PLJ 2008 Lahore 95
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
Mst. GHULAM FATIMA & another--Petitioners
versus
PROVINCE
OF PUNJAB &
others--Respondents
C.R. No. 41-D of 1997/BWP, decided on 15.3.2007.
Pakistan
(Administration of Evacuee Property) Act, 1957—
----S. 22--Evacuee property--Ownership of an evacuee
person--Redemption of mortgage--Question of--Recovery of possession and
declaration--Property could not be allotted even to deceased because it was
never treated as a property in the ownership of an evacuee person, having
migrated to India and having been treated and acquired it as owned land of an
evacuee owner--Allottment in favour of deceased according to entries of
jamabandi was void ab intio--Petitioner was not an evacuee and had not left the
land in dispute to become an evacuee, and had not shifted his place of abode
from Pakistan to India or any other country--Property which was in the
ownership of a Muslim owner, who had become Muslim, and was residing in
Pakistan, could not be treated as an evacuee property or its ownership could
not be allotted as such to any person--Held: Land in dispute was owned by
father of plaintiffs and after his death plaintiffs. [Pp. 101 & 103] A & E
Evacuee and Displaced Persons (Land Settlement) Act, 1958—
----Ss. 22 & 25--Pakistan (Administration of Evacuee
Property) Act, 1957, S. 22--Power and jurisdiction--Evacuee properties and
lands--Settlement Authorities had no power or jurisdiction to declare or treat
the land in dispute owned by a Muslim owner to be an evacuee and allot it to
any one--Finality provided to orders of settlement Authorities is to those
orders, which are passed within power and jurisdiciton Civil Court being Court
of ultimate and final adjudication after the repeal of Displaced and Evacuee
Lands can scrutinize as to whether the impugned order was passed within power
and jurisdiction. [P. 101] B
West Pakistan Redemption
and Restitution of Mortgaged Lands, 1964—
----S. 17--Jurisdiction--Period fo 60 years has
passed--With regard to the objection of respondent's counsel that civil Court
has no jurisdiction to entertain petition due to bar--As the period of 60 years
has already passed, therefore, civil Court has got jurisdiction to declare that
the disputed land has not remained a mortgaged property. [P. 101] C
Evacuee Displaced Persons (Land Settlement) Act, 1958—
----Ss. 22 & 25--Allottment of--Mortgagee
rights--Defendants had failed to produce the allottment order on the record
from where it could be decided as to whether deceased were allotted mortgagee
rights or the absolute ownership rights in the land--Held: Ownership of
disputed land could not be considered to have been allotted to
deceased--Revision accepted. [P. 103]
D
Mr. Ijaz Ahmad Ansari, Advocate for Petitioner.
Mr. Maftooh-ur-Rahim, Advocate for Respondent.
Date of hearing: 28.2.2007.
Judgment
Facts narrated, and stated by the learned counsels, found
from the record, leading to the filing of this civil revision, in brief, are
that one Sewa Mal son of Imra Mal, was owner of land, measuring 163 Kanals 18
Marlas (description of which was entered into the heading of the plaint),
situated in Mauza Jindoo Shah, Tehsil Khairur Tamewali, District Bahawalpur. In
his life time, he had mortgaged this land with Bhola Ram, Aaso Ram sons of
Bihari Ram and Hazoor Singh, through Mutation No. 50, sanctioned on 14.5.1944.
Before partition of the Sub-Continent, he had expired and his mutation of
Inheritance No. 54 dated 25.6.1949 was got attested by widow of Sewa Mal, in
favour of his son only, namely Otam Parkash, minor, although Sewa Mal had left
behind Mst. Kushan Bai, widow and Mst. Bushan Mai, a daughter also. It is worth
mentioning here that Mst. Kushan Bai, Mst. Bushan Mai and Ootam Parkash,
mentioned above, had embraced Islam, so had also got Mutation No. 55 entered on
23.3.1951 for correction of their names in the revenue papers due to change of
their religion from Hinduism to Islam before the partition. This mutation of
correction of names was not sanctioned but had remained as such in the revenue
papers. Thereafter, this land was allegedly allotted to Mehar Khan, as was
displayed from entries of jamabandi of the year of 1966-67 (Ex.P-2) through
RL-II No. 2 (date of confirmation is not noted in the aforementioned revenue
papers and RL-II No. 2 has also not been produced by any party to the
proceedings). In the year 1982, Mst. Kushan Bai and Mst. Bushan Mai, widow and
daughter of Sewa Mal, who had got Islamic names of Mst. Ghulam Sakina Bibi and
Mst. Ghulam Fatima Bibi, respectively, filed a suit for redemption of mortgage
alongwith recovery of possession and declaration, in the Civil Court,
Bahawalpur with regard to above noted lands. The suit was tried by learned
Senior Civil Judge, Bahawalpur.
Legal representatives of Mehar Khan, alleged allottee deceased contested the
suit. Ultimately, the suit was dismissed by learned Senior Civil Judge, Bahawalpur on 26.7.1992.
Appeal carried against that judgment and decree met with the same face on
18.4.1996. Hence, this civil revision.
2. Petitioners'
learned counsel submits that the land in dispute was never treated as evacuee
property. Therefore, it could not be allotted absolutely as evacuee property,
as left by evacuee owners. Moreover, if the allotment through RL-II No. 2 dated
nil, was deemed correct, even then Central Government had not gained and
obtained more rights than the evacuees, namely, Bhola Ram, Aaso Ram and Hazoor
Singh, who had got only mortgagee rights and these were to vest in the Central
Government. Consequently, these rights could at the most be
allotted/transferred to Mehar Khan, deceased. As per learned counsel, the land
could not be in any event transferred absolutely, as ownership had remained
vested in LRs of Sewa Mal and Ootam Parkash. To support his contentions,
learned counsel has referred to PLD 1962 SC 284 (Muhammad Khan and others vs.
The Chief Settlement and Rehabilitation Commissioner, West Pakistan and Shamsul
Haq Khan), PLD 1986 SC 35 (Samar Gul vs. Central Government and others) and
2005 SCMR 1004 (Muhammad Hanif and another vs. Ghulam Rasool through LRs and
others). Arguing the case further, learned counsel submits that the learned
Courts below have wrongly declared the suit barred by time under Issue No. 1
because Article 148 of the Limitation Act, 1908 had provided 60 years when the
right to redeem or to recovery possession had accrued to the mortgager.
Challenging the validity of findings upon Issue No. 5, learned counsel submits
that plaintiffs had become Muslims after conversion from Hinduism. Therefore,
they were to be held as Muslims because they had got Mutation No. 55 entered
with revenue authorities. Failure to sanction mutation for that purpose was not
a bar for them to claim the land in question. Moreover, if they are considered
to be Non-Muslims, they having not shifted from Pakistan
to India,
their land could not be allotted absolutely to an allottee. At the most, the
mortgagee rights were considered to have been transferred to the Central
Government and thereafter to the allottee. Therefore, findings of the learned
Courts below that the plaintiffs were Hindus at the time of creation of Pakistan, so
they were affected due to these facts could not be maintained. As per learned
counsel, LRs of Sewa Mal had become Muslims before the formation of Pakistan as is
evidenced through Mutation No. 55.
3. Replying to it,
learned counsel for respondents submits that the Settlement Authorities had
allotted the land in dispute to Mehar Khan through RL-II No. 2 without any
condition attached to it. Therefore, this allotment was to be considered to
have transferred the ownership rights to Mehar Khan without any condition of
mortgagee rights. Learned counsel further submits that as this property was
allotted in the year 1962, therefore, it was considered and treated as an
evacuee property by the Settlement Authorities and it was incumbent upon the
petitioner to invoke the jurisdiction of the learned Custodian, to file a
petition under Section 22 of the Pakistan (Administration of Evacuee Property)
Act, 1957, to get a declaration with regard to the ownership of Ootam Parkash
(Islamic name Allah Bakhsh) or by the plaintiffs that the land was not an
evacuee property and could not be allotted to any displaced person. As
plaintiffs had not approached the learned Custodian, therefore, they could not
file a suit in the Civil Court.
Further argues that in the year 1975, all the Evacuee Laws were repealed w.e.f 1.7.1974. Therefore, allotment
being past and closed transaction could not be opened before the learned Civil Court. He has
also got support from Sections 22 and 25 of the Displaced Persons (Land
Settlement) Act, 1958 and submits that allotment made in favour of Mehar Khan
having become final and having attained finality could not be challenged before
the learned Civil Court.
He has also argued that Civil
Court had got no jurisdiction to determine the
nature of the property in dispute on the basis of provision of the Pakistan
(Administration of Evacuee Property) Act, 1957, which had vested the power and
jurisdiction with the learned Custodian. Therefore, Civil Court had no jurisdiction to
entertain and adjudicate upon the case in hand. He has also referred to
provision of Section 17 of the West Pakistan Redemption and Restitution of
Mortgaged Lands Act, 1964, by which jurisdiction of Civil Court to entertain
any claim or enforce any right under mortgage regarding its declaration,
extinguishment or to question the validity of any proceedings was vested with
the District Collector and the jurisdiction of Civil Court was barred. For the
determination of nature of the property, learned counsel submits that nature of
property cannot be determined by learned Civil Court. For this proposition, he has
referred to 2002 SCMR 829 (Muhammad Sarwar and 5 others vs. Muhammad Ali and 18
others), 1992 SCMR 120 (Ghulam Muhammad and others vs. Custodian, Evacuee
Property, Punjab (West Pakistan) Lahore and
another) and PLD 2003 Lahore 441 (Muhammad Din
and 8 others vs. Province of the Punjab
through Collector and others).
4. Hearing of
arguments, examining of judgments and pondering over the facts narrated, stated
and brought on the record, I have concluded that it is an admitted fact that
the land in dispute had belonged to Sewa Mal, who was its full owner and had
mortgaged it with Bhola Ram, Aaso Ram and Hazoor Singh through Mutation No. 50,
dated 14.5.1944, and in the year 1949, his inheritance had developed upon Ootam
Parkash, his son, who was a Muslim with the name of Allah Bakhsh. For this
purpose, Mutation No. 54, of the inheritance was also sanctioned on 25.6.1949
while Mutation No. 55 for correction of name due to the change of religion was
entered on 23.3.1951. Mutation No. 54 was brought on the record as Ex. P-7 and
this is also an undisputed mutation between the parties. This mutation has
proved and strengthened the finding that the land in dispute was owned by Sewa
Mal and was thereafter inherited by his son
Ootam Parkash through the above mentioned mutation even after the
partition. The record of the suit has also proved that from jamabandi for the
year 1950-51 (Ex. P-9) and onwards, the name of Ootam Parkash had remained in
the ownership column as owner (
) while Bhola Ram and Asoo Ram sons of Behari Ram, Hazoor Singh son of Sekhoo
Ram were noted and entered as ( ). Meaning thereby that uptill
preparation of jamabandi for the year 1962-63 Ootam Parkash had remained as
owner of the land in dispute and Central Government was not entered in the
ownership column. The entires of jamabandi for the year 1950-51 (Ex. P-9),
jamabandi of the year 1954-55 and jamabandi of 1962-63 (Ex. P-6) all had
contained the name of Ootam Parkash son of Sewa Mal in the ownership column. In
other words, ownership of Ootam Parkash had remained intact till the year 1963
and the property was never treated as an evacuee property. There is no evidence
brought on the record that the land in dispute was ever treated by the learned
Custodian or the Settlement Authorities to be an evacuee property. It is
pertinent to point out that the land which was never treated as an evacuee
property, by making any overt act to it, by the learned Custodian/Settlement
Department, in such an event, it was not necessary for the real owner of the
land in dispute, to file a petition under Section 22 of the Pakistan
(Administration of Evacuee Property) Act, 1957. Section 22 of the aforesaid Act
is reproduced as below:-
"Section 22
CLAIMS BY INTERESTED PERSONS
(1) 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:--
(a) the property
is not evacuee property; or
(b) his interest
in the property has not been affected by the provision of this Act.
(2) An application
under sub-section (1) shall be made within the prescribed period being a period
of not less than thirty days from the prescribed date.
(3) On receiving
an application under sub-section (2), the Custodian shall hold a summary
inquiry in the prescribed manner, and after taking such evidence as may be
produced shall pass an order, stating the reasons therefore, rejecting the
application or allowing it wholly or in part on such terms and conditions as he
thinks fit to impose."
5. The opening
words of Section 22 are very clear that `Any person claiming any right or
interest in any property treated by the Custodian as evacuee property'
(underlining is by me). The words `treated by the Custodian' are worth
consideration and have not been used without any aim and purpose. Treatment of
the property is a prerequisite for bringing into the compass of jurisdiction of
the learned Custodian and thereafter by Settlement Authorities, to deal with
any land or property as an evacuee. If a property was not treated as an evacuee
property before 1.1.1957, then that property could not be treated as an evacuee
property after 1.1.1957. Section 3 of the Pakistan (Administration of Evacuee
Property) Act, 1957 is clear on this point. Respondents have failed to bring on
record any evidence that this property was ever treated by the learned
Custodian/Settlement Authorities before 1.1.1957 as an evacuee property.
Revenue Record has also not supported that this property was ever treated as an
evacuee property. The entires of above noted revenue record in the form of
jamabandies have clearly displayed that the land in dispute was being
considered and treated in the ownership of Ootam Parkash as owner, otherwise
the entires in jamabandies must have changed and converted into ownership of
Central Government according to Section 4 of the Displaced Persons (Land
Settlement Act, 1958. The land in dispute having not been treated as evacuee
property and having not been shown in special jamabandi as such and having not
been acquired into compensation pool,
could not be allotted to any refugee claimant or non-claimant vide NLR 1987 UC
500 (Khuda Bux Bhango vs. Settlement Commissioner (Land), etc.) in which
property which was recorded in Muslim ownership was not held to be acquired in
compensation pool and allotment order of such property was set aside in writ
jurisdiction. As the property in question was not treated, therefore, it was
not necessary for the owner to file an application under Section 22 of the Pakistan
(Administration of Evacuee Property) Act, 1957. The word `treatment' is not a
simple word, having simple meaning, but it is a term of law with specific
connotation as held in PLD 1964 SC 74 (Abdul Khaliq Abdur Razzaq vs. Kishan
Chand, etc.) As the land in dispute was never treated as an evacuee property,
therefore, it could not be considered to have gone to compensation pool, in
consequence of which its ownership could be allotted absolutely and wholly to
Mehar Khan, deceased. According to my finding, this property could not be
allotted even to Mehar Khan, deceased because it was never treated as a
property in the ownership of an evacuee person, having migrated to India and
having been treated as acquired it as owned land of an evacuee owner, before
1.1.1957. Therefore, the allotment in favour of Mehar Khan according to entries
of jamabandi of 1962-63 was void ab initio.
6. It is also
interesting that entires of the revenue record, jamabandis as shown above do
not contain the date of confirmation of RL-II No. 2 From this also, it gives an
impression that in fact no such allotment was ever made in favour of Mehar
Khan; otherwise copy of RL-II No. 2 might have been brought on the record by
him or by his legal representatives. If copy could not be obtained, then it
could be made available on the record by summoning into the Court that record
from the concerned department/quarter to prove the genuineness of allotment in
favour of Mehar Khan. Why this exercise was not made, no reasonable explanation
was brought on record by the respondents. Therefore, it appears that no
allotment was in fact made in favour of Mehar Khan.
7. There is yet
another aspect of the case, which has required consideration. If it is presumed
that allotment, in actuality was made in favour of Mehar Khan through RL-II No.
2, then question would arise, how much and to what extent rights in the land in
dispute were allotted to Mehar Khan? As noted above, the land having not gone
into compensation pool, in that situation, at the most mortgagee rights could
be deemed to have been transferred to Mehar Khan, which rights could be
presumed to have been obtained or devolved upon by the Central Government or
the Settlement Authorities. No order of treatment of the lands in dispute as an
evacuee was ever passed for its acquisition by the Custodian Department before
1.1.1957 or thereafter, the Settlement Authorities or the Central Government
under any Settlement Law could not claim its ownership to have vested in it for
absolute ownership rights. Therefore, the rights could be, if any, transferred
to Mehar Khan to the extent of mortgagee rights only and not the ownership
rights of the land to Mehar Khan or his legal heirs. Learned counsel for the
petitioners has rightly referred to PLD 1986 SC 35 (Samar Gul vs. Central
Government and others) and 2005 SCMR 1004 (Muhammad Hanif and another vs.
Ghulam Rasool through LRs and others), for the above discussed proposition.
8. The contention
of the learned counsel that from 1.7.1974, Evacuee and Displaced Persons Laws
were repealed, therefore the Civil Court had got no jurisdiction under Section
22/25 of the Displaced Persons (Land Settlement) Act, 1958 to determine the
nature of the property in dispute, and petition under Section 22 of the
Pakistan (Administration of Evacuee Property) Act, 1957 having not been filed
before the learned Custodian, the land in dispute was correctly allotted to
Mehar Khan, deceased could not be accepted. As noted above, the reply has
already been given in the above noted paragraphs that this property was never
treated, considered, or recorded as evacuee by any competent authority and
never allotted to Mehar Khan, deceased. Therefore, the Settlement Authorities
had no power or jurisdiction to declare or treat the land in dispute owned by a
Muslim owner to be an evacuee and allot it to anyone. The finality provided to
orders of Settlement Authorities is to those orders, which are passed within
power and jurisdiction. Civil
Court being Court of ultimate and final
adjudication after the repeal of Displaced and Evacuee Lands
can scrutinize as to whether the impugned order was passed within power and
jurisdiction. This rule can be easily understood by this explanation that
Settlement Authorities can deal with evacuee properties and lands only but have
no power or jurisdiction with regard to properties and lands of non-evacuee
owners. If such an order is passed by a Settlement Officer, it would be nullity
and void ab initio, being without power and jurisdiction.
9. With regard to
the objection of respondents' learned counsel that Civil Court had no
jurisdiction to entertain the petition due to bar contained in Section 17 of
the West Pakistan Redemption and Restitution
of Mortgaged Lands,
1964, learned counsel
for the petitioners has referred to a decision of the
Hon'ble Supreme Court reported in 1992 SCMR 1822 (Malik Rais Khan vs. Abdul
Mannan and another), which has clinched the matter. As the period of 60 years
has already passed, therefore, Civil
Court has got jurisdiction to declare that the
land in dispute has not remained a mortgaged property.
10. The plea raised by the learned counsel for the
respondents that under Sections 22/25 of the Displaced Persons (Land
Settlement) Act, 1958, finality had attached to the allotment made in favour of
Mehar Khan, suffice it to say that
defendants had failed to produce the allotment order (R-II) on the record from
where it could be decided as to whether LRs of Mehar Khan were allotted
mortgagee rights or the absolute ownership rights in the land. Moreover, as
earlier noticed and held, the ownership of the land in question could not be
considered to have been allotted to Mehar Khan.
11. There is yet
another important aspect of the case which has been found from record. Ootam
Parkash was a minor when his father had died and even when mortgage was made in
favour of above noted persons Ex. P-1 and Ex. P-2 are certificates issued by
Primary School, in which the date of birth of Allah Bakhsh (Ootam Parkash) was
noted as 4.12.1944 while he had left the school in the year 1960. In other words,
he was attending the school till the year 1960. Therefore, Ootam Parkash was
not an evacuee and had not left the land in dispute to become an evacuee, and
had not shifted his place of abode from Pakistan
to India
or any other country, in consequence of partition of the Sub-Continent.
Therefore, the property, which was in the ownership of a Muslim owner, namely,
Ootam Parkash who had become Muslim, and was residing in this part of Pakistan,
could not be treated as an evacuee property or its ownership could not be
allotted as such to any person. Therefore, keeping in view this fact also. I
consider that the land in dispute was owned by Allah Bakhsh and after his death
his mother and sister, namely Mst. Ghulam Sakina Bibi and Mst. Ghulam Fatima,
plaintiffs.
12. Consequently,
by accepting this civil revision, the judgments and decrees of both the learned
Courts below are set aside. Resultantly, the suit as prayed for is decreed in
favour of the plaintiffs/petitioners without any encumbrance, charge or mortgage,
as 60 years have already passed and defendants are not entitled for the grant
of mortgage money even as found above.
(N.F.) Revision
accepted.
