ALLAH BAKHSH and others vs MUHAMMAD SHAFI and another
This petition for leave to appeal arises from a judgment of the Lahore High Court concerning the restitution of land originally mortgaged by a Muslim to a non-Muslim prior to independence, which was subsequently declared evacuee property, allotted to a claimant, and purchased by the petitioners. The core legal question is whether the failure of a mortgagor's successor-in-interest to lodge a claim before the Settlement Authorities regarding mortgaged land extinguishes their right to seek restitution against a bona fide purchaser from a refugee allottee. The Supreme Court held that the Member, Board of Revenue erred in holding that the failure to lodge a claim with settlement authorities bars the mortgagor's right, as such a view conflicts with established precedent. The Court affirmed the High Court's decision setting aside the Board of Revenue's order, laying down that failure to assert claims before settlement authorities does not override settled law protecting redemption rights against evacuee property transfers.
- Whether the failure of a mortgagor to lodge a claim before the Settlement Authorities regarding mortgaged land extinguishes their right to seek restitution?
- Does an order of the Member, Board of Revenue contrary to settled Supreme Court precedent regarding evacuee property warrant interference in writ jurisdiction?
ORDER
1. ' NASIM HASAN SHAH, J.--This is a petition for leave to appeal against the judgment dated 8-2-1982 of the Lahore High Court, Lahore.
2. ' The land in dispute was owned by a Muslim; he mortgaged it to a non-Muslim named Bhoja for Rs,295 and the relevant mutation in favour of Bhoja was attested on 22-3-1896. During the life time of Bhoja the name of his son Utam Chand was added to Mutation No,167 sanctioned on 23-1-1904 and the name of Nathu brother of Bhoja was also entered as a partner vide the same mutation.
3. After the death of Nathu, his widow, Mst. Narain Devi, transferred the rights of her husband in favour of Nabaya Rao son of Ram Chand, vide Mutation No,4 sanctioned on 8-11-1927. After independence, this property was transferred to a claimant on his verified form, who sold it to the petitioners through a mutation.
4. ' Muhammad Shafi, respondent No,1, made a petition before the A.C./Collector, Jhang Saddar with powers of the Additional Rehabilitation Commissioner (Lands) for restitution of the mortgaged land by his predecessorin-interest which was dismissed vide order dated 26-4-1973 on the technical ground that the original acknowledgement of mortgage was not appended with his application, but was produced afterwards. He also held that the suit land was mortgaged on 11-12-1896 and the petition was put up on 31-7-1972 which was clearly barred by limitation. Against this order, respondent No,1 preferred an appeal before the Additional Commissioner (Revenue), Sargodha Division, who accepted it and allowed respondent No,1 to pay Rs, 295 being the consideration for which the property was originally mortgaged by the-predecessor-in-interest in favour of Bhoja son of Jawan with the further direction to respondent No,1 to deposit the consideration money within one month from the date of order, vide the impugned order, dated 10-8-1974. Allah Bakhsh etc. (who are also petitioners herein) filed a revision before the Member, Board of Revenue who accepted the same vide order dated 27-11-1980 observing inter alia- "The Additional Commissioner in his order has not taken into consideration the fact that the land in dispute was declared evacuee property and given to a claimant from whom the petitioners purchased it. In such cases it is for the claimant of any interest in such land to establish his right before a competent Court of Settlement Department and obtain proper order regarding it. Under the Rules, the Muslim mortgagors or their successors-in-interest should have immediately lodged their claims with the settlement authorities regarding land that they had earlier mortgaged with the non-Muslim evacuees."
5. ' He went on to add-- "In the present case since the respondents did not file their claim before the Settlement Authorities regarding this land it was declared evacuee and allotted to a claimant from whom the petitioners purchased in a proper and bona fide manner. The respondents under the circumstances cannot lay any claim against the petitioners."
6. ' Feeling dissatisfied with the order of the Member, Board of Revenue, Muhammad Shafi respondent No,1 filed a writ petition before the Lahore High Court which was accepted. Hence this petition by the vendees from the refugee/allottee.
7. ' We have heard Mr. Fakharuddin G. Ibrahim, at some length.
8. The view expressed by the learned Member, Board of Revenue in his revisional order, dated 27-11- 1980 was clearly wrong, being in direct conflict with the enunciation of the law by this Court on this point in Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner and another PLD 1962 SC 284.
9. ' The order of the learned Member, Board of Revenue was unsustainable in law and the High Court was justified in setting it aside. We agree with its decision in this respect though for reasons which are somewhat different. We think that the said order was liable to be set aside on the short ground that it proceeded on basis which was contrary to the law laid down by this Court.