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Second Appeal No. 158 of 1963, decided on 12th June 1967.

, S. 41 read with Ss. 16 & 22 read kith Pakistan Rehabilita tion Act (XLII of 1956), Ss. 7 & 18‑Suit between joint tenants inter se in regard to right to possess land belonging to evacuee owner, their tenancy having originated in 1926‑Not barred by any of aforesaid provisions‑Neither Rehabilitation Authorities nor Custodian has any right or authority to make any order regarding tenancy rights‑Section 22 not mandatory‑Interested person has option to prefer claim‑[Dr. S. M. Asghar Ali Jafri v. Custodian of Evacuee Property, Karachi P L D 1957 Kar. 342 rel..

Khalil Ullah for Appellant.

S. M. Hafees for Respondents.

Dates of hearing: 8th, 9th, 13th and 14th December 1966.

This is a second appeal from the judgment and decree dated 8th February 1963 of Mr. Mehdi Ali Siddiqui, Additional District Judge, Karachi, who affirming the Judgment and decree dated 10th of July 1962 of Mr. S. H. Kazmi, Sub‑Judge 1st Class, Karachi, dismissed the appeal of Sher Muhammad appellant. The facts giving rise to this appeal are as follows.

2. A suit for a declaration to the effect that the plaintiffs are joint tenants in possession of agricultural plots Nos. 247 and 248 Deh. Thano, Tappo, Malir, Karachi, and that the orders dated 25‑6‑58 'and 28‑11‑59 of Additional Rehabilitation Commissioner (Judicial) Karachi and the Deputy. Settlement and Rehabilitation Commissioner (Judicial) Karachi,. respectively had been obtained fraudulently by defendant No. 1 and were ultra vires of the Rehabilitation Act and for an injunction that defendant No. 1 be restrained from ejecting the plaintiffs from the above plots was instituted by Saleh Muhammad and Siddique plaintiffs against Sher Muhammad, defendant No. 1 appellant, and Haji Usman defendant No. 2.

3. It was alleged by the plaintiffs that they were joint tenants of the above‑mentioned plots of land with defendant No. 1 before the partition of the country and in exclusive posses sion thereof since 29‑11‑57 when defendant No. 1 surrendered his rights and interests in the property in favour of the plaintiffs on receipt of Rs. 1,800 from the plaintiffs vide receipt marked A'. It was further averred by the plaintiffs that with a view to create evidence in his favour defendant No. 1 made an application to the Deputy Rehabilitation Commissioner Karachi, that Haji Muhammad Usman, defendant No.1' had taken wrongful possession of his tenancy rights in the said plots and, therefore, he should be ordered to restore possession of the said plots to him, but that the said Deputy Rehabilitation Commissioner refused to help him holding that as only the proprietary rights were evacuee property and the tenancy rights were not evacuee property, he could not interfere in the matter. After the disposal of his application in the above‑mentioned manner by the Deputy Rehabilitation Commissioner, Sher Muhammad, defendant No.1 again moved the Additional Rehabilitation Commissioner, who by an ex parse order dated 25‑6‑58 ordered that Haji Muhammad Usman, defendant No. 2 be ejected from the land in suit and possession be delivered to Sher 1Muhammad. On the basis of the aforesaid order dated 25‑6‑58 Sher Muhammad appellant (defendant No. 1) applied to another Deputy Rehabilitation Commissioner for the execution of the order dated 25‑6‑58 of the Additional Rehabilitation Commissioner and by his order dated 28‑11‑59 the Deputy Rehabilitation Commissioner not only ordered dispossession of Haji Muhammad Usman, who actually had nothing to do with the land in question, bat also of Saleh Muhammad, plaintiff No. 1. It was further alleged by the plaintiffs that although by his order dated 28‑11‑59 the Deputy Rehabilitation Commis sioner had ordered dispossession of plaintiff No. 1, he subsequently on the report of the Agricultural Inspector who had been deputed to the spot for effecting the ejectment, ordered that the standing lehsan crop had been sewn by plaintiff No. 1 in the land and he was entitled to remove the crop. Thereupon, defendant No. 1 instituted a suit against the plaintiffs‑respondents on 16‑1‑60 (Suit No. 133 of 1960) for a declaration against Saleh Muhammad and Muhammad Siddique and Haji Muhammad Usman, defendant No. 2 that they were not tenants and had no connection with the land and for a permanent injunction in respect of the two plots in suit and in the first instance obtained an interim injunction but when the plaintiff No.1 filed his counter‑affidavit saying that Haji Muhammad Usman, defendant No. 2 had no concern with the plots in suit and that the plaintiffs" lehsan crop was a continuous crop usually lasting 5 or 6, years, the learned Sub‑Judge, 1st Class, Karachi, discharged the interim injunction on 3‑2‑60 (Exh. 8). Later, the appellant‑defendant No.1 Sher Muhammad withdrew his suit on 11‑8‑fil but before the suit of defendant No. 1 had been withdrawn the respondents instituted the suit giving rise to the present appeal.

4. Haji Muhammad Usman, defendant No. 2 has stated in his written statement that he had been made party to the pro ceedings before the Rehabilitation Authorities by defendant No. 1, without this defendant (Haji Muhammad Usman) having anything to do with the property in suit. Defendant No. 1, however, traversed the allegations of the plaintiffs by denying that the Court had jurisdiction to try the suit or that the plaintiffs were entitled to the declaration that they had prayed for. H contended that the plaintiffs we're trespassers on the land and the orders of eject anent passed by Rehabilitation Authorities were made pursuant to valid claim and that Rehabilitation Authorities alone were competent to decide as to who the authorized occupant of the land was, and who had to be ejected from the evacuee property or restored its possession. It was further contended by defendant No. 1 that it was wrong that the plaintiffs were joint tenants with defendant No. I at any time and asserted that he (defendant No. 1) alone was the tenant and the lessee from the original owners of the lend and his right alone had been recog nized and accepted by the Custodian and Rehabilitation Authorities and that he had never transferred or surrendered his rights or interests in and over the lands in favour of the plaintiff. He further explained that defendant No.1 was forcibly made to sign the alleged receipt under threat and coercion and undue influence. On the pleadings of the parties the learned Sub‑Judge framed the following issues:

(1) Have the plaintiffs been in cultivators possession of the plots in suit

(2) Has the defendant No. 1 transferred his rights in plots in suit to the plaintiffs as evidenced by the receipt dated 29th November 1957

(3) Was the acknowledgement receipt of Rs. 1,800 dated 29th November 1957 executed under coercion Sad undue influence

(4) Is the suit for declaration and injunction not maintain able.

(5) Are the orders dated 25th June 1958 and 28th November 1959, ultra vires and without jurisdiction

(6) Hare the orders dated 25th June 1958 and 2dth November 1959, been obtained by the defendant No.1 fraudulently

(7) To what relief, if any, are the plaintiffs entitled

5. Subsequently, by an application under Order VII, rule 11, C. P. C. the defendant contended that the suit of the plaintiffs merited dismissal as the suit was in respect of evacuee property and under section 16 of Act XII of 195 , no order of any kind could be passed and that Custodian alone was competent to decide as to what right and interest the plaintiffs had in respect of the property in suit and that the suit was barred under section 41 of the Act No. XII of 1957. It was further contended that the orders in respect of property in suit, of Custodian and Rehabilitation Authorities could not be chal lenged under section 43(7) of Act XII of 1957 and under section 18 of the Act XLII of 1956.

6. On the pleas raised in this application the learned Sub -Judge framed the following additional issues:

(1) Whether the tenancy rights in dispute were created before 1‑3‑1947 Are those rights evacuee property or have been treated as evacuee property If so, its effect

(2) Is the suit barred by section 16 of Act XII of 1957, sections 18 and 41 and 43 of that Act and section 18 of Act XLII of 1956

(3) Has the Court got no jurisdiction

On 23‑7‑60 the Sub‑Judge issued ad interim injunction in favour of the plaintiffs against defendants and on 9th of February 1961 the ad interim injunction was confirmed by the Sub‑Judge. The appellant kept appearing in the suit of the respondents but towards the close of the proceedings the appellant failed to appear, and therefore, on 9‑7‑62 the proceedings were ordered to be ex pane against him and the case was fixed for ex parte proof for 10‑7‑62. On 10‑7‑62 a decree in terms of the prayer made by the plaintiff was passed by S. H. Kazmi, Sub‑Judge, 1st Class, Karachi, on the strength of the affidavit furnished by the plaintiffs. The defendant No. 1 appealed against the judgment and decree of the Sub‑Judge as mentioned above and the appeal of defendant No. 1 was dismissed by Additional District Judge, Karachi, who by his judgment dated 8th of February 1963, affirmed the judgment and decree of the Sub‑Judge, 1st Class, Karachi.

7. Learned counsel for the appellant has contended before me that since the land in suit admittedly belonged to Hindu evacuees the Civil Court was not competent to giant the relief prayed for by the respondents‑plaintiffs and, therefore, the ques tion of the orders of the Rehabilitation Authorities being ultravires does not arise. In this connection the learned counsel referred to sections 16, 22 and 41 of Pakistan Administration of Evacuee Pro perty Act 1957 and to sections 7(2) (b) and section 18 of Pakistan Rehabilitation Act. There can be no manner of doubt that the plaintiffs were in possession of the land in suit as tenants and Sher Muhammad, defendant No. 1, had transferred his joint tenancy rights of these plots to the plaintiffs in consideration of Rs. 1,800. A photostat copy of the receipt as Annexure 1 has been produced by the plaintiffs in the course of the trial of the suit. This receipt shows that the land in suit was in possession of Sher Muhammad defendant along with Saleh Muhammad plaintiff since 1920 and that on receipt of Rs. 1,8C0 by way of earnest money Sher Muhammad had surrendered his rights of possession in favour of the two brothers Saleh Muhammad and Siddique, plaintiffs. Indeed the fact that defendant No. 1 had executed above‑mentioned receipt in favour of the two brothers was admitted b7 the appellant in his written statement but he pleased that it had been executed under coercion and undue influence, He produced no proof in support of this contention. Also, in the suit that defendant No.1 had instituted against the plaintiffs when on the report of the Agricultural Inspector the dispossession of the plaintiffs from the land in suit was stayed, the defendant had admitted the execution of the receipt dated 29th of November 1957. In the absence of proof by the defendant that the receipt was executed under coercion and undue influence, the claim of the plaintiffs that Saleh Muhammad plaintiff was in joint posses sion with Sher Muhammad before 1947 and that on 29th of November 1957 the appellant had transferred his tenancy rights in favour of the two plaintiffs would pass muster. Furthermore, the two orders of the Assistant Custodian dated 6th July, 1959 and 13th July 1959 (copies Annexures 5 and 6) also go to support the contention of the plaintiff that they bad been in possession of these plots since before the partition, as tenants of Hindu owners. According to these" orders of the Assistant Custodian Saleh Muhammad plaintiff was in possession of Survey Nos. 247 and 248 and was directed to render account to the Deputy Rehabilitation Commissioner. The question, however, remains whether the Civil Court has jurisdiction to deal with the tenancy rights in the property in suit and whether they were exempt from the jurisdiction of the Civil Court

8. I do not think that with respect to the plaintiffs respondents' suit the jurisdiction of the Civil Court was barred either under section 41 of Act XII of 1957 or section 16 of that Act or under section 18 of the Act XLII of 1956. The fact that the plaintiffs and defendant No. 1 have claimed in their res pective pleadings the right to possess the property as tenants implies that there is no real and actual controversy between the parties regarding the non‑evacuee nature of the interest and right in the property, which admittedly belonged to Hindu evacuees. The evacuee character of the ownership of the land was pronounced upon in the orders of the Assistant Custodian dated 6th of July 1959 and 13th of July 1959 (Annexures 5 and 6) and nobody has challenged the correctness of that pro nouncement. Section 41 of the Act XII of 1957 reads as follows:‑----

(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction‑

(a) to entertain or adjudicate upon any question arising in any suit; appeal, application or other proceedings as td whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property;

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is empowered by or under this Act to determine.

(2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.

9. It will be seen that in the present case none of the parties to the suit is at issue as regards the evacuee ownership of the land or the non‑evacuee character of the possessory right in the property in suit. The controversy between the parties is with regard to the right of possession of this property. I do not, therefore, see how, when no evacuee interest is involved in the controversy between the parties the provisions referred to above can be attracted to the controversy. Nor can it be said that the case is covered by section 16 of Act XII of 1957; for, in terms of this section all that had vested in the Custodian was the owner ship rights in the land in suit which nobody is denying. The possession of the land was 'not with the Custodian but was with the plaintiffs and defendant No. 1 before the partition. It never went to the Custodian. The legal process sought by the suit was not designed to divest the Custodian of the rights of ownership in the property, nor was he, obviously, being sought to be divested of his possession of the property because the possession by way of tenancy was either with the plaintiffs or with defendant No. 1. The controversy was only with regard to the possession of the property and not with regard to the non‑evacuee character of the tenancy rights or the evacuee character of the ownership of the property. Nor has section 22 of the Act XII of 1957 any relevance to the matter at issue in the present case. None of the parties to the suit was claiming any right or interest in property treated by the Custodian or Rehabilitation Authority as evacuee property. When had been treated as the evacuee rights in the property by the Assistant Custodian was the ownership rights in the land in dispute' and nobody apparently was interested in challenging the correctness of that position. Therefore, no occasion arose for preferring any claim under section 22 of Act XII of 1957. Besides, it is significant that section 22 is 1 not mandatory in its tenor. It merely gives an option to a person claiming a right or interest in any property treated by the Custodian or Rehabilitation Authority as evacuee property to prefer a claim to the Custodian on the ground that the pro perty is not evacuee property or his interest in the property has not been affected by the provisions of this Act. It has also to be noted that even the Deputy Rehabilitation Commissioner in his order dated 28‑I1‑1959 had described the rights in, the property as non‑evacuee tenancy rights. Nor does the suit ‑appear to me to be barred under section 18 of the Act XLII of 1956 because the impugned orders passed by the Rehabilitation Authorities were apparently not passed pursuant to the provisions of the Act. For, the impugned orders of the Rehabilitation Authorities did not fall under any of the categories set out in section 7 of Act XLII of 1956.

10. Learned counsel for the respondents has cited Dr. S. M. Asghar Ali Jafri v. Custodian of Evacuee Property, Karachi (P L D 1957 Kar. 342) in support of his contention that when tenancy right came into existence in favour of non‑evacuees before the 1st of March 1947 they could not be considered as evacuee property and the Rehabilitation Authorities or the Custodian of Evacuee Property, under the prevalent law had no right or authority to allot it to any other, person. The circumstances giving rise to that judgment have been briefly set out in the head‑note as follows:

"The Sind Government had certain premises on lease from 1945 from a Hindu owner who later became an evacuee. On the amalgation of Sind in the Province of West Pakistan, Government vacated this building but did not surrender their tenancy rights to the Rehabilitation Authorities. The Executive Engineer, P. W. D. and the Housing Committee, who controlled the building on behalf of the Sind Government allotted it to the petitioner a medical officer in Government Service. Meanwhile, the Rehabilitation Authorities, coming to know that Government was vacating the premises, allotted the same to respondent No. 3, sub‑editor of a newspaper. This allotment was confirmed by the Custodian of Evacuee Property. It was held, that in view of section 11, Transfer of Property Act neither in law nor in fact, had the Sind Government or its successor the West Pakistan Government . . . surrendered the tenancy rights of the property to the Rehabilitation Authorities or to the Custodian of Evacuee Property. The possession of the property in dispute always remained with the Sind Government or with its successor the West Pakistan Government and in law the tenancy of the property in dispute had not come to an end."

11. In the present case also it is obvious from the material on the record that the land was in possession of the plaintiffs and defendant No. 1 since 1926 and that after Partition vide receipt dated 29‑11‑57 the defendant No.1 surrendered his tenancy rights in the property to the plaintiffs. At no time were the tenancy rights in the property surrendered to the. Rehabilitation Authorities or to the Custodian of Evacuee Pro perty. Although defendant No. I contended that the receipt in question was executed by him under coercion and undue influence, he led no proof to substantiate his plea. It would seem, therefore, that the plaintiffs remained in continuous possession of the property from before Partition and at no time had surrendered their possession to either the Rehabilitation Authorities or the Custodian. Therefore, in the light of the aforesaid judgment, neither the Rehabilitation Authorities nor the Custodian of Evacuee Property had any right or authority to make any orders regarding the tenancy rights. The jurisdiction of the Civil Court had, therefore, been correctly invoked by the plaintiffs. It is significant that at one stage even defendant by a suit invoked the jurisdiction of the Civil Court and it was only after the plaintiffs had instituted the present suit that defendant No. 1 having failed to secure an injunction against the plaintiffs withdrew from his suit.

12. The result is that I see no good ground for interfering with the judgment and decree of the lower appellate Court and maintaining them dismiss the appeal. In the circumstances of the case I make no order as to costs.

A. H. Appeal dismissed.

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