MUHAMMAD DIN AND Another vs GOVERNMENT OF PAKISTAN AND 9 Other

1. HAMOODUR RAHMAN, J.-The petitioners in this case were in possession of certain lands as mortgages in the village of Phular--wan Wazirke, Tehsil Dipalpur, District Montgomery, by virtue of a mortgage executed by the original evacuee owners. The Settle--ment Authorities, however, on the 26th of June 1965, allotted these lands to the respondents Nos. 4 to 10 herein. The petitioners there upon sought to challenge the orders of the Settlement Authorities under Article 98 of the Constitution in the High Court on, inter alia, the following grounds :-

(1) that the land in dispute is not evacuee property and does not form part of the compensation pool,

(2) that the property, which had never been treated as evacuee property before the 1st January 1957, could not now be treated as such,

(3) that the right of the mortgagor is not property but only a right to sue, and

(4) that their possession could not be 'disturbed until the mortgage was redeemed.

2. The High Court summarily dismissed the petition holding that the equity of redemption is immovable property and that the same duly vested in the Custodian as from the 24th of Decem-- ber 1947. The only right that the petitioners had was a charge over the property created by .The provisions of S. 14-A of the Displaced Persons (Land Settlement) Act, which were in no way ultra vires the Constitution.

3. Finally since the authorities had not denied their right to be compensated in respect of the charge created by the above--mentioned statute the rights of the petitioners were, in no way, prejudiced.

4. They could invoke the jurisdiction of the proper forum if and when the authorities sought to deny them that right.

5. Learned counsel appearing in support of the petition has sought to re-agitate the same questions before this Court but having heard him we are satisfied that his contentions are clearly untenable.

6. The High Court was right in holding that under the provisions of the Displaced Persons (Land Settlement) Act the property had become evacuee property and the petitioners as mortgages only had a charge over the property for the amount of the mortgage money that may still be found to be due to them and that such evacuee property had vested in the Custodian from December 1947.

7. We are also in agreement with the High Court that the equity of redemption is immovable property within the meaning of the Transfer of Property Act.

8. Since the petitioners are still in possession they can now proceed in accordance with the provisions of section 14-A of the Displaced Persons (Land Settlement) Act to have the charge assessed and to recover the amount, if any, found to be due to them.