Haji KAMEER and others vs SHER MUHAMMAD and others
This petition for leave to appeal challenged a Lahore High Court judgment concerning the status of disputed land sold by the petitioners in 1944 to a non-Muslim who subsequently migrated to India. The core legal question was whether the land was correctly treated as evacuee property and transferred to the respondent, given that the initial mutation was not sanctioned under the Land Alienation Act until 1973. The petitioners argued that the property could not be treated as evacuee property without a formal declaration from the Custodian. The Supreme Court dismissed the petition, holding that because the petitioners had sold the land in 1944 to a purchaser who later migrated to India, the property was correctly classified as evacuee property. The Court affirmed that the subsequent sanction of the mutation by the Deputy Commissioner in 1973 satisfied the statutory requirements. The key principle laid down is that where land is sold to a person who subsequently migrates to India, the property assumes the character of evacuee property, and the lack of a prior formal declaration by the Custodian does not invalidate its transfer to an allottee.
- Does the lack of a formal declaration by the Custodian invalidate the transfer of land as evacuee property if the original owner sold it to a person who subsequently migrated to India?
- Can a mutation sanction under the Land Alienation Act be granted after the property has been treated as evacuee property?
- Section 3, Land Alienation Act
ORDER
1. ' JAVID IQBAL, J.--This petition for leave to appeal is directed against judgment of the Lahore High Court, Lahore, dated 18th April, 1981. Briefly the facts are that the petitioners sold the disputed land in 1944 to one Deva Singh.
2. ' However mutation to that effect could not be sanctioned as the Revenue authorities had refused to grant such sanction as required under section 3 of the Land Alienation Act. Then followed the Partition and Dcva Singh migrated to India. However the petitioners continued to retain possession of the disputed property even after Partition until the disputed land was allotted to Sher Muhammad respondent etc. As evacuees. Sher Muhammad respondent applied to the Collector for the grant of sanction of mutation under section 3 of the Land Alienation Act which was granted in his favour. The petitioners thereupon challenged that order in appeal and the Additional Commissioner remanded the case to the Deputy Commissioner on the ground that the sanction should have been granted by him instead of the Collector as required by law. Hence the Deputy Commissioner granted fresh sanction in favour of Sher Muhammad respondent vide order, dated 9th April, 1973. The appeal and revision of the petitioners against the aforesaid order were dismissed by the Commissioner and the Board of Revenue. They eventually challenged these orders by way of writ petition which was dismissed on the ground that admittedly the disputed land had been sold by the petitioners to Dcva Singh and thus they had nothing to do with the disputed property. If the sanction of mutation to that effect was missing at that stage it was eventually granted on 9th April, 1973 in accordance with the requirements of the Land Alienation Act.
3. ' Learned counsel attempted to argue before us that the property in question should have not been treated as evacuee and that if it could be transferred as such to Sher Muhammad respondent etc. a declaration was required from the Custodian to the effect that it was evacuee property which had not been done in the instant case. But this argument has no force as the petitioners had sold the land in question in 1944 to Deva Singh who subsequently abandoned the said land and migrated to India. Hence thereafter it was rightly transferred to Sher Muhammad respondent as evacuee property. In that view of the matter no interference is called for in the impugned judgment of the High Court. The petition is, therefore, dismissed.