' FAZAL ILAHI KHAN, J.---This is petition for leave to appeal against the judgment of Lahore High Court, Lahore dated 23-2-1994 passed in Writ Petition No, 1308 of 1976.
2. Land measuring 17 Kanals 11 Marlas bearing Khasra No,644/244, 645/224 old and Khasra No, 730/644 and 645/224 new, of village Lallia, Tehsil Narowal, District Sialkot was owned by Chello son of Jamal and Fateh Singh non-Muslims which they sold through registered sale deed dated 26-5- 1946 in favour of the predecessor-in-interest of petitioners Nos.1 to 7 and the legal heirs of one Hussain Bakhsh. The petitioners were already holding the land as mortgagee on the basis of registered mortgage deed dated 19-8-1943. Unfortunately, the sale-deed was not given effect in the revenue record, therefore, the Rehabilitation Department gave portion of this land to respondents as Giwara by way of temporary allotment, he being a displaced person from India with no verified claim. It is alleged that the said land did not include the land owned and possessed by the petitioner. Respondent No,2 made efforts to include the petitioner's land in his allotment.
However, consolidation proceedings in spite of the fact that the petitioners were in continuous physical possession of the land and that no change could be brought and in spite of status quo order passed by the High Court, the property was treated as evacuee property allotted to Sain respondent No,2. Feeling aggrieved the petitioners filed suit for declaration and permanent injunction to the effect that they were the owners in possession of the suit land but the same has wrongly been treated as evacuee property and allotted to respondent No,2. Suit was contested for want of jurisdiction and maintainability Both these objections were sustained by the trial Court and the suit was dismissed on 26-2-1976, with the observation that in absence of any declaration sought for from the Custodian regarding confirmation of sale in favour of the petitioners, the jurisdiction of the Civil Court was ousted under section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. The petitioners' appeal against the judgment was rejected on 17- 4-1976 by the learned District Judge of the aforementioned legal ground. Admittedly, as it appears from the record, petitioners did not pursue the matter further and instead filed a Writ Petition in the High Court seeking declaration that the disputed property as non-evacuee and that it be declared as Muslim property. In the amended Writ Petition dated 26-64993 it was asserted that even before the sale of land in dispute in their favour petitioners were in possession therefore as mortgagees vide registered deed and mutation attested in pursuance thereof. It was further alleged that respondent No,2 being Jammu and Kashmir refugee was given temporary allotment of some land by way of maintenance which too did not include the land in dispute but subsequently added on 1- 9-1961. That in the consolidation proceeding% the land in question was given to one Iqbal son of Roshan Din who was impleaded as respondent No,3. It was prayed that order of Settlement Commissioner dated 1-9-1961 whereby the land was allotted to respondents Nos.2 and 3 be set aside and it be declared that the petitioners having attained the status of full owners of the land purchased by them from the non-Muslims already in their possession by way of mortgage, therefore, the custodian and the Rehabilitation Department had no jurisdiction to deal with the land in possession of the petitioners. The learned High Court dealing with this aspect of the case, in its detailed judgment, observed that the land in dispute was owned by non-Muslim evacuees and it was purchased by the present petitioners and/or their predecessors on 26-5-1947 and the fact that it was already mortgaged with them made no difference. In spite of the mortgage the ownership continued with the non-Muslims. Petitioners on their own showing had purchased the land after 1st March, 1947, therefore, the sale required confirmation by the Custodian which confirmation was never obtained from the petitioners. The land in dispute, therefore, fell within the definition of 'evacuee property' contained in section 2(3)(b) of Pakistan (Administration of Evacuee Property) Act XII of 1957. The learned High Court has referred the above section of Act XII of 1957 wherein the property of evacuee obtained by transfer on order after the 1st day of March, 1947, until the transfer is confirmed by the Custodian falls within the definition of evacuee property. No exception can be taken to the character of the property in dispute, specially when no application under section 22 of Act XII of 1957 to the Custodian was made. Even otherwise the petitioners' suit having been dismissed on the aforementioned legal objection attained finality as petitioners did not file any appeal or revision against appellate order passed by the learned District Judge. The petitioners kept quiet for sufficient long time after allotment of land in suit in favour of. Respondent No,2. All these facts rightly prevailed with the learned High Court in dismissing the Writ Petition. The question whether the petitioners are in possession of the suit property as mortgagees has nothing to do with the question involved in the present petition. Even if the property is under mortgage with possession to the petitioners, they can if so advised, defend their possession in proper form as mortgagees of the suit land but not as owner.
' With the above observation leave to appeal is refused.