' I propose to dispose of these two Civil Revisions Nos.173/93 and 191/93 as both have arisen out of a civil suit filed by Haji Muhammad Nawaz Khan predecessor-in-interest of respondents Nos.1 to 5.
2. Plaintiff Haji Muhammad Nawaz instituted a civil suit on 27-6-1977 challenging the orders of Deputy Custodian dated 26-2-1976, Additional Custodian dated 18-1-1977 and Member, Board of Revenue dated 21-5-1977 (of evacuee property) vide which the property was declared to be an evacuee property and the mutation attested in favour of the plaintiff by Haji Ghulam Sarwar was cancelled. In the said suit the plaintiff also made a prayer for declaration of his title to the suit property and in the alternative for a declaration as mortgagee with a claim of costs of improvements. The suit was decreed in favour of plaintiff and the appeal of the defendant- petitioners before the appellate Court also failed who now approached this Court through the instant revision petitions.
3. Facts of the case are that the property in dispute is measuring 56 Kanals 18 Marlas comprising in different Khasra numbers in the revenue estate of D.I. Khan, which was originally owned by Ghulam Sarwar a convert Muslim son of Tek Chand who sold the same to a non-Mulsim Manohar Lal vide registered sale-deed dated 11-12-1946. A Mutation No,2741 to that effect was duly entered but was rejected on 11-12-1947 by the Revenue Officer on the ground that the vendee (Manohar Lal) was not present who since left for India. As no effect was given in the revenue record because of not attestation of mutation the said Ghulam Sarwar, the original owner, was shown as owner in the revenue record of the disputed property who subsequently transferred the same to one Muhammad Akbar Khan Niazi, the father of the plaintiff, vide Sale Mutation No,3520 dated 29-5- 1958. Later on the property was shown to have been transferred on 4-2-1960 through a Gift Mutation No,3655 by Muhammand Akbar Khan in favour of his son, the plaintiff. The entices in various columns of Mutation No,2741 show that the property was previously mortgaged with Suraj Bhan. Manohar Lal had purchased it subject to mortgagee's rights. After attestation of mutation in favour of. Muhammad Akbar Khan applied for, for redemption of land to Revenue EA.C, D.I. Kahn and his application was rejected on 22-12-1959. He again submitted another application for the same purpose which was allowed by Revenue E.A.C. On 5-2-1960.
4. The impugned orders of the Custodian mentioned above were passed on an application submitted by Rehanul Hassan Siddiqui vide his application dated 3-2-1973 to the authorities concerned alleging therein that the property in dispute is an evacuee property and not that of Ghulam Sarwar who sold the same and thus proceedings were initiated on his this application. The evidence was recorded and ultimately the Deputy Custodian, Evacuee Property D.I. Khan vide his order dated 26-2-1976 holding the property in question as an evacuee property observed:-- "In the light of above discussion I hold the property in question is an evacuee property for all intents and purposes and could not be considered otherwise for the very reasons that the mutation having not been attested, the sale was not given effect in the 'revenue record. This property could not be considered as disputed property but would be considered as an evacuee property throughout and the rights would be deemed to be transferred to the Central Government."
' The appeal of the plaintiff before the Commissioner, D.I. Khan exercising the power of Additional Custodian (Evacuee Property) was also dismissed and his revision petition filed before the Board of Revenue also met the same fate, who then knocked at the door of the Civil Court by challenging the impugned orders as mentioned above.
5. The learned trial Court while granting decree to the plaintiff held under issue No,1 which is with regard to the cause of action that the plaintiff has got the cause of action by holding him as the owner of the property and declaring the impugned orders as illegal void and with regard to the jurisdiction in respect of issue No,5 had been framed and it was concluded that the Civil Court had got the jurisdiction as the question of title is involved in the suit. Similarly, the appellate Court also held that the disputed property was not an evacuee property and the plaintiff was held to be the owner and also concurred with the trial Court on the question of jurisdiction of the Civil Court with a similar observation that the question of title involved in the case and the Civil Court had got the jurisdiction. There were two appeals before the appellate forum one filed by the Government functionaries and the other by said Rehanul Hassan on whose application the proceedings had been initiated and similarly both the appellants whose appeals had been dismissed approached this Court through the above two mentioned revision petitions.
6. The moot questions in the case are that whether it is an evacuee property or not and whether Ghulam Sarwar has got any right or interest in the property after its sale through a registered deed in 1946 to Manohar Lal and whether he could transfer the same as alleged through Mutation No,3520. The original title of Ghulam Sarwar is not in dispute. The plaintiffs have also admitted in para.3 of their plaint that the title in the property was transferred by said Ghulam Sarwar through a registered sale-deed on 11-12-1946 in favour of Manohar Lal by describing Manohar Lal as `Tarekeen-e-Watan'. Mutation No,2741 was also entered but the same was rejected by the Revenue Officer on 11-12-1947 with the following endorsement:-
7. {{URDU TEXT}} ' But the claim of the plaintiff in plaint is that this registered deed was not acted upon but otherwise with regard to the transfer through registered sale-deed to an evacuee had been admitted. It is evident from the endorsement on mutation and para: No,2 of the plaint that the transferee Manohar Lal (through a registered sale-deed dated 11-12-1946) had left Pakistan for India after 11- 124946 (as at time of registration of deed he had been shown as present) and before 11-12-1947 (date of order of Revenue Officer on mutation). In the year 1947 after partition there was a large scale influx of people (refugee/evacuee) from India to Pakistan and from Pakistan to India. This necessitated, in addition to the administrative management, the making up of some legal provisions and drawing up of some statutes for (i) the protection, administration and management of properties of persons who left Pakistan i,e, of the evacuee and (ii) the rehabilitation and orderly settlement of the refugee and which resulted in several Ordinances and Acts with amendments and modifications but were mainly of two types, commonly known as Evacuee Property Law and Rehabilitation Law respectively. In addition to certain Provincial Ordinances on the subject (Administration of Evacuee Property) promulgated earlier, the first law- making step taken by the Central Government was the promulgation of the Pakistan (Protection of Evacuee Property) Ordinance of 1948 (XVIII of 1948) on the 20th October, 1948. This Ordinance was repealed by the Pakistan (Administration of Evacuee Property) Ordinance, 1949 which in its turn was repealed by the Pakistan (Administration of Evacuee Property) Ordinance XVIII, 1956. This Ordinance then was replaced by the Pakistan (Administration of Evacuee Property) Act XII of 1957.
All the Ordinances and Acts mentioned above which were dealing,with the Evacuee Property have given the same meaning to the evacuee and Evacuee Property with little modification or changes.
According to section 2(3) of the Pakistan (Administration of Evacuee Property) Act, 1957, "evacuee property" means any property in which an evacuee has any right or interest and includes, (a)....(b) property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian; and the evacuee has been defined by subsection (2) of section 2 of the said Act very elaborately and the gist of which is; that "who, on account of the setting up of the Dominions of Paldstan and India, or on account of civil disturbances on or after the first day of March, 1947 or who is resident in any place in the territories now comprising India and unable to occupy, supervise or manage in person his property in Pakistan'. Thus by looking at endorsement written on the Mutation No,2741, the reference of which had been given in the plaint referred to above, and the word `Tarekeen-e-Watan' mentioned in para.3 of the plaint would leave no doubt that Manohar Lal would be an evacuee within the meaning of the Act ibid. When the ownership and title had been transferred through a registered deed to Manohar Lal, the evacuee then by not making any entry of the registered deed in Revenue Record by the Revenue Officer would make no difference and it would not divest Manohar Lal of the ownership of the property, as first of all the Revenue Officer was under an obligation to attest the mutation even in the absence of the parties as the transfer had taken place through a registered deed and even otherwise the entries in the revenue record are for fiscal purposes and rebuttal presumption of correctness may be attached to the Jamabandi' but in the instant case a more stronger proof has come in the shape of a registered deed in the name of Manohar Lal. Thus it is clear that Manohar Lal was an evacuee and he got a right and interest in the property and, therefore, the same could be considered as an evacuee property.
7. Another, seemingly insurmountable, hurdle that comes in the way is to consider this property as an evacuee property in view of section 3 of the Act ibid. In section 3 it has been specifically stated that the property not treated as evacuee immediately before the first day of January, 1957 shall not be treated as an evacuee property on or after the said date, which section i,e, section 3 reads as under:-- "Section-3. Property not to be treated as evacuee property on or after 1st January Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date.
(2) Nothing in subsection (1) shall apply-
(a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian."
' According to section 6 of the Ordinance XV of 1949, all the evacuee properties were declared to be vested in the Custodian and which is reproduced as "Section-6. Vesting of evacuee property in Custodian.--(1) All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947."
' There is another section i,e, section 7 which also having the same provisions for the surrender of the evacuee property which is reproduced as under:-- "Section-7. Holding of evacuee property and its surrender.--(1) Every person who is, or has at any time after the twenty-eighth day of February, 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian.
(2) Every person who is in possession, supervision or management of any evacuee property or property which he knows or has reason to believe is. Evacuee property shall, as soon as may be but not later than sixty days from the commencement of this Ordinance, intimate to the Custodian in writing his willingness to surrender such property to the Custodian or to any person authorised by the Custodian in this behalf upon receipt of a notice from the Custodian that the property is evacuee property, and shall surrender the same if called upon by the Custodian or any person authorised as aforesaid.
(3) The provisions of subsection (2) shall not apply to any person who is in possession, supervision or management of any evacuee property by virtue of an allotment made by a Rehabilitation Authority."
8. Having the facts of the instant case and the law on the subject the property in dispute is an evacuee property without any ambiguity as it belonged to Manohar Lal an evacuee and when the fact that he being evacuee is evident from the document on record i,e, mutation which was cancelled because of the fact that he had gone to India and which was transferred to him through a registered deed i,e, during the period between December 1946 and December, 1947, the two dates, one is that of the registered deed and the other is of the rejection of the mutation because of the absence of Manohar Lal and by virtue of section 6 the property vested in the Custodian from the first day of March, 1947 and under section 7 it was obligatory on part of Ghulam Sarwar if he was in possession, supervision or management of the property as he claimed its ownership, to surrender the same in favour of the Custodian and by not doing so by him would not divest the Custodian of its ownership. Thus the Pakistan (Administration of Evacuee Property) Act XII of 1957 continued its evacuee character by virtue of clause (b) of subsection (2) of section 3 of that Act referred to above. Even otherwise it is evident from the impugned orders that the property was treated as evacuee property and also from the record relating to the enquiry and proceedings of the Custodian in respect of which the impugned orders were passed. The statements of the Rehabilitation Patwaris were recorded and who without any cross-examination unambiguously had stated that the disputed property was temporarily allotted vide temporary allotment No,22 to Shamroz, displaced persons and this allotment was since Rabi 1948 and continued till 1960 in respect of which `Mafia of Rs,122.13 was also deposited by the said Shamroz, so both on legal premises as well as on factual side the property is an evacuee property. After holding the property to be an evacuee property and the proceedings having been initiated in the year 1973 before of coming into force of Repealing Act i,e, the Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 adjudication on such a question was the exclusive job and jurisdiction of the authorities and hierarchy mentioned in the relevant repealed law and which law oust the jurisdiction of the Civil Court, and by which act the pending proceedings have been saved and to be adjudicated under relevant law by the Notified Officers and in which respect Deputy Commissioner had been given power to act as Deputy Custodian which had been done in the instant case.
9. In view of the foregoing discussion, I accept this Revision Petition No,191/93 filed by Collector/Deputy Custodian etc. Set aside the judgments and decrees of the two Courts below on the question of cause of action and the jurisdiction as well. However Revision Petition No,173/93 filed by Rehanul Hassan defendant No,1 is dismissed as he neither the plaintiff to have asked for some relief not given by the forum concerned nor he succeeded before the hierarchy (Custodian) in getting any relief as the Custodian etc. Had only declared the property as evacuee which orders have been challenged by plaintiff-respondent to declare those orders as null and void and in which efforts he also failed. Moreover both the lower Courts had also held that he (Rehanul Hassan) is not entitled in view of decision of High Court in W.P. No,589/78 that his claim had already been satisfied. Parties are however left to bear their own costs.