ALLAH YAR vs CUSTODIAN OF EVACUEE PROPERTIES, PUNJAB, LAHORE and others

' MAULVI ANWARUL HAQ, J.---This judgment shall dispose of Writ Petitions Nos.293 of 1984 and 295 of 1984 as the facts as also points of law are also the same.

2. The predecessor-in-interest of the petitioners mortgaged the land in question to non-Muslim evacuees vide mutations sanctioned on 30-4-1890 in Writ Petition No,293 of 1884 and on 12-6-1894 in Writ Petition No,295 of 1884. The land came to be allotted to the private respondents somewhere in the year 1967. The petitioners had filed an application for redemption of the land which was dismissed by a learned Deputy Custodian on 29-4-1970. The appeal filed by the petitioners was, however, allowed on 24-6-1976 and the case was remanded back. The Deputy Custodian again dismissed the application on 30-10-1976. This time the appeal was also dismissed by the learned Custodian on 28-2-1984.

3. Learned counsel for the petitioners relying upon the case of Muhammad Shafi v. Ghulam Qadir etc. (PLD 1978 Lahore 71) contends that on the eve of the non-Muslim evacuees leaving the country in the year 1947 the prescribed period of 60 years had not expired. According to the learned counsel the limitation/stopped to run and it froze on 14-8-1947 by virtue of section 13 of Limitation Act, 1908. No one has turned up for the respondents.

4. We have gone through the copies of the record appended with these writ petitions. We find considerable force in the arguments of the learned counsel for the petitioners. In both the cases the period of 60 years had not expired in the year 1947 when the evacuees left the country. The principle underlying section 13 of the Limitation Act, 1908 would be applicable. The judgment relied upon by the learned counsel squarely applies to the facts of the cases in hand.

5. Besides it is by now settled law that under the provisions of the Displaced Persons laws only the evacuee interest in the property was acquired. Reference may be made to the case of Abdul. Latif v. The Government of West Pakistan and others (PLD 1962 SC 384). The matter again came up before the Supreme Court in the case of Samar Gul v. Central Movement and others (PLD 1986 SC 35), wherein with reference to the various letters referred to by the official respondents in their orders, it was held that it was never intended that the right or interest of the Muslim owners in the property be destroyed by any provision of the Displaced Persons and other laws governing evacuee property. In case. Of mortgaged property it was held in both the above noted cases of the Supreme Court that it was only the interest of the evacuee that was acquired and not that of the Pakistani Muslim owners. The observations of Khalil-ur-Rehman, J. In the case of Muhammad Shafi v. Ghulam Qadir etc. (PLD 1978 Lahore 71) also found favour with the Supreme Court in the case of Samar Gul v. Central Government and 3 others (PLD 1986 SC 35). In this view of the matter we find that respondents Nos.1 and 2 have acted without lawful authority inasmuch as they have failed to decide the question of limitation in accordance with law and its interpretation by the superior judiciary of the country. Accordingly these writ petitions are allowed. The impugned orders of respondents Nos.1 and 2 are set aside. The result would be that the applications of the petitioners for redemption shall be deemed to be pending before the Deputy Custodian/Notified Officer and orders will be passed therein in accordance with law for redemption of the land.