Mst. GHULAM FATIMA Versus PROVINCE OF PUNJAB
SH. HAKIM ALI, J.--- Facts narrated, and stated by the learned counsel, 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 rota the heading of the plaint), situated in Mauza Jindoo Shah Tehsil Kliairpur Tamewali, District Bahawalpur. hi 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 ry widow of Sewa Mal, in favour of his son only, namely Ootam 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 (Exh.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 along with 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 fate on 18-4-1996. Hence, this civil revision.
2. Petitioner's learned counsel submits that the land in dispute was never .treated as evacuee property. Therefore, it coup 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 alletted/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 L.Rs. of Sewa Mal and Ootain Parkash. To support his contentions, learned counsel has referred to Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and Shamsul Haq Khan PLD 1962 SC 284, Samar Gul v .Central Government and others PLD 1986 SC 35 and Muhammad Hanif and another v. Ghulam Rasool through L.Rs. and others 2005 SCMR 1004. 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 recover possession had accrued to the mortgagor. 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-Muslim, 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, L.Rs. 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 has 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 determin2tion 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 Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829, Ghulam Muhammad and others v. Custodian Evacuee Property Punjab (West Pakistan.) Lahore and another 1992 SCMR 120 and Muhammad Din and 8 others v. Province of the Punjab through Collector and others PLD 2003 Lah. 441.
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 lull 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 devolved 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 Exh.P.7 and this is also an undisputed mutation between the parties. This mutation has proved anal 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 (Exh.P.9) and onwards, the mine of Ootam Parkash had remained in the ownership column as owner while Bhola Ram and Asoo Ram sons of Behari Ram, Hazoor Sizigh son of Sekhoo Ram were doted and entered as. Meaning thereby that uptil preparation of Jamabandi for the year 1962-63 Ootam Parkash had retrained as owner of the land in dispute and Central Government was not entered in the ownership column. The entries of Jamabandi for the year 190-51 (Exh.P.9), Jamabandi of the year 1954-55 and Jamabandi of 1962-63 (Exh.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 in tact 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 subsection (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 subsection (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 therefor, 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 riot 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 au evacuee. If a property was not treated as ail evacuee property before 1-1-1957, then that property could not be 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 entries 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 entries m 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 Khuda Bux Bhango v. Settlement Commissioner (Land) and others 1987 MLD 2350; 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 Abdul Khaliq Abdur Razzaq v. Kishan Chand and others PLD 1964 SC 74. 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 and 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 entries 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 Samar Gul v. Central Government and others PLD 1986 SC 35 and Muhammad Hanif and another v. Ghulam Rasool through L.Rs. and others 2005 SCMR 1004, 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 sections 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 any one. 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 with 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 anal lands of non-evacuee owners. If such an order is passed by a Settlement Officer, it would be nullity and void ab inito, 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 Act, 1964, learned counsel for the petitioners had referred to a decision of the Honourable Supreme Court reported in Malik Rais Khan v. Abdul Mannan and another 1992 SCMR 1822, 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 L.Rs. 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. Exh.P.1 and Exh.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 decree 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.
M.B.A./G-52/L Petition accepte