JALAL SHAH AHD Others vs CUSTODIAN OF EVACUEE PROPERTY, WEST
This matter arises from a dispute concerning evacuee land originally belonging to Hindus who left for India upon Partition. The petitioners claimed title through adverse possession for over twelve years prior to March 1947. After various proceedings before the revenue and rehabilitation authorities and the High Court, the petitioners sought leave to appeal before the Supreme Court. The core legal questions involved the proper appreciation of revenue records regarding adverse possession and the correct interpretation of section 3 of the Pakistan (Administration of Evacuee Property) Ordinance 1957, specifically whether its protection extends to persons in unauthorized possession or management of evacuee properties. The Supreme Court granted leave to appeal to examine these questions of general public importance relating to the interpretation of the statutory provisions of the Ordinance. The Court held that the legal issues raised warranted a full hearing and accordingly granted leave to appeal while continuing the stay already granted.
- Whether the finding of adverse possession prior to 1st March 1947 was based on a proper appreciation of revenue records?
- Whether the protection of section 3 of the Pakistan (Administration of Evacuee Property) Ordinance 1957 is available only to persons who possessed the property under lawful authority?
- Section 22, Pakistan (Administration of Evacuee Property) Ordinance 1957
- Section 3, Pakistan (Administration of Evacuee Property) Ordinance 1957
ORDER
1. FAZALE AKBAR, J.-:The dispute in this case is with respect to 1,418 Kanals and 14 Marlas of land of Khewat No. 2 in Mouza Ahmad Sbah in the Tehsil and District of Montgomery (Sahiwal).
2. The said lands belonged to Hindus who became evacuees on Partition of India. The petitioners who own the lands of Khewat No. 1, are claiming title to the disputed lands by adverse possession for more than 12 years before March, 1947. In 1961, the Settlement and Rehabilitation Commissioner out of the said land allotted 408 Kanals and 5 Marlas to respondents Nos.4 to 11. The petitioners then filed a petition under section 22 of the Pakistan (Administration of Evacuee Property) Ordinance (XII of 1957) for a declaration that they were owners of the said land and that it was not an evacuee property and their petition was accepted by the Deputy Custodian. On appeal by the allottees, the Custodian remanded the case to the Deputy Custodian who thereafter rejected the application and his order was also upheld on appeal by the Custodian. They then moved a writ in the High Court, but the same was dismissed. It may be mentioned here that their contention that the land not having been treated as evacuee property up to 1961 their possession was protected by section 3 of Act XII of 1957, was not at all considered by the Deputy Custodian or the Custodian.
3. The learned Judges of the High Court found that the petitioners had failed to prove their adverse possession for more than 12 years before 1st March, 1947. They then relying on the Full Bench decision of that Court in Syed A.I Iqtiaar Shah and others v. The Custodian of Evacuee Property, West Pakistan (PLD 1964 Lab. 724), held that protection of section 3 was not available to parties who were in unauthorized possession or management of evacuee properties.
4. Mr. Abdur Rasheed, the learned counsel, has contended, inter alia:
(i) that the finding that the petitioners had not perfected the title b adverse possession prior to 1st March, 1947, was not based on proper appreciation of the entries in the revenue records on which the petitioners relied, and
(ii) that in view of the language of section 3 of the Act the High Court was not justified in holding that the benefit of the said section was available only to persons who possessed the property under lawful authority. As the questions raised require interpretation of section 3 and some other sections of Act XJI of 1957, which are of general public importance, we grant leave to appeal on the above as well as the other points raised in the petition.
5. Security for costs--Rs: 1,000.
6. Slay already granted will continue till disposal of the appeal.