MARYAM BIBI Versus CUSTODIAN, EVACUEE PROPERTY, PUNJAB, LAHORE

MUHAMMAD AFZAL LONE, J.--- This judgment shall dispose of Civil Appeals Nos.87 of 1987 and 698 of 1990, as the common questions of law and facts have been raised therein.

2. The facts, in brief, are that Mst. Maryam Bibi alias Kumari Annebella Kaul the appellant in C..A'No.87/1987 is the daughter of Rai Bahadur Dr. Balkishan Kaul, and was born out of his wedlock with an European lady by the name of Dr. Mrs. Anni Brown, who died in the year 1939 when the appellant was 13/14 years old. The appellant embraced Islam in the year 1942 and married to one Abdul Latif Butt. Her father was owner of vast, properties inside and outside Lahore, as a co-sharer with his two brothers, namely, Raja Sir Hari KishanjKaul and Raja Sir Daya Kishan Kaul. Some of the properties belonged to the appellant's father exclusively. Property No. 10-Montgomery Road, Lahore, measured 22 Kanals, bearing Khasra Nos.5430 to 5438, Hadbast Qilla Gujjar Singh, Lahore, was partly owned by the appellant's. father jointly with his two brothers and a part thereof belonged to him exclusively. The part of the property of which he was the sole owner bore Kashra Nos.7364/5435, 5436, 5437 (1 Kanal, 24 sq.ft), 7363/5435, 5436, 5437 (1 Kanal, 200 sq.ft.), 7364/5435, 5436, 5437 (1 Kanal, 1 Marla, 34 sq.ft.), 7365/5435, 5436,5437 (14 Marlas, 84 sq.ft.) and 7368/5435, 5436, 5437 (2 Kanals, 16 Marlas, 214 sq.ft. The total area of these Khasra numbers comes to 6 Kanals, 13 Marlas, and 16 sq.ft. This property alongwith superstructure raised thereon comprising a bungalow etc., was on 13-1-1932, willed away by the appellant's father to Dr. Anni Brown. This will was acted upon in the revenue record vide Mutation No.671 dated 5-11-1951. The mutation was implemented in the Jamabandi for the year 1954-55; entries whereof were followed in the subsequent Jamabandi for the year 1957-58, wherein Khasra numbers aforesaid were shown as property of Dr. Anni Brown and her name figured in the ownership column of the Jamabandis. She bequeathed this property on 17-12-1935 to the appellant, who was her only daughter. 1n the will the property is described by boundaries as under:

North Graveyard Mohanpura

South Open land of Raja Hari Kishan Kaul, Raja Sir Daya Kishan Kaul.

East Montgomery Road.

West , Property of Nawab Fat eh Ali Khan Quazal Bash which had fallen to the share of appellant's father.

According to the appellant, at the time of partition in the year 1947, she was in possession of this property as its owner.

3. It is on the record that Burewala Bus Service Limited claimed to be vendee from the appellant of land measuring 1 Kanal, 2 Marlas, 66 sq.ft. out of the property bequeathed to her and applied under section 22 of Act 12 of 1957; sought declaration that it was non-evacuee property and challenged its inclusion in the auction list. The appellant denied the sale transaction as well as the receipt of any consideration. The Additional Custodian by his order dated 31-10-1963 on detailed examination of the oral and documentary evidence declared the property to be a non-evacuee property. As regards the sale he left the parties to approach the Civil Court for decision of the dispute. This order was subject to confirmation by the learned Custodian, but he declined to confirm the same and dismissed the application under section 22 of the Act. Consequently, the property claimed by M/s. Burewala Bus Service Ltd., stood labelled as an evacuee property. The order of the learned Custodian is dated 7-2-1964.

4. Earlier on 16-4-1958 the appellant moved an application before the Deputy Custodian of Evacuee Property, Lahore, for grant of a declaration that the several properties mentioned therein owned by her father, who died in the year 1936, and were inherited by her alongwith another co-sharer, to the extent of her share, were not evacuee properties. This application was rejected on 12-5-1964, as unproved. The order of the Additional Custodian makes mention of an award dated 1-5-1935 made by, one Narindara Nath showing that on account of losses in timber business, differences arose between the appellant's father and his two brothers, which were resolved through arbitration; as a result whereof all the properties owned by him were given to his brother, except the part of Bungalow No. 10, Montgomery Road, Lahore, willed away by him to the appellant's mother Dr. Ani Brown on 13-1-1932. This property was specifically excluded from the award, which was made rule of the Court. Its exclusion is also evident from the agreement dated 2-5-1935 entered into between the three brothers. It may be observed that in dismissing the appellant's application, in so far her claim relating to a part of 10-Montgomery Road is concerned, the learned Additional Custodian wholly relied on the order dated 7-2-1964 passed by the learned Custodian in the case of Burewala Bus Service Ltd. Reference No..136 of 1963.

5. The appellant preferred an appeal against the order dated 12-5-1964, but it was dismissed by the learned Custodian on 14-2-1984, paras. Nos.4 and 5 whereof in so far as relevant for the purpose of these appeals, are reproduced below:

"4 Nothing has been urged to show as to how the refusal to grant a declaration to the appellant in respect of these other properties can be said to be erroneous or wrong. In fact, the learned counsel for the appellant submitted that in view of the evidence on record and the conduct of the proceedings, he cannot urge anything except that the appellant should have got the area of 8 Kanals 14 Marlas 219 sq.ft with the Bungalow at 10-Montgomery Road, Lahore because she had got that genuinely through will and/or inheritance and having embrased Islam in 1942, she was entitled thereto and it cannot be said to be evacuee and was never treated as evacuee prior to 1-1-1957 and could not be so treated thereafter in view of section 3 of Act XII of 1957.

5. Although it is an admitted position that the appellant embraced Islam much before Partition in 1942 and has remained throughout in Pakistan. Her mother who was a foreigner had been given the Bungalow with 8 Kanals 14 Marlas of land by her husband in 1932. The mother had given the property through a will to the appellant in 1935. The two brothers of the father of the appellant who could object had agreed that the father had given by will the Bungalow with the area to the mother of the appellant. This is proved by the Arbitration Award and decision of the Court dated 1st and 8th of May, 1935 respectively. However, in the ensuing litigation, the. property has been declared to be evacuee by the learned Custodian as way back as on 7-2-1964. So it was said by the successor learned Custodian on 27-6-1974 in view of the earlier decision of the learned Custodian. Ten years later, it is not possible at . all in the circumstances to grant the appellant the declaration that the property is not evacuee. However, even if it was evacuee or is evacuee, under the latest provision of law vide Scheme No. IX under Act XIV of 1975, the appellant will be entitled to the transfer of the area in her occupation alongwith the Bungalow and can apply to the relevant authorities. "

6. It is discernible from the record before us that during the pendency of the appeal before the learned Custodian the appellant moved an application for grant of stay order, and in the course of its hearing got her statement recorded to the effect that property No. 10-Montgomery Road, Lahore, was not the subject matter of the appeal and was included in the application under section 22 of the Act due to typing mistake, meaning thereby that the application was confined only to the properties claimed to have devolved on her through inheritance from her father. The said application was dismissed with the observation that the appellant could submit an application to the Deputy Custodian in respect of the property in question for declaration that it was non-evacuee property. Pursuant to this order, she filed another application before the Deputy Custodian for-non-evacuee declaration of the property measuring 8 Kanals, 14 Marlas and 219 sq.ft, said to be bearing property Nos.S-33/R-12, S-33/R-12-A, S-33/R-12-B, S 33/R-12-C, S-33/R-12-D, S-33/R-12-E, S-33/R-12-F, S-33/R-12-G,S-33/R-12 H and S-33/R-14 This application also failed and was ultimately dismissed under the Custodians order dated 27-6-1974, on the ground that in view of the Custodian's earlier order of 7-2-1964 rendered in Reference No. 136 of 1963 the Deputy Custodian had no jurisdiction to entertain it.

7. The appellant assailed the order dated 14-2-1984 in writ jurisdiction of the High Court, but the Custodian's order dated 7-2-1964 again stood in her way .and the writ petition was dismissed in limine without going into the merits of the case. This dismissal is under challenge in this appeal.

8. The case of the appellant in C.A. 698/1990 is that she purchased an area measuring 5 Marlas, 137 sq.ft. out of the property in dispute from Mst. Maryam Bibi on 2-9-1971 against the consideration of Rs.28,000; as she was adversely affected by the Custodian's order dated 14-2-1984, she approached the High Court for its removal through writ jurisdiction but it was dismissed in limine on 14-1-1985 by a short order on the basis of the Custodian's order dated 7-2-1964. She, too, has come up in appeal before us.

9. Leave to appeal was granted: "to examine whether all the conditions of the rule of res judicata were satisfied in this case so as to justify the dismissal of petitioner's appeal by the Custodian on 14-2-1984 and also the question. whether the High Court rightly declined to examine the merits of the case on the technical ground that the petitioner had not .independently challenged the order of the Custodian dated 7-2-1964, notwithstanding the fact that her appeal arising out- of the application filed in 1958 remained pending and was disposed of in 1984".

10. We have heard the learned counsel for the parties at some length and 1 examined the record with their assistance. Undoubtedly, the property comprising part of 10-Montgomery Road, Lahore, already described, originally belonged to the appellant's father, who, as per record, during his lifetime bequeathed the same to his wife i.e. Dr. Anni Brown, the appellant's mother, and the latter made its will in favour of the appellant. As already observed the appellant's mother died in the year 1939. The will in favour of the appellant has not been disputed by any of the parties before us. Obviously, on account of the will, the appellant became the owner of this property long before partition. She embraced Islam in the year 1942 and married to a Muslim, and since before partition is residing in Lahore in a part of the property, which is subject-matter of the litigation before us. She has appeared in person before us and inquiries have been made from her. We have absolutely no doubt that property comprising 10 Montgomery Road claimed by the appellant was owned by her and it never liad any semblance of evacuee property.

11. On careful examination of the order dated 7-2-I964, declaring the entire 10-Montgomery Road as evacuee property, we find that it is wholly illegal and contrary to the facts borne out from the record. We may say with respect, that the learned Custodian completely misread the award. He fell in error in holding that under the award the entire property No. 10-Montgomery Road, Lahore, was given away by the appellant's father to his two brothers. The fact of the matter is that upon the language of award itself part of the property willed away by RA Dr. Balkishan Kaul to Dr. Anni Brown was unequivocally excluded from the purview of the settlement between the three brothers envisaged by the award. This is also substantiated by agreement dated 2-5-1935, which the learned Custodian excluded from consideration merely on the basis of surmises. The fact that after the will by R.B. Dr. Balkishan Kaul the appellant and her mother remained in possession of the property has not been given due weight by the learned Custodian. Their possession coupled with the respective wills in their favour, in a way militated against the findings that the two brothers had become exclusive owners of the entire property No.10-Montgomery Road. The implementation of the will in the revenue record goes long way ahead to support the appellant's claim that she was owner of the property and it never bore the character of evacuee property. Furthermore, the dispute brought. before the Custodian was with regard to an area measuring 1 Kanal, 2 Marlas only, but he declared the entire 10-Montgomery Road as an evacuee property. Evidently, the order dated 7-2-1964 travelled beyond the application under section 22 of the Act, which fell for adjudication before him.

12. We now proceed to examine as to whether or `not the order dated 7-2-1964 posed a bar of res judicata for adjudication on merits of the appellant's application dated 16-4-1958. The doctrine of res judicata cannot be invoked on its own force in the proceedings under the Administration of , Evacuee Property Act, 1957, but the principles underlying the rule can be made applicable. For such like cases, the enunciation of the rule made by this Court in Commissioner of Income-Tax, East Pakistan, Dacca v. Wahiduzzaman (PLD 1965 SC 171) is.:

....where there is no statutory provision barring reopening of a matter the applicability of the principle of res judicata depends on the necessity of giving finality to litigation and the injustice of vexing a person twice in respect of the same matter and these being only general considerations relating to administration of justice with no technical and defined limits, the applicability. of res judicata in such cases will be governed by consideration arising with respect to the particular statute under which a matter has been determined the dominant consideration always being that the cause of justice be advanced. "

The cause of justice would be promoted, if the decision sought to be made conclusive is the one arrived at after a fair trial; is such that could reasonably be reached after proper consideration of the material on the record and does not suffer from any illegality, which floats at the surface of the record. In this respect, we have already noticed that the order dated 7-2-1964 is open to serious objections and is the result of misreading of the award and non -consideration of other material on the file. Furthermore, in the Reference No. 136 of 1963, relief was sought regarding an area measuring 1 Kanal, 2 Marlas, 66 sq.ft. and thus technically only that much property was directly and substantially the matte: in the issue in that case and not the one which was covered by the appellant's application under section 22. The High Court was, therefore, not right to treating the ' order dated 7-2-1964 as a conclusive determination of the appellant's rights and foreclosing further inquiry into the character of the property in dispute We have already recorded a finding that the Custodian's order dated 7-2-1964 did not operate as res judicata; the appellant's failure to throw a challenge to its validity is therefore, not fatal to her case.

13. It is noteworthy that the appellant's application was instituted about four years prior to the application culminating in Reference No. 136 of 1963. As noted earlier, it was decided by the learned Additional Custodian on 13-5-1964. Appeal against this order remained pending before the learned custodian for a period of about 20 years and was ultimately rejected on the technical ground of res judicata. It was during the pendency of this protracted litigation, that decision in Reference No. 136 of 1963 was rendered against her. It is really lamentable that despite enduring this litigation for a period of 26 years, the appellant could not get a decision on merits. The remand of the case to the High Court would further prolong her agony. For disposal of this appeal, we have been compelled to make a thorough probe into all relevant aspects of the case, the entire record whereof is before us. Therefore, for doing complete justice in the case instead of remanding the case, we have chosen to decide ourselves this matter finally.

14. The appellant's claim regarding part of Property No. 10-Montgomery Road, Lahore, given to her by her mother under the will, is well grounded, but as regards the other properties, these were given by the Arbitrator, under the award, to Raja Sir Hari Kishan Kaul and Raja Sir Daya Kishan Kaul. The appellant, therefore, could not have legitimately any right therein. The order dated 14-2-1984 amply reflects that even before the learned custodian this position was clearly conceded by her counsel. In these circumstances, her claim with regard to properties other than part of 10-Montgomery Road, Lahore, is not tenable and we uphold the view taken by the learned custodian in this behalf.

For the foregoing reasons, Appeal No.87 of 1987 is accepted, the impugned orders are set aside in so far as these relate to part of Property No. 10 Montgomery Road, Lahore, measuring 6 Kanals, 13 Marlas, 6 sq.ft. described as under:--

KHASRA NO. AREA PROPERTY NO

K-M-S.FT.

7364/5435,5436,5437 1-0-24 S-33-R-12-A

7363/5435,5436,5437 1---200 S-33-R-12-B

7364/5435,5436,5437 1-1-34 S-33-R-12-C

7365/5435,5436,5437 0-14-84 S-33-R-12-G

7368/5435,5436,5437 2-16-214 S-33-R-12-D

(Any accretion in the area of the Khasra numbers will go to the appellant) and the said property is declared as non-evacuee property. The fate of Appeal No.698 of 1990 is dependent on the result of Appeal No.87 of 1987. Resultantly, it is also accepted. The parties are left to bear their own costs.

A.A./M-3146/S Appeal accepted