AJMAL MIAN, C.J.- By this common judgment, we intend to dispose of the above three appeals, which have been filed with the leave of this Court against the judgment dated 26-8-1991 passed by a learned Single Judge in Writ Petition No. 538-L of 1979, filed by the respondents 1 to 6, challenging the Settlement Commissioner (Lands) Punjab, Lahore order dated 9-2-1978 directing that the order date 19-1-1960 of the Custodian Evacuee Property, Lahore should be implemented immediately allowing the same for the following reasons:-- "11. Apart from what has been discussed hereinbefore Sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 technically speaking are not attracted as no allotment of land made by the Rehabilitation Authorities or Settlement Authorities was involved in this case. The Settlement Commissioner*merely relied upon copy of order dated 19-1-1960 passed by custodian which was produced by the respondents which has been declared to be a fake document, therefore, the order passed on that cannot stand.
12. For the foregoing reasons, this writ petition is accepted. Order, dated 9-2-1978 passed by Settlement Commissioner and subsequent proceedings taken by respondent I6 and 18 for reviewing the inheritance mutation No. 32, dated 22-3-1975 and Mutation No. 34, dated 15-4-1975 and order dated 7-8-1978 passed by respondent No. 15 whereby approval of reviewing of the afore-mentioned Mutations Nos. 32 and 34 was granted by way of correction of record of-rights, and for raising demand of 40 times rent regarding land in dispute and allotment of land to respondents Nos. 1 and 2 made against Khata Nos. R.L.II Nos. 41 and 42 by respondent No. 17 through order dated 23-10-1978 and sanction and attestation of Mutation No. 54, dated 17-2- 1979 for cancelling the ownership of the petitioners in the land in dispute and transferring the same in favour of the Central Government the sanction of Mutations Nos. 55 and 56 in favour of respondents 1 and 2 all declared to be void, illegal $nd invalid and of no legal effect on the rights of the petitioners as owners and quashed. The parties are left to bear their own costs."
2. The brief facts leading to the filing of the above appeals are that land measuring 1451 Kanals and 3 Marlas (hereinafter referred to as the land) situated in Chak No. 52 (Amar Kot), Tehsil and District Kasur, was owned by a Parsi gentlemen namely, Nadar Shaw Nowrojee, who was at the relevant the residing in India. It appears that Nizam Din, father of the respondent No. 6 Allah Ditta, took the above land as a tenant (as per averment of the appellants). It further seems that on 21-1-1954 Nadar Shaw Nowrojee died in India. After that on 13-7-1955, Nadar Shaw Nowrojee's son Nauzer Nowrojee and other legal heirs after coming to know that the land was allotted to claimants Abdul Hameed and Ahmad Khan, filed an application under Section 18 of the Pakistan Evacuee Property Ordinance, 1949 (Ordinance XV of 1949) seeking declaration that the land was non- evacuee. The Deputy Custodian by his order dated 7-4-1956 dismissed the said application on the ground that there was some evidence that said late Nadar Shaw Nowrojee had obtained land in India in lieu of the land, he also held that though Nadar Shaw Nowrojee had given authority to Allah Ditta respondent No. 6 to manage and supervise the land in dispute as an agent, but the same had not been approved by the Custodian. Against the above order the legal representative of Nadar Shaw Nowrojee filed Appeal No. 59 of 1956 against the Rehabilitation Authority and two others before the Additional Custodian who inter alia held as follows:-- "After having given over the land on lese for 3 years the question of appointing an Attorney did not arise and the execution of this power of Attorney was merely an at of abundant caution which does not matter much. The appellant's Counsel has in the alternative requested me to accept and approve the appointment of Mukhtar and I hereby do so from today."
After having held as above, he disposed of the above appeal in the following terms:-- "As a necessary result of this findings...Declaration in the petitioners favour that ....Owners of the land in dispute, that the land ....Property and that it cannot be allowed to any.... Appeal is accepted and the order dated 7-4-1952... The learned Deputy Custodian in set aside."
The Rehabilitation Authority being aggrieved by the above order of the Custodian filed Revision Petition No. 71 of 1957 before the Custodian. In the above Revision Petition besides respondents I to 6 aforesaid Abdul Hameed and Ahmad Khan, who were seeking allotment of the land in their favour as evacuee land, were taken-up by Mr. Justice (Retd.) A.M. Jan in the capacity of Custodian, who by his order dated 26-12-1958 did not set aside the above order of the Additional Custodian, but he held as under:- "I have held that the petitioners in this case are unable to occupy, supervise, or manage in person their property in Pakistan if I confirm the approval given by the Additional Custodian the property shall cease to be evacuee property from the date of approval. The question is whether there are any just grounds for cancelling the approval granted by the Additional Custodian on the basis of which I should issue notice to the agent, Allah Ditta, and his principal, i.e. The heirs of Nadir Shaw Npwrojee, to show-cause why the approval granted by the Additional Custodian should not be revoked. According to the decision of the Supreme Court the power to revoke an approval already granted must have some reference to and be based on the manner in which the property is being managed. The petition for revision of which notice has been given makes no reference to any mismanagement but does, in a way, refer to the manner in which the property is managed, i.e., through an agent whose authority had not been accepted or approved by the Custodian. This can be said to be sufficient compliance with the letter of the law laid down by the Supreme Court though not, perhaps, with its spirit. The question then is whether the approval given by the Additional Custodian should be revoked or not. The instructions given by the Central Government are that management through an agent may he allowed in genuine cases of members of the Parsee and Christian communities on terms and conditions set out in those instructions, I shall attach all those terms and conditions to approval if I decide to confirm the approval. As it is a case of policy I refer it to the Central Government for , \ instructions as to whether the approval granted by the Additional Custodian should be confirmed or revoked."
3. It appears that the above Revision Petition No. 71 of 1957 remained pending on .The file of the learned Custodian as the same was dismissed tor non-prosecution by order dated 15-9-1959 by Mr. Justice Masud Ahmed the then Custodian. The applications of the Rehabilitation Authority for restoration of the aforesaid revision petition were also dismissed through orders dated 13-10-1959 and 15-12-1959.
The parties seem to be at issue on the question, as to whether after the above dismissal orders of the restoration applications another order on 19- 1-1960 was passed by the Custodian.
Respondents 1 to 6 have produced a copy of order bearing above date i.e. 19-1-1960 in which it has been allegedly held that the land was non-evacuee, the relevant portion of which reads as follows:- "In my opinion, no interference in the order passed by the Additional Custodian of Evacuee Property is called for, and therefore, no question of issuing a notice for revising suo motu the order dated the 22nd July, 1957 arises. Has been established, beyond reasonable doubt, that no allotment of evacuee property was obtained in India by the late Nadir Shaw Nowrojee, Surjan Singh, who claimed to have been appointed an attorney by Mr. Nowrojee, was convicted by the Assistant Sessions Judge, Ferozepur on the 27th August, 1958, for forging a document and for cheating the Rehabilitation Department in obtaining possession of some evacuee land in the name of Mr. Nowromjee. Clause (b) of sub-section (2) of Section 2 of the Pakistan (Administration of Evacuee Property) Act, 1957, had, therefore, no application to this case. Admittedly, the late Mr. Nowrojee was a resident of India and as his property was being looked after by persons who had not been duly authorised, but he was technically, an evacuee as his case fellow within the purview of clause (d) of sub-section (2) of Section 2 of the Act, but the power-of-Attorney given by him to his agent, Allah Ditta, on the 30th May, 1952, having been approved by the Additional Custodian of Evacuee Property, his case ceased to be governed by the said clause and, therefore, on this ground he could not be treated as evacuee. These papers may, therefore be filed."
Whereas some of the other respondents have produced a copy of another order of the learned Custodian of the same date i.e. 19-1-1960, the operative portion of which reads as follows:-- "In the light of the afore-mentioned circumstances my decision is contrary to the decision of the Additional Custodian. I have come to the conclusion that Nadir Nowrojee etc. Are owners of ' the evacuee property and are not the owners of the suit land. I, therefore, declare that the suit land as evacuee land and this land can be allotted to in lieu of the evacuee property.
If allottees Sufi Abdul Hamid Khan, etc. Have not obtained alternative allotment in other places, I restore the allotment otherwise this area be allotted to any deserving refugee.
A criminal case against the illegal occupant Allah Ditta and his sons for commission of fraud, production of fictitious documents, impersonation and defrauding Courts as well as the Government be got registered, moreover Allah Ditta and his sons be ejected at once from the suit land in accordance with the instruction of the Government after realising 40 times Tawan as Land Revenue with effect from 1947."
4. The case of the appellants is that both the above orders are fake. Be that as it may, the appellant in Civil Appeal No. 371 of 1992 Mst. Umat-ul-Bano claimed to be allottee of 967 Kanals and 17 Marlas by virtue of allotment dated 9-2-1978. Whereas, appellant Mst. Umat-ul-Rabia appellant in Civil Appeal No. 372 of 1992 and the sister of Mst. Umat-ul- Bano, claimed to have been allotted 619 Kanals out of the above land. The appellant in Civil Appeal No. 373 of 1992 claimed to be the purchaser from Mst. Umat-ul-Rabia of the allotted land. Respondents 1 to 5 who are the sons of respondent No. 6 Allah Ditta, claimed to have purchased the land for Rs.6,24,000 orally from their father acting as the attorney for the Parsi owners on 17-3-1961.
Allah Ditta and/or his sons filed the following three legal proceedings:--
(i) A suit on or about 29-2-1972 against the Custodian and Settlement Department for declaration that the land was non- evacuee, which suit remained pending up to 1973;
(ii) An application before the Settlement Commissioner Mr. Hidayatullah Mokal with the powers of the Chief Settlement Commissioner;
(iii) Writ Petition No. 471 of 1972 which was withdrawn.
Besides that Muhammad Ashraf respondent No. 3 filed a suit on or about 22-10-1971 for declaration that the land was non- evacuee.
(5) The Settlement Commissioner (Lands) Punjab by his order dated 9-2-1978 treated the land as evacuee upon application filed inter alia by the aforesaid Mst. Umat-ul-Bano and Mst. Umat-ul- Rabia and ordered as follows: "4. It is quite clear that the orders of the Custodian in this case were deliberately ignored and the evacuee owners are still being shown as the owners in the Revenue Record. It is accordingly ordered that the order dated 19-1-1960 passed by the Custodian Evacuee Property, Lahore should be implemented immediately. As regards the petitioners before me. I feel they have earned the status of informers as they have unearthed the fraud being played on the department. It is, therefore, further ordered that after the land has been offered for allotment to the original temporary allottees, namely Sufi Abdul Hamid and Ahmad Khan, and if they have already obtained alternative allotments, the land in dispute shall be allotted to the petitioners as informers against their verified claims, if any, pending allotment. The claim shall of course, be scrutinised as usual before the allotment."
It appears that the appellants in Civil Appeals Nos. 371 and 372 Mst. Umat-ul-Bano and Mst. Umat- ul-Rabia were allotted the above portion of the land pursuant to the above-quoted operative portion of the Settlement Commissioner's order dated 9-2-1978.
6. The matter was taken by respondents 1 to 6 to the High Court by filing the above writ petition, which was allowed by a learned Single Judge of the Lahore High Court in the above terms quoted hereinabove in para. 1. Thereupon, the affected parties i.e. The appellants in the above three appeals, filed petitions tor leave to appeal which was granted to consider the following two questions:- "(i) In this view of the matter it is strange that an appeal has been shown to have been filed against order dated 22-7-1957 of the Additional Custodian under Ordinance, 1949 which furnishes strong evidence to presume that the copy of order dated 19-1- 1960 relied upon by the respondents was never passed by the Custodian which is a fake document which was prepared with ulterior motive to grab the property.
(ii) There is another angle tor looking into the matter as to whether copy of order dated 19-1-1960 Annexure 'Y' is the genuine order passed by the Custodian. I have come across many judgments written by Mr. Justice Masud Ahmad as Judge of the High Court which judgments have been, reported in law journals. When I compared the manner of writing judgments by Mr. Masood Ahmad and the command which he had on English language, with the copy of order dated 19-1-1960 Annexure 'Y' it can safely be presumed that this order has not been written by Mr. Justice Masood Ahmad as the English language used in this order is below average. Such a defective judgment in my opinion could not be expected from Mr. Justice Masood Ahmad who as I have already observed had full command over the English language."
7. We have heard M/s. Zainul Abedin, Man Bashir Zafar and Sardar Shaukat Ali. Learned counsel for the appellants and M/s. Saeed Akhtar and Khan Muhammad Virk, learned counsels for some of the respondents.
The thrust of the arguments of the learned counsel for the appellants was that both the above orders dated 19-1-1960 purported to have been passed by the Custodian are forged for the reasons highlighted by them in their arguments. On the other hand, the case of the contesting respondents was that the land was non-evacuee and that it was purchased by respondents 1 to 5 orally from respondent No. 6 as the attorney of the owner on 3-5- 1961. Inasmuch as a declaratory decree, was obtained in Suit No. 83/1 of 1973.
8. We have noticed that besides the litigation referred to in the facts stated hereinabove and in the arguments, some other legal proceedings were also tiled and a number of mutations were made in favour of some of the parties.
We are inclined to hold that the above appeals involve complicated disputed questions of facts including the questions as to whether forgeries have been committed inter alia by fabricating orders of the Custodian dated 19-1-1960 and/or any of them or any other orders and by whom. The above questions could not have been decided by the learned Single Judge in exercise of Constitutional jurisdiction. The perusal of the judgment under appeal indicates that the learned Judge in Chamber without recording any evidence on the basis of his visual examination of the record concluded that out of the above two orders dated 19-1-1960 one of them is genuine and the other is a forged one. Such a finding could not have been recorded in exercise of Constitutional jurisdiction, particularly without affording the opportunity to the affected parties to produce the evidence and to cross- examine the witnesses of the other side.
Though we have heard very lengthy arguments about the alleged forgeries, but we have refrained ourselves from expressing bur view on the above question or any other question as we intend to remand the case. The above three appeals are allowed. The aforesaid order dated 9-2-1978 of the Settlement Commissioner (Lands) Punjab and the order under appeal dated 26-8-1991 of the learned Judge in Chamber passed in Writ Petition No. 538-R of 1979 are set aside and the cases are remanded to the Member, Board of Revenue, Settlement and Rehabilitation Wing exercising the power of Custodian and/or any other incumbent who may be exercising the powers of the Custodian for the the being, with the direction to decide the above controversies between the parties particularly the question, as to whether the land was evacuee or non-evacuee after providing opportunity to the parties to produce evidence. If necessary the matter may be got investigated by the F.I.A, or by any other Government Agencies as the land involved appears to be of considerable value. Status quo as obtaining today shall continue till the matter is decided as aforesaid. There will be no order as to costs.