The question involved in this case is whether a minor incorrectly described as a major and impleaded as a defendant to a suit is a party from the date of the plaint or shall be considered to be a party from the date when the arrangement for his proper representation as a minor is made by the plaintiff. This question arose in the present case when an application under Order XXXII, C. P.
C. was submitted for appointment of guardian-at-litem of the minor. The learned trial Court allowed this petition and permitted the plaintiff to file an amended plaint after repelling the argument of limitation on the strength of Younus Bhuiyan (minor) and another v. Jiban Chandra Datta and others (1). It was held in that case that it is difficult to hold that limitation in such a case should not be counted from the date of plaint simply because the defendant was not properly described or not represented by a guardian. Reliance was placed for this proposition on Khem Karan and another v. Har Dayal (2), Prasanua Ram Ghosh and another v. Azfar Ali and others (3).
There are a number of other authorities i,e, Durga v. Gur Narain (4), Harlal Singh v. Rudra Singh (5), Talib Ali v. Piarelal (6) and Abdul Aziz v. Sheikh Amir (7).
(1) PLD 1963 Dacca 323 (2) I L R 4 All. 37
(3) 38 C W N 900 (4) AIR 1924 Lah. 157
(5) AIR 1927 All. 787 (6) AIR 1930 Al 644
(7) AIR 1941 Nag. 130
2. Similarly it is authoritatively laid down that where a major by bona fide mistake is impleaded as a minor plaintiff, he does not become a new patty within the meaning of section 22 of the Limitation Act when the mistake is corrected and he is treated as a major. Taqui Jan v. Obeidullah
(1) Amrit Sana v. Gommun (2) Narayanchandra v. Dulabchandra (3) and Inderpal Singh v.
Bhagwati (4).
3. In Ali Ahmad v. Said Mian (5) it was held that where a minor sues as a major by a bona fide mistake, an application for amendment of the mistake and proper representation may be allowed even if such application is beyond time. In view of these authorities the argument of the learned counsel for the petitioner is not correct.
3-A. Learned counsel relied upon an observation in Rashidun Nisa v. Mohammad Ismail Khan and others (6) in which while dealing with the question whether a minor not represented properly during the suit is a party within the meaning of section 244 of the Code of Civil Procedure, 1882 (section 47 of the present Code of 1908) or not and whether such a minor can raise objection to the decree against him by an application under the above provisions or can file a civil suit to challenge the decree. It was held by their Lordships of the Privy Council that "the appellant was never a party to any of these suits in proper sense of the term. Her sister Ulfat-un-Nisa was, married woman and therefore, was disqualified under section 457 of the Code from being appointed guardian for the suit, and Mauladad's interest was obviously adverse to that of the minor."
4. Learned counsel also relied upon a similar case Pir Tajud Din and another v. Khambatta and others (7). These authorities are clearly distinguishable since they do not relate to the question of limitation. The only question in those cases was whether a minor who is not properly represented can file a suit or such a suit is barred by the provisions of section 244 of the Code of Civil Procedure, 1882. That question does not arise in the present case. On the other hand the authorities referred to above all relate to section 22 of the Limitation Act.
5. I do not find any force in the revision petition and dismiss it with costs. Record may be sent back immediately.
Petition dismissed.
(1) I L R 21 Cal. 866 (2) AIR 1926 Lah. 82
(3) AIR 1927 Cal. 477 (4) AIR 1941 Oudh 47
(5) AIR 1924 Lab. 188 (6) I L R., 31 All. 572
(7) AIR-1938 Lab. 515 PLD 1978 Baghdad-ul-Jadid 1 Fefore Mazharul Haq and Munawwar Elahi Rana, JJ Mst. REHMAT BIBI AND 9 OTHERS-Petitioners versus CUSTODIAN, EVACUEE PROPERTY, WEST PAKISTAN, LAHORE AND 2 OTHERS Respondents Writ Petition No, 1443/R of 1974/LHR, decided on 14th December 1977. (a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)- -- S. 20-Confirmation of transfer-Property in dispute not involving any evacuee right or interest whether personally or otherwise-Nor such property ever subjected to control of Custodian or vest in him so as to give him jurisdiction to deal with It or to pass orders of confirmation or to make a declaration about its nature-Evacuees never acquiring any right or interest from S or his successors-in-interest and land in dispute remaining in ownership of S tilt its alienation to first petitioner in 1969-Sale deeds executed by certain evacuees in favour of third respondent, in absence of any evidence of transfer of ownership in their favour, as also mutations attested on basis of such sale deeds, held, did not create any right in favour of third respondent nor could any title be conferred on him oven if sale deeds confirmed by Custodian. 4b4 & B
(6) Pakistan (Administration of Evacuee Property) Act (XIt of 1957;- -- S. 22-Power to treat a property as evacuee property-Vests in Custodian or Rehabilitation Authority and not in evacuees. (p. 5]C Abdul Klunq v. Klshanchand PLD 1964 SC 74 and All ladder Shah Dora v. Custodian, Evacuee Property, West Pakistan, Lahore PLD 1972 Lah. 798 ref.
(c) Pakistan (Administration of Evacuee Property) AM (XII of 1957)- - Sn. 3 & 22-Word "treated"-"Treating" must be by some officer or authority having control or making use of property under At viz., Custodian or Rehabilitation Authority-"Treating", held, must relate to either a declaration by Custodian about nature of property, or its user by him or Rehabilitation Authority for purposes of Act, so as to indicate consciousness of actual or assumed nature of property-Act of treating, held further, must be definite and overt showing decision of nature of property by Custodian or Rehabilitation Authority by a cot scions act such as passing order treating property as evacuee property, by letting it on rent, or by allottin: it to ac displaced person.-(Words and phrases). Rp. 5j!)-0 {{BLUR PAGE}} Ali hoar Ad Dons v. Owed" Emma Propel" West Paid*" Laken PLD 1964 Lab. 274 1 'lido v. Cuestas o Threasee Property, Wee Pakistan PLD 1964 Lab. 351 and Alaisvcksid v. Algae" itvenwee Property. fireddlP L D 1961 Ker. 589 4.
(d) !War (Ailielierollos at Enema Property) Act (131 a 11157)- - Ss. 20 & M-Conirimadon of sale-Property in dilate never taken over by Custodian or Rehabilitation Authority on assumption of its being evacuee property -Respondent's act in taking over mattes to Deputy Custodian for confinsation of ale of a non-evacuee property, ham We attempt to acquire right or interest in such property-Custodian, keg not justified to adjudicate upon a matter not within his jurisdiction and a finding under S. 20 would not have effect of depriving petitioners of ownership of land or of conferring title on alleged amsforee (respondent No, 3) particulady when propedy nem treated as evacuee property before 1* January 1957. Fp. 6W Eblandmatt v. Custadkis. Evacuee Prow% Karachi PLD 1961 Ka. 589 ref.
(*) Cattier at DINdee- Inrisdiction--Colleetor,held, not competent to decide disputes about rights and title of parties and to deal with intricate matters rehab* to inteipidation of law.--(Judedictioa). 6]!
(f) Cbq Preeeire Cede (V at' 1!M)- -- S. 10-Stay of suit-Substantial questions involved in writ petition not substantial issues Mang in another smit-Sui having no bearing on writ petition. Both. Held, could proceed siandtansously.-- (Wrig. 71 licrasmslas for Petitioners.
Oak. Mohyirl-Dhs Shah for Respondent No 3.
Date of beads' : 6th December, 1977.
MUNkIlliWAT ELME RAMA, J.-The pefidonors have ailed gvelMn the order of theDeputy Custodian.
Evacuee Property, Lahore. Dead 144.1970 and that of the kerred Custodian, Evacuee Property, West Pakistan, Mhos; dated 11-2-71 whereby three sales allegedly made by the amuses in hum of respondent No, 3 were confirmed.
2. The dispae relates to 21 ma let of land in KMa No, 8 of reetaugle No, 588/11 *nate In village Khothianwain, Mad and Lfistdit Balawainaor. It is stated that the than adamant of Bahawalpur transferred land, Wean the land in disputer, to one Sodha and Nal Hag on 7-44933 by Mutation No, 11 sanctioned on 2144935. The vendee, pord. dosed their land vide Mutation Na 12 dated 224-1935, and adds. inekving the land in dispute, fell to the share of the said Soda. In November 1961, Mst. Reheat Bant, petitioner No, 1 purchased this land meaming 21 asirla from Sodha by Mutation No, 493 sancdomed on 28-114961 is her same. Chiming herself to be the owner of this property, she further divested it to petitioners Nos. 2 to 10 through siz dinkiest documents
3. In the meantime, as stated by the petitioner% responded No, 3, who an ova the hatband at Reheat Bibi petitioser, arranged in hi favour three Mutations Nos.
771.772 and 774 dated 17-114966 on the beds of naldned sale-deeds dated 94.1947,10.5-1947 and 4-64947 executed by Mould Ram, Chand and Manghl Rain respectively. On the strength of the said sale deeds, respondent No, 3 contested the mutation of sale made bySoitha in favour of Reheat Bibi petitioner. The Collector reviewed the mutation and can called it on 1-2-1963, but on account of a munpromise between Sodha and Reheat Bibi, Mutation No, 1684 dated 8-4-1969 was again eenctioned.
4. It is stated thatwf4w35 the three mutations of respondent Na 3 were cancelled on 26-1-1969 for the reason that they being bled on the sales to a period after 1-3-1947, did not confer on 6him any title. Respondent No 3, therefore, moved the Deputy Custodian789 86 under section 7fi of the Pakistan (Administration of Evacuee Property) Act (XII of 1957), and the sales were duly confirmed on 14-9-1970 au7n4##nd consequently approved by the leaned Custodian of Evacuee Property on 11-2-1971. Having obtained the confirmation, respondent No, 3 started meddling with the ownership of Ramat Bibi and her tranfonves, that Is why they thought it necomary to challenger his title.
5. Respondents Noe. I and 2 are absent in spite of service. BSS parts against them. Respondent No, 3, on the other hand, den87okjied the claim of the petitioners and maintained that the la7nd in dispute was sold by Sodha to the evacuees, who, is turn, had sold it to respondent No, 3 by three registered documents someti462#mes in June 1947. It has contended that Sodha WM,435%5 therefore, left with no interest to be transferred to Ms. Rehmat Bibi pMidonee. It was further stated that the documents of sale were placed before the Deputy Custodian for confirmation and they, being genuinely executed by the evacuees with consideration, were duly confirmed under section 20 of the Act.
6. On creation of Pakistan t9o089-here was a wholesale evacuation of non-Muslims from this Country, who left behind a considedas4rable property for the management of the Custo&%%%dian of Evacuee Property, but some of them, in the hope of leaving for India, found time to make money out of their property, whereas the opportune non-evacuees, on the other hand, took a chinos to purchase it on favourable prices. Since a number of properties were subjected to unscrupulous mangoes, the respective provinces weal constrained to legislate laws for regulating the proper management of such evacuee property. On the promulgation of the Pakistan (Administration et Evacuee Property) Ordinance (XV of 1949) the identical provincial laws were repealed and the property belong&%%%ing to the evacuees vested in the Custodian with effect from 1-34947. Evacuee property was defined in the Ordinance to mean okay property in which an evacuee had any right or interest (whether Family, or as a trustee or a beneficiary-or any other capacity) and included any right or interest in a Joint Hindu Family property which would ac**&%89crue to the evacuee upon the partition of the samee, or property of an evacuee obtained by trander on oe after 1-34947 until the transfer was confirmed by the Custodian. The Ordinance was later replaced by the Pakistan (Administration of Evacuee Property) Act (XII of 1957) which come into force on 15-3-1957.
7. Under section 16 of the Ordinance and section 20 of the Act, no creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the fiat day of Marsh 1947, by or on behalf of an evacuee, or by or an behalf of a person who had become an evacuee after the date of such creation or tratukr, was effective so {{BLUR PAGE}} ' as to confer any right or remedy on any party thereto, or on any person, claiming under any such party unless it was confirmed by the Custodian. This section further provided that an application for confirmation of such creation of a right or encumbrance or transfer as aforesaid would be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorised by such party. In this respect the Custodian would hold a summary inquiry into the application in the prescribed manner and would reject the application if the creation or transfer was or had been prohibited under any law for the time being in force. The Custodian was competent to reject the application if he was of opinion that the creation or transfer was not or had not been entered into in good faith or for adequate consideration, or ought for any other reason not to be confirmed.
8. The learned counsel for the petitioners has given us the entire background of the land in dispute and contended that it never belonged to the evacuees. According to him it was originally the ownership of the Government and it remained so till it was transferred to Sodha and Fasal Hag.
Mutation No, 11 Annex. A) shows that 633 kanals 6 marlas. Including the land in dispute, was property of the Government and it was sold to Sodha and Fazal Hag on 7-4-1993 The mutation was entered and at tested on 21-8-1935. Immediately afterwards both the vendees, by mutual consent, partitioned their ownership and vide Mutation No, 12 attested on 22-8.1935 (Annex. B) an area of 271 knalas 4 marlas inclusive of the land in dispute fell to the share of Sodha, who later alienated the disputed 21 marlas to Mst. Rehmat Bibi for which Mutation No, 1684 (Annex. C) was consequently attested on 8.4-1969. From the aforementioned mutations, it is established that the property in question remained the ownership of Sodha in the first instance and then vested in Mst. Rehmat Bibi.
As the property was used for residential purposes, it was split up into various plots and was transferred by Mst. Rehmat Bibi to petitioners Nos. 2 to 10 by various documents effected in 1969-70 (vide Antexures D, G, H and I) and Mutation No, 1734 (Annex. E) and No, 1823 (Annex. F). From the documents it is not indicated that the property in dispute was such in which an evacuee had any right or interest whether personally or otherwise. It was never subjected to the control of the Custodian, nor did it vest in him so as to give him jurisdiction to deal with it, to pass orders of confirmation or to make a declaration about its nature.
9. There is no material on record showing that Munshi Ram, Lal Chand and Maghi Ram, the said evacuees had ever acquired any interest in the land. The learned counsel for the respondent contended that Sodha had sold the disputed 21 marlas to these evacuees much before partition, and having attained ownership, they had rightly alienated it to respondent No,
3. We are not supposed to invite evidence and decide questions of fact. However it Is not found on record of this case that the evacuees had eve acquired any right or interest from Sodha or his successors-in- interest. As already pointed out, the land in dispute remained the ownership of Sodha till it was alienated to Mat. Rehmat Bibi in 1969. In the absence of any ownership transferred to the evacuees, the sale-deeds executed by them and the three mutations attested on their basis did not create any right in favour of respondent No, 3 ; and even if the sale-deeds were confirmed by the learned Custodian, they were incapable of conferring any title on him.
10. The learned counsel for the respondent was of the view that the property In dispute had attained the character of an evacuee property when the non-Muslim vendors had declared it to belong to them and had sold it to respondent No,
3. The contention has no force. The power to tree the property as evacuee property only vests in the Custodian or the Rehabilitation Authority as Indicated by section 22 of the Act and not in the evacuees. In Abdul Khaliq v. Kishanchand (I) it is held that the word "treated" must be construed in the context of law relating to evacuee property, The "treating" must therefore be obviously by some officer or authority who could control or make use of this property under the Act 'viz. The Custodian or a Rehabilitation Authority. In section 22 of the Act, it is provided that any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property, may prefer a claim to the Custodian on the ground that the property is not an evacuee property or that his interest in the property has not been affected by the provisions of the Act. This furnishes a clue to the interpretation of the word "treated" in section 3 also. The mere circumstance that the word "treated" in section 3, is not followed by the expression "by the Custodian or a Rehabilitation Authority" does not have much significance. From the very nature of the case the treating must be by such competent authority.
For instance, if a man in the street or even an official like an excise officer, could lay a claim that he was treating a particular property as evacuee property, without the Custodian or the Rehabilitation Department coming into picture, it could not be postulated that this was "treating" the property as evacuee property in the context of Act XII of 1957. So construed the "treating" must relate to either a declaration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabilitation F Authorities, so a' to indicate a consciousness of the actual or assumed nature of the property. It was next contended that the land in dispute was shown in the revenue record as the ownership of the evacuees and it was ultimately allotted to the displaced persons. Even otherwise, the Deputy Custodian, while confirming the sales had assumed Jurisdiction after treating the property as evacuee property. This argument is also fallacious because the property was never dealt with by the Rehabilitation Authority for allotment. The act of treating should be definite and overt so as to appear that the Custodian or the Rehabilitation Authority has, in the exercise of their Jurisdiction, decided the nature of the property by a conscious act such as passing an order treating the property as an evacuee property, by letting it on rent or or by allotting it to some displaced person. In Ali Iqti Jar Shah Dara v. Custodian, Evacuee Property, West Pakistan, Lahore (2), it was hold that there must be some overt act on the part of the Rehabilitation Authorities in respect of a specific property before the aggrieved party should approach the Custodian for declaration that his property had been wrongly treated as evacuee by any competent authority. Where the property was continued to be entered in the Revenue Record as evacuee property in spite of the fact that the Custodian had confirmed the sale, it was held in Abdul Khaliq's case referred to earlier that merely because the vendees were negligent in having the entry corrected and the Revenue Officers themselves omitted to change the entry so as to confirm to the orders passed by the Deputy Custodian, it could not be said that the property was being "treated" as evacuee property within the meaning of the section.
' Section 3 of the Act provided that no person or property not treated (1)PLD 1964 9 C 74
(2) PLD 1964 Loh. 274 {{BLUR PAGE}} as ensues or evacuee property immediately before the first dsy of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property on oc after the said date. However, this provision did not apply to any person in respect of whom or to any property in respect of which any action had commenced or any proceedings were pending immediately before the date mentioned therein for treads' such moons as evacuee or such property as evacuee property or to any property which was occupied, supervised or =urged by a person whose authority or right so to do after the 28th day of February 1947 had not been accepted or approved by the Custodian. The Full Bench of this C()*SNHUI0-//-/*-/ourt had authoritatively dealt with section 3 of the Act in the aforementioned Al Altar Shot's case, and observed that it was an overriding provision of law and bad far-reaching consequences. It orntabeed a positive direction ()*SNHUI0-//-/*-/that in spite of what was co&%%%ntained in other parts of the Act, no parson or property not treated as evacuee or evacuee property immediately before the 1st day of January 195))_+%#FSHJV7, shall be treated as evacuee on or after the said data On a plain reading of this &%%%part of the section it could not be doubted that it placed restriction on the power of the Custodian in respect of persons oss which were not treated as evacuee before the above-mentioned date by rob him to treat each a property as evacuee.
A similar view is taken in Ade v. Custodian of Mecum Property, West Pakistan (I), that there was a bar in subsection (1) of section 3 of Act XII of 1957 in treating a&%%% person or property not treated as evacue))_+%#FSHJVe or as evacuee ()*SNHUI0-//-/*-/property before the 1st day of January 1957, as evacuee or evacuee property on or after the said day. It is held that property in adverse possession of a non-evacuee prior to 1947 cannot be said' to he vested in the Custodian.
The mere fact that names of evacuees continued to be recorded as owners does not Vso facto prove that such owners had proprietary rights in the property. In another case Kbhanelsold v.
Cestottlao, Evacuee Proper% Karocht (2), it is h))_+%#FSeld that entries in revenue record showing property as evacuee property would not indicate that the property was trea))_+%#FSHJVted as evacuee property. {{BLUR PAGE}}
12. In the present case, it is abundantly clear that the property dispute was never taken over by the learned Custodian or by the Rehabilitation Authorities on the assumption that it was an evacuee property. Fore the act of respondent No, 3 to take the matter to the Deputy for confirmation of a sale of a non-evacuee property was a futile attempt acquire a right or interest therein. The Deputy Custodian or the Custodian was thus not justified to adjudicate upon a matter not within jurisdiction. Even if he had done so, it did not take away from the in dispute the character of being a non-evacuee_ property. A finding u section 20 of the Act, in the circumstance', would not, therefore, have affect of depriving the petitioners of ownership and of conferring a title respondent No, 3.
Since the property was never treated as an evacuee property before 1-1-1957, it was not within the competence of the Custodian to treat it as such and confirm the sales after the specified or take any action under the law.
13. Like learned counsel for the respondent further stated in vain the petitioner No, 1 was debarred from making this petition because of the remarks made by the Collector that she had no laces steed: with regard to property in dispute. These remarks are but to be ignored for the rise that the Collector I not competent to decide the dispute about the rights title of the parties and deal with lubricate matters relating to the interpretation (1) PLD 1964 Lab. 331 (2) PLD 1961 Ear. Slit of law. We ate, therefore, not bound by what the Collector has remarked. We find that the petitioners have a good ease to urge before us and assert that the property was never an evacuee property.
14. It was contended last of all that the dispb7ncefrweute relating to ownership Awe. As thdfq3 e parties was pending adjudication in the civil Court, therefor Writ Petition was not competent. We would have given a serious thought to this objection, but an smart died copy of the plaint shown to as relates to a suit for posse lion filed by resp4vtvondent No, 3 on the basis of the three registered sale deeds obtained by him from the evacuees. The order of the Custodian, Evacuee Property confirming the said sales is neither referred to nor relied on in the plaint. It is apparent that in the subject-matter of suit. Thus the substantial questions involved in this writ petition are not, the substantial issues arising in the suit. Therefore. The suit does not appeared to have any bearing on the present writ petition and both of them can simultaneously proceed.
15. For the mesons recorded above the petition is allowed and the impugned orders are declared to have been paned without lawful authority and have no legal effect against the petitioners.
However, the parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.