' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court, dated 19-2-1998, whereby the writ petition field by the appellants, herein, was dismissed.
2. The brief facts of the case are that the land comprising Survey Nos. 449 and 454, Khewat No, 4, measuring 16 Kanals, 14 Marlas, situate in village Sanwala Phan, Tehsil Dadyal, District Mirpur, was allotted to pro forma respondent, Jan Muhammad, as a refugee on 16-11-1965. Thereafter, the entitlement certificate and proprietary rights of the said land were granted to him on 6-5-1981 and a mutation was also sanctioned in his favour. Jan Muhammad, pro forma respondent, sold the aforesaid piece of land to Muhammad, appellant No,3, through a registered sale-deed for a consideration of Rs,80,000. Respondent No,4 filed a preemption suit against the sale-deed but the same was dismissed; his appeals to the District Judge and the High Court also failed. On 17-7-1998, appellant No,3 transferred the property through a gift-deed in favour of his sons appellants Nos. 1 and 2. Thereafter, respondent No,4 filed a review petition before the Custodian alleging that only one-half of the land out of the aforesaid survey numbers was evacuee property while the other one-half was in the ownership of the locals. Thus, he challenged the proprietary rights which were granted to pro forma respondent and also the transfer made by him. The Custodian accepted the review petition holding that as only one-half of the land was evacuee property, the proprietary rights to the extent of remaining one-half were against law and, thus, were set at naught. The appellants, herein, filed a writ petition in the High Court which was dismissed.
3. We have heard the arguments. Mr. Muhammad Anwar, Advocate, the learned counsel for the appellants, has argued that the total area of the land comprising "Khewat" No,4 was 35 Kanals, out of which one-half was under the occupancy tenancy of Mohar Singh, evacuee, while the other half was under the occupancy tenancy of non-evacuees, Ditta and others, respondents. But as a result of private partition, Mohar Singh, evacuee, was in exclusive possession of the aforesaid two survey numbers before migration, while the said non-evacuees were in the possession of the other survey numbers in lieu of their share which was in the possession of Mohar Singh. After the enforcement of the Land Reforms Act, the non-evacuees, occupancy tenants, were granted the rights of ownership out of all the survey numbers in the 'Khewat' to the extent of one-half share including the aforesaid two survey numbers which were in the possession of Mohar Singh before his migration and, thereafter, came into the possession of Jan Muhammad, allotted, who was subsequently granted the proprietary rights of the aforesaid two survey numbers by the Custodian including the one-half of the occupancy tenancy of Ditta and others, respondents. The learned counsel has argued that after the dismissal of the pre-emption suit filed by the respondent, Ditta, the respondents filed a belated review petition before the Custodian contending that one-half of the share in the aforesaid survey number which was initially under their occupancy tenancy and subsequently, became their ownership as a result of Land Reforms Act could not be allotted to Jan Muhammad, pro forma respondent. The learned Custodian accepted the review petition observing that the allotment of the whole of the land comprising aforesaid two survey numbers could not be made in favour of Jan Muhammad, allotted, because Mohar Singh evacuee, was occupancy tenant only to the extent of one-half share. According to the learned counsel, the review petition before the Custodian was hopelessly time-barred; besides, the respondents filed the review petition only after the dismissal of pre-emption suit filed by Ditta, respondent. The learned counsel has maintained that as Ditta respondent, accepted the right of Jan Muhammad allottee, to the extent of whole of the land comprising the said survey numbers, he could challenge his allotment by filing review petition before the Custodian. Thus, according to the learned counsel, the respondents were estopped from challenging the rights of Jan Muhammad, allottee, regarding the aforesaid two survey numbers even to the extent of one-half share. The learned counsel has further argued that a vendee, who is in possession of a survey number, is entitled to transfer the same even in excess of his share, provided such transfer does not exceed his overall entitlement in the 'Khewat'. Therefore, the learned counsel has submitted that on the same analogy, as Mohar Singh was in possession of the aforesaid two survey numbers as a result of private partition while the non-evacuees-respondents were in possession of the other survey numbers in the 'Khewat' in lieu of survey numbers which were in the possession of Mohr Singh, the allotment of whole of the land comprising aforesaid survey numbers in favour of Jan Muhammad, pro forma respondent, could not be set at naught by the Custodian; the shares of the co-sharers could be adjusted at the time of regular partition between them. The learned counsel has cited a number of authorities in support of his view that a vendor is competent to transfer land in excess of his share from certain survey numbers, provided the other co-sharers can be compensated out of other survey numbers in the 'Khewat'. The learned counsel has contended that this point was not properly attended to by the Custodian and the High Court despite the fact that it was raised before them. The learned counsel has further argued that the review jurisdiction was not available to the Custodian to declare the property in dispute as non-evacuee because such a declaration could only by made under section 22 of the Administration of Evacuee Property Act after holding due inquiry and not in exercise of review jurisdiction. The learned counsel has maintained that even otherwise, the circumstances indicated above, it cannot be said that the order passed by the Custodian served the ends of justice as has been opined by the Custodian and that too after the expiry of period of limitation.
4. In reply, Raja Muhammad Siddique Khan, Advocate, the learned counsel for the respondents, did not controvert that Mohar Singh was an occupancy tenant in the 'Khewat' or for that matter in the abovementioned two survey numbers to the extent of one-half but he was in possession of the whole of land comprised of aforesaid two survey numbers as a result of private partition. The learned counsel has further submitted that the proprietary rights have been granted to the respondents even out of the aforesaid survey numbers which were in possession of Mohar Singh and, thereafter, came into the possession of Jan Muhammad, allotted. The learned counsel has argued that if the transfer of the proprietary rights' order granted to the allotted remains intact, the interest of the contesting respondents would be adversely affected, because they would be deprived of their one-half share in the said survey numbers which were in the possession of Mohar Singh before migration and subsequently came into the possession of the allotted. Thus, the learned counsel has maintained that if it is ensured that the interest of the respondents-co- sharers would not be adversely affected in future, they would have no grievance against the allotment of the aforesaid two survey numbers in favour of Jan Muhammad pro forma respondent, or the appellants-transferees.
5. We have given due consideration to the arguments raised at the Bar. It may be observed that while accepting the review petition filed by the respondents, the learned Custodian has set aside the transfer of proprietary rights order and observed that fresh allotment should be made in favour of Jan Muhammad, pro forma respondent, out of all the survey numbers in the 'Khewat' to the extent of one-half of share and the matter should be processed afresh for granting him provisional proprietary rights out of all the survey numbers instead of survey numbers which was exclusively in his possession as a result of private partition. It may be observed that the definition of words evacuee property given in the Administration of Evacuee Property Act shows that any tangible interest of an evacuee in the property would bring it within the ambit of definition of words 'evacuee property' ; it is not necessary, that an evacuee must have full right of ownership in the property. It would be expedient to reproduce below the definition of words 'evacuee property' as given in section 2(3) of the Administration of Evacuee Property Act: "'evacuee property' means any property in which an evacuee has any right of interest (whether personally or as a trustee or a beneficiary or in any other capacity) and includes---
(a) .
(b)
(Underlining is ours).
' In view of the abovementioned definition, it is clear that even if an evacuee had only possessory title to the land before migration to India the property would be deemed to be an evacuee property. The learned Custodian appears to have entertained the belief that only the full ownership of the property of an evacuee would render his property as evacuee property and not any other lesser interest than that. As it is not disputed that Mohar Singh was exclusively in the possession of the aforesaid two survey numbers before his migration, the property in dispute fell within the ambit of evacuee property and, thus, the Custodian has committed an error in declaring the allotment in question as illegal, on the ground that one-half of the land comprising the aforesaid two survey numbers was not in the occupancy tenancy or the ownership of Mohar Singh.
6. It may also be observed that irrespective of the arguments advanced by the learned counsel of the appellant that the Custodian was not competent to declare the property in dispute as non- evacuee in exercise of review jurisdiction at a belated review petition, the fact remains that in fact the property was evacuee and, thus, its allotment in pursuance of the provisions of Rehabilitation Act did not offend against law.
7. So far as the apprehension of the learned counsel for the respondents that the respondents would be adversely affected if the provisional proprietary rights order granted to the allotted remains intact is concerned, it may be observed that the said order could not transfer any interest in the property which an evacuee or for that matter the Custodian did not enjoy; as has already been pointed out Mohar Singh, evacuee was an occupancy tenant in the aforesaid two survey numbers only to the extent of one-half and on the remaining other one-half his title was merely that of possessory nature under the private partition. Thus, the transfer of proprietary rights order would transfer only possessory title to the extent of one-half of the disputed land in the said survey numbers to the allottee and nothing more. Thus, the apprehensions of the respondent-co-shares that their interest in the aforesaid survey numbers would be adversely affected, are misplaced and have no substance.
' In the light of what has been stated above, we accept the appeal, set aside the judgments of the Custodian and the High Court and restore the allotment as well as the transfer of proprietary rights order, dated 6-5-1981 issued in favour of Jan Muhammad pro forma respondent. In the circumstances of the case, we make no order as to the costs.