' SAYED ZAHID HUSSAIN, J.---Order of the Custodian Evacuee Property, .Punjab, Lahore, dated 19-2- 1980 has been challenged by the petitioners through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, which was passed by the learned Custodian in pursuance of a remand order by this Court maintained up to the Supreme Court of Pakistan. The dispute arises in the circumstances briefly stated below.
2. Pir Zaman Shah (late), whose successor-in-interest are now before this Court had made an application under section 8 of the West Punjab Protection of Evacuee Property Act, 1948 for a declaration that he was owner of 782 Kanals and 11 Marlas of land situated in village Jarman Tehsil and District Montgomery (now Shaiwal). It was his case that he was owner of one half of the land whereas the rest of the half was in his adverse possession which had earlier been sold to one Lal Chand, an evacuee. The Deputy Custodian vides order, dated 31-3-1949 granted the declaration that "no part of the land described in the petition is an evacuee property". A revision was filed by Ahmad Ullah and Kanwar Tehseen Ali Khan/respondents Nos.2 and 3 herein which was rejected by the Custodian of Evacuee Property on 14-6-1980 as time-barred. He, however, sent for the record for finding out "whether action for revising the Deputy Custodian's order suo motu was called for or not". On perusal of record, a notice was issued to Pir Zaman Shah as to why the Deputy Custodian's Order should not be set aside under subsection (4) of section 43 of the Pakistan (Administration of Evacuee Property) Act, 1957. The learned Custodian took the view that the property in dispute was of the value of more than Rs,5000 and a device had been resorted to by undervaluing the property to prevent the Custodian to examine the case, as all cases involving property of the value of more than Rs,5000 were to be submitted to the Custodian for confirmation. It was thus observed that the order of the Deputy Custodian had not become operative as it was not duly confirmed by the Custodian. As to the claim of adverse possession for half of the land, the learned Custodian took the view that he was not in possession of the land for more than 12 years nor there was evidence on record as to the ouster of Lal.Chand, from the land. He thus modified the order of the Deputy Custodian and declared that "the respondent Zaman Shah is owner of only one half share of the land in dispute and that the other half share is evacuee property being owned by Lal Chand". This was vide order, dated 16-12-1960. It was challenged by the petitioners by tiling petition (W.P.
No,26/61) before this Court. The case of the petitioners before this Court was that since the property in dispute was not treated as evacuee property on or before 1-1-1957. It could not be treated so nor any order could be passed by the Custodian after the said date. For the view taken by late Karam Ellahi Chauhan, J. (as he then was), that this aspect had not been adverted to by the Custodian while passing the said order, the case was remanded for fresh decision in accordance with law.
This was vide judgment, dated 9-10-1968. The petitioners challenged this order through L.P.A.
No,292/68 which was dismissed by a Division Bench of this Court on 20-2-1969. It was noticed by the learned Division Bench that in view of rule 7(c) of Protection of Evacuee Property Rules, 1948, the order of the Deputy Custodian" needed confirmation by the Custodian". It was observed that "an order passed by a Deputy Custodian in respect of property which was more than Rs,5,000 in value shall not become effective and be valid unless confirmed by the Custodian. If, therefore, the value of the property is more than Rs,5000 as held by the learned Custodian, then the order of the Deputy Custodian would clearly be invalid and ineffective in eyes of law and no advantage could accrue to the appellants on the basis thereof". A petition for leave to appeal (C.P.S.L.A. No,137/69) was filed by the petitioners which was dismissed on 27-10-1969 by the Hon'ble Supreme Court.
3. In this Context, the learned Custodian took up the matter and recorded a finding that "there is nothing on record to show that Lal Chand evacuee was ousted by Pit Zaman Shah, respondent No,1, who later on occupied the land in question per force and continued in possession as such till the partition of the Sub-Continent of India. In the circumstances, plea of adverse possession raised by respondent No,1 cannot be accepted". Adverting to the question of section 3 of the Pakistan (Administration of Evacuee Property) Act, 1957, he found that "plea of adverse possession having already been repelled, he can only be considered to be a tress-passer. Since his authority to occupy the property was never confirmed by the Custodian, therefore, the property always vested in that Authority". It is this order, dated 19-2-1980 of the Custodian that is challenged through this petition.
4. It is contended by the learned counsel for the petitioners that upon rejection of the revision petition filed by respondents Nos.2 and 3 by the Custodian, Evacuee Property on 14-6-1960 as time- barred, the order of the Deputy Custodian stood merged into it, which could not thereafter, be subject of any suo motu review of revision. It is further contended that it was section 3(1) of the Pakistan (Administration of Evacuee Property) Act, 1957, which was applicable and section 3(2)(b) of the Act was not applicable to the instant case and therefore, the property could not be declared as Evacuee after 1-1-1957. Reliance is placed on Akbar Ali and 9 others v. Assandas and 2 others (PLD 1985 Karachi 117). Further contention of the learned counsel for the petitioners is that title had matured in favour of the predecessor-in-interest of the petitioners through adverse possession and the view taken by the learned Custodian is incorrect in law.
5. On the other hand, the learned counsel for the contesting respondents submits that Lal Chand was shown as owner of the property in the special Jamabandi for the year 1946-47 and the claim of the petitioners as to adverse possession had no factual and legal basis. According to him section 3(2)(b) of the Act was attracted to a case of this nature and that the Custodian of Evacuee Property rightly declared the same as evacuee Property. Relies on the Custodian, Evacuee Property West Pakistan, Lahore v. Rais Ghazi Muhammad (PLD 1973 SC 537) and Muhammad Siddiq v.
Additional Custodian of Evacuee Property, South Zone, Karachi and 5 others (1984 CLC 1932).
6. It is evident from the order of Deputy Custodian of Evacuee Property, dated 31-3-1949 that a petition was filed by Pir Zaman Shah (late) in respect of 782 Kanals and 11 Marlas of land claiming that he was owner of half of the land whereas the other half belonged to Lal Chand an evacuee. His claim was that he had become owner of the land owned by Lal Chand on account of his being adversely in possession for more than 12 years. Such a declaration was granted by the Deputy Custodian. When the matter came to the notice of the Custodian on a review petition filed by respondents Nos.2 and 3, the same was dismissed by the learned Custodian as time-barred, but simultaneously, took the matter suo motu and sent for the record of the case. It was after notice and hearing Pir Zaman Shah that the learned Custodian came to the conclusion that although one half of the land was owned by Pir Zaman Shah as owner of the property, yet since there was no evidence of ouster of Lal Chand on record, Pir Zaman Shah's possession of the land could not be considered to be adverse as against Lal Chand, therefore, he could not become owner of Lal Chand half share by reasons of adverse possession". In W.P. No,26/61, the order of the Custodian was set aside by this Court vide judgment, dated 9-10-1968 that section 3 of Act XII of 1957 had not been adverted to by the Custodian.
' On LPA No, 292/68 filed by the petitioner, their case was that property could not be treated as evacuee after 1-1-1957. In this context, relevant para of the order of the learned LPA Bench need to be kept in view, which is "in the present case the reliance of the appellants is on an order made by the learned Deputy Custodian on 31-3-1949. We have already stated that according to the learned Custodian this order needed confirmation by the Custodian in view of the provisions contained in Rule 7(c) already referred to. We find that this rule lays down in very clear terms that an order passed by a Deputy Custodian in respect of property which is more than Rs,5000 in value shall not become effective and be valid unless confirmed by the Custodian. If, therefore, the value of the property is more than Rs,5,000 as held by the learned Custodian, then the order of the Deputy Custodian would clearly be invalid and ineffective in the eyes of law and no advantage could accrue to the appellants on the basis thereof. The question whether the property was indeed more than Rs,5,000 in value is again a question of fact and if the appellants dispute the assessment made by the learned Custodian in his order under challenge, then they have an opportunity of establishing the case before the Custodian when he re-examines the matter". As mentioned earlier, petition for leave filed by the petitioners was dismissed by the Hon'ble Supreme Court on 27-10-1969. It was never their case in the earlier round that with the dismissal of revision petition filed by respondents Nos.2 and 3 as time barred by the Custodian, the principle of merger was applicable, estopping him from re-opening the case is suo motu jurisdiction. Indeed it was their case in that round that applicability of section 3 of Act XII of 1957 had not been examined by the Custodian. It was on these premises that the case was remanded to the Custodian, therefore, besides that the contention is meritless, what was not the stance and plea of the petitioners in the earlier round, cannot be pleaded by them nor a new case can be set up now.
7. The main stance of the petitioners is that Pir Zaman Shah had become owner of property owned by Lal Chand on account of adverse possession. In his order, dated 16-12-1960, the Custodian of Evacuee Property had on consideration of the material before him came to the conclusion that such a claim was not. Supported by the record. Even after remand no such material was placed before the learned Custodian, which could be made basis for recording a finding in favour of the petitioners. In paragraph No,3 of the order, the learned Custodian had to observe that "there is nothing on record to show that Lal Chand evacuee was ousted by Pir Zaman Shah, respondent No, 1 who later on occupied the land in question per force and continued in possession as such till the petition of the Sub-Continent of India. In the circumstances, plea of adverse possession raised by respondent No,1 cannot be accepted." This is a finding of fact recorded by the learned Custodian. In Jamal Shah and others v. The Custodian and others (PLD 1981 SC 262), it was the case of the appellant that the adverse possession over the land in dispute stood fully matured before the year, 1947 and, therefore, their title as such had been perfected and the evacuee interest of the evacuee owners therein had been lost by prescription. Besides that an adverse finding of the Custodian against the appellants could not be interfered with by the High Court in writ jurisdiction, it was observed that "in order to succeed on such a plea adverse possession should have" all the qualities of adequacy. Continuity and exclusiveness" to displace the owners title". Since the appellants had failed to establish their claim, their plea was repelled and it was held that such a property, which was "hidden evacuee property" could be treated by the Custodian as even after 1-1-1957. In Shafaullah and 13 others v. Saifur Rehman and 7 other's (PLD 1991 SC 1106), the petitioners had claimed that they were in adverse possession since 1931 which had matured in 1943 and that the same could not be treated as evacuee property, repelling the contention, it was observed that "there were no circumstances in this case to show that for the said period of 12 years in fact and in reality the possession of the petitioners was as hostile, as open and so dishonest as is required in cases like the present one. See Mirza Ghulam Hussain v. Ch. Iqbal Ahmad (PLD 1991 SC 290)". Was further observed that "If a suit would have been filed before 1947 undoubtedly the petitioners would have lost it. And after the partition the combined reading of all the laws relating to evacuees and evacuee property, had the effect of almost repealing law relating to adverse possession; if not otherwise, at least by intendment". The petition was dismissed accordingly. In the present case as well if the claim of the petitioners was that their adverse possession, dated back to the year, 1933- 34, the question arises, why they had not filed a suit, when the evacuees owners had not yet migrated. The findings recorded by the Custodian of Evacuee Property successively against the petitioners rejecting their plea of adverse possession do not suffer from any illegality, which could warrant interference by this Court in writ jurisdiction.
8. As to the value of the property in dispute, no attempt has been made before the learned Custodian to show that its value was less than Rs,5000. It is not the case of the petitioners that they were denied of any opportunity by the Custodian. In view of the finding recorded by the Division Bench in its order, dated 20-2-1969 passed in LPA No,292/68, the declaration granted by the Deputy Custodian required confirmation by the Custodian of Evacuee Property, which was not 'done - in terms of rule 7(c) of Protection bf Evacuee Property Rules, 1948. The declaration so granted by the Deputy Custodian was rightly treated as ineffective and invalid.
9. The contention of the learned counsel for the petitioners that property could not be declared as evacuee by the Custodian after 1-1-1957, in the facts and circumstances of the case has no force and is to be repelled, inasmuch as the case falls within the ambit of subsection (2)(b) of section 3 of the Act XII of 1957, which is in the nature of an overriding import. The learned Custodian has in post remand proceedings specifically adverted to this aspect of the matter, and relying on an unreported judgment by the Supreme Court in Muhammad Aslam v. The Custodian of Evacuee Property and others (C.A. No,22 of 1966) held that possession of such an occupant of the land is to be regarded only a trespasser to which subsection (2)(b) of section 3 of the Act XII of 1957 would be applicable. The finding recorded by the learned Custodian is that "since his authority to occupy the property was never confirmed by the Custodian, therefore, the property always vested in the Authority". In Jalal Shah and others case (supra) in which the claim of the appellants was based on adverse possession, the applicability of section 3 of Act XII of 1957 came up for consideration and the argument that the land had not been treated or allotted as evacuee property before 1-1-1957, therefore, it could not have been treated later on was repelled by their lordships. In the case of The Custodian, Evacuee Property, West Pakistan, Lahore (supra) wherein the exercise of suo moat power by the learned Custodian even after 1-1-1957 was recognized, it was observed that "in view of the above lacuna in the sale deed it was not lawfully confirmed and, therefore, the case of the respondent is covered by section 3(2)(b) of the Pakistan (Administration of Evacuee Property) Act XII of 1957. In these circumstances, I would hold that exception to section 3(1) contained in subsection (2)(b) applied to the present case and Mr. Justice Masud Ahmad was competent to treat this property as evacuee property and could review the order, dated 2nd December, 1953. I would, therefore, set aside the order of the High Court and recall the writ of certiorari issued by it and restore the order of the Custodian, dated 16th October, 1959". In the case of Muhammad Siddiq (supra) the learned Division Bench took the view that where a property is occupied, supervised or managed by a person whose authority or right is not accepted or approved by the Custodian can be declared as ever evacuee property even after 1-1-1957 in view of section 3(2)(b) Act XII of 1957.
10. Reliance of the learned counsel for the petitioners on Akbar Ali and 9 others case (supra) is inapt inasmuch as the Custodian Authorities had successively declared the predecessor-in- interest of the respondents therein as non-evacuee before 1-1-1957 which orders had been affirmed by the High Court and the matter even had concluded up to the Hon'ble Supreme Court, but again the matter was sought to be reopened by the Custodian when the notice issued by him was declared as illegal and it was held that "the action commenced and proceedings taken had come to an end on 12-8-1955, when the order of the Assistant Custodian was passed. This order declared respondents Nos.l and 2 as non-evacuees and so their properties as non-evacuee, which was not set aside or modified by any authority in the department of Custodian, with the result that the said order still holds the field; which was affirmed and reaffirmed in the proceedings initiated in W.P. No,210/62". It was in this context that exercise of suo motu jurisdiction by the Custodian after 1- 1-1957 was declared as illegal. The precedent case had the peculiar features, whereas the facts and circumstances of the present case are quite distinct.
' In view of the above, the findings recorded and the view taken by the learned Custodian that the petitioners had no valid claim to the land in dispute on the basis of adverse possession and that section 3(2)(b) of the Act XII of 1957 was attracted to the facts and circumstances of the case, do not suffer from any illegality or jurisdictional error; rather no interference by this Court in writ jurisdiction is called for with such a finding of fact. The writ petition is dismissed. No order as to costs.