be an evacuee trust property, it was to be established or shown from some tangible evidence, that owner of property dedicated the same for religious charitable purposes---List of Khana Shumari, wherein such property had been described as Makan Mandir did not show that such entry related to specific Khasra number wherein property in question was situate---List of evacuee trust property as maintained by the Evacuee Trust Property Office could hardly be considered to be evidence itself regarding dedication of property by the owner for charitable purpose---Findings recorded by Federal Government were thus, not based on any evidence admissible under the law to dislodge a strong evidence as contained in Jamabandi for the specific year on the strength of which Chairman, Evacuee Trust Property Board had declared that the property was not evacuee trust property which findings were perfectly in accordance with the law based on admissible evidence---Order of Federal Government holding such property to be an evacuee trust property was declared to have been passed without lawful authority and of no legal effect. [pp. 315, 316] A & C
(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)--- ----S. 8---Treating property as evacuee trust property---Entries in Jamabandi for specific year--- Effect---Entries in the Jamabandi for the specific year showed that an evacuee had been recorded as owner of such property who had mortgaged the same in favour of another evacuee---Fact that the owner had been dealing with the property as his own, for he had mortgaged the same, which was relevant evidence on basis of which nature and character of property was to be determined-- -Entry in the Jamabandi did not show that owner of same ever dedicated or intended to dedicate the same for religious purposes etc.---Property in question, thus, could not be treated as evacuee trust property. [p. 316] B Shahzad Shaukat on behalf of Dr. A. Bash for Petitioner. Ch. Fazal-e-Hussain for Respondent No,1.
Malik Muhammad Azam Rasool for Respondent No,2. Date of hearing: 13th July, 1991.
JUDGMENT In this Constitutional petition the petitioner calls in question the legality of order dated 22-5-1978 passed by the Federal Government accepting the revision petition filed by respondent No,2 against the order dated 7-2-1976 passed by the Chairman, Evacuee Trust Property Board, by which the property in dispute has been declared to be an evacuee trust property.
2. The facts giving rise to this Constitutional petition briefly stated are that the land in dispute comprising Khasra No,3194 which is measuring one Kanal 19 Marlas was allotted under the settlement laws to the petitioner in the year 1953 which was subsequently confirmed in his name against his verified claim on 30-4-1964. The Assistant Administrator, Evacuee Trust Property Board, Gujranwala moved an application on 6-8-1975 before the Chairman of the Evacuee Trust Property Board that the land in question be declared as an evacuee trust property.
3. The petitioner contested the said application by filing reply in which a plea was specifically raised that the land in question was not evacuee trust property. The Chairman, Evacuee Trust Property Board by his order dated 7-2-1979 dismissed the said application by holding that the land was not evacuee trust property. This finding was based on the entries in the Jamabandi for the year 1946-47 in which Kirpa Ram son of Devi Ditta Mal Arora Chawala was recorded as owner of the land who had mortgaged it with Lal Chand and Nand Lal sons of Harbans Dass. It was observed that the fact that Kirpa Ram had mortgaged the property was sufficient evidence to establish that the same was his personal property as such the same was not evacuee trust property.
4. Respondent No,2 who claims to be in occupation of the same as lessee of the Evacuee Trust Property Board filed revision petition before the Federal Government under Section 17 of Act XIII of 1973 which has been accepted through the impugned order dated 22-5-1978. It has been held on the basis of the entries made in the list of evacuee trust property maintained by the Evacuee Trust Property Office, Gujranwala, statement allegedly made by Kalim Ullah the present petitioner on 22- 7-1975 and one Muhammad Hussain son of Shams Din of Rasul Nagar before the Assistant Administrator, Evacuee Trust Property Gujranwala and list of `Khana Shumari' prepared by the Municipal Committee for the year 1941 that the property was evacuee trust property.
5. I have heard learned counsel for both the parties. Before a property could be held to be an evacuee trust property it was to be established or shown from some tangible evidence that the owner of the property dedicated the same for religious charitable purpose etc. The list of `Khana Shumari' relied upon by the Federal Government has been read by the learned counsel for respondent No,2 from which it is manifest that the property has been described as "Makan Mande but there is nothing in this document that this entry relates to Khasra No,3194 which is the property in dispute and owned by Kirpa Ram. There is no mention as to what was the exact area over which the said property was constructed. This document, therefore, could not be used as evidence unless it was proved that the same related to the property i,e. Khasra No,3194. The list of evacuee trust property as maintained by the Evacuee Trust Property Office Gujranwala could hardly be considered to be an evidence itself regarding dedication of property by the owner for charitable purpose and `Mandie etc. The statement allegedly made by the petitioner on 22-7-1975 in which he allegedly stated that there existed a "Mandir" in 1953 could not have been used against him unless it was so proved that he made the said statement. In reply to the application made by the Administrator, Evacuee Trust Property Board for obtaining declaration about the character of the property the petitioner specifically denied that the same was evacuee trust property. The entries in the Jamabandi for the year 1946-47 show that Kirpa Ram son of Devi Ditta Mal Arora Chawala has been recorded as owner who had mortgaged the property in favour of Lal Chand and Nand Lal sons of Harbans Dass. In column No,6 this property has been shown to be Braham Akhara. Learned counsel for respondents Nos.1 and 2 laid a great deal of stress on the point that the "Akhara" being a public purpose, therefore, the property shall be deemed to have been dedicated for that purpose. I am afraid the argument in my opinion is plainly unsound. The fact that the owner had been dealing with the property as his own because he mortgaged the same and was recorded as owner in the Jamabandi for the year 1946-47 which is the relevant evidence on the basis of which nature and character of property is to be determined does not show that the owner ever dedicated or intended to dedicate the same for religious purpose etc. Learned counsel for respondent No,1 submitted that in his Jamabandi under column No,9 which relates to the recovery of "Malia" it has been stated as {{URDU TEXT}} which by implication means that the property had been dedicated for religious purpose because "Malia" on such properties only could be waived. No such law has been referred by the learned counsel for respondent No,1 for raising this argument.
5-A. The findings recorded by the Federal Government are not based on any evidence admissible under the law to dislodge a strong evidence as contained in the Jamabandi for the year 1946-47 on the strength of which the Chairman, Evacuee Trust Property Board declared that the property was not evacuee trust property which findings are perfectly in accordance with law based on admissible evidence.
6. The writ petition for the foregoing reasons is accepted. The impugned order dated 22-5-1978 passed by respondent No,1 is hereby declared to have been passed without lawful authority and of no legal effect. In the result the order dated 7-2-1976 passed by the Chairman, Evacuee Trust Property Board stands restored. There will be no order as to costs.
1991 CLC 317 [Lahore] Before Mian Allah Nawaz, J JAN MUHAMMAD---Petitioner versus ALLAH DITTA and others-Respondents Writ Petition No,3231 of 1990, heard on 27th November, 1990.
Constitution of Pakistan (1973)--- ----Art. 199---Constitutional jurisdiction, exercise of---Constitutional jurisdiction of High Court, could be exercised only if it was demonstrated that Court/Tribunal below had passed impugned order without jurisdiction, in excess of jurisdiction or in defiance of law. [p. 318] A Ch. Muhammad Arshad for Petitioner.
ORDER This petition is under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for declaration to the effect that the eviction order passed by the learned Rent Controller, Gujrat and order of affirmance passed by the learned Addl. District Judge, Gujrat is without jurisdiction, without any lawful authority and hence nullity in the eye of law.
2.The facts in brief are; that Jan Muhammad is a tenant, while Allah Ditta respondent No,1 is owner/landlord. Rented premises is a house bearing No,18/385-B situated in Guru Nanak Pura (Usman Pura), Gujrat. It was on 11-7-1985 Allah Ditta filed an application for eviction of Jan Muhammad respondent from the rented premises on the ground of default and personal requirement. This application was contested. It was pleaded that the relationship of landlord and tenant did not exist between the parties, that the applicant was not the owner of house in dispute; that the respondent was in occupation of house since partition; that before the institution of application, he constructed a shop on the frontage of house; that no notice under section 30 of Displaced Persons (Comp. & Rehab.) Act, 1958 (XXVIII of 1958) was given to him.
3. The issues were framed. Upon the consideration of evidence of both the parties, the Rent Controller accepted the application by order dated 9-101988 by holding. That the relationship of landlord and tenant was proved. It was held that the rented premises was allotted to the father of the petitioner, who Transferred the same in favour of the respondent through registered gift deed dated 26-12-1984. The question of default and other questions were decided against tenant. On appeal the learned Addl. District Judge came to the same conclusion and dismissed the appeal.
4. Learned counsel for the petitioner in support of this petition contended that the findings of the two Courts below on the question of service of notice under section 30 of the Displaced Persons (Comp. & Rehab.) Act, 1958 was incorrect. It was further contended that neither the necessary issues were framed nor the petitioner was given an opportunity to adduce point raised in written reply.
5. I have heard the learned counsel for the petitioner at length and perused the record. It is a well- settled principle of law that the Constitutional jurisdiction of this Court can be exercised only if it is demonstrated that the impugned order is passed by the Court/Tribunal without jurisdiction, in excess of jurisdiction and in case of defiance of law. It is not disputed that the Rent Controller and the first appellate Court had the power to decide this case. The point raised by the learned counsel for the petitioner cannot be examined in Constitutional jurisdiction.
6. For the reasons stated above, this petition is found to be without any merit and is dismissed in limine.
Petition dismissed.
1991 CLC 318 [Lahore] Before Raja Afrasiab Khan, I Major JANGBAZ KHAN---Petitioner versus SETTLEMENT COMMISSIONER and others---Respondents Writ Petition No,6-R of 1983, heard on 7th July, 1991.
Displaced Persons (Land Settlement) Act (XLVII of 1958)--- ----Ss. 10 & 11---Evacuee Property & Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.1, 2 & 3-- -Allotment of land, cancellation of---Allotment of land in dispute duly made in favour of petitioner in 1963 who was claimant displaced person and whose verified claim was never disputed, was challenged by respondent in 1981 by filing application under Sections 10 and 11 of Act (XLVII of 1958), on ground of fraud---Authorities re-opened case of petitioner on that application---Act (XLVII of 1958) having been repealed in 1975 and no law being available under which Settlement Authorities could re-open finalised allotment of petitioner, no jurisdiction was vested in Settlement Authorities to re-open confirmed allotment of petitioner that being a transaction past and closed.
[p. 320] A & B Raja Muhammad Sabir for Petitioner.
Ch. M. Nazir Ahmad for Respondents Nos. 1 and 2.
Abdul Aziz Qureshi for Respondent No,3.
Date of hearing: 7th July, 1991.
JUDGMENT The petitioner is a claimant displaced person from the State of Jammu and Kashmir. An entitlement certificate (Annexure 'A') was issued in favour of the petitioner showing that he was entitled to the allotment of land equivalent to his 24530 P.I.Us. On the basis of this document some land was allotted to him by the Deputy Settlement Commissioner on 4-3-1963, vide Annexure 'C'. An application was moved by the respondent No,3 on 12-9-1981, presumably under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958, for the cancellation of the allotment made to the petitioner. On the application of respondent No,3, the case was re-opened by respondents Nos.1 and 2 Learned counsel has challenged the proceedings being initiated for cancellation of the allotment of the petitioner by said respondent. He submits that the Displaced Persons (Land Settlement) Act, 1958 was repealed in the year 1975 and as such there was no law available under which the respondents could re-open the finalized allotment of the petitioner. Reliance has been placed by the learned counsel on Sher Afzal Khan v. Haji Razi Abdullah (1974 SCMR 228), and Malik Shahab Din v. Imdad Ali (1986 CLC 214). Learned counsel contends that he raised an objection regarding the jurisdiction of the respondents to re-open the case. However, this question was not decided by him. In this behalf learned counsel has relied upon Annexure 'F' at page 21 of the petition.
2. Learned counsel for respondent No,3 submits that a fraud has been played by the petitioner inasmuch as he got an allotment of a graveyard and as such this was not at all a case of land within the meaning of law. Learned counsel for the Settlement Department also opposes the petition.
3. I have heard the learned counsel for the parties and perused the record. There is no force in the contention of the learned counsel for the Settlement Department that case of the respondents is covered under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 inasmuch as the said section deals only with the pending cases before the Notified Officers. By no stretch of imagination this case can be taken as a pending case within the meaning of the aforesaid law. In the circumstances the contention is repelled. The position which emerges is that the dispute land was allotted to the petitioner on 4-3-1963 by the Deputy Settlement Commissioner. Verified claim of the petitioner has not been disputed by the respondents. Annexure 'A' shows that petitioner is a claimant displaced person and has 23530 P.I.Us at his credit. The question whether or not the land was allotted to the petitioner is a question which cannot be appreciated in these proceedings. I would like to decide the fate of the petition on the short ground that Displaced Persons (Land Set; lenient) Act, 1958 was repealed in the year 1975 and as such there was no law under which the application Annexure 'D' could be moved by the respondent No,3 against the confirmed allotment of the petitioner. This being so, there was no jurisdiction vested in respondents Nos.1 and 2 to re-open the confirmed allotment of the petitioner. This is surely a transaction past and closed.
4. The upshot of the above discussion is that the impugned proceedings are declared without lawful authority and of no legal consequence. The petition succeeds and is allowed leaving the parties to bear their own costs.
Petition allowed.
1991 CLC 320 [Lahore] Before Malik Muhammad Qayyum,JJ IQBAL LATIF and others---Petitioners versus MUHAMMAD ASLAM and others---Respondents Writ Petition No,169-R of 1977, heard on 16th July, 1991.
Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)- ----S. 20---Revision---Revision could only be decided after calling for record of case---Additional Settlement Commissioner was in error in proceeding to dispose of revision without having record of the case before him. [p. 321] A Ch. Abdul Razzak for Petitioners.
Nemo for Respondent No,l. Hamid Ali Mirza for Respondent No,2.
Date of hearing: 16th July, 1991.
' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973, calls in question the order of the Addl. Settlement Commissioner dated 23rd September, 1976, whereby he set aside the order of resumption of the property in dispute passed by the Deputy Settlement Commissioner.
2. Learned counsel for the petitioners has contended that the revision filed by the petitioners was decided by the Addl. Settlement Commissioner in the absence of the record of the case, in violation of the provisions of section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1950. This plea finds support from the impugned order itself, in which it has been mentioned that the "relevant record of the lower Court which was submitted to the H.Qr.
Office (Writ Branch) was not forthcoming despite many a letter sent for the purpose" and the case was being decided on the basis of the documents produced by the parties.
3. Under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, a revision can only be decided after calling for the record of the case. The Addl. Settlement Commissioner was, therefore, clearly in error in proceeding to dispose of the revision without having the record before him. Both the learned counsel state that the record of the case is now available. That being so, the case has to be remanded to the Addl. Settlement Commissioner/notified officer, for decision of the revision filed by the petitioners afresh, on merits, after perusing the record.
4. For the reasons aforesaid, this petition is allowed and the order of the Addl. Settlement Commissioner dated 23rd of September, 1976 is declared to be without lawful authority and of no legal effect, with the result that the revision petition filed by the petitioners shall be deemed to be pending and shall be disposed of by a notified officer of competent jurisdiction. The case is sent back to the Board of Revenue which shall entrust it to a notified officer for disposal. The parties are left to bear their own costs.
Petition allowed.
1991 CLC 321 [Lahore] Before Khalil-ur-Rehman Khan, J Mst. RAJAH BIBI and others---Petitioners versus DEPUTY CUSTODIAN OF EVACUEE PROPERTY, LAHORE and others---Respondents Writ Petitions Nos. 1-R and 2-R of 1976, decided on 26th June, 1991.
(a) General Clauses Act (X of 1897)--- ----S. 24---Effectiveness of Orders Rules or by-Laws, issued under enactments repealed and re- enacted---Whenever an Act is repealed and re-enacted a notification under the repealed Act is regarded as a notification under the Act in which provisions of repealed Act are enacted---Fact that an Ordinance or Act was repealed one after the other would not make any difference as the deeming clause of S. 24, General Clauses Act 1897, would keep the Rules or the notifications issued under the repealed Act alive unless it could be shown that under the re-enacted law the notification or the rules could not stand on account of inconsistency with the re-enacted provisions. [p. 326] A Harish Chandra v. The State of Madhya Pradesh AIR 1965 SC 932. And Muhammad Din v. Nazar Muhammad Khan PLD 1966 Lah. 780 ref. Crown v. Wali Dad PLD 1954 Lah, 236 and Umer Hayat v. Mst. Hayat Bibi PLD 1958 Lah. 82 rel.
(b) Punjab Tenancy Act (XVI of 1887)--- ----Ss. 5 & 38---West Pakistan Rehabilitation Settlement Scheme 1956, paras. 33 & 31---Pakistan Administration of Evacuee Property Act (XII of 1957), Ss. 8 & 9---Pakistan Administration of Evacuee Property Ordinance (XV of 1949), S. 6-A---Pakistan Rehabilitation Ordinance (XIX of 1948), S. 7 (1)--- Muslim landlords of non-Muslim occupancy tenants---Classes of occupancy tenants---Mere length of occupancy per se could not confer status of hereditary cultivation on a party regarded at settlement as a tenant at will-- Loss of right of occupancy tenants because of abandonment of tenancy was recognised---Where occupancy right of any evacuee in any land had vested in the Custodian or where Custodian had taken possession of such land, nothing in any other law for the time being in force would operate to extinguish such right in the evacuee---Neither evacuee nor Custodian would be liable to be ejected from such land by reasons of any default of the Custodian.
The evacuee tenants no doubt as per entries of the revenue record were in possession of the land in dispute as tenants paying nothing for quite some time but on the basis of these entries they could not claim to be the occupancy tenants. West Pakistan Rehabilitation Settlement Scheme 1956, was prescribed by the Rehabilitation Commissioner (Land) under section 7 (1) of the Pakistan (Rehabilitation) Ordinance, XIX of 1948, in the year 1952. This scheme was then amended from time to time and the Scheme as amended in May, 1956 contained para 31 providing for the rights of the occupancy tenants and their landlords in prescribed territory and punjab (Pakistan) [p. 327] B The reference to para 31 West Pakistan Rehabilitation Settlement Scheme 1956 would show that the rights which had been recognised were those of occupancy tenants and not of others. Sub-para
(v) also provided that land of Muslim Landlords of non-Muslim occupancy tenants in West Punjab should be treated as evacuee property and allotted on temporary basis to the refugees according to the prescribed scale. There was no direction to treat the land of non-Muslim tenants whose rights were not statutorily recognised as rights of the occupancy tenants to be treated as evacuee property and allotted even on temporary basis to the refugees. A reference to para 33 of the Scheme would show that instructions with regard to the treatment of the claimants in whose Fard Haqiyyat entries of Bashara Malkana Bila Malkan or Bashara Malakan Maa Malkana appeared, were given but no such instructions were issued with respect to non-Muslim tenants of the land situated in the Punjab (Pakistan). The occupancy tenants under the Punjab Tenancy Act, 1887, fall into the following classes of occupancy tenants:
(1) occupancy tenants under section 5(1)(a),
(2) occupancy tenants under section 5 (1)(b),
(3) occupancy tenants under section 5 (1)(c),
(4) occupancy tenants under section 5 (1)(d),
(5) occupancy tenants under section 6,
(6) occupancy tenants under section 8.
The non-Muslim tenants admittedly were not the occupancy tenants of any of these categories and, they before migration, had not even been declared as occupancy tenants under section 8.
However, it could not be denied that they were possessed of valuable right of tenancy having remained in possession of land as tenants for quite a long period. But mere length of occupancy per se could not confer the status of hereditary cultivation on a party regarded at settlement as a tenant at will. The loss of the right of the occupancy tenants because of abandonment of tenancy was recognised by section 38 of the Punjab Tenancy Act, 1887. It was in view of this legal position that section 6-A was added to the Pakistan Administration of Evacuee Property Ordinance 1949.
This section provided that where the occupancy right of any evacuee in any land had vested in the Custodian or where the Custodian had taken possession of such land nothing in any other law for the time being in force would operate to extinguish such right in the evacuee and neither the evacuee nor the Custodian shall be liable to be ejected from such land by reason of any default of the Custodian. [p. 328] C The rights of the tenancy of the kind vesting in the evacuee tenants were thus dealt with in section 8 of Act XII of 1957 and under section 9 of the Act the Custodian had to declare by general or special order the date from which he would stand absolved of all responsibility with respect to the property provided that the rights had vested in the Custodian and had been allotted as avacuee property. It would, however, be noted that at the time of enforcement of Act XII of 1957 the property had neither been treated as evacuee property nor allotted as evacuee property, as the land in dispute in the second petition was allotted on 15-6- 1966 while in the first petition was allotted in March, 1972. Admittedly there was no special order passed by the Custodian in respect of the land in dispute. [p. 330] D
(c) Pakistan (Administration of Evacuee Property) Act (XII of 1958)- ----Ss. 3, 8, 9 & 22---Pakistan Administration of Evacuee Property Rules 1950, R. 13---Constitution of Pakistan (1973), Art. 199---Bar of limitation---Validity of order passed by Custodian---No formal declaration treating land in question as evacuee property---Date of allotment could not be considered to be the date of accrual of cause of action---Custodian's finding that suit for declaring the property as non-evacuee was hit by bar of limitation was arbitrary for his failure to determine the date when cause of action accrued to petitioners-- Custodian's finding on the basis that adverse possession of evacuee, matured into ownership was misconceived as also his finding that because of nonpayment of Malkana and due to possession for a long period, evacuee tenants had become owners---Effect of affording protection to tenancy rights or occupancy rights with reference to provisions contained in S. 3 of Act XII of 1957, required to be gone into---Failure to determine such question had led to miscarriage of justice---Custodian's order, thus, could not be sustained and was deemed to have been passed without lawful authority and of no legal effect-- Petitioners' application before Custodian wherein they had sought declaration that property in question, was non-evacuee, would be considered to be still pending and would be decided by Notified Officer afresh in accordiance with law. [p. 330] E Muhammad Shehzad Shaukat for Petitioners.
Ch. Muhammad Hassan for Respondent No,1.
Nemo for Respondents Nos. 3 and 4.
Dates of hearing: 13th May, 4th, 8th and 9th June, 1991.
' This judgment will dispose of two Constitution petitions (W.P. I-R-76 and W.P. 2-R-76) as legal questions involved in both these petitions are one and the same. The petitioners in both these petitions are owners of agricultural land subject-matter of these petitions. The land in dispute in the first petition (1-R-76) is 21 kanals 18 marlas comprising khasra Nos. 1206, 1208 and 1121-min, while the land in dispute in the second petition (W.P. 2-R-76) is 68 kanals 6 marlas comprising khasra Nos. 519, 616,703,704,705,952,1085,1126, though in the documents the said land has been erroneously shown to be measuring 86 kanals. The land in dispute in the first petition as per entries of the revenue record is part of khata jointly owned by Muslims and non-Muslims though the khasra numbers in dispute fell in the share of the petitioners but was in cultivating possession of Hazoor Singh, who on partition left Pakistan and became evacuee. The land in dispute in the second petition was admittedly in the exclusive ownership of Muslims namely Shahab Din etc. But the tenants of the land were Hindus who left Pakistan and became evacuees on partition.
2. The petitioners occupied the land in dispute after the evacuee-tenants migrated to Bharat and the land was thereafter shown in possession of the owners as per revenue record prepared after partition. The land subject-matter of the first petition was allotted to respondents 3 and 4 vide two allotment orders dated 13th March, 1972 and 14th March, 1972. The petitioners submitted an application on 9-10-1973 under section 22 of the Administration of Evacuee Property Act, 1957, seeking declaration that the land in question was not evacuee property. The land in the second petition was allotted to respondent No,2 in the said petition vide order dated 15-6-1966. This land was then sold by respondent No,2 to respondents 3 to 6 vide mutation No,445 in 1966. An application was submitted on 30th November, 1970, and the concerned officer prepared Naqsha Bezabtgi on 2nd February, 1971, for correcting the entries made pursuant to the allotment order but the Settlement Commissioner ultimately held that the petitioners should approach the Custodian authorities for having their rights in the land declared. The petitioners then on 30th March, 1971, summitted an application under section 22 of Act XII of 1957, seeking the usual declaration. Both these applications submitted in respect of the land involved in the two petitions were dismissed by the Deputy Custodian vide order, dated, 24th October, 1975. These orders were then challenged by the petitioners by filing the present Constitution petitions.
3. 1 have heard the learned counsel for the petitioners and have gone through the revenue record including the revenue record produced by the parties during the hearing. The learned Deputy Custodian in the order impugned in the first petition, returned the finding that the application was barred by time as the same was not submitted within time prescribed by law. It was further held that Hazoor Singh evacuee has been shown in the revenue record in possession of the land in dispute as "Bashara Malkana Bila Malkana Bakhayal Malkiyat Khud" and that these entries in the jamabandi show that Hazoor Singh was in adverse possession of the same and continued for more than 12 years in pre-partition days and thereby became owner of the same. On the above premises he returned the finding that the illegal possession of the same as claimed by the petitioners after the migration of non-Muslims to India, does not at all wash away the evacuee character by virtue of section 3 of the Displaced Persons (Land Settlement) Act, 1958. The conclusion arrived at was that since the unlawful possession by the petitioners after partition was never accepted or approved by the Custodian Authorities and the property remained vested as concealed evacuee property in the Custodian and was available for allotment to the displaced persons against their verified claims, as such the protection available under section 3 of the Act XII of 1957 cannot be claimed in the present case.
4. In the second case the learned Deputy Custodian in the order passed on the same date, returned the finding that the petition under section 22 of Act XII of 1957 was barred by time and as even an application for condonation of delay had not been filed the same cannot be condoned.
On merits, the finding returned was that mere entries in the record of the names of the petitioners in the column of ownership do not confer any title or ownership when they were never paid any batai by non-Muslims till partition. Entry of possession Bashars Malkan Bila Malkana proves the non-Muslims as owners of the land as they had been paying nothing to the petitioners and on their migration to India the same right stood vested in the Custodian. It was further held that occupation of the land by the petitioners after migration of the evacuees was unauthorised being without permission of the Rehabilitation Authorities under the wrong impression that after the migration of the non-Muslims the possession automatically reverted to them. The finding thus returned was that the land in question was evacuee property and protection of section 3 of Act XII of 1957 was not available as the possession of the petitioners after partition was never accepted or approved by the Custodian. These two orders of the Deputy Custodian were then challenged in these Constitution petitions.
5. Learned counsel for the petitioners argued that the learned Deputy Custodian illegally held that the applications under section 22 of Act XII of 1957 filed by the petitioners were time-barred in view of the period of limitation prescribed by rule 13 of the Administration of Evacuee Property Rules, 1950, as these Rules framed under section 46 of Ordinance XV of 1949, cannot be considered to be subsisting at the time of enforcement of Act XII of 1957. He argued that Ordinance XV of 1949 was repealed by Ordinance XVIII of 1956 and the latter Ordinance was then itself repealed by Ordinance XX of 1956 promulgated and enforced on 17th November, 1956, and then Act XII of 1957 enforced on 15th March, 1957, itself repealed Ordinance XX of 1956. The contention raised was that by virtue of section 24 of the General Clauses Act, 1897, the rules framed under Ordinance XV of 1949 can be deemed to be existing at the time of the enforcement of Ordinance XVIII of 1956 but the effect of deeming clause cannot be so extended as to consider these rules framed under the repealed Ordinance to continue surviving on the repeal of each subsequent legislation. In support of the plea reliance was placed on Harish Chandra v. The State of Madhya Pradesh (AIR 1965 SC 932) but a close reading of this judgment would show that the situation prevailing in the said case was different from the one obtaining in the present case. For the same reason no guidance can be obtained from the observations made in Muhammad Din. v. Nazar Muhammad Khan (PLD 1966 Lah. 780).
6. Section 24 of the General Clauses Act provides that whenever an Act is repealed and re-enacted a notification under the repealed Act is regarded as a notification under the Act in which the provisions of the repealed Act are reenacted. The fact that the Ordinance or the Act was repealed one after the other would not make any difference as the deeming clause of section. 24 would keep the rules or the notifications issued under the repealed Ordinance alive unless it could be shown that under the re-enacted law the notifications or the rules cannot stand on account of inconsistency with the re-enacted provisions. Reference may be made to the Crown v. Wali Dad (PLO 1954 Lah. 236) and Umer Hyayat v. Mst. Hayat Bibi (PLD 1958 Lah. 82). Be that as it may, this question need not be pursued any further in view of the other features of the case to be pointed out in the later part of this judgment.
7. The learned Deputy Custodian in the first petition held that Hazoor Singh evacuee who has been shown in the revenue record as in possession of the land "Bashara Malikan Bila Malkana Bakhayal Malkiyyat Khud" was in adverse possession and the same having continued for more than 12 years in pre-partition days became owner of the same. In the other case, however, the learned Deputy Custodian concluded that the entry of possession "Bashara Malkan Bila Malkana" proves the non- Muslims as owners of the land as they had been paying nothing to the petitioners and on their migration to India the same right stood vested in the Custodian. The non-evacuee tenants as such were treated by the learned Deputy Custodian as in adverse possession which matured into ownership. This view of the Learned Deputy Custodian is patently erroneous in law. In the case of All Akbar v. Malook (1991 SCMR 829) the ratio of the case Mirza Ghulam Hussain v. Ch. Iqbal Muhammad (CA.395-75) was reaffirmed. The ratio in the said case was that source of lawful title and adverse possession are contradictory pleas and cannot stand together. Reference was also made to the following observations recorded in Shamshad v. Mukammil Shah (1984 S.C.M.R. 912): "Learned counsel before us has urged that the entries in the Jamaband is showing the petitioners holding the land"{{URDU TEXT}} "supported their claim. But there is no force in the contention because the said entries are not amenable to an interpretation that the petitioners themselves were the owners particularly when in the same Jamabandis the name of Abdur Rahman and thereafter Mst. Pari Jan is duly entered in the column of owner, whereas the names of the petitioners or of their predecessors-ininterest are shown in the column of tenant."
The position which thus emerges is that the petitioners till partition were recorded as owners while the evacuees were recorded as Ghair Mauroosi tenants paying no rent in view of assertion of certain rights or ownership or Bai {{URDU TEXT}} ( te.) etc.
8. The evacuee tenants no doubt as per entries of the revenue record were in possession of the land in dispute as tenants paying nothing for quite some time but on the basis of these entries they cannot claim to be the occupancy tenants. The Rehabilitation Resettlement Scheme Punjab was prescribed by the Rehabilitation Commissioner (Lands) under section 7 (1) of the Pakistan (Rehabilitation) Ordinance, XIX of 1948, in the year 1952. This Scheme was then amended from time to time and the Scheme as amended in May, 1956 contains para 31 providing for the rights of the occupancy tenants and their landlords in prescribed territory and Punjab (Pakistan). Sub-para (v) of para 31 reads as under:- Iv) Muslim landlords of non-Muslim occupancy tenants in West Punjab.
' The land of Muslim landlords or non-Muslim occupancy tenants in West Punjab should be treated as evacuee property and allotted on temporary basis to the refugees according to the prescribed scale. In cases where the landlord has taken possession of the land, he should be required to pay rent for the period it has remained in his possession."
The reference to other sub-paras of this para would show that the rights which have been recognised are those of occupancy tenants and not of others. Subpara (v) also provides that land of Muslim landlords or non-Muslim occupancy tenants in West Punjab should be treated as evacuee property and allotted on temporary basis to the regugees according to the prescribed scale. There was no direction to treat the land of non-Muslims tenants whose rights were not statutorily recognised as rights of the occupancy tenants to be treated as evacuee property and allotted even on temporary basis to the refugees. A reference to para 33 of the Scheme would show that instructions, with regard to the treatment of the claimants in whose Fard Haqiyyat entries of Bashara Malkana Bila Malkan or Bashara Malkan Maa IvIalkana appeared, were given but no such instructions were issued with respect to non-Muslim tenants of the land situated in the Punjab (Pakistan). The occupancy tenants under the Punjab Tenancy Act, 1887, fall into the following classes of occupancy tenants:-
(1) occupancy tenants under section 5 (1) (a),
(2) occupancy tenants under section 5 (1) (b),
(3) occupancy tenants under section 5 (1) (c),
(4) occupancy tenants under section 5 (1) (d)
(5) occupancy tenants under section 6,
(6) occupancy tenants under section 8.
The non-Muslim tenants admittedly were not the occupancy tenants of any of these categories and they before migration had not even been declared as occupancy tenants under section 8.
However, it cannot be denied that they were possessed of valuable right of tenancy having remained in possession of the land as tenants for quite a long period. But mere length of occupancy per se cannot confer the status of hereditary cultivation on a party regarded at settlement as a tenant at will. The loss of the right of the occupancy tenants because of abandonment of tenancy is recognised by section 38 of the Punjab Tenancy Act, 1887. It was in view of this legal position that section 6-A was added to the Pakistan Administration of Evacuee Property Ordinance, 1949. This section provides that where the occupancy right of any evacuee in any land has vested in the Custodian or where the Custodian has taken possession of such land nothing in any other law for the time being in force shall operate to extinguish such right in the evacuee and neither the evacuee nor the Custodian shall be or shall be liable to be ejected from such land by reason of any default of the Custodian. Again to protect the rights of non-evacuee tenants provision was made in sub-section (1) of section 8 of the Pakistan Administration of Evacuee Property Act, 1957, which reads as under:- "8(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 occupant, 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 Section 9 being relevant may also be quoted:- "9(1) Where occupancy or tenancy rights have vested in the Custodian and have been allotted as evacuee property, the Custodian may, in any case where the lessor under whom the property was held immediately before it vested in the Custodian is not an evacuee, declare by general or special order, that with effect from such date as may be specified in the order, he shall stand absolved of all responsibilities with respect to the property or the allotment.
(2) On the making of such declaration as is referred to in subsection (1),---
(a) the allotment of the evacuee occupancy or tenancy rights shall be deemed to have effect as if granted by the lessor under whom the property was held before it vested in the Custodian and shall continue to have such effect until it is determined by lapse of time or by operation of law;
(b) all sums realised by the Custodian in respect of such allotments before the date of declaration referred to in subsection (1) shall, subject to the deduction of the fee, if any, payable to the Custodian, be payable to the lessor.
(3).
The rights of the tenancy of the kind vesting in the evacuee tenants were thus dealt with in section 8 of Act XII of 1957 and under section 9 of the Act the Custodian has to declare by general or special order the date for which he shall stand absolved of all responsibility with respect to the property provided that the rights have vested in the Custodian and have been allotted as evacuee property. It will, however, be noted that at the time of enforcement of this Act the property had neither been treated as evacuee property nor allotted as evacuee property, as the land in dispute in the second petition was allotted on 15-6-1966 while in the first petition was allotted in March, 1972 and the effect of this is required to be examined. Admittedly there is no special order passed by the Custodian in respect of the land in dispute. Learned counsel for the parties were also not able to lay hand on any general order, if any, passed by the Custodian pertaining to the rights in question vesting in the evacuee tenants.
9. The other feature to be noticed is that the petitioners admittedly took over the possession of the land in dispute after migration of the evacuees-tenants on partition. They claimed to be in possession of the land till date though the case of the respondents-allottees in the second petition is that they had taken over possession after the allotment. The learned Custodian has held the petition under section 22 of Act XII of 1957 as barred by time with reference to the date of allotment considering the same as the date of treating the property as evacuee property. It may be noticed that there is no formal declaration treating the land in dispute as evacuee property. The date of allotment cannot be considered to be the date of accrual of cause of action as these allotments were made without notice to the petitioners. There is nothing on record as to when allotment orders came to their notice or as to when they were dispossessed. The finding of the learned Deputy Custodian with reference to rule 13 of the Administration of Evacuee Property Rules 1950, is arbitrary as he failed to determine the date when the cause of action accrued to the petitioners.
Moreover, the approach given by the learned Deputy Custodian to the case was misconceived. He proceeded on the basis that the adverse possession of the evacuees matured into ownership in the first petition and in the second petition he was of the view that because of the non-payment of the Malkana and due to possession for a long period the evacuee tenants had become owners.
This view is patently erroneous in view of the discussion and the reasons given above. The Deputy Custodian should have noticed that there was no direction in the Rehabilitation Settlement Scheme for making allotment of the rights in question by treating the land as evacuee property (para 31 (v) refers). Even under section 8 read with section 9 of Act XII of 1957, general or special order was required to be passed by the Custodian. It is also be noticed that in Ordinance XV of 1949, protection was given to occupancy rights of evacuees or rights for a fixed term of years and not to other rights of tenancy enjoyed by the evacuees. The effect of affording protection to tenancy rights or occupancy rights under section 8 of Act XII of 1957 with reference to provisions contained in section 3 of the same Act also requires to be gone into. The learned Deputy Custodian was completely oblivious of the questions requiring determination in the applications under section 22 of the Act moved before him. The failure to determine these questions has led to miscarriage of justice.
10. For all these reasons the impugned orders passed by the Deputy Custodian in both the petitions cannot be sustained. The impugned orders are, therefore, declared to have been passed without lawful authority and hence of no legal effect. The result is that the applications filed by the petitioners shall be considered to be still pending and shall be decided by a Notified Officer whom the power of Custodian stands delegated and in case there are no special or general orders passed by the Custodian to deal with the situation arising in the case it will be appropriate for the learned Member (Settlement), Board of Revenue, to consider the remand matter himself and to pass necessary order in this behalf. Both the petitions stand disposed of accordingly. The parties are left to bear their own costs.
Order accordingly.
1991 CLC 331 [Lahore] Before Amjad Khan, J AHMAD and others---Appellants versus MUHAMMAD AKRAM---Respondent Regular Second Appeal No,168 of 1988, heard on 14th April, 1991.
(a) Punjab Pre-emption Act (I of 1913)--- ----S. 25---Pre-emption suit---Fixing of price for purposes of pre-emption in case of sale---Where Court had found that price mentioned in sale-deed was, in fact, paid, then, the pre-emptor would be required to pay that price---Court in such case, would not be bound to determine market value of property and fix the price for purposes of pre-emption---Courts below had erred in law, in determining market value of land and thereupon treating the presumption attaching to the certificate of Sub-Registrar, relating to registration of transaction, to have been rebutted payment of specific amount having been mentioned in sale-deed, specific assertion of pre-emptor in plaint with regard to the return of sale price, was to be proved by pre-emptor--- Pre-emtpor, however, did not produce satisfactory evidence on said point---Plea of return of sale price/portion thereof, was not proved in circumstances. [p. 334] A Malik Hussain and others v. Lal Ram Chand and others PLD 1970 SC 299 rel.
(b) Punjab Pre-emption Act (I of 1913)--- ----S. 25---Civil Procedure Code (V of 1908), S.100---Second appeal---Actual payment of sale price having been proved, suit was decreed on condition of payment of that amount---Decree granted by Courts below was modified to the extent of sale price proved to have been paid by the vendees---Plaintiffs failure to pay such amount upto specified date, would render dismissal of his suit. [p. 334] B Muhammadd Aqil Mirza for Appellants.
Hamad Khan and Syed Kaleem Ahmad Khurshid for Respondent. Date of hearing: 14th April, 1991.
'In this second appeal maintained by vendees, the dispute is confined to money payable under the pre-emption decree which itself is not under contest.
2. Sale sued out to be pre-empted by the respondent was effected on 12-10-1980 through a registered deed for an ostensible price of Rs,5,00,000 certified by the Sub-Registrar to have been paid before him but it was alleged by the pre-emptor that a sum of Rs,2,50,000 was returned by the vendor after the registration. Contest entered by the vendees led to the framing of issues Nos.2 and 3 on the point in the following terms:- "(2) Whether the sale consideration amount of Rs,5,00,000 was bona fide fixed and was paid to the vendors by the defendant?
(3) If issue No,2 is not proved, then what was the market value at the time of disputed sale transaction?"
' Evidence for and against having been led, trial Court accepted testimony of P.Ws. 2 to 4 to reach the conclusion that sale-price was fixed in the bargain as Rs,2,50,000 and the excess amount paid before the Sub-Registrar was returned and even the market value at the time of sale was rather a little less than the amount actually agreed upon. In reaching this conclusion, trial Court observed:- "Since the allegation concerning return of money was specifically alleged in the plaint, therefore, the defendants while appearing in the witness-box were supposed to prove the fact that whole of the amount accepted by the vendor from the vendees before the Sub-Registrar, was carried away and nothing was returned."
' In result, by the judgment dated 7-5-1986, trial Court decreed the suit upon payment of Rs,2,82,500 and although the basis for reaching of this figure was not specified in the judgment, yet, it seems to have presumably been worked out on the basis of market value.
3. Appeal thereagainst filed by the vendees came up for hearing before an Additional District Judge who, after reconsidering the matter affirmed the trial Court's finding with regard to the alleged return of half of the ostensible sale-price by the process of the very same reasoning whereat trial Court had proceeded. He observed:- "It was imperative for the appellant to prove beyond reasonable doubt that sale-price amount of Rs,5,00,000 was fixed in good faith, actually paid to the vendor and no amount was returned to the vendees after the registration of the sale-deed."
' He also took notice of the facts that the P.Ws. Who had asserted that half of the sale price had been returned to the vendees had not been cross-examined on that point and concluded that the defendants had not been able to prove that the sale-price of Rs,5,00,000 was fixed in good faith and was actually paid. While upholding the conclusion that the actual sale-price is Rs,2,50,000 he proceeded to enhance the decretal amount to Rs,2,90,400 by awarding Rs,2,900 as the cost of water-pump and fodder-cutting machine and another sum of Rs,5,000 towards the registration- fee. With this modification, the appeal was disposed of by the judgment dated 31-7-1988 and, in this way, he even concurred with the trial Court that the sale-price is Rs,2,82,500
4. Being dissatisfied therewith, vendees have come up in this second appeal. Although prayer made in the appeal is that suit of the pre-emptor be dismissed upon setting aside the decrees passed below, learned counsel has confined the grievance to the sale-price. He has argued that Section 25 of the Punjab Pre-emption Act, 1913 has provided a two-fold criteria for fixing of price, namely, that whether the price at which the sale purports to have taken place had been fixed in good faith or it was actually paid. Hence, vendees were entitled to succeed in recovering the ostensible sale-price of Rs,5,00,000 proved through the certificate of the Sub-Registrar appended on the sale-deed (Exh.P.7) which evidences the payment of this amount in his presence and the Courts below have misvicwed the requirement of law into accepting bald assertion of interested witnesses for concluding return of half of the sale-price on account of their incorrect approach to the question of burden of proof. Reliance has been placed on Malik Hussain and others v. Lal Ram Chand and others (PLD 1970 SC 299) wherein it has been held:- "If the Court finds that the price mentioned in the deed of sale was, in fact, paid, then, the pre- emptor, in order to pre-empt, shall be required to pay that price, and it shall not be necessary for the Court to determine the market-value of the property and fix the price for the purpose of pre- emption."
5. There is no doubt that the two Courts below have erred in law in supposedly going by the market-value of the land, contrary to the dictum reproduced above, and thereupon treating the presumption attaching to the certificate of the Sub-Registrar to have been rebutted. Since in para. 3 of the plaint there was a specific assertion made with regard to the return of sale-price, therefore, it was the duty of the plaintiff to have so proved and not only that there is no satisfactory evidence adduced on this point but also there is not even a reason forthcoming as to why the vendor may have thus returned a substantial amount after it had been passed on to him as the price of his land and had become his absolute property?
' Learned counsel for the respondent has endeavoured to defend the impugned judgment on the basis of the index of average prices (Exh.P.1) but it is only inconsequential in the presence of above quoted dictum of their Lordships of the Supreme Court whereunder the sum of Rs,5,00,000 paid before the Sub-Registrar was entitled to be held to have been so paid in fact and should have formed the basis of decree passed in favour of the respondent.
6. Plaintiff-respondent has not filed any appeal in respect of money ordered to be paid under the decree passed in his favour and has neither maintained any cross-objection thereabout nor has his counsel made any submission in respect of inconsistencies in the appellate judgment regarding the sale-price. Hence, no occasion arises for resolving them.
7. In result of the foregoing, this appeal is allowed and instead of the basic sum of Rs,2,82,500 held below to be the sale price, the sum of Rs,5,00,000 is held to be payable on that account and, in this way, the amount gets increased by Rs,2,17,500 which will be the amount liable to be paid in addition to Rs,2,90,400 worked out in the appeal below as being payable by the preemptor. Total amount payable by the respondent-plaintiff thus comes to Rs,5,07,900 and, if he has already deposited the amount reckoned by the appellate Court then, the difference amounting to Rs,2,17,500 (two lacs, seventeen thousand and five hundred) only will be deposited by him in the trial Court on or before 7-7-1991 or, else, the entire sum of Rs,5,07,900 (five lacs, seven thousand and nine hundred) minus the Zar-i-Panjum already deposited, will be so paid by him on or before that date. Failing which, the decrees passed below in his favour will stand vacated automatically and his suit will be regarded to have been dismissed. In either event, costs hereof are left to be borne by the parties.
Appeal accepted.
1991 CLC 335 [Lahore] Before Khalil-ter-Rehnian Khan and Abdul Wahid JJ MUHAMMAD RAFIQUE---Appellant versus MUHAMMAD AJMAL---Respondent Inter Court Appeals Nos.412 and 413 of 1991, decided on 30th July, 1991.
(a) Punjab Local Councils (Contract) Rules 1981--- ----R. 19---Constitution of Pakistan (1973), Art. 199---Law Reforms Ordinance (XII of 1972), S. 3--- Contract for collection of Zilla Council taxes---Originally, such contract was awarded through auction to respondent but the same was discarded by the Chairman of Zilla Council, who awarded the same to appellant through second auction---Validity of second auction---Jurisdiction--Both parties canvassing legality or otherwise of the first auction and the effect thereof, on the legality or otherwise of the second auction and on the acceptance of bids offered in the second auction--- Appellants, thus, could not take plea that the question of second auction and bids offered by them were not the subject-matter of Constitutional petition filed by respondent---Parties in Constitutional petition having argued with regard to illegality or otherwise of second auction, High Court had not dealt with the same suo motu---Second auction and bids offered by appellants were thus, subject-matter of Constitutional petitions. [p. 338] A.
(b) Punjab Local Councils (Contract) Rules 1981--- ----R. 19---Punjab Zilla Council Export Tax Rules 1990, R. 16---Law Reforms Ordinance (XII of 1972), S. 3---Public auction conducted without public notice--Effect---Zilla Council can lease out collection of Zilla Council Taxes by public auction---Term "public auction" connotes, public notice--- Appellants' plea that "public notice" dated 26-4-1991 whereby auction was to be conducted on 30- 4-1991 and if same could not take place on that date then on 6-5-1991 and 8-5-1991; could be treated as public notice for purpose of auction conducted on 8-5-1991; was devoid of force---Auction for collection of taxes having not taken place on 30-4- 1991, notice for purpose of same had also become redundant---No notice having been given for holding auction on 8-51)91, auction so conducted and the bids offered in the said auction failed to give rise to any valid contract between the parties or had the effect of vesting any legal right in appellants---Order passed by Single Judge i,e. Of reauctioning the rights for the period in question, was the most appropriate order to be passed and same was upheld --- [Words and phrases]. [p.
338] B Mohammad Akram Sheikh for Appellant. Asadullah Siddique for Respondent.
ORDER KHALIL-UR-REHMAN KHAN, J.---This order will dispose of this appeal as well as another appeal (I.CA. No, 413/91) as the questions of facts and law involved in both these appeals are one and the same. The first appeal arose out of a Constitutional petition wherein the dispute with regard to leasing out the rights to collect the export tax was raised while the second appeal arose out of a writ petition wherein the dispute pertains to leasing out of the right to collect tax on transfer of immovable property.
2. The facts and questions of law arising for determination have been given in detail by the learned Judge in Chamber in the impugned judgment dated 20-7-1991 and the same need not be repeated. Suffice it to say that in the auction held on 30-4-1991 pursuant to the public notice dated 26-41991, the respondents/writ petitioners assertedly gave the highest bids which were, according to them, accepted by the Chairman Zilla Council but later on instead of honouring the agreement with them, the lease contract was awarded to the present appellants in the respective appeals.
The respondents/writ petitioners therefore, prayed that the auction proceedings dated 30-4-1991 regarding the two taxes as being shown pending are without lawful authority and any other action, decision, order transferring/allotting the rights to collect/receive export tax or immovable property tax, Zilla Council Jhang for the period w,e,f. 21-7-1991 to 20-7-1992 to the present appellants respectively is without lawful authority as the respondents/writ petitioners are lawful auction- purchasers of the said rights for the aforesaid period.
3. The respondent/Zilla Council, in the written statement took up the position that the bid was rejected and that the documents being relied upon in support of the plea that the bid was accepted and agreement was executed, were forged documents and that as the bid was rejected by the Chairman Zilla Council, the lease rights to collect both these taxes were auctioned on 8-5- 1991, the date which had already been notified in the public notice dated 26-4-1991 and the highest bids offered by the present appellants were accepted by the Chairman in pursuance of the powers delegated to him by the Zilla Council vide Resolution dated 20-7-1989. Later on 9-6-1991, Akhtar Abbas Bharwana, Chairman District Council, Jhang and the learned Advocates of respondents Nos.1 and 2 got recorded statements to the effect that in order to resolve the dispute and to avoid any future complication, the Zilla Council Jhang is prepared to reauction the lease rights for the recovery of taxes for the period 21-7-1991 to 20-7-1992. This offer was accepted by the learned counsel for the petitioners. Thus, the petitioners as well as respondents Nos.1 and 2 agreed to the reauction of the lease rights to collect both the taxes for the period in question. This course of action was opposed by the present appellants who are respondent No,4 in both the writ petitions, on the plea that by the agreed arrangement, the rights which have come to vest in them by the acceptance of the highest bid offered by them in the auction held on 8-5-1991 and these rights cannot be allowed to be frustrated. For the reasons given in the impugned judgments, the auction held on 8-5-1991 and the acceptance of the bid by the Chairman were held to be illegal and hence of no legal effect. Hence, these appeals.
4. Learned counsel for the appellants argued that the order that, at best, could be passed in the two writ petitions filed by the respondents/petitioners was to direct reconsideration by the Chairman Zilla Council of the bid offered by the writ petitioners in the auction held on 30-4-1991 but the rights of the petitioners in no case could be jeopardized by accepting the suggested cause of action, that in order to grant relief prayed for in the writ petitions and that too only on the grounds taken therein, the learned Judge in Chamber was not called upon to examine the legality of either the second auction held or of the acceptance of highest bids offered by the appellants; that under Article 199 of the Constitution, the Court has no power to suo moto examine the legality of the second auction held on account of the rejection of the bid offered in the auction held on 30-4-1991 as the second auction dated 8-5-1991 was not challenged in the writ petitions; and that the acceptance of the bid and the contract thereunder coming into existence could not be rescinded by the Zilla Council acting unilaterly by making the concession. It was argued that in case the Zilla Council was desirous of not acting upon the only valid contract in favour of the appellants for any reason, it could resort to arbitration as provided in rule 19 of the Rules. It was explained that the power to do complete justice, as is enshrined in Article 186 of the Constitution, is not available to the High Court.
5. A close scrutiny of these pleas will show that the main plea advanced is that the question of legality of the second auction held for leasing out the right to collect the two taxes held on 8-5-1991 could not be gone into by the High Court as the same was not the subject-matter of the two writ petitions. Relying on the observations made in Tariq Transport Company, Lahore v. Sargodha- Bhera Bus Service, Sargodha and others (PLD 1958 S.C. 437), it was argued that this Court cannot suo moto enquire into the legality of any auction and thereby granting relief considered appropriate in the circumstances. The relief claimed in the petitions has been quoted above and a cursory glance of the same reveals that the decision to allot the rights to collect the taxes of Zilla Council for the period in question was challenged and even interim relief respecting thereto was also prayed for. Both the parties admittedly convassed before the learned Single Judge the legality or otherwise of the first acution held and the effect thereof on the legality or otherwise of the second auction and on the acceptance of the bids offered in the second auction. It is, therefore, not open to the appellants to argue that the question of the second auction and the bids offered by them were not the subject-matter of the Constitution petitions filed by the respondents. These questions were thus not taken suo motu by the learned Single Judge. This plea in the circumstances of the case is not available to the appellants.
6. As far as the legality of the first auction is concerned, the parties to the auction i,e. The Zilla Council and the petitioners agreed not to pursue this matter and so the dispute was resolved by agreeing to the holding of fresh auction. As regards the rights claimed by the appellants on the basis of auction held on 8-5-1991, suffice it to say that this auction was held without giving a separate public notice as to the auctioning of the lease rights to collect the two taxes. Learned Judge in Chamber has given reasons for recording the conclusion that the second auction held was violative of the Rules on the subject. These reasons need not be gone into in detail by us as even under Punjab Zilla Council Export Tax Rules, 1990, which are being relied upon by the learned counsel for the appellants, the auction was held on 8-5-1991 illegally in violation of Rule 16 of these Rules as it provides that Zilla Council may lease out by public auction for the period not exceeding one year, collection of export tax on such terms and conditions as may be determined by the Zilla Council. The very term "public auction" connotes, public notice. The plea of the learned counsel that the public notice dated 26-4-1991 is to treated as the public notice for the purpose of auction held on 8-5-1991 is devoid of force. The notice dated 26-4-1991 states that the auction will be held for auctioning the lease rights of both the taxes on 30-4-1991 and in case these contracts, are not put to auction on the said date due to any reason, then the auction will be held on 6-5-1991 and 8-5- 1991 at Jinnah Hall, Jhang. Admittedly, the auction did take place on the date fixed i,e. 30-4-1991 and as such, this notice had become redundant. Admittedly, no other notice was given for holding the auction on 8-5-1991 and as such even the Rule relied upon by the learned counsel for the appellants was not complied with. This reason is sufficient to hold that the auction so held and the bid offered in the said auction fail to give rise to any valid contract between the parties or has the effect to vesting any legal right in the appellants. In these circumstances, the order passed by the learned Single Judge i,e. Of reauctioning the rights for the period in question, was the most appropriate order to be passed.
7. For the reasons given above, there is no merit in these appeals and the same are dismissed in limine.
Appeals dismissed.
1991 CLC 339 [Lahore] Before Tanvir Ahmad Khan, JJ ATTA MUHAMMAD---Petitioner versus Mst. BHHLAWAR BIBI---Respondent Writ Petition No,3931 of 1990, decided on 7th August, 1990.
(a) Guardians and Wards Act (VIII of 1890)- ----S. 25---Constitution of Pakistan (1973), Art. 199---Custody of minor---Inability to have enough means by itself would not negate mother's right of custody of minor child--No misreading of evidence having been pointed out, mere apprehension of father/petitioner would not warrant interference in conclusions drawn by Courts below in exercise of Constitutional jurisdiction. [pp. 340, 341] A & C Mst. Feroze Begum v. Lt. Col. Muhammad Hussain 1983 SCMR 606 and Sakhawat All and another v. Mst. Shui Khelay PLD 1981 SC 454 and Ghulam Sakina v. Ghulam Abbas PLD 1978 Lah.
1389 rel.
(b) Guardians and Wards Act (VIII of 1890)--- ----S. 25---Second marriage by mother of minor child during pendency of appeal, would not deprive mother of her right of custody of minor child of tender age---Paramount consideration for custody of minor was the welfare of child---Age of minor being three and a half years mother would be most suitable to have her custody. [p. 341] B Syed Abdul Aasim Jafari for Petitioner.
Malik Saeed Hassan for Respondent.
' This Constitutional petition is directed against the judgments/decrees dated 7-4-1990 and 24-5- 1990 passed respectively be the learned Guardian Judge, Mianwali and the learned Addl. Distt.
Judge, Mianwali.
' The facts in brief are that the parties entered into a marriage contract in the year 1985 and out of this wedlock a girl, namely, Mst. Ghulam Zainab was born. Subsequently, the relations between the parties became strained and respondent No,1 was thrown on the road side and was deprived of the suckling baby as well. This led to securing divorce by respondent No,1 from the Judge Family Court vide judgment dated 11-8-1987. She also filed an application under section 25 of the Guardian and Wards Act on 16-12-1988 claiming custody of the minor child. The petitioner controverted the stance taken by respondent No,1 and the learned Court framed the following issues:
(1) Whether it would be in the welfare of the minor to return her to the custody of the applicant?
OPA.
(2) Relief.
' The parties led their evidence. Vide order dated 19-4-1989 the learned trial Court accepted the application and granted custody of the minor child to respondent No,1 The present petitioner went in appeal and the learned Addl. District Judge Mianwali vide his judgment dated 27-6-1987 remanded the case with a direction for its adjudication as a Judge Family Court/Guardian Judge with a further direction to provide opportunities to the parties to produce further evidence if they so desired. After the remand the learned Judge Family Court/Guardian Judge, Mianwali after scanning the evidence of the parties brought on the record, restored the custody of the minor to respondent No, 1 vide his order dated 7-4-1990. The petitioner filed appeal which was dismissed by the learned Addl. District Judge. Hence this Constitutional petition.
' Learned counsel for the petitioner has argued that the two Courts below have failed to appreciate the evidence brough on record by the petitioner. It is his argument that the respondent has contracted a second marriage with one Ahmad Din on 11-5-1990 during the pendency of the appeal before the First Appellate Court and as such she had lost her right of custody. It has further been argued that the respondent is a lady of low means and would not be in a position to look after the child properly.
I have considered the contentions and gone through the judgments of both the Courts below. No misreading of evidence has been pointed out by the learned counsel for the petitioner. Even if the argument of the learned counsel is admitted that the respondent has not got enough means this by itslef would not negate her legal right of custody. Reliance in this respect is placed upon Mst.
Feroze Begum v. Lt. Col. Muhammad Hussain (1983 SCMR 606) wherein it has been held that "Under the Shariat Law, the mother is entitled to the custody (hizanat) of the male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child. Needless to mention here that the father is the natural guardian of his minor children and the mother's custody is a subordiante custody and is subject to the control of the father. But the mere inability to maintain the child is not a ground for depriving the mother of the custody of her children. In Harbal v. Usman PLD 1963 Kar.
888 it was held that mother's proverty is no hinderance to the custody of her minor daughter.
Indeed in law it is for the father to provide for their maintenance."
' Reference may also be made to Sakhawat Ali and another v. Mst. Shui Khelay (PLD 1981 SC 454).
The other ground taken by the petitioner that the respondent No,1 has contracted a second marriage during the pendency of appeal before the First Appellate Court is also devoid of any force. Simply on the ground that respondent No,1 had contracted a second marriage she cannot be deprived of her right of Hizanant of a minor girl of tender age. The paramount consideration for the custody of the minor is the welfare of . The child. The learned First Appellate Court has rightly held that the age of the minor being hardly 3-1/2 years the mother would be most suitable to have her custody. There is no justifiable reason to deprive the minor of the affection and natural love of her mother. It cannot be expected that the mother would ever tolerate any adverse effect on the future conduct/character of the minor because of her second marriage as apprehended by the petitioner. It is in evidence that respondent's mother is alive and in case of any such development which appears to be a remote chance, the respondent No,1 could make the minor live with her mother. On the contrary the petitioner has simply been banking upon his sister and paternal aunt to look after the minor. In this situation at the present juncture it is the mother who could look after the minor in a better way as compared to the paternal aunt of the petitioner particularly so when the petitioner had admitted in his evidence that he had to remain outside from his house in connection with his business. Reliance is placed upon Ghulam Sakina v. Ghulam Abbas (PLD 1978 Lahore 1389). Simply on the apprehension of the petitioner, the conclusion drawn by the two Courts below cannot be interfered in the exercise of Constitutional jurisdiction.
' For what has been stated above, I am of the view that no exception can be taken to the judgments/decrees passed by the two Courts below and accordingly this Constitutional petition is dismissed in limine.
Petition dismissed.
1991 CLC 342 [Lahore] Before Malik Muhammad Qayyum, JJ SHAH NAWAZ (deceased) through Mst. Rashidan and others---Petitioner versus MUHAMMAD SHARIF and another---Respondents Writ Petition No,691-R of 1976, heard on 14th July, 1991.
(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--- ----S. 2---Constitution of Pakistan (1973), Art.199---Question of allotment attaining finality---Re- opening of such question by Settlement Authorities not warranted by law---Petitioner's allotment having attained finality upto the level of Supreme Court, in earlier round of litigation, same question could not subsequently be re-opened by Settlement Authorities---Cancellation of petitioner's allotment in subseqent round of litigation by Settlement Authorities being unwarranted was declared to be without lawful authority and of no legal effect. [p. 344] A
(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)--- ----S.2---Constitution of Pakistan (1973), Art.199---Setting aside of earlier order by Settlement Authorities---Validity---Settlement Authority in pursuance of order of remand having examined the case, had come to conclusion that allotment in favour of respondent allottee had been cancelled in accordance with law and subsequent allotment in favour of petitioner was unexceptionable---Subsequently, however, successor Settlement Authority set aside earlier order passed by his predecessor which he was not empowered to do---Cancellation order of petitioner's allotment being unwarranted was declared to be without lawful authority and of no legal effect. [p.
344] B Ch. Riasat All for Petitioner. Nemo for Respondent No,1.
Hamid Ali Mirza for Respondent No,2.
Date of hearing: 14th July, 1991.
' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, calls in question the order, dated 31st of March, 1976, passed by the Assistant Commissioner/Additional Settlement Commissioner (Land), Narowal, whereby he proceeded to cancel the allotment of 46 Kanals 14 Marlas of land of the petitioner at Khata No,39 of RL-II Bharwali Tehsil Narowal District Sialkot.
2. The facts forming background of this dispute are that Sher Muhammad, father of respondent No,1, was allotted the land in dispute but it was cancelled on 1st of July, 1961. He filed a Writ Petition bearing No,1013-R of 1961, wherein he challenged the cancellation of his allotment as well as the re- allotment in the name of the petitioner. This writ petition was dismissed on 28th of September, 1966.
An application for re-hearing of that writ petition was filed, which, too, was dismissed on 7th of December, 1967. Thereafter, another writ petition bearing No, 136-R of 1968 was instituted, which too was rejected on 26th of February, 1968. Respondent No, 1 took the matter to the Supreme Court by filing C.P.S.LA. No, 131 of 1968 which was dismissed by the order, dated 31st of October, 1968.
3. Notwithstanding that respondent No,1 had failed upto the leval of the Supreme Court of Pakistan, he filed an application before the Deputy Settlement Commissioner (Land) for cancellation of the allotment which was rejected by him on 11-11-1969. A revision against this order was filed by the said respondent on which an order was passed on 10th of March, 1970 by the Settlement Commissioner, who was apparently oblivious of the previous litigation. By this order the case was remanded to the Additional Settlement Commissioner (Lands) for decision afresh. According to the case of the petitioner, in pursuance to the remand order, on an application filed by him, the matter was taken up by the Additional Settlement Commissioner, who, vide order, dated 3rd of September, 1973, held that the allotment in favour of respondent No,1 had been properly cancelled and the land was validly alloted and confirmed in his favour. That order was challenged by Muhammad Sharif, respondent No,1, by filing a revision which he withdrew on 15th of March, 1975. Strangely enough, later on, another order was passed by the Additional Settlement Commissioner on 31st of March, 1976, by virtue of which it was h eld that the allotment in favour of respondent No, 1 had not been cancelled in accordance with law and the subsequent allotment in favour of the petitioner was not valid. This order has now been assailed by the petitioner by filing the instant Constitutional petition.
4. I have heard Chaudhry Riasat Ali, the learned counsel for the petitioner, and Mr. Hamid All Mirza, the learned counsel for respondent No,
2. No one has entered appearance on behalf of respondent No, 1.
5. The two-fold contentions raised by the learned counsel for the petitioner are that as the question of allotment in favour of the petitioner had attained finality upto the level of the Supreme Court of Pakistan, it could not be subsequently reopened by the Settlement Authorities and secondly that in compliance of the order of remand, dated 10th of March, 1970 of the Settlement Commissioner (Lands), the matter was taken up by the Additional Settlement Commissioner, who, vide his order, dated 3rd of September, 1973 held that the allotment in favour of respondent No,1 had been properly cancelled and the allotment in favour of the petitioner was valid; and in the face of that order, no jurisdiction was vested in the Additional Settlement Commissioner to pass any order subsequently, as the aforesaid order had attained finality especially as the revision petition filed by the petitioner against that order was withdrawn by him on 15th of March, 1975.
6. Both the contentions raised by the learned counsel are well-founded. It appears from the order of the Supeme Court, dated 31st of October, 1968 that the allotment in favour of the petitioner has been upheld on account of dismissal of Writ Petition No,1013-R of 1961 and the subsequent writ petition bearing No,136-R of 1968 filed by respondent was held to be not maintainable. In the face of this judgment, it was not open to the Settlement Authorities to have entertained any subsequent application with regard to the same dispute.
7. The other contention of the learned counsel is equally forceful. From a perusal of the order, dated 3rd of September, 1973 of the Additional Settlement Commissioner, it is obvious that the Additional Settlement Commissioner, in pursuance to the order of remand, has examined the case and come to the conclusion that the allotment in favour of respondent No,1 had been cancelled in accordance with law and the subsequent allotment in favour of the petitioner was unexceptionable. However, on 31st of March, 1976, the Additional Settlement Commissioner again took up the matter and arrived at a contrary conclusion. It is axiomatic that the Additional Settlement Commissioner could not have set aside the earlier order passed by his predecessor on 3rd of September, 1973. It appears from the perusal of the order of the Additional Settlement Commissioner that he was not even aware of the fact that earlier the matter had been dealt with by the Additional Settlement Commissioner in pursuance to the order of remand. For the reasons aforesaid, this petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect. There shall be no order as to costs.