' SARDAR MUHAMMAD RAZA KHAN, J.---Assistant Commissioner D.I. Khan vide notice dated 31-7-1991 addressed to Raja Sabeel Ahmed and another notice dated 15-8-1991 addressed to Matiullah Khan etc.; both issued under section 3 of the N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 called upon the occupants to vacate the properties because those were public properties under the unauthorised occupation of the occupants. The notice to Raja Sabeel Ahmed pertained to a plot measuring 1250 sq. Feet while notice to Matiullah Khan etc. Pertained to property measuring 8 Kanals, located within the Municipal limits of D.I. Khan.
2. Both of them challenged the notices before the Tribunal/District Judge, D.I. Khan formulated under the above-said Act who, vide his order dated 10-5-1993, held the property to be Public Property and declared Raja Sabeel Ahmed and Matiullah Khan etc. To be unauthorised occupants.
There being no further remedy in law, both have challenged the orders before this Court invoking the Constitutional jurisdiction under Article 199, through Writ Petitions "49 of 1993 and 50 of 1993", that shall be disposed of through, this single order.
3. A perusal of record would suggest that the property in question, admittedly within the Municipal limits of D.I. Khan, had once vested in the Municipal Committee. It was a municipal property in the year 1901 when the A Province of N.-W.F.P. Was created. All Government lands under the management and control of the Municipal Committee used to be called `Nazul Lands'. These included property escheated or lapsed to the State and any land or house belonging to Government as an escheate or as having belonged to former Government. As per "Manual of Law, Terms and Phrases" by K.Jagadisa Aiyer, Third Edition, 1952, Law Book Company, Allahabad, the property in question completely meets the requirement of a "Nazul Land".
4. Once vested in the Municipal Committee as "Nazul Land" the latter had the authority to alienate it on behalf of Government. This authority vested in Municipal Committee was endorsed by Hamilton J. In B. Ugar Sen Jain v. L. Tirbhwan Narain (AIR 1943 Allahabad, 82). The only prerequisite for the alienation of such municipal land was the permission of the Chief Commissioner.
5. Keeping in view the above legal back ground, the instant property in dispute in both the cases was sold by Municipal Committee, D.I. Khan in favour of Nawab Hafiz Saifullah Khan vide registered deed dated 22-4-1921 (Annexure 'B') from him it went to his daughter etc. And then the petitioner Raja Sabeel Ahmed and the petitioner Matiullah Khan. It was the permission of Chief Commissioner. It is surprising to note that the transactions which are more than seventy years old have totally been ignored by the Tribunal. These transferees have originated from original sale through' registered deed dated 22-4-1921. We earnestly appreciate the conduct of Mr. Muhammad Khan Khakwani, the learned counsel on behalf of the Government who fully conceded that the land originally vesting in the Municipal Committee and having become "Nazul Land' was rightly transferred in favour of Nawab Hafiz Saifullak Khan, from whom, the present petitioners are valid transferees. We really felt properly assisted.
6. Another aspect of the case, argued by Mian Muhammad Younis Shah, the learned counsel for the petitioner Raja Sabeel Ahmed, is that the very fact that the petitioners are in occupation of the land for the last seventy years, which is not a land either and has taken the shape of constructed property since long, is a sufficient proof of title by itself alone. It gains strength from a legal maxim which goes thus, "Ex diuturnitate temporis omnia proesumuntur rite et solenniter esse acta"; and means that antiquity of time fortifies all titles. C Under such presumptions proper effect is to be given to everything which appears to have been established from a considerable course of time and to presume that what has been done was done of right and not of wrong (legal maxim by Herbert Broom). For complete seventy years the vendees of the property in dispute have remained in uninterrupted physical possession of the property, making construction thereon and running their business there but were never disturbed by an Agency of the Government when suddenly Assistant Commissioner, D.I. Khan got up in the year 1991, as if in a nightmare.
7. The true owner (who even ceases to be so after the sale of 1921) has viewed the vendees incurring expenditure on the property but has throughout abstained from asserting his legal right.
Such acquiescence of the true owner estops him from making any other claim or taking any other stance. This view in principle was discussed in Mapal v. Rana (AIR 1938 Lahore 88). Another continuous physical possession of more than seventy years, in case of one, Itwari v. Secretary of State, occurring against the Government was fully protected on the principle of acquiescence, by Bennet, J. In (AIR 1937 Allahabad 512).
8. In view of what has been discussed above in the light of overwhelming documentary record, we are of the view that the properties in both the writ petitions respectively belonged to Raja Sabeel Ahmed and Mutiullah Khan. It was never a Public Property and never has it been so for the last more than seventy years. The petitioners are not unauthorised occupants. Both the writ petitions are accepted, the impugned judgment of the Tribunal/District Judge, D.I. Khan dated 10-5-1993 is set aside and the notices dated 31-7-1991 and 15-8-1991 respectively issued by the Assistant Commissioner, D.I. Khan purporting to be under section 3 of the N.-W.F.P. Act V of 1977 are hereby declared to be absolutely null and void. No order as to costs.