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Civil Revision No. 191 of 1958, Reference answered on 22nd July 1967.
Part I, para. 1, cl. (viii)‑Temporary allotment‑Does not create any right or interest in allottee in respect of property allotted to him.
Part 1, para. 2‑Allotment under para. 2 is on quasi permanent basis.
Part 1, paras. 1 & 2‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 15 & 16‑(Three stages in dealing with evacuee property' Paras. 1 & 2 of Scheme encourage temporary and quasi permanent allotments‑Sections IS & 16 of Act refer to permanent settlement to displaced person on land allotted to him‑[Taza Gul v. Said Ghulam P L D 1967 Pesh. 157 ref.].
Art. 63‑Decision of Supreme Court on question of law or based upon or enunciating a principle of law binding on all other Courts, but Supreme Court may change its own view of the question or principle.
Part I, para. 2‑Allottee's interest in land allotted to him is "real pro perty"‑Confirmation of allotment, however, does not make him an "absolute owner" of such land‑[Abdur Rashid v. Pakistan P L D 1962 S C 42 ref.].
Ss. 3(1) & 4 read with Punjab Alienation of Land Act (I of 1900), S. 2(3) and Rehabilitation Re‑settlement Scheme (Punjab), Part 1, para. 2-- Right or interest of allottee in land allotted to him is not "agricul tural land".
The right or the interest which the allottee acquires in the land does not fall under any of the clauses of section 2(3), Punjab Alienation of Land Act, 1900 and is, therefore, not agricultural land.
Ss. 3(2), 4 do 6 read with Rehabilitation Re‑settlement Scheme (Punjab), Part I, para. 2 "Immovable property"‑Right or interest of a confirmed allottee in land is such property and is pre‑emptible‑General Clauses Act (X of 1897), S. 3(25)‑[Allah Ditta v. Inayat Ullah R. S. A. No. 94 of 1950 and Bank of Upper India v. Inayat Skinner A I R 1929 All. 161 dissented from].
Whether we accept the view that the right or interest of a mortgagee in an immovable property is a benefit to arise out of land or such an interest in the property is immovable property, such rights are immovable property within the meaning of subsection (25) of section 3 of the General Clauses Act, and on the same reasoning the right and interest of an allottee in the land confirmed in his name is an immovable property. The sale of such rights, being the sale of immovable property (agricul tural land, village immovable property and urban immovable property), is covered by section 4 of the Punjab Pre‑emption Act hence it is pre‑emptible.
The allotment after it is confirmed creates a heritable interest; it is a real property. The interest of the confirmed allottee in the land is village immovable property, and its sale is covered by sections 4 and 6 of the Punjab Pre‑emption Act, and is, therefore, pre‑emptible.
Abdur Rashid v. Pakistan P L D 1962 S C 42; Imperial Bank v. Bengal National Bank A I R 1931 Cal. 223; Peruma Ammal v. Perumal Naicker A I R 1921 Mad. 137; Elumalai Chetty v. P. Balkrishna A I R 1922 Mad. 344; Banarsi Das v. Ran Chandar A I R 1933 Lah. 210; Radha Krishan v. Fakharuddin A I R 1934 Lah. 143 and Nur Ahmad v. Muhammad Ibrahim P L D 1954 Lah. 240 ref.
Allah Ditta v. Inayat Ullah R. S. A. No. 94 of 1960 ; and Bank of Upper India v. Janny Skinner A I R 1929 All. 161 dissented from.
Ss. 3(5) & 4 read with Rehabilitation Re‑settlement Scheme (Punjab), Part 1, para. 2 -Confirmed allottee acquires right in land allotted in nature of occupancy tenancy‑Sale of such land pre‑emptible‑[Abdur Rashid v. Pakistan P L D 1962 S C 42 ref].
S. 16 read with Punjab Pre‑emption Act (I of 1913), Ss. 4 & 6 and with Rehabilitation Re‑settlement Scheme (Punjab), Part I, para. 2‑Section 16 complete bar to suit for possession by pre‑emption in respect of evacuee property allotted and confirmed to allottee‑[Nur Ahmad v. Muhammad Ibrahim P L D 1954 Lah. 240 dissented from].
Held, that though the right and interest of a person in the property allotted to him under the Rehabilitation Settlement Scheme is immovable property and its sale is covered by sections 4 and 6 of the Punjab Pre‑emption Act (I of 1913), yet section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) is a complete bar to the suit for possession to enforce the right of pre‑emption through a civil Court.
No Court or authority can pass any order of whatever kind in respect of an evacuee property. Thus the jurisdiction of the Courts is completely barred to pass any order about such a property.
The Rehabilitation Commissioner, therefore, could not prepare any Scheme by virtue of which such a property or a part thereof or an interest therein could cease to be evacuee property. Allot ment under the Scheme had to be subject to the condition that the property will remain evacuee property.
Abdur Rashid v. Pakistan P L D 1962 S C 42 rel.
United Provinces v. Atiqa Begum A I R 1942 F C 27; Punjab Province v. Sita Ram, etc. P L D 1956 F C 157; Qamar‑uz‑Zaman Khan v. Punjab Province P L D 1955 Lah. 612; Muhammad Zafar v. The State P L D 1957 Lah. 799; Amir Begum v. Sheikh‑ul‑Islam P L D 1954 Lah. 98; Malik Muhammad Sharif v. Crown P L D 1954 Lah. 640; S. A. Sattar v. Crown P L D 1956 Kar. 138; Irshad Mian v. Muhammad Ishaq P L D 1953 Lah. 293 and Allah Ditta v. Inayat Ullah R. S. A. No. 94 of 1960 ref.
Nur Ahmad v. Muhammad Ibrahim P L D 1954 Lah. 240 dissented from.
Rana A. Rahim for Raja Said Akbar Khan for Petitioner.
Mian Muhammad Shaft for Respondent.
Dates of hearing : 22nd December 1966 and 9th January 1967.
Mahmood‑ul‑Hassan was the allottee of the land in dispute. It was an evacuee property and was allotted to him under the Rehabilitation Settlement Scheme. It was a permanent allotment. It is provided in paragraph 14 of the Scheme as:‑--
"The allottees concerned may transfer by sale, exchange, gift, will, mortgage or other private contract their rights or interests in the land allotted to them under the Rehabilitation Settlement Scheme except where‑
(a) the allottee concerned has not made full and final settlement of any Government dues, including the Rehabilita tion Fee;
(b) the land held by the allottee concerned is the subject matter of an appeal, revision or review before a Rehabilitation Authority;
(c) the land has been allotted in lieu of rights as mortgagor or mortgagee till such time as the allottee concerned has ful filled the terms and conditions contemplated to be prescribed in regard to such cases;
(d) the land has been allotted provisionally on the basis of a certificate issued by the Central Record Office in accordance with para. 10, Chapter I, Part II of the Rehabilitation Settlement Scheme.
Provided further that if the allottee‑alienor is subsequently found to have obtained the allotment of land by fraud or by misrepresentation the alienation will be deemed to be void.
(2) Such alienation will only be entered in the cultivation column of the records the implication being that the land will continue to be evacuee property even after alienation."
He sold his rights in the land for Rs. 5,980.00 by a registered sale deed dated the 29th of July 1957. Ali Muhammad filed a suit to pre‑empt the sale on the ground that he had been allotted land on a quasi‑permanent basis in the same Khata which is the Khata of the land in dispute and was a co‑sharer with the vendor and, therefore, had a right to pre‑empt under section 15 of the Punjab Pre‑emption Act (I of 1913). The defendant resisted the suit and pleaded that the sale by a person of his rights in the land allotted to him is not pre‑emptible and that the Civil Courts had no jurisdiction to entertain and try the suits. The Civil Judge held that the suit was barred under section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1.957). The plaintiff pre‑emptor has challenged this order.
2. It was held in Nur Ahmad v. Muhammad Ibrahim (P L D 1954 Lah. 240) that the sale by an allottee is pre‑emptible, but a contrary view was taken in Allah Ditta v. Sheikh Inayatullah (Regular Second Appeal No. 94 of 1960). This necessitated a reference to the Full Bench and the question which falls for determination is whether the sale by an allottee of the land which was allotted to him under the Rehabilitation Settlement Scheme, if he has obtained the approval of the Custodian under paragraph 14 of the Scheme, is pre‑emptible There is no dispute as to the nature of the property. It is admitted that the property be longed to an evacuee non‑Muslim and it vested in the Custodian under section 7 of Act XII of 1.957. By the confirmation of an allotment of land to a displaced person under the Rehabilitation Settlement Scheme, the property continues to remain an evacuee property. It was, however, argued on behalf of the petitioners that although the land was an evacuee property, but on the confirmation of allotment of the land to a displaced person under the Rehabilitation Settlement Scheme certain rights were created in favour of the allottee and those rights being a right or interest in the land were immovable property and when a person filed a suit to pre‑empt the sale of such rights by an allottee, the suit was in respect of a property which was not evacuee.
3. There have been different stages in the allotment of land to the persons who migrated to Pakistan on account of civil disturbances in the sub‑continent following the independence of 1947. To begin with, the refugees were given temporary allotments of land. Under section 8 of the Pakistan (Rehabilitation) Ordinance (XIX of 1948) a Rehabilitation Commissioner was empowered to take over and assume control of the evacuee lands and to settle refugees on any abandoned land. In the exercise of this power, he made and enforced the Rehabilitation Settle ment Scheme. Temporary allotment was defined in clause (viii) of paragraph 1 of the Scheme as an allotment under the provisions of Pakistan (Rehabilitation) Ordinance XIX of 1948, as amended by the Pakistan (Economic Rehabilitation) (Amendment) Ordinance A (XVI of 1949), other than a grant under clause (2) of the said Scheme. It is now well settled that a temporary allotment did not create any right or interest in an allottee in respect of the property allotted to him.
Under clause (2), "all persons, who, in the prescribed area, owned land or held occupancy or other rights of a similar nature in land as may be specified by the Rehabilitation Commissioner (Lands) from time to time, may be allotted land subject e to such terms and conditions as may be prescribed by him." The allotments made under the Scheme were on quasi‑permanent basis.
Under section 4 of the Displaced Persons (Land Settlement) Act (XLVII of 1958), the Government of West Pakistan on being required by Central Government was authorised to acquire by notification in the official Gazette evacuee land situate in the Province for any of the purposes of the Act. In the preamble, the purpose of the Act was stated to be "the permanent settlement of displaced persons on land in order to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India, and for matters incidental thereto or connected therewith." It was provided in subsec tion (3) of section 15 of the Act: "A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commencement of this Act under a scheme as defined in clause (7) of section 2, or by a Settlement Authority under sub section (1) shall be settled permanently on that land . . . . ." It was further provided in section 16: "Notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person." In Taza Gul v. Said Ghulam (P L D 1967 Pesh. 157), it was held by the Full Bench: "On a careful comparison of the languages of section 16 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) before the amendment and after the amendment by Displaced Persons Laws Amendment Ordinance (XIII of 1964), one finds no material difference in the meaning, though there is a change in the language. At any rate the unamended section 16 confers full proprietary rights on the displaced person in that the section in very clear terms states that the displaced person would be entitled to hold and enjoy the rights and title conferred on him and to transfer or alienate the same."
4. Thus, there have been three stages in dealing with evacuee property, i.e. the temporary allotment, then the quasi‑permanent allotment and finally when it was permanently settled on that displaced person. In this reference, we were not con cerned with the temporary allotment nor does it relate to the land which has been permanently settled on an allottee under Act XLVII of 1958. The question to be answered is whether the sale by a confirmed allottee of his rights and interest in the property is pre‑emptible.
5. In order to deal with this question we will have to bear in mind the two aspects which necessarily arise, namely (a) whether the rights and interest of a confirmed allottee in the land are covered by section 4 of the Punjab Pre‑emption Act; and if so (b) can the right of pre‑emption be enforced through a civil Court
Section 4 of the Punjab Pre‑emption Act (I of 1913) reads: "The right of pre‑emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such property only in the case of sales, or of foreclosures of, the right to redeem such property . . . " In section 6 it is provided: "A right of pre‑emption shall exist in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained." Section 7 deals with the right of pre‑emption in respect of urban immovable property and lays down: "Subject to the provisions of section 5, a right of pre‑emption shall exist in respect of urban immovable property in any town or sub‑division of a town when a custom of pre‑emp tion is proved to have been in existence in such town or subdivi sion at the time of the commencement of this Act, and not otherwise." The right of pre‑emption exists in respect of the sale of agricultural land or village immovable property or urban immovable property.
6. It is now well‑settled that an allottee acquires by the provisional permanent allotment certain rights in the land. In Abdur Rashid v. Pakistan (PLD 1962 SC 42) it was held by their Lordships of the Supreme Court: " . . having regard to the rights expressly conferred upon him by the Scheme itself an allottee, in whose favour an allotment has been confirmed, acquires a right which is in every sense of the terms a real property' in its true juristic concept‑an interest in land." An attempt was made on behalf of the vendee to argue that the allotment under the Scheme was a grant, and the fact that the Scheme permitted the transfer by sale, exchange or gift of an interest of an allottee and also made this interest heritable will not make any difference in the nature of grant and that notwithstanding these provisions, the allottee or the transferee does not acquire any right in the land. We do not feel ourselves competent to deal with this question in view of the pronouncement of the Supreme Court. It is provided in Article 63 of the Constitution: "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan." The Supreme Court has specifically dealt with the nature and scope of the right of a confirmed allottee in the land. The decision of the Supreme Court is a law declared and is binding on all Courts in Pakistan. The ultimate responsibility of interpreting the law of the land is that of the Supreme Court. It may change its own view of an earlier decision because the Constitution does not make the Supreme Court bound by its own decisions since the words "all other Courts" in Article 63 obviously refer to all other Courts except the Supreme Court. The High Courts and the other Courts are constitutionally bound to follow the decisions of the Supreme Court and it is not open to them to question any prin ciple enunciated by it. As soon as the Supreme Court gives a decision on a question of law, all decisions of the High Courts and other Courts on the point have to be in accordance with the same.
The allottee, as held by the Supreme Court, acquires an interest in the land. His interest is a real property. The allottee, however, by virtue of the fact that the allotment is confirmed in his name does not become the absolute owner of they land.
7. The question arises whether the interest of the allottee in the evacuee land is an agricultural land or is an immovable property within the meaning of the Punjab Pre‑emption Act (I of 1913). Clause (1) of section 3 of the Punjab Pre‑emption Act defines the "agricultural land" to mean "land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907) but shall not include the right of a mortgagee, whether . . . usufructuary or not, in such land." In section 2 (3) of the West Punjab Alienation of Land Act, the definition of "land" is stated thus:‑
"the expression land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes‑
(a) the sites of building and other structures on such land;
(aa) any rights of occupancy acquired under the Punjab Tenancy Act, 1887, the Hazara Tenancy Regulation, 1887, or the Agror Valley Regulation, 1891, as the case may be;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land‑revenue payable by an inferior landowner to a superior landowner;
(d) a right to receive rent;
(e) any right to water enjoyed by the owner or occupier of land as such;
(f) any right of occupancy; and
(g) all trees standing on such land."
The right or the interest which the allottee acquires in the land does not fall under any of these clauses and is, therefore, not an agricultural land.
8. It is next to be seen whether the interest which a con firmed allottee acquires is a "village immovable property". The "village immovable property" is defined in section 3(2) of the Punjab Pre‑emption Act and means "immovable property within the limits of a village other than agricultural land." It is laid down in section 3 (25) of the General Clauses Act (X of 1897) that immovable property "shall include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth." We have already noted that the interest of an allottee is not land. Even the definition on its own language is not exhaustive. A subtle distinc tion has at times been drawn between an interest in the immovable property and the immovable property itself. On the basis of such a distinction, the learned Advocates for the vendee have contended that although an allottee's right is an interest in the immovable property, it is not the immovable property itself. It is also argued by them that such an interest is not the same thing as a benefit to arise out of the land and, therefore, a sale by an allottee is not pre‑emptible.
Learned counsel for the plaintiff pre‑emptor on the other hand contended that the creation of an interest in the immov able property falls short of ownership of the land, and yet it is an immovable property within the meaning of clause (25) of section 3 of the General Clauses Act. He pointed out that a mortgage is a transfer of an interest in specific immovable property and not the transfer of the immovable property itself, yet the interest so created is an immovable property. On the same premises, he contends that the interest which an allottee acquires in the immovable property is also an immovable property.
9. The incidents of a mortgage and those of a confirmed allotment are different. But in so tar as that both the mortgage and the confirmed allottee acquires an interest in the immovable property, they possess a common characteristic. It is with refer ence to the creation of such an interest alone that it is to be examined whether such an interest can be held to be immovable property. Mortgage is a transfer of an interest in immovable property. This distinguishes it from sale which is a transfer of ownership of immovable property. The interest of a mortgage in the land is less than ownership which continues with the mortgagor. When an evacuee land is confirmed by allotment, the allottee also gets an interest in the land. It is less than ownership, because the property remains vested in the Custodian. The ownership of property is a right which is distinct from the right of a confirmed allottee. We have been referred to a number of authorities, where it was held hat the interest of a mortgagee was an immovable property, to contend that on the same premises, the interest of a confirmed allottee in the land is an immovable property. In Bank of Upper India v. Janny Skinner (A I R 1929 All, 161), it was held that a mortgagee's interest comes within the meaning of the expression benefits to arise out of land' and that no valid and legal transfer of the legal interest can take place unless it is by a registered instrument as required by section 17 of the Registration Act. In our opinion, an interest in immovable property which a' mortgagee acquires cannot be said to be "benefits arising out of land" within the meaning of clause (25) of section 3 of the General Clauses Act. It is an interest in land itself which is acquired by a mortgagee by reason of the creation of the mortgage in this favour. In Imperial Bank v. Bengal National Bank (A I R 1931 Cal. 223), Rankin, C. J., observed that a mortgage is not a "benefit to arise out of land" within the meaning of clause (25) of section 3 of the General Clauses Act. It was, however, held that since a mortgage was the transfer of an interest in specific immovable property, it is an immovable property itself. Wallis, C. J., in Peruma Animal v. Perumal Naicker (A I R 1921 Mad. 137) reviewed on the question the statute law and the authorities. He pointed out that before 1900 mortgage debts could be transferred as actionable claims and on the transfer of the debts, the securities passed by operation of law, but that when, in 1900, secured debts were excluded from the class of actionable claims, the intention of the Legislature must have been that in general, mortgage debts should only be transferred with the mortgagee's interest in the land and therefore by registered instrument. In Elumalai Chetty v. P. Balkrishna (A I R 1922 Mad. 344) also it was held: "It seems to me quite clear that a mortgage of immovable property is itself immovable property under the Transfer of Property Act, whatever the form of the mortgage may be; and the transfer of ownership of such a right falls under section 54 and will require a registered instrument for the purpose." In Banarsi Das v. Ram Chandar (A I R 1933 Lah. 210) it was held: "Mortgagee rights are indisputably immovable property." In Radha Krishan v. Fakhar uddin (A I R 1934 Lah. 143) it was held: "Mortgagee rights in land fall within the definition of immovable property . . . . . ." The sale by a mortgagee of his mortgagee rights is pre‑emptible as held in Nur Ahmad v. Muhammad Ibrahim. It is for the reason that the mortgagee rights which consist of an interest in the property is an immovable property. It may, however, be mentioned that the creation of a mortgage itself is not pre emptible, because it is excluded from the operation of section 4.
Thus whether we accept the view that the right or interest of a mortgagee in an immovable property is a benefit to arise out of land or such an interest in the property is immovable property, such rights are immovable property within the meaning of subsection (25) of section 3 of the General Clauses Act, and on the same reasoning the right and interest of an allottee in the land confirmed in his name is an immovable property. The sale of such rights, being the sale of immovable property (agricultural land, village immovable property and urban immovable property), is covered by section 4 of the Pre‑emption Act and hence it is pre‑emptible. In this view of the matter, with utmost respect, we find ourselves unable to agree to the finding in Allah Ditta v. Inayat Ullah (Regular Second Appeal No. 94 of 1960) that the "sale of right of allotment in evacuee agricultural land" is "no more than a licence and transfer of such a right though with the consent of the owner is per se not pre‑emptible." The allotment after it is confirmed creates a heritable interest. As held in Abdur Rashid v. Pakistan it is a real property. The interest of the confirmed allottee in the land is village immovable property, and its sale is covered by sections 4 and 6 of the Punjab Pre‑emption Act, and is, therefore, pre‑emptible.
10. There is yet another aspect of the case. In Abdul Rashid v. Pakistan, it was held that subject to the conditions of allotment and the right of resumption, the allottee becomes "clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus he may, subject to those conditions or covenants, deal with the same as any other such tenant would have been entitled and may even dispose of them or alienate them either by an instrument inter vivos or by will." In this view, a confirmed allottee acquires rights which are in the nature of occupancy tenancy. Sale is defined in section 3 (5) of the Punjab Pre‑emption Act to mean: "sale shall not include‑(a) sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or a Revenue Officer, (b) the creation of an occupancy tenancy by a landlord, whether for consideration or otherwise." But the sale of occupancy rights is also pre‑emptible under the Punjab Pre‑emption Act.
11. The next question which falls for determination is whether a person having the right of pre‑emption can enforce it through the civil Courts. The civil Courts are prima facie entitled to determine all civil matters and if a person complains that a right in him has been denied, he has a right to file a suit under section 9 of the Code of Civil Procedure in a civil Court. The civil Courts have the jurisdiction to try all suits of civil nature unless their cognizance is expressly or impliedly barred. It is also provided in section 21 of the Pre‑emption Act: "Any person entitled to a right of pre‑emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right." Besides section 9 of the Code of Civil Procedure, he had the right to an action also under section 21. It is clearly provided in this section that a person entitled to a right of pre‑emption can enforce it through a suit.
It is contended on behalf of the respondents that a sale by an allottee of his rights and interest in the land cannot be pre empted through Court because the jurisdiction of the civil Courts is expressly barred under section 16 of Act XII of 1957 to pass any order in respect of an evacuee property.
It was contended on behalf of the pre‑emptors that the interest of a confirmed allottee in the land is an immovable property and when a suit is filed to pre‑empt its sale, the suit relates not to any evacuee property but to such an immovable property which has not any incidents of an evacuee property.
The precise argument was that the interest which the allottee acquires in the property after its confirmation is not an evacuee property and a suit to pre‑empt its sale is not barred under section 16. This question has also been dealt with in Abdur Rashid v. Pakistan and it was held: From an examination of these provisions of the Scheme it would appear that an allotment, although essentially a grant from the Government, does, when it has once been confirmed, create certain rights or interest in the land allotted which the allottee may in accordance with clause (14) of Chapter 11, Part I of the Scheme transfer by sale, exchange gift, will, mortgage by private contract but even so the land continues to remain evacuee property throughout and has to be utilised only for purposes approved by the Rehabilitation Authorities, and may be resumed if the conditions of allotment are not fulfilled by the ailottee." It was also held: "Then under sub‑clause (1) of clause 14 the allottees concerned were given the right to transfer by sale, exchange, gift, will, mortgage or other private contract their rights or interests in the land allotted to them under the Rehabilitation Settlement Scheme after he had made full and final settlement of all Government dues including rehabilitation fee. Nevertheless, under sub‑clause (2) of the said clause such alienation could only be entered in the cultivation column of the revenue records the implication being that the land continued to be evacuee property even after such alienation." Thus, the whole land notwithstanding the rights created in the confirmed allottee continues to remain evacuee property and it does not cease to be evacuee to the extent the rights are created in a confirmed allottee. This is also borne out by the provisions of the Pakistan Rehabilitation Ordinance (XVII of 1956) read with the Pakistan (Administration of Evacuee Property) Act (XII of 1957). The land is allotted under the West Pakistan Rehabilita tion Settlement Scheme. The Scheme was made under section 6 of Act XLII of 1956. Section 6 reads as: "The Central Govern ment may by order authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified, and to allot the same to persons resident in Pakistan, whether refugees or not, and upon such order being made, the Commissioner shall have all such powers, not inconsistent with the provisions of this Act, as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid." It is provided in section 4 of the Act that its provisions "and the rules made thereunder shall be in addition to and not in derogation of the provisions of the Pakistan (Administration of Evacuee Property) Act, 1957, and the rules made thereunder . . . . " The Central Government had authorised the Rehabilitation Commissioner to pool the evacuee property and to allot it to the refugees, etc. The Rehabilitation Commissioner, therefore, could not prepare any Scheme by virtue of which such a property or a part thereof or an interest therein could cease to be evacuee property. Allot ment under the Scheme had to be subject to the condition that the property will remain evacuee property. Under subsection (1) of section 7 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) "all evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947." The Custodian could not be divested of this property or any interest therein by any provision in the Scheme. The allotment under the Scheme, therefore, since it had to be consistent with the Administration of Evacuee Property Act, had all along been subject to the condition that the property remained an evacuee property. It is obviously for this reason that it was specifically provided in para. 14 (2) of the Scheme that "such alienation will only be entered in the cultiva tion column of the records the implication being that the land will continue to be evacuee property even after alienation."
12. The counsel for the plaintiff pre‑emptor contended, though half‑heartedly, that an Act which bars a civil remedy in certain cases is repugnant to the provisions of the Code of the Civil Procedure. The qualifying words in section 9 of the Code preclude such a contention as held in United Province v. Atiqa Begum (AIR1942FC27). Moreover, there is no question of repugnancy between section 9 of the Code of Civil Procedure and section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957). Section 9 itself postulates the barring of jurisdiction of civil Courts by a competent Legislature with respect to a class of suits of a civil nature. It provides that civil Courts will have not jurisdiction to hear certain suits of civil nature when they are expressly barred. It expressly recognizes that if such a provision is made by any law, the jurisdiction of the civil Courts will disappear. So far as section 20 of the Act is concerned, it has to be read subject to section 16 of Act XII of 1957 because under section 5 of Act XII of 1957 the provisions of the Evacuee Act and any rule or order made thereunder are to have effect not withstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any such law. Section 16 clearly overrides the provisions of section 20. The Legislature had the power to make provision like section 16 and once it did so, the jurisdiction of the civil Courts became barred.
The evacuee laws were made applicable notwithstanding any other law and the rights of the parties had to be determined in accordance with the same. In Punjab Province v. Sita Ram, etc. (PLD 1956 FC 157) it was held : "It is common ground that the property in question is evacuee property vested in the Custodian. Any order that may be passed in favour of the appellant in this appeal in respect of this property cannot be executed having regard to the terms of sec tion 12 of the Ordinance. The necessity for the special machinery provided for by the Ordinance is not and cannot be disputed, as in the nature of things, decisions in cases relating to evacuee property have to depend on grounds of policy and not only on consider ations that weigh with Courts of law. That being so, exercise of the jurisdiction of this Court will in effect defeat the object of the special legislation, the necessity for which is recognised on all hands. In these circumstances, I have no doubt in my mind that their Lordships of the Privy Council, had they been dealing with this case at present, would have declined to exercise the prerogative jurisdiction . . . . .
13. Section 16 of Act XII of 1957 (which is like section 12 of Ordinance XV of 1949) provides for exemption of evacuee pro perty from all legal process, and is in these terms:
"16. Exemption from legal process.‑(1) Property which has vested in, or of which possession has been taken by, the Cus todian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of such property by opera tion of any law for the time being in force.
(2) Upon the commencement of this Act, any such legal pro cess as aforesaid subsisting immediately before such commence ment shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian.
(3) Nothing contained in the foregoing subsections shall‑
(a) prevent a Civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee pro perty where such agreement has been approved by the Cus todian, or a Registering officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian ; or
(b) affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government, the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give."
It is clear from this section that no Court or authority can pass any order of whatever kind in respect of an evacuee property. Thus the jurisdiction of the Courts is completely barred to pass any order about such a property. This applied not only to the action which was to be commenced after the Act came into force on the 1st of March 1957 but it also applied to the pending proceedings. Under clause (2) all the proceedings pending in respect of such property in any Court were brought to an end. To a complete ouster of the jurisdiction of the Civil Courts in respect of evacuee property, an exception was created only where a suit was instituted for the specific performance of a contract of exchange and that too where such an agreement had been approved by the Custodian. Another exception created was in favour of the Central Government to acquire or requisition evacuee property.
Under section 41 of the Evacuee Act, whenever a question arose whether a person was or was not an evacuee or whether a property was or was not an evacuee property, the Courts had to refer such questions to the Custodian and had to stay further proceedings till the reference was answered by him. The intention of the Legislature in providing for staying the proceed ings before the Courts is manifest, because if the Custodian came to the conclusion that the property was an evacuee property, the Courts will have no jurisdiction, for under section 16, the Property was exempt from all legal process. It is in the light of these provisions that it is to be seen whether a suit could be filed to pre‑empt a sale by an allottee of his rights and interest in an evacuee property. In Nur Ahmad v. Muhammad Ibrahim (P L D 1954 Lah.240) while dealing with section 12 of Ordinance XV of 1949, it was observed: "The marginal note only speaks about exemption from legal process. After mentioning seizure, distress, attachment, etc., the section goes on to say that no Court would pass any other order of whatever kind' in respect of evacuee property. It is difficult to imagine that the intention was not only to exempt evacuee property from legal process but even to prevent Courts from passing any kinds of order with respect to it. Let us take the case of a suit of pre‑emption where an evacuee had purchased certain property of which he is now the owner and another person wants to pre‑empt the sale. Can the Court not pass a decree for pre‑emption at all At the time when a Court passes a decree, the property is still evacuee property. It is only when money is deposited in accordance with the decree of Court that the ownership stands transferred to the plaintiff . . . . . Section 12, while it provides that no Court or other authority shall pass an order relating to evacuee property, does not at the same time make any provision that orders which were in the past to be made by other authorities can now be made by the Custodian. All the orders which we have mentioned above still be passed only by Courts and officers other than the Custodian. The words used in the section are rather wide and unless we interpret the words 'no injunction or other order as ejusdem generis with seizure, distress, etc., inconvenient results may follow." With profound respect, we find ourselves unable to accept this view. The learned Judges have not even adverted to subsection (2) of section 12 which provided that upon the commencement of the Ordinance, if there was any legal process pending or subsisting before that date, it shall cease to have effect. Thus a suit pending in respect of an evacuee property came to an end by operation of law. They also did not consider the effect of section 4 of the Ordinance (which is similar to section 5 of Act XII of 1957) under which section 12 was made applicable notwithstanding any other law to the contrary.
14. It was next contended on behalf of the plaintiff‑pre emptor that the object of section 16 was to exempt evacuee property from legal process so that there may be no interference with the administrative control of the Custodian, and reliance was placed on Qamar‑uz‑Zaman Khan v. Punjab Province (P L D 1955 Lah. 612) to argue that every order which has reference to evacuee property does not necessarily fall within section 16. Reliance was also placed on Muhammad Zafar v. The State (P L D 1957 Lah. 799) where Kaikaus, J., re‑affirmed that view. The view expressed in these judgments cannot be pressed into service in suits for pre‑emption. In suits for pre‑emption there is always a prayer for possession on the basis of pre‑emption. The suit, if decreed, an order has to be passed in respect of an evacuee property. Moreover, with the passing of the decree, the proceedings do not come to an end unless the possession is delivered. No order for the delivery of possession can be made in view of the clear bar under section 16. In Qamar‑uz‑Zaman Khan v. Punjab Province itself, on which the learned counsel has placed reliance, it was held that an order would be bit by section 16 only if it directs or enables the taking of some action with respect to evacuee property. In Muhammad Zafar v. The State also, it was held: "If the order is not intended to subject evacuee property to some kind of legal process the order is not hit by the section." In suits for pre emption whenever a decree for possession is passed, the warrant for possession in the execution of the decree, has to subject the evacuee agricultural land to a legal process.
15. We may point out that there has otherwise been the consistent view of the Courts that section 12 of Ordinance XV of 1949 barred all such suits. In Amir Begum v. Sheikh‑ul‑Islam (P L D 1954 Lah. 98) it was held by S. A. Rahman, J: "The language of section 12 (1) of the Evacuee Property Ordinance is all embracing and uncom promising and an order even against an intending trespasser on evacuee land is taken out of the purview of the Civil Court's jurisdiction as it would clearly be an order in respect of evacuee property." In Malik Muhammad Sharif v. The Crown (P L D 1954 Lah. 640) a question arose as to the interpretation of section 12 of Ordinance, XV of 1949, the exact issue involved being whether under section 145 of the Code of Criminal Procedure an order directing a person, who has been put in possession of such property by the Custodian, to deliver possession to another person, could be passed by a Magistrate. It was held that Criminal Courts acting under section 145 of the Code of Criminal Procedure were within the plain meaning of subsection (1) of section 12 of the Ordinance. In dealing with the purpose of the Evacuee Ordinance, they observed: "In our opinion absurdity or incon sistency, even inconvenience, would not be the inevitable result of the plain construction of the subsection which, in the absence of overriding considerations to the contrary, we must adopt. The evacuee law is a highly special form of law and, as would appear from the several provisions of the Ordinance of 1949, the underlying intention of the legislation was to make the Custodian the exclusive Judge of how evacuee property was to be dealt with and what orders in respect of it were to be made. The preamble of that Ordinance refers to the emergency that had arisen rendering it necessary to provide for the admi nistration of evacuee property in Pakistan and for certain matters incidental thereto." They held that the order of the Magistrate under section 145 since in its execution the person in possession of an evacuee property was dispossessed was without jurisdiction. Mr. Justice B. Z. Kaikaus, who wrote the judgment in Nur Ahmad v. Muhammad Ibrahim, in Muhammad Zafar v. The State held "that section 16, Pakistan (Administration of Evacuee Property) Act (XII of 1957) bars jurisdiction of Magistrate to proceed against evacuee property under section 145, Criminal Procedure Code." The same view was taken in S. A. Sattar v. The Crown (P L D 1956 Kar. 138). In Irshad Mian v. Muhammad Ishaq (P L D 1953 Lah. 293) it was held by Kayani, J: "The shop in question is admittedly evacuee property. According to section 12 of the Pakistan (Administra tion of Evacuee Property) Ordinance XV of 1949, evacuee property is exempt from legal process and no injunction or other order of whatever kind in respect of such property can be granted or made by any Court. The order granting temporary injunction is consequently void." In Allah Ditta v. Inayatullah (Regular Second Appeal No. 94 of 1960) Muhammad Yaqub Ali and S. A. Mahmood, JJ., expressly dissented from the view taken in Nur Ahmad v. Muhammad Ibrahim and held: " . . . . section 16 of Act XII of 1957 is a complete bar to passing of any order in respect of evacuee property not to speak of transferring the right of allotment from one person to another ‑under the decree of a civil Court . . . . . ."
We are in respectful agreement with the view so expressed.
16. After giving our most careful thought to the question, we are of the opinion that the right and interest of a person in the property allotted to him under the Rehabilitation Settle ment Scheme is immovable property and its sale is covered by sections 4 and 6 of the Punjab Pre‑emotion Act (I of 1913), but section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) is a complete bar to the suit for possession to enforce the right of pre‑emotion through a civil Court.
A.H. Reference answered.
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