SYED DEEDAR HUSSAIN SHAH, J.---Petitioners seek leave to appeal against the judgment of the High Court of Sindh, Sukkur Bench,. Dated 21-5-1999, passed in Civil Revision No,48 of 1991.
2. Succinctly stated facts of the case are that agricultural land measuring 102-22 acres situated in Deh Mangneja, Taluka Warah, District Larkana, was granted to respondents Nos.1 to 7 on full rate conditions by the Assistant Revenue Officer, Sukkur Barrage in an open Katchery held on 13-4-1983.
The grant was confirmed vide order dated 20-4-1983, and the possession of the subject land was handed over to the aforesaid respondents, who improved it through substantial investment. During the last week of October, 1984, they came to know that respondents Nos.8 to 12 had filed Suit No,93 of 1983 against the Colonization Officer and other Barrage Authorities claiming themselves as lessees of the property in dispute through the petitioners. Respondents Nos.1 to 7 contested the suit and also filed Suit No,210 of 1985 with the following prayer:-- "(i) That this Honourable Court may be pleased to declare that the treatment, utilization and disposal of the land in suit as Evacuee Trust Property by defendants Nos.6, 7 and 8 as also its lease by them to defendants Nos.1 to 5 is without jurisdiction, mala tide, illegal, void, ab initio and nullity in the eye of law.
(ii) Grant perpetual injunction restraining the defendants Nos.6, 7 and 8 from treating and utilizing the property in suit as Evacuee Trust Property and from disposing the same by way of lease or in any other manner or mode to defendants Nos.1 to 5 or to any other person or persons and also restraining all the defendants from interfering in any way with the rights and possession of plaintiffs in the property in suit. Costs of the suit may be awarded to the plaintiff."
It was further averred in the plaint that the land in question was earlier granted on full rate conditions from Kharif 1938-39 to Suwami Shalkanan and Hukumchand for a total sum of Rs,6,743- 12 annas payable in 10 installments. On 19-12-1943.Grant was transferred by the Assistant Revenue Officer, Sukkur Barrage, in favour of Gaooshala (Public Trust). The liability for payment of installments was undertaken by Seth Kakoomal and Manoomal. According to respondents Nos.]. To 7 only six installments were paid during the period from 10-5-1939 to 10-5-1945 whereafter remaining installments were not paid with the result that on 23-7-1947 the grant in favour of Gaooshalla was cancelled, resultantly, the subject land reverted to Government as Nakabuli land followed by its grant in favour of respondents Nos.1 to 7.
3. The suit was contested by the petitioners. Learned trial Court after framing necessary issues, recording evidence and hearing learned counsel for the parties decreed the suit vide judgment dated 6-8-1989. Feeling aggrieved, petitioners filed appeal. Which was dismissed by the learned District Judge, Larkana, vide judgment and decree dated 6-5-1991. Thereafter, petitioners assailed the validity of the judgments of the two Courts below through revision petition, which too was dismissed with costs by the High Court vide impugned judgment, hence this petition.
4. Mr. Qamaruzzaman, learned Advocate Supreme Court for the petitioners, inter alia, contended that the property in dispute was allotted to Suwami Shalkanan and Hukumchand by Barrage Department and subsequently a public trust in the name of Gaooshalla was created; that the property in question was an evacuee trust property, therefore, the Barrage Authorities were not empowered to dispose of the same. He further pointed out that Notification No,IV(23)/60/83 dated 7-1-1970 was issued by the Administrator, Evacuee Trust Property (Southern Zone), Karachi, wherein the disputed land is shown as evacuee trust property as required by clause 32 of the Evacuee Trust Properties (Management and Disposal) Act. 1975 (hereinafter referred to as the Act): that the Courts below have not considered the case in its true perspective as the property was declared as evacuee trust property and the Custodian Evacuee Property was guardian of the same. Learned counsel also referred to section 2(d) of the Act, which reads as under:-- "(d) 'evacuee trust property' means the evacuee trust properties attached to charitable, religious or educational trusts or institutions or any other properties which form part of the Trust Pool constituted under this Act." Learned counsel further contended that as required under section 8 of the Act a reference was made to the Chairman. Evacuee Trust Property Board by the Assistant Administrator, Evacuee Trust Property. Sukkur; and that evacuee trust property is a special property which requires special treatment and attention. In support of his contentions learned counsel has relied on Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCM R 1313). District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCM R 25). Evacuee Trust Property Board v. Muhammad Azam (1995 SCM R 520) and Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad v. Iftikhar-ud-Din and another (2000 SCM R 1).
5. Conversely. Khawaja Muhammad Farooq, learned Advocate Supreme Court for the respondents, inter alia, contended that grant of the disputed land was cancelled by the Barrage Authorities for non-payment of instalments in the year 1947; that even before the creation of Pakistan the property in dispute reverted back to the Barrage Authorities; that creation of Gaooshalla trust for public purpose is not borne out from the record and there is no evidence that initially the property was allotted for a public trust. Learned counsel further pointed out that at any time the property was not declared as evacuee property and the Barrage Department after cancelling grant in favour of Suwami Shalknan and Hukumchand rightly placed the property for disposal* which was subsequently allotted in favour of the respondents, who after full payment of instalments became lawful owners of the property; that according to Sukkur Barrage (Validation of Orders) Act (XXXV of 1974), cancellation of grant in favour of Hindus and the grant in favour of the respondents stood validated. Lastly he submitted that the petitioners did not produce relevant record to show that actually the property in dispute was declared to be evacuee trust property 4t any time.
6. We have considered the arguments of learned counsel for the parties and carefully scanned the record. The facts are admitted, as the grant in favour of Suwami Shalknan and Hukumchand was cancelled by- the Assistant Revenue Officer, Sukkur Barrage with effect from Rabi 1947-48 under ARO's Order No,8288/80-P dated 23-7-1947. Property in dispute was subsequently included in the schedule for disposal by Sukkur Barrage Authorities, which was allotted in favour of the present respondents. The grant in favour of Hindus was validly cancelled by Sukkur Barrage Authorities, which was subsequently granted in favour of the respondents. It would be pertinent to refer section 2 of Act XXXV of 1974, which reads as under:-- "2. Validation.--Notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property Act, 1957) (XII of 1957), and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a nap-Muslim who migrated to India or granting such land to any other person shall be deemed to have validly made and shall have, and shall be deemed always to have had, effect accordingly." Subsections (1) and (2) of section 8 of Act 1975 read as under:-- "8. Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in-any Court.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property." Section 2(1)(a) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, defines expression "evacuee" as under:-- '"evacuee' means any person--(a) who, on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March, 1947, leaves or has left any place in the territories now comprising Pakistan for any place outside those territories."
7. It is very strange to note that petitioners were party before the Senior Civil Judge, Larkana, where all material issues were framed, but they did not file any document in support of their case. They did not adduce any material in support of their plea either before the trial Court or the First Appellate Court as well as the High Court. While deciding Issue No,4 the learned Senior Civil Judge observed as under:-- "It is admitted by . D.W. Muhammad Ibrahim in his cross-examination that the suit-land was cancelled on 10-5-1946 for nonpayment of the instalments from grant of Public Trust therefore the property in suit was not Gaooshalla Trust but it reverted to Barrage Department. It is also admitted by D.W. Muhammad Ibrahim in his cross-examination that his department has neither tiled appeal against the cancellation of grant of suit-land in favour of Gaooshalla public trust nor department had deposited the remaining instalments of the suit land, therefore, in view of the admission of D.W.
Muhammad Ibrahim it is clear that the suit-land was not property of Gaooshalla Trust after 10-5- 1946 therefore after creation of Pakistan,the property in suit was not evacuee trust property
8. The aforesaid findings of the trial Court were not specifically agitated by the petitioners before the First Appellate Court or the High Court. It is borne out from the record that indeed there is no order of the Chairman, Evacuee Trust Properties declaring the property to be evacuee trust property, as required by section 8 of the Act. Much emphasis was laid by learned counsel for petitioners on Notification dated 7-1-1970 issued by the Administrator, Evacuee Trust Property (Southern Zone),.Karachi, notifying the take-over, control and management of the property, which could not be termed as declaration under section 8 of the Act, but unfortunately petitioners failed to notice that the Administrator could not at any rate assume the powers conferred on the Chairman as required under section 8 of the Act. The case-law cited by learned counsel for petitioners is not relevant and helpful to his case because it is not proved through strong documentary evidence that the property was declared as evacuee property/evacuee trust property in accordance with law. It would be advantageous to refer here relevant paragraphs of the impugned judgment which read as under:-- "16. I have discussed the various points which were argued by the learned counsel for the applicants since the same are of general importance. The judgment of the lower Appellate Court contains reference to Sukkur Barrage (Validation of Orders) Act (XXXV of 1974), to hold that validity of the order of cancellation dated 23-7-1947 passed by the Assistant Revenue Officer, Sukkur Barrage cannot be examined at the touchstone of various statutes mentioned therein. The said Act was promulgated with the avowed object of validating the orders passed by the Sukkur Barrage Authorities and section 2 thereof reads as follows:-- "2. Validation.--Notwithstanding anything contained in the Pakistan Rehabilitation Act, 1956 (XLII of 1956), the Pakistan (Administration of Evacuee Property) Act 1957 (XII of 1957) and the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958), or any decree or order of any Court or other authority, any order passed by the Sukkur Barrage Authorities cancelling the grant of land made to a non-Muslim who migrated- to India or granting such land to any other person shall be deemed to have validly made and shall have, and shall be deemed always to have had, effect accordingly."
17. It is to be noticed that the above-referred provision begins with a non obstante clause and excludes the effect of the Pakistan Rehabilitation Act, 1956, the Pakistan (Administration of Evacuee Property) Act, 1957 and the Displaced Persons (Land Settlement) Act, 1958 or any decree or order of any Court or other authority. The above Act is promulgated as a special law dealing with the orders passed by the Sukkur Barrage Authorities and would, therefore, exclude the various statutes of general application mentioned therein. The applicants' case is obviously based on the laws which find mention in section 2 of Act XXXV of 1974. The order dated 23-7-1947 passed by the Assistant Revenue Officer, Sukkur Barrage, enjoys immunity from the effect of the statutes referred in Act XXXV of 1974 with the result that the subject property could not have become evacuee or formed part of the Trust Pool.
9. There are concurrent findings of fact recorded by three Courts below. The impugned judgment is based on the correct appreciation of facts and law, and there is no misreading, or non-reading of material evidence, or misconstruction of law.
10. Resultantly, the petition is dismissed and leave to appeal declined.