MAULVI ANWARUL HAQ, J.-~ On 24.5.1967, the respondent No. 1 filed a suit against the petitioners and respondent No. ,2. In the plaint, it was stated that the suit property known as Standard Textile Mills, as described in para 1 of the plaint, is owned by her. She explained that property was purchased by Hakeem Muhammad Shafj vide a registered sale-deed dated 3.6.1946 from M/s. Ubrai Rubber Industries Limited for a consideration of Rs.60,000/-; that by means of a gift deed dated 30.10.1962, registered on 7.11.1962, the said Hakeem Muhammad Shafi, the father of respondent No. 1, gifted away the property to her; that property is comprised in Khasra No. 289 of Pakka Garha, Tehsil and District Sialkot and that she is continuing in possession;- that the petitioners claim to be allottee of Khasra No. 289 vide an order dated 19.8.1960. According to respondent No. 1, the property, to the knowledge of the petitioners, was never treated as evacuee neither any rights have been enforced against her on the basis of said allotments; that the industrial concerned stood constructed before the independence of the country and as such property was never brought in the compensation pool under any of the Displaced Persons Laws; that the property which is an industrial concern, could not have been transferred or allotted as an agricuItural land; that a collusive appeal was got filed which was dismissed on 18.4.1967. The said order was also stated to be void and ineffective upon her rights. With these averments she sought a declaration that she is the owner in possession of the suit property and that the petitioners be restrained from interfering with her rights on the basis of said orders, It appears that later the respondent No.-l transferred her rights in favour of M/s. Hafiz Abdul Hameed, 'Anwar-ul-Haq, Inam-ul-Haq, 1Mst. Razia Begum, Mst. Safia Begum, Mst.
Zakia Begum, Mst. Attia Begum, Mst. Munawar Sitara and Mst. Bashir Begum. These persons were added as plaintiffs but later deleted vide an order dated 22.6.1979.' In their written statement the petitioners objected that the Court has no jurisdiction; that the suit is not maintainable; that the suit is barred by time; that the property has not been properly described. On merits material contents of para 3 of the plaint wherein respondent No. 1 had given the details of devolution of title in the suit property through the said transactions were denied for lack of knowledge; that it was asserted that Khasra No. 289 was evacuee property and was brought in the compensation pool.
Official respondent also raised similar objections. Following preliminary issues were framed:-
(1) Whether this Court has no jurisdiction to try the suit?
(2) Whether the Deputy Settlement Commissioner is not necessary party?
(3) Whether the plaintiff has made un-authorised amendments in the plaint? If so, what is its effect?
These issues were in the first instance disposed of on the basis of consenting'statements of the learned counsel for the parties. Thereafter the petitioners filed an application to the Iearned Trial Court for reference of the matter to the Iearned Custodian in terms of Section 41(2) of the Pakistan (Administration of Evacuee Property) Act, 1957 which was rejected on 1.4.1974, Thereafter following issues were framed:-
(1) Whether the suit property is evacuee land and forms part of compensation pool? OPD.
(2) Whether the suit property is a factory building known as Standard Textile Mills and was purchased by Muhammad Shaft in 1946, for Rs.60,000/-? OPP
(3) Whether Hakeem Muhammad Shafi gifted the suit property in- favour of the plaintiff? OPP
(4) Whether the order of allotment of suit property in favour of defendants Nos. 1 to 14 as land is illegal, uItra vires, void, ineffective against the rights of the plaintiff for the reasons stated in the para No. .6 ofthe plaint? OPD
(5) What interest, if any, the defendants Nos. 15 to 18 have in the property? OPD.
(6) Relief.
2. Evidence of the parties was recorded. The Iearned Trial Court vide a judgment and decree dated 22.6.1974 decreed the suit. The petitioners filed a first appeal which was allowed and suit was remanded back. Against this order of remand a Civil Revision was filed in this Court which was allowed on 18.3.1979 and the learned Court of 1st Appeal was directed to decide ail the above- referred, issues. After the remand a statement was made on 16.7.1979 by the learned counsel on behalf of the petitioners that the appeal be dismissed as withdrawn and it was so dismissed.
Thereafter an application was filed by the petitioners stating that they had never authorised any one to seek withdrawal of the appeal. This application was contested and it was allowed on 21.7.1982. This order was challenged in this Court and was upheld on 11.4.1995. UItimately the first appeal was heard by a learned District Judge, Sialkot who dismissed the same vide a judgment and decree dated 10.7.1995.
3. The Iearned counsel for the petitioners contends that the impugned judgment and decrees are without jurisdiction inasmuch as the sole authority to determine the character of the property is the Custodian. Further contends that respondent No. 1 did not take any steps to seek a declaration in terms of Section 22 of the said Act of 1957. Then argues that the property belonged to Mst. Ram Piyari and there is no evidence on record of its transfer in favour of the said M/s. Ubrai Rubbers Industries Limited and consequently there is no valid transfer in favour of the said Muhammad Shafi or the respondent No.
1. The Iearned counsel for respondent No. 1, on the other hand supports the impugned judgment and decrees with the contention that the property was never treated as an evacuee property before or after the prescribed date i.e. 1.1.1957. Further 'contends that acquisition of valid title by Muhammad Shafi and its transfer in favour of respondent No. 1 stands proved on record. States that the transfer in favour of the petitioners in any case is void inasmuch as an industrial concern, duly entered as such in the record has been got allotted on R.L.2 as agricuItural land.
4. I have gone through the copies of the record appended with this Civil Revision, with the assistance of the Iearned counsel for the parties. 1 may note here that all the exhibit documents have been annexed with this Civil Revision arid thus will be referred with reference to the Annexures Nos. On the Paper Book of the Civil Revision. Annexure-H/20 is the Jamabandi for the year 1946-47, the land measuring 9 Kanals, I6 Marlas bearing Khasra No. 289 located in the village Pakka Garha, Tehsil and District Siaikot [i.e. The suit land) is recorded to be owned by Mst. Ram Pyari wife of Sangat Singh. It is recorded to be in possession of M/s. Ubrai Rubber Industries Limited as tenant through Muhummad Shafi son of Budhay Khan as a sub-tenant. The land is classified as " Column No. 9 reads that the said tenant isnot paying anything because the land had been gifted to it while the said sub-tenant claims that the land has been sold to him. In the remarks column there is a note that mutation No. 740 of gift and 896 of sale stands entered but order has not been received.
Copy of Mutation No. 896 is annexed as H/8. A perusal of this document shows that in the first instance the mutation entered on the basis of registered sale-detd dated 3.6.1946 were rejected for the reason that Muhammad Shafi had not paid the mutation fee. It was done vide an order dated 19.1.1950. Thereafter there is an order of AC-II, dated 7.12.1953 that in appeal the mutation has been attested. Annexure H/7 is the Jamabandi for the year 1958- 59 containing the same entires as Annexure H/20. However, the said mutation stands incorporated in the remarks column. The sale- deed dated 3.6.1946 is Annexure H/4. It has been executed by Sardar Sangat Singh, Director and Ram Pyari, wife of Sardar Sangat Singh, Managing Director of Ubrai Rubber Industries Limited. The said executants stated inter alia, that the land comprising Khasra Number 289 with building thereon stands mortgaged with Lala Ram Lai, Advocate, Lahore with possession and that the said executants are authorised in terms of the Articles of the Association of the Company to sell the land and the building thereon. Thereafter the reasons for the sale have been stated i.e. The closure Of the business and the accumulation of the interest on the mortgaged money. With these averments the said executants sold the said property to Hakeem Muhammad Shaft son of Budhay Khan for a consideration of Rs. 60,000/- . Out of this amount a sum of-Rs. 39,618/- was reserved for payment to the said Lala Ram Lai, .Advocate. The Mortgage Deed referred to in the said sale-deed is Annexure H/6 and it contains a note at page 6 of the document that the mortgage stands discharged on payment of a principal and interest due upto 31.5.1946. The payment has been made by .Means of a Bank draft and the number of the Bank draft is noted in the said endorsement dated 4.6.1946 signed by Lala Ram Lai, mortgagee. Needless to state that the document is original and has been produced by the said respondent No. 1. On the basis of the said evidence the Iearned Courts below have concurrently concluded that the land with building stood transferred in the first instance by Ram Pyari to M/s. Ubrai Rubber Industries Limited and then by the said Company to Hakeem Muhammad Shaft. The gift deed in favour of respondent No. 1 is annexed at H/5 which is a registered document. Admittedly the lady is in possession of the property. I have not been able to find anything on record to differ from the said conclusion of the Iearned Courts below.
5. Coming to the said 'first, rather,'the main contention of the le*amed counsel for the petitioner. His main reliance is on a judgment in the case of Shaukat Hayat Jumani v. The Province of Sindh through Secretary, Rehabilitation Department and others (1991 SCM R 580), Azizuddin v.
(Muhammad Ismail and others (1985 S.C.M.R. 666) and a judgment of a Iearned SingleJudge of this Court in the case of National Co-operative Transport Society Lid., Lahore through the President of National Co-operative Society Itd. v. Muhammad Ramzan and another (1994 M LD 1168). 1 may state here that so far as the case of said Aziz-ud-Din is concerned, the same is not relevant at all to the point being urged by the learned counsel inasmuch as in the said case it was the very order of the Custodian declaring the property to be non-evacuee that was brdught under 'challenge before the High Court and was set aside and the Honourable Chief Justice and the Judges thus decided the matter arising out of the said proceeding. So far as the said judgment in the case of National Co- operative Transport Society -Itd. Is concerned, I find that the same was appealed against and was set aside by the Honourable Supreme Court vide a judgment dated31.1.2001 rendered in Civil Appeals Nos. 1489 of 1995 to 1505/1995.
6. However, the said judgment in the case of Shoukat Hayat Jumani fully supports the contention of the learned counsel. However, the judgmefu was rendered by a Bench comprising two Honourable judges. In a later judgment delivered by the Honourable Supreme Court of Pakistan in the case of Muhammad Ismail v. Abdul Haq and others (2001 SCM R 1350) + (2001 PSC 1237), the converse view was taken. In the said cast; a house was transferred by a Deputy Settlement Commissioner vid? An order dated 13,12.1960 to the appellant before the Supreme Court. The respondent, in the first instance challenged the order in the settlement hierarchy but failed. Then he filed a Civil Suit seeking a declaration that he is the owner of the said house. The objection being raised by the learned counsel before me, found favour with the Iearned Civil Judge who returned the plaint. A first appeal! Was dismissed. R.S.A. 1046/97 was allowed by this Court and the suit was decreed, It will be noted here that in the said suit one of the reliefs sought was possession of the property which was delivered by the Settlement Department to the transferee. In the said background, after being satisfied that the property was not evacuee, their Lordships rejected the said objection of jurisdiction, after examining the. Releyant provisions i.e. Sections 3, 22 and 41 and referring to the cases of Abdul Khaliq-Abdul Razzaq v. Kishanchand and others (PLD 1964 SC 74) and Mooso through Legal Heirs and others v. Allahdito through Legal Heirs and 7 others (PLD 2001 SC 23) + (2001 KLR(SC) 255).
7. Now the facts and the circumstances of the present case are absolutely similar to those of the said case of Muhammad Ismail. The property stood transferred to Hakeem Muhammad Shafi, by means of a registered sale-deed, It stood incorporated in the revenue record. There was a clear mention as to the rights being claimed by Muhammad Shafi. There is nothing on record to hold the registered sale-deed not to be genuine. There was no requirement for confirmation*of the said deed as the said transaction stood completed before the prescribed date i.e. On 1.3.1947. There is no evidence on record that the property was ever treated to be evacuee by the Custodian within the meaning of Section 3 of the Pakistan (Administration of Evacuee'Property) Act, 1957. The sole reliance of the Iearned counsel for the petitioner is on the entries in the revenue record. However, in the very judgment relied upon by the Iearned counsel as also in the judgment in the case of Abdul Khaliq-Abdul Razzaq v. Kishanchand and others (PLD 1964 S.C. 74) relied upon by their Lordships in the said case of Muhammad Ismail, it has been held that mere entries in the revenue record continuing the name of the evacuee only would not be treatment of property as an evacuee within the meaning of law.
8. There is yet another significant aspect of the case, It stands admitted on all hands that the land in question is underneath a factory wherein an industrial concern was being run long before the partition of the Sub-Continent.
Throughout the entires in the revenue record the words are " . The fact that the property was never treated as evacuee by the Custodian or for that matter even by the Rehabilitation authorities would be evident that some how or the other the said " has been transferred as agricuIturalland to the petitioners on an R.L.
2. Needless to state that the manner in which the industrial concern, if treated to be evacuee and brought lawfully into compensation pool, is to be disposed of, stands stated in detail in the Schedule to Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Had the Custodian treated the said property as an evacuee, as laid down in the case reported as PLD 1964 S.C. 74 or for that matter by the Rehabilitation authorities, it could never have been transferred as agricuItural land vide an order challenged by the respondent No. 1. It thus stands established on record that the suit property was never treated as evacuee at any time either before or after 1.1.1957 i.e. The date prescribed in Pakistan (Administration of Evacuee Property) Act, 1957. This being so', apart froirfthe fact that the order of transfer in favour of the petitioners is inherently void ab initio, it could not have been transferred even in the manner prescribed in the said Act No. XXVIH of 1958.
9. For all that has been discussed, 'this Civil Revision is dismissed, leaving the parties to bear their on costs.