' This Writ Petition by Ghulam Murtaza and Zahurul Hassan sons of Ghulam Sarawar of Haripur, Hazara, challenging the order of 15-2-71 passed by the Custodian of Evacuee property, West Pakistan, relating to a house detailed in the writ petition situate in Mohalla Rasalia, HaripurHazara, arises out of the following facts.
2. On 10-4-63, the Director of Enforcement, Evacuee Property and Claims, I. B. West Pakistan, Lahore addressed a communication (Annexure 0) to the Custodian Evacuee Property, W. P., Lahore which runs:- "Secret information was received that one Ghulam Sarawar of Haripur City was in illegal possession of an Evacuee House there. On this, enquiry was instituted by the Enforcement Staff and it has been revealed that Ghulam Sarwar owned a Mucha house, which was got auctioned in satisfaction of a debt by one Behari Lal, a non-Muslim of Haripur. Behari Lal served a notice on Ghulam Sarwar for ejectment of the house in question and he compromised with Behari Lal and repurchased the same house from him in the names of his two sons Ghulam Murtaza and Zahur-ul Hassan for Rs,
200. After independence Ghulam Sarwar with his sons shifted to another magnificent Pukka house left by Fatah Chand Evacuee in another Mohallah of Haripur City. The enquiry had revealed that Ghulam Sarwar was not only in illegal possession of evacuee house abandoned by Patch Chand, but he had also obtained a declaration from the Assistant Custodian, Abbottabad, by showing that the house in question was the one that was purchased from Behari Lal. It follows that decision of the Assistant Custodian has been obtained through fraud and misrepresentation of facts ' Notices were accordingly issued on 27-4-63 to the respondents under section 43 subsection (4) of the Pakistan Administration of Evacuee Property Act, 1957 (Act XII of 1957) to show cause as to why the orders of the Assistant Custodian dated 31-3-59 should not be set aside. In this context, it is pertinent to reproduce the order of the Assistant Custodian dated 31-7-59 (Annexure C) which is as follows:- "IN THE COURT OF MR. MEXWELL MAGGEE, ASSISTANT CUSTODIAN OF E. P. (JUDICIAL), HAZARA AND CAMPBELLPUR AT ABBOTTABAD Case No, 602
1. Ghulam Murtaza,
2. Zahoor-ul Hassan sons of Ghulam Sarwar, caste Rajput, Haripur Hazara- Applicant versus ' Bhagat Bibari Lal son of Mari Nand, Caste Sahni of Haripur Hamra now Evacuee through D. R. C., Hazara-Respondent ' Suit for declaration to the effect that the house bounded by the shop of Gbulam Sarwar on the North, by a public street and House No, 87/C on the South, by the house of Abdul Karim on the East and by house No, 85/C on the West situated in Mohallah same is not Evacuee property. ORDER ' The case of plaintiffs is that they have purchased the house in question from respondent by means of two sale deeds. They claim that the house contains no evacuee interest.
' The case was advertised in Imroz dated 17-4-55. The D. R. C. Was intimated on whose behalf a written statement denying the plaintiff's title has been filed. The plaintiff has examined Malik Aziz- ur-Rehman Pleader the marginal witness and Ghulam Yahyia the scribe of the sale-deeds dated 28-1-45 in good faith and for valid consideration. The value of the property sold in each sale deed in Rs, 99 and as such they are not compulsorily registerable. Moreover the transaction dates back to 28-1-45. This being the case this Department cannot declare the property in suit to be Evacuee property.
' In view of the above discussion I allow the petition and hold that the property. House in question is not an evacuee property.
' Announced. (Sd.) Mexwell Macgee.
31-7-59. Assistant Custodian, E. P.
(Judicial), Hazara and Campbellpur.
' No, 898/0/A. C. H. Dated 31-8-59.
' Copy to Deputy Settlement Commissioner, Hazara for information.
(Sd.) Mexwell Macgee. Assistant Custodian E. P.
(Judicial) Hazara and Campbellpur."
' The impugned order dated 15-2-71 (Annexure I) reads:- "An application was filed before the Assistant Custodian in 1954 for a declaration to the effect that the house bounded by the shop of Ghulam Sarwar on the North of Street No, 83 with the house of Abdul Karim in the East and House No, 85/C on the West Mohallah Motianwala, Haripur was the property of the plaintiff, Ghulam Murtaza and Zahurul Hasan, and was not evacuee property. The Deputy Rehabilitation Commissioner filed a Written Statement denying the title of the appellants.
However, on the basis of alleged unregistered two sale-deeds of 28.1-45 for Rs, 99 each, the learned Assistant Custodian held on 31-7-59 that the house in question was not evacuee property.
The case of the Enforcement Directorate, on the other hand, was that Ghulam Sarwar, the father of the respondents, owned a Kacha House, which was got auctioned by evacuee Behari Lal for the satisfaction of a debt. Ghulam Sarwar compromised and repurchased the house in the name of his two sons for Rs, 200.
2. However, after the Partition, Ghulam Sarwar shifted to another big Pacca house left by Fateh Chand, Evacuee, Haripur and got a questionable declaration from the Assistant Custodian that this house of the Evacuee, Fateh Chand, was non-evacuee and had been purchased from Behari Lal.
On 7-2-64, the Assistant Accounts Officer (Legal) filed a written argument on behalf of the State in which it was said that the disputed house No, 1133-New/86-Old, Haripur was an evacuee property as it was recorded to be the owership of Dalip Singh in the Municipal Record of 1903-04 after whom his wife, Teej Kaur was entered as its owner. Then their daughter, Ram Kaur inherited it and sold it to Fateh Chand by a Registered Sale Deed. Fateh Chand continued to live in it till his departure for India. After the Partition, one Yousuf Baig, Sub-Post Master, occupied it but it continued to be in the name of Fateh Chand as owner in the property Tax Record.
3. In 1950, the house was occupied by Ghulam Sarwar, the father of the respondents, who were then served with ejectment notice. The Deputy Rehabilitation Commissioner finally heard the appeal of Ghulam Sarwar for house No, 86/C on 30-5-51 and decided that the appellant, Ghulam Sarwar has been living in the house on payment of rent. The house had also been ordered in 1948 to be allotted to the appellant and, as long as he paid the rent, he should not be ejected. Ghulam Sarwar, subsequently, filed a declaration under M. L. R. 49 to the effect that he was in the occupation of this evacuee house, proving thereby that the storey of its having been burnt or razed to the ground in 1953 was untrue. The house in question, was transferred to Mst. Kaniz Fatima in the Earmarking Scheme, who was also issued a P. T.O. On 23-6-61. Possession could, however, not be handed over to the transferee Mst. Kaniz Fatima as the declaration of the Assistant Custodian, dated 31-7-59, came in its way. The order of the Assistant Custodian was assailed on the grounds that the Sale deeds did not mention the boundaries of the property and the father of the respondents, Ghulam Sarwar, had wrongly sought for declaration about a property which, in fact, belonged to Fateh Chand and could not be the subject-matter of the Sale Deeds. The reference is made in the Sale Deeds about another evacuee property which was the subject-matter of a litigation between Behari Lal and Ghulam Sarwar and was ultimately purchased by Ghulam Sarwar. He, however, sold that house to Abdul Aziz a local Muslim.
4. Yet another series of litigations between the transferee, Kaniz Fatima and the respondents, Ghulam Murtaza and Zahurul Hasan etc. Started before the Rent Controller, when Mst. Kaniz Fatima filed a suit for the the ejectment of the respondents from and for recovery of rent for house No, 1133/C. The Rent Controller and subsequently in appeal the learned District Judge rejected the request of the transferee on the ground that she could not establish the relationship between her and the respondents in respect of the suit house to be that of landlord and tenant. All the above developments only lead to one conclusion, namely that it has to be decided whether house No, 1133/C/86/C was the same house which had been purchased by the respondent, Ghulam Sarwar from Behari Lal or is this the house which belonged to the evacuee, Fateh Chand, and on which the respondents Ghulam Sarwar or his sons, could have no claim of ownership ?
5. It has never been the claim of Ghulam Sarwar or his two song that they had any proprietary interest whatsoever in the house owned by Fateh Chand, evacuee. This house was given to Ghulam Sarwar on rent by Fateh Chand as will be seen from Exh. R/3, a Rent Deed executed by Fateh Chand. There can also be no hesitation in concluding that this house was numbered 1133-New/86- C-Old, as Ghulam Sarwar had himself filed a declaration form No, 9400 on 30-12-58 under M. L. R.
Admitting that he was in occupation of the above numbered evacuee property. Which and where is this house No, 1133-New/86-C-Old which belonged to Fateh Chand, evacuee? From Shajra Abadi of 1903-04 it is seen that this house which was then numbered 796-797, belonged to one Dalip Singh. Then in 1917-18, the records show that the house was renumbered to 2081 and was the ownership of Teej Kaur, widow of Dalip Singh. It was inherited by their daughter, Rain Kaur, who sold it to Fateh Chand in 1939 vide Exh. C/7. Thereafter the house continued to be the ownership of Fateh Chand and, in 1944-45 and 1948.49 it was shown, to be the ownership of Fateh Chand. Even when an ejectment Notice was given to Ghulam Sarwar in 1950, he admitted in the appeal filed by him before the Settlement Authorities on 14-12-50 that he was in the occupation of 86-C for several years as a tenant.
6. With the above identification of the house No, 1133-New/86-C-Old belonging to Fateh Chand, evacuee having been unquestionably established, the issue to be decided is whether the boundary of the property for which a declaration was claimed by Ghulam Sar war in 1959 was this very property of Fateh Chand or was the property which, at one time, belonged to Ghulam Sarwar, was purchased by Behari Lal in decree and repurchased by Ghulam Sarwar for his sons under two Sale Deeds of Rs, 99 each. The sale deeds do not, unfortunately, mention the exact details of the properties sold through them and left their identity unclarified. Ghulam Sarwar then went to the Assistant Custodian in 1959 to seek declaration for a property whose boundaries were mentioned in his application, &h. D. B. Without going into the exact identity of this property, the learned Assistant Custodian granted the declaration. The boundaries as mentioned in the application were:- ' North.-Property of Ghulam Sarwar, applicant.
' West.-85/C.
' South. -97/C and Road.
' East. -House of Baboo Abdul Karim.
7. When, however, Mst. Kaniz Fatima, the transferee of House No, 113 s-New/86-C-Old of Evacuee, Fateh Chand went to the Rent Controller for the recovery of rent from Ghulam Sarwar, the occupant, and his ejectment, she mentioned the boundaries of her property to be:- ' North.-Road Sain Bagh Ali.
' West.- Occupied by Faiz Alam Mistri 85/C.
' South.-Kucha Aam and house No, 87/C.
' East.-Occupied by Anwar Ahmad.
8. The suit was dismissed by the learned Rent Controller and then by the learned District Judge in appeal on the ground that the relationship of landlord and tenant as not established between Mst.
Kaniz Fatima and Ghulam Sarwar. The learned Rent Controller and the District Judge purported to conclude that the property for which a declaration had already been granted by the learned Custodian to Ghulam Sarwar was the same as the house claimed by Mst. Kaniz Fatima the transferee and this could be the house No, 86/C.
9. This controversy would obviously have been avoided had the learned Assistant Custodian applied himself to find out as to which property belonged to Fateh Chand, evacuee, and which property had been repurchased by Ghulam Sarwar from Behari Lal, instead of accepting, without any inquiry, the claim of Ghulam Sarwar from Behari Lal, instead of accepting, without any inquiry, the claim of Ghulam Sarwar to the declaration of the property, whose boundaries were indicated by him in the application for declaration.
10. It appears to have been rightly concluded by the learned Rent Controller as well as the learned District Judge, that the property which was bounded on the North by Road, on West by 85/C and on the South by 87/C was most likely to be No, 86/C. It was, in fact, property No, 86/C-Old, new 1133, and this is indisputably, the property which belonged to the evacuee, Fateh Chand. Both from his own declaration under M. L. It in 1958 and his appeal against the ejectment orders filed in 1950, Ghulam Sarwar admitted this property to be an evacuee property and that he was only living as a tenant therein. If a declaration of ownership by him was obtained by Ghalam Sarwar and given by Assistant Custodian about this property, such a declaration and order were void and had no legal effect whatsoever. I am convinced that the house and property bounded in the North by a Road, in the West by 1132-New/85-C-Old, in the South by house No, 87/C-Old and Kucha, and in the East by a house occupied by Abdul Karim/Abdul Aziz and which belonged to Parmanand and Davichand, evacuees, was the same house which belonged to the evacuee, Fateh Chand and which carried number 1133-New/86-C-Old , Ghulam Sarwar had and could have no proprietary interest in this property, which was definitely an evacuee property.
11. Consequently, I hereby set aside the orders of the Assistant Custodian, dated 31-7-1959 and declare the property No, 1133-New/86-C-Old with the boundaries as mentioned above to be evacuee, and rightly transferred under the Settlement Laws as a part of the Compensation Pool. It is not for the Custodian or Settlement Authorities to Identify the property said to have been repurchased by Ghulam Sarwar or his sons from Behari Lal in 1945 under unregistered sale deeds of Ks. 99 each. That property was definitely not the one for which a declaration was sought for and obtained from the Assistant Custodian.., ' Mr. M. Sardar Khan, Advocate, learned counsel for the petitioners argued that the house in question was not treated as evacuee property on or before the 1st of January, 1957, therefore, it could not have been declared as evacuee property, therefore the impugned order is ultra vlres and without jurisdiction.
' Subsection (4) of section 43 of the Pakistan Administration of Evacuee Property Act, 1957 (Act No, XII of 1957) reads:-- "(4) The Custodian may, at any time, either of his own motion or on application made to him within the prescribed period in this behalf call for the record of any proceeding for the administration of evacuee property, which is pending before or has been disposed of by, an officer subordinate to him, including an Additional Custodian, for the purpose of satisfying himself as to the legality or propriety of any order passed in the said proceeding, and may pass such order in relation thereto as he thinks fit : ' Provided that the Custodian shall not pass an order revising or modifying any order affecting any person without giving such person and the Rehabilitation Authority an opportunity of being heard."
' The above revisional power of the Custodian is subject to the following :Subsection (1) of section 3 of the Act reads:- "(1) Notwithstanding anything contained in the Act, no person or property not treated 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.
' Subsection (2) reads :--- "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."
' Emphasising the word 'treatment', the learned counsel was emphatic on the point that the property in question having not been treated as evacuee property before the first of January, 1957, the jurisdiction of the Custodian is therefore barred. In support, the learned counsel cited the case of Syed Ali Iqtidar Shah Dara and others V. The Custodian, Evacuee Property (1). Following in the precedent case are important to note :- "In the first place, the vesting of property in the Custodian or holding of property on behalf of the Custodian is only by fiction of law. In that application these provisions are of a general nature because they do not deal with any specific or identified property. In the second place, the most formidable hurdle in the way of the Department pertains to the words "not treated" used in the subsection under consideration, The significance of these words cannot be over-looked. In my opinion their meaning is that the mere vesting of the property in the Custodian is not sufficient. The competent authorities must have done some overt act in respect of some specific property, namely that any particular person or any particular property must have been treated by a competent authority as evacuee or evacuee property...............
' The distinction becomes clearer from the recapitulation of the following facts pointing in the direction of the property having been treated all along as evacuee property.
' On 25-6-1954 a declaratory plaint (on file No, 602 ACM) was instituted by the petitioners before the Assistant Custodian, Hazara wherein paragraph 4 of the plaint reads :- {{URDU TEXT}}
(1) PLD 1964 Lah. 274 ' In the written statement submitted by the Rehabilitation Department, the averments in the plaint were controverted alleging that the petitioners (plaintiffs) were in unauthorised occupation of the house in question and that Ghulam Sarwar father of the petitioners (plaintiffs) was entered in the record of the department as a tenant. In the written statement mentioned above, it has been mentioned that the occupant of the house in question was served with a notice of ejectment. In this context, sub-para. (a) of paragraph No, 1 of the objection application by Ghulam Sarwar in appeal No, 300/ Misc. Decided on 30-5-1952 (Copy Exh. C. 9), is reproduced below {{URDU TEXT}} ' On the above objection petition which was filed on 14-12-1950, in the Court of K. S. Ghulam Daud Khan, Assistant Joint Deputy Commissioner and D. S. C , Hazara at Abbottabad, on 30-5-1951, the following order was passed:- "Ghulam Sardar son of Madat Khan of Haripur . . . Appellant.
Versus ' Crown................................................................... Respondent.
' Appeal against the order of ejectment from house No, 86/C situated at Mohallah Company Bagh, Risalawala, Haripur."
30-5-1951.-Appellant present. I have perused the police file sent for on appellant's request and have found that the appellant has been living in the house on payment of rent since the time of Hindu Proprietor. Previously the number of the house was 111/112 and'169/170. The Hony. Custodian M.
Jalaluddin on the report of the S. A. C., Haripur, dated 10-12-1948 ordered to allot the house to the present appellant. In view of this order the appellant is an authorised allottee with old possession and as long as he would pay rent he would not be ejected. Arrears to be cleared at once. Appeal is accepted and notice is cancelled.
' Announced :- (Sd.) Khan Ghulam Daud Khan, D. R. C., Hazara."
It is thus clear from the record of the case that the property in question has undoutedly been treated evacuee property. Therefore, the bar of jurisdiction canvassed by the learned counsel in the impugned order has no force. The case of Rawalpindi Central Co-Operative Bank Ltd., Rawalpindi v. Custodian, Evacuee Property, W. P., Lahore and 3 others (1) was also quoted in support, wherein it was held:- "Neither Custodian nor Rehabilitation Authorities treating a Banking company or its property as evacuee or evacuee property at any time before 1-1-1957. Such Property, held, cannot be treated as evacuee property by authorities concerned for first time after 1-1-57."
(I) PLD 1973 Lah. 230 ' The distinction becomes further clear by reproducing the following in the precedent case (page 238) :- "14-A. It may be seen that subsection (1) of section 3 is mandatory in its character and has an overriding effect. As already stated neither the Custodian nor the Rehabilitation Authorities treated the Punjab and Kashmir Bank Ltd., or its property as evacuee or evacuee property at any time before 1st of January 1957. It, therefore, follows that they had no jurisdiction to treat the property in dispute as evacuee property for the first time after the 1st of January, 1957"
' Following in the case of Kishanchand Jethanand and others v. Custodian, Evacuee Property, Karachi, South Zone and others (1) fairly indicates that the case of the petitioner cannot have support from the precedent case:- The very fact that revisional and review powers of the Custodian under section 43 of the Act are not specifically saved clearly indicates that it is also subject to the provisions of section 3. The Legislature has saved certain actions and pending proceedings in subsection (2) of section 3 (from the effect of subsection (1) of the same section. But they are only those cases where either an action has commenced, that is some steps have been taken, or proceedings are pending before the Custodian immediately before the 1st of January, 1957. But if no steps have been taken for filing the appeal or revision, such cases are not excepted from the effect of subsection (1) of section 3 of the Act. The words "in respect of which any action has commenced" occurring in section 3 of Act refer only to those cases where the Department has taken some steps to treat any person or property as evacuee but which has not taken any final shape or has not resulted in any effective action . . . .."
The misconception of seeking support from the above-quoted precedes case is evident from the fact that the entitlement of the house in question not only vested in the Custodian but it was treated as evacuee Property years before the bar of jurisdiction, and to repeat -it long before the 1st of January, 1957.
' The above narration of facts sufficiently, brings home the fact that the impugned order, under the circumstances of the case is unexceptionable and the Writ Petition is, therefore, dismissed with costs.
(1) PLD 1961 Kar. 589