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Letters Patent Appeal No. 120 of 1967, decided on 10th September 1969.

, S. 41‑Expression "any question arising . . . . . whether any property is or is not evacuee property"‑Mere raising of plea in suit or proceeding not enough‑Party alleging property to be evacuee must show his bona fides supported by some direct or circumstantial evidence‑Evacuee property register in Custodian's office showing property to be evacuee‑Contention that entry erroneous, raises question whether property was or was not evacuee property and as such matter has to be referred to Custodian for decision.

The clear language of section 41 of the Pakistan (Administra tion of Evacuee Property) Act, 1957 leaves no room for doubt that any question arising in a suit or proceedings whether a person or property is evacuee or not has to be referred to the Custodian for decision and in the meanwhile the suit or proceedings adjourn ed. This, however, would not mean that each and every plea taken by a party, no matter how frivolous and insubstantial, would tantamount to the raising of a question within the meaning of this section so as to bar the Court from adjudicating upon a cause which otherwise falls in its proper jurisdiction. In fact the requirement of this section appears to be that if a party to the suit or proceedings alleges that the property is evacuee property he must show his bona fides supported by some direct or circum stantial evidence. This appears to be the spirit of the section and if construed differently, it would lead to anomalous results inasmuch as a party, in order to oust the jurisdiction of the Court, may allege that the property is evacuee property although the allegation may be wholly mala fide and frivolous. In order, therefore, to see if any question, within the meaning of the section had arisen in the proceedings, the Court should refer to the pleadings of parties, their affidavits and the documentary material placed on record. If a bona fide plea is raised, support ed by some evidence on record, that the property is evacuee property a question would arise, within the meaning of section 41 of Act XII of 1957, which has to be referred to the Custodian for decision.

Where, therefore, a property was shown to be evacuee in the register maintained in the office of the Custodian and the genuine ness of the entry was not challenged but it was merely said to be erroneous, it was held that the bona fides of the plea of the property being evacuee was supported by evidence on record and therefore the question raised was one within meaning of section 41 of Act XII of 1957 which had to be referred to the Custodial for decision.

Hakim Ali Muhammad v. Qurban Hussain P L D 1957 Kar. 769 distinguished.

Naimuddin for Appellant.

Respondent No. 1 in person.

Fakhruddin for Respondent No. 2.

Naimuddin for Respondent No. 3.

Nemo for Respondent No. 4.

Nasir Ahmad Moro (a clerk from Mukhtiarkar's office) for Respondent No. 5.

Date of hearing: 3rd September 1969.

‑This is a Letters Patent Appeal against the order of a learned Single Judge of this Court dated 28‑4‑1967, by which the appellant's application under section 41 of Act XII of 1957, read with Order VII, rule 11, C. P. C., was rejected.

2. Briefly stated the facts of the case are that respondent No. 1 filed Suit No. 81 of 1966, against the appellant and others on the original side of this Court for declaration that none of them had any right to interfere with his possession of a plot of land bearing Survey No. 97, situated in Deh Digh, Taluka Malir, District Karachi. By way of consequential Relief he sought an injunction that the appellant, and defendants be res trained from interfering with his possession.

3. The appellant, who is the Settlement Commissioner, Karachi, filed his written statement and controverted the claim of the plaintiff respondent No. 1. One of the grounds raised in the written statement was that the property in question was evacuee property and the Court had no jurisdiction to determine that question in view of section 41 of Act XII of 1957. Along with his written statement, the appellant filed an application under section 41 of Act XII of 1957, read with Order VII, rule 11, C. P. C., praying that the suit proceedings be adjourned and the question, whether the property was evacuee property or not, be referred to the Custodian for decision under subsection (2) of section 41 of Act XII of 1957. The Application was supported by a proper affidavit and the appellant also placed on record an extract from the evacuee property register in which 8 acres and 13 Ghuntas of Survey No. 97 was shown as evacuee property belonging to an evacuee namely Gobindlal Nagi.

The application was opposed by respondent No. 2, who in her rejoinder affidavit claimed to be the owner of this property, having purchased it from one Malik Lakmichand, a non‑evacuee, through Kabala agreement dated 4‑12‑1948. Her further case was that the Custodian of Evacuee Property, by his two orders dated 15‑10‑1949 and 13‑6‑1950, had declared Lakmichand as a Pakistani national as he was doing business at Karachi ever since before Partition. In support of her case she also placed on record a copy of the Kabala agreement and two extracts (Annexures E' and F' filed with the plaint) from the office of Mukhtiarkar, Karachi.

4. The learned Single Judge dismissed the appellant's application mainly on the ground that according to the various extracts from the record of Mukhtiarkar, Karachi, the suit property was never treated as evacuee property. The learned Judge was also impressed by the fact that this property originally belonged to evacuee Gobindlal from whom it was purchased by Lakmichand, a non‑evacuee, who later sold it to respon dent No. 2. Since Lakmichand was admittedly non‑evacuee, the learned Judge came to the conclusion that the suit property also enjoyed the same character and therefore no question arose in the proceedings which according to section 41 of Act X[I of 1957, was required to be referred to the Custodian for decision.

5. The short question in this appeal is whether upon the pleadings of parties and the documents produced by them on record a question can be said to have arisen within the meaning of subsection (2) of section 41 of Act XII of 1957, so that the Court would be obliged to refer it for the decision of the Custodian. In order to properly answer this question it would be expedient to reproduce this section which reads:

"41. (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 to 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 em powered 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."

6. The clear language of this section leaves no room for doubt that any question arising in a suit or proceedings whether. a person or property is evacuee or not has to be referred to the. Custodian for decision and in the meanwhile the suit or proceed ings adjourned. This, however, would not mean that each; and every plea taken by a party, no matter how frivolous and insubstantial, would tantamount to the raising of a question within the meaning of this section so as to bar the Court from adjudicating upon a cause which otherwise falls in its proper jurisdiction. In fact the requirement of this section appears to be that if a party to the suit or proceedings alleges that the property is evacuee property he must show his bona fides supported by some direct or circumstantial evidence. To us this appears to be the spirit of the section and if construed differently, it would lead to anomalous results inasmuch as a party, in order to oust the jurisdiction of the Court, may allege that the property is evacuee property although the allegation may be wholly mala fide and frivolous.

In order, therefore, to see if any question within the meaning of the section had arisen in the present proceed ings, we would like to refer to the pleadings of parties their affidavits and the documentary material placed on record.

7. In paras. 5 and 10 of the plaint, it was alleged that the plaintiff was the owner of Survey No. 97. In support of the plea of his ownership, the plaintiff filed on record a copy of the Kabala agreement dated 4‑12‑1948, two extracts (E & F) from the record of Mukhtiarkar, Karachi. These allegations were controverted by the appellant who contended that the property in question was evacuee property and in support he produced on record an extract from the evacuee property register.

It will have been noted that upon these pleadings, the parties were directly at issue upon the character of the suit property, but the question arises if the allegations of the appellant were bona fide and supported by some evidence on record. If the question is answered in the affirmative, the Court will have no jurisdiction to proceed with the suit until the decision of the Custodian is obtained whether the property is or is not evacuee property.

8. Mr. Fakhruddin, the learned counsel for respondent No. 2 did not challenge the genuineness of the extract produced by the appellant. All that he argued was that the evacuee property register had wrongly mentioned that Survey No.97 was evacuee property and for that purpose he sought support from the Kabala agreement dated 4‑12‑1948 and the two extracts (E & F) from the record of Mukhtiarkar, Karachi. The very fact that Mr. Fakharruddin tried to establish that the extract from the evacuee property register was erroneous, he was necessarily seeking the decision of this Court whether the property was or was not evacuee property. We have already pointed out that if a bona fide plea is raised, supported by some evidence on record, that the property is evacuee property a question would arise, B within the meaning of section 41 of Act XII of 1957, which has to be referred to the Custodian for decision. Upon the pleadings of parties and in view of the documentary evidence produced by them we have no doubt that a question in regard to the character of the suit property has arisen within the meaning of the section and the same will have to be referred to the Custodian for decision. We find support for this conclusion is the Division Bench Judgment of this Court (Hakim Ali Muhammad v. Qurban Hussain (P L D 1957 Kar. 769) ).

9. Mr. Fakhraddin next contended that before 1‑3‑1957, (which is the relevant date) the suit property was never treated as evacuee property within the meaning of subsection (2) of section 41 of Act X11 of 1957, and therefore no question can be said to have arisen in the proceedings within the meaning of section 41 of the Act for the decision of the Custodian. In support he relied upon a judgment of the Supreme Court of Pakistan reported in P L D 1964 S C 74 and particularly upon the following observation which appear at page 79 of the judgment:

"So construed, the "treating" must relate to either a decla ration by the Custodian about the nature of the property or its user for the purposes of the Act by him, or by the Rehabi litation Authorities, so as to indicate a consciousness of the actual are assumed nature of the property."

10. These observations when read in the context of the whole passage in which they appear do not advance the argument of the learned counsel. The rest of the passage which is relevant, reads:

"From the very nature of the case the "Treating" must be by such competent authority. For instance if a man in the street or even an official like an excise officer, could lay a claim that he was treating a particular property as evacuee property, without the Custodian or the Rehabilitation Department coming into the picture, it could not be postulated that this was "treating" the property as evacuee property in the context of Act XII of 1957."

11. The passage read as a whole militates against the con tention of the learned counsel. In the instant case the suit property was shown to be evacuee in the requisite register of the Custodian and therefore it would be deemed to have been so "treated" by "competent authority".

12. In view of this discussion, we are satisfied that the impugned order of the learned Single Judge is without jurisdiction which we set aside with costs. In the result we direct that the suit would stand adjourned until the Custodian of Evacuee Property, West Pakistan has deter mined the following question which we refer to him for decision under subsection (2) of section 41 of Act XII of 1957:

Whether the plot of land bearing Survey No. 97, to the extent of 8 acres and 13 ghuntas, situated in Deh Digh, Taluka Malir, District Karachi is or is not evacuee property

13. Before considering this question the learned Custodian would issue notice to all parties to the proceedings on the follow ing addresses:

(1) Ghulam Hussain Brohi, son of Lal Muhammad Brohi, Muslim, adult, having his place of business at Saifee Chambers, Opposite Danso Hall, Bunder Road, Karachi.

(2) Kulsum Bai, wife of Hussain Bhai and daughter of Jaferjee, Muslim, adult, Landholder, residing at Yousuf Ali Alibhoy Buldg., Nanakwara, Karachi.

(3) Muhammad Sultan, son of not known, care of Muhammad Shafi, Chatariwala, carrying on business under the name and style of Haji Muhammad Shafi & Sons, Opposite United Bank Ltd., Marriot Road, Karachi.

(4) Deputy Director, Posts and Telegraphs Department Government of Pakistan, McLeod Road, Karachi.

(5) Mukhtiarkar of Karachi, having his office at Club Road, Karachi.

14. Mr. Fakhruddin lastly prayed that the learned Custodian may be asked to determine this question finally within a month in order to avoid delay as the suit was filed in the year 1966. Under the circumstances we feel that no such direction is called for as, at present, we have no jurisdiction to determine the basic question. However, we have no doubt that the learned Custodian would take note of the anxiety of Mr. Fakhruddin, decide the question expeditiously and convey his decision to this Court.

K.B.A. Appeal accepted.

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