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Civil Petition for Special Leave to Appeal No. 548 of 1972, decided on 10th January 1973.

(On appeal from the judgment and order of the Lahore High Court, dated the 18th October 1972, in Writ Petition No. 572‑R of 1972).

S. 41‑Reference to Custodian‑Deputy Custodian adverting to question of possession on plea of adverse possession raised hi. petitioners themselves‑No grievance made on point before Custodian‑High Court observing that point of possession could be urged before civil Court making reference‑Contention that Custodian had no jurisdiction to go into question of possession, in circumstances, held, without sw5stance‑Constitution of Pakistan (1972), Art. 201.

Qazi Shafi Muhammad, Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 10th January 1973.

This leave petition is from the order of a learned Single Judge of the Lahore High Court dismissing in limine the writ petition of the petitioners on the ground of lacljes and their conduct.

It appears that they respondents brought a suit for possession of the disputed plot of land against the petitioners, who resisted the suit. The plaintiffs produced a registered deed Exh. P. 2 to prove that the suit land had been mortgaged with some non‑Muslim evacuees and later sold to them. It, however, transpired that there was no clear evidence of payment of the price by the vendee to the vendors, and, therefore, the land was still under the encumbrance of a mortgage, As the civil Court was not competent to finally determine the plaint the Court made the following re ference to the Custodian of Evacuee Property under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957:

"Whether there is any evacuee interest in the suit property If so, what extent "

The parties were directed to appear before the Custodian on the 15th January 1968. On the 17th February, 1968, the Deputy Custodian recorded his finding that there was no evacuee interest to any extent in the property in dispute. This order was approved by the Custodian on the 13th October 1970.

It appears that while deciding the reference the Custodian also decided about the possession of the land.

The petitioners filed a Constitution petition before the High Court on the 5th October 1972, challenging the validity of the Custodian's order.

The High Court held that there was inordinate delay in filing the Constitution petition without any valid explanation. The Court also observed that it was upon the plea of adverse possession raised by the petitioners themselves that the Deputy Custodian in his order dated the 17th February 1968, adverted to it. However, no grievance about this was made before the Custodian although the counsel of the petitioners appeared before him. There is also no reference to it in the order of the Custodian dated the 13th October 1970. The High Court, however, observed that this point could be urged before the civil Court to which the said reference with its answer was to go back.

In these circumstances we do not find any substance in the contentions advanced on behalf of the petitioners that the Custodian had no jurisdiction to go into the question of possession.

We do not see any reason to interfere with the impugned order of the High Court. We should like to observe that the petitioners will be allowed to urge the point of possession before the civil Court as observed by the High Court.

The petition is accordingly dismissed.

Petition dismissed.

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