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Civil Appeal No. 71 of 196'.', decided on 18th June 1973.

(On appeal from the judgment and order of the erstwhile High Court of West Pakistan Lahore, dated the 17th March 1964, in Writ Petition No. 623 of 1963).

--‑‑Ss. 22 & 25‑Agreement of exchange of land a genuine transaction, given effect to by parties, and possession given of land exchanged to each other ‑Neither party, held, could thereafter retract from transaction and unsettle rights already vested.

Sh. Abdur Rashid, Senior Advocate Supreme Court instructed by Kh. Wali Muhammad, Advocate‑on‑Record for Appellants,

Hidayatulluh Mokal, Settlement Commissioner (Legal) for Respondents.

Date of hearing : 18th June 1973.

The appellants are heirs of one Diwan Mauj Rai of Village Mehteke Mehtab Rail Tehsil Depalpur, District Sahiwal. He, later on, embraced Islam and took the name Muhammad Mauj Din On 12‑1‑1947, Dewan Mauj Rai entered into an agreement of exchange with one Sher Bahadur, whereby he gave 163 kanals 16 merles of land, situated in village Mehteke Mehtab Rai and in lieu of it was given by Sher Bahadur 83 kanals 15 marlas of land in the same village and 47 Kanals, 14 merles of land in the neighbouring village Thakra.

On 12‑1‑1947 the parties to the exchange appeared before the Patwaris of the two villages and made statements acknowledging exchange of the aforesaid land. Report No. 174 (Exh. 1'/37J was entered in the Roznamcha Waqiati (Daily Diary) by the Patwari of village Thakra to the effect that Diwan Mauj Rai appeared and stated that he had given in exchange 16 3 kanals and 16 marlas of land situated in village Mehteke Mehtab Rai and, in return, received 83 kanals and 15 marlas of land from Sher Bahadur Son of Narain Doss, situated in the same village, and 47 kanals and 14 marlas of land belonging to Narain Dass father and a co‑sharer of Sher Bahadur in village Thakra.

Mutation No. 329 (Exh. P/4) was entered on the basis of the report respect the land given and received by Dewan Mauj Rai, in village Mehteke Mehtab Rai , but somehow no mutation was entered in respect of 47 kanals and 14 marlas of land received by him in village Thakra. 'The mutation was attested by the Assistant Collector on 9‑2‑1947. Full description of land measuring 163 kanals and 16 marlas given by Dewan Mauj Rai to Sher Bahadur is given in the order of mutation: Similarly, it is mentioned that the latter had given to Dewan Mauj Rai 83 kanals and 15 marlas of land bearing the description which is given in Report No. 174 dated 1‑1947. If the two annexures are read together, it becomes evident that besides 83 kanals and 15 marlas of land given by Sher Bahadut to Dewan Mauj Rai, he had given 47 kanals and 14 marlas of land in village Thakra to Dewan Mauj Rai. It may be stated that according to the recitals in the Roznamcha Waqiati and the Register of Mutations possession of the lands exchanged by Diwan Mauj Rai and Sher Bahadur was given by them to each other on 12‑1‑1947 .

On Partition, Sher Bahadur migrated' to India and his estate became evacuee property Consequent upon it, 47 kanals and 14 marlas of land which his father and co‑sharer Narain Dass had given to Dewan Maui Rai, who had by now become Muhammad Mauj Din continued to be entered in the revenue records as the property of Sher Bahadur.

In 1959, the Settlement Commissioner treated the land situated in village Thakra as evacuee property. The heirs of Muhammad Mauj Din, appellants herein, thereupon filed an application under section 22 of the Administration of Evacuee Property Act XII of 1957 for a declaration that the land was non‑evacuee and they were the owners in possession. The application was finally rejected by the Custodian of Evacuee Property on 9‑9‑1960. The exchange of 12‑1‑1947 was accepted as genuine, but as no mutation in respect of the Thakra land had been entered, the learned Custodian gave the appellants' the option to retract from the exchange and get back 163 kanals and 16 marlas of land which Diwan Mauj Rai had given to Sher Babadur.

In accordance with the directions given by the Custodian, the appellants filed another application under sections 22 and 25 of Act XII of 1957 for rescission of the Agreement of exchange and a declaration that 163 kanals and 16 marlas of land given by them to Sher Bahadur was non‑evacuee property. The Deputy Custodian accepted the application and sent the case to the Custodian for confirmation as required by law.

The case was dealt with by another Custodian who declined to confirm the order of the Deputy Custodian in the view that the land given by Diwan Mauj Rai in exchange had already been acquired by the Central Government by a notification under section 4 of the Land Settlement Act, 1958, and he had lost jurisdiction to deal with the land. In his view it was necessary for the appellants to file a civil suit for return of the land given by their predecessor‑in‑interest to Sher Bahadur, evacuee.

The appellants then filed Writ Petition No. 623 of 1963 in the High Court which was dismissed by a Division Bench in limine by the following order :‑

"It is then contended that the view taken by the learned Custodian, Mr. A. R. Changez, that he had no jurisdiction to deal with this property because it had been acquired by the Central Government under section 4 of the Land Settlement Act, 1958, is erroneous because what could be acquired must have been evacuee property and the power of the learned Custodian to give a declaration under section 22 of Act, 1957 (XII of 1957) still subsists. We cannot agree with this contention because of two recent decisions of the Supreme Court wherein it has been held that after the acquisition of the property the learned Custodian had no jurisdiction to deal with it and the jurisdic tion would then lie with the civil Court. In this view of the matter it is open to the petitioner to file a civil suit. This petition is dismissed summarily."

Leave to appeal from the order of the High Court was granted on 9th June, 1964, by the following order :‑

"It is clear that an appreciable property has been lost to the petitioners by reasons of this order. The point on which the case seems to turn is whether the oral transfer of title evidence by the entry in the Patwari's roznamcha coupled with part performance of the exchange viz. mutation of land in the names of the other party, now evacuee and of other land, being part of the whole land transferred to them, in the names of the petitioner is not sufficient evidence of the transfer by exchange to justify confirmation, on the basis of the petitioner's first application which was never withdrawn. The present failure is of a course of action taken on the initiative of the Custodian, as to which it could probably be said, with accuracy, that since the land the petitioners gave was already in the names of the other, who became evacuees, at the time of the partition, in the revenue records, its acquisition by the Central Government as evacuee property was complete and irrevocable."

The "order" mentioned in the first sentence refers to the order of the Custodian dated 9‑9‑1960 by which he had directed the appellants to apply for restoration of the land given by Diwan Mauj Rai to Sher Bahadur.

In spite of service of notice neither the Custodian of Evacuee Property nor the Chief Settlement Commissioner put in appearance. Proceedings were, accordingly, ordered to be ex parte against them. At the bearing of the appeal Mr. Hidayatullah Mokal, Settlement Commissioner (Legal) put in appearance, but no concise statement or counter affidavit was filed by him.

On examining the revenue records placed on the file of Deputy Custodian and the record of Custodian of Evacuee property, we are satisfied that the agreement of exchange between Diwan Mauj Rai and Sher Bahadur on 12‑1‑1947 was a genuine transaction and it was given effect to by the parties and they gave possession of the land exchanged to each other. Neither party could thereafter retract from the transaction and unsettle the rights which had already been vested in them. The application under sections 22 and 25 of Act XII of 1957 filed by the appellants on the direction given by the Custodian was, therefore, misconceived. The prayer made in it by the appellants that 163 kanals and 16 marlas of land given by Diwan Mauj Rai, the predecessor‑in‑interest to Sher Bahadar be restored to them could not, therefore, be granted.

However, the matter does not rest here. As observed by the Court in the order granting leave to appeal the original application made by the appellants under section 22 for a declaration that 47 kanals and 14 marlas of land situated in village Thakra given to Diwan Mauj Rai Sher Bahadur in exchange on 12‑1‑1947 was non‑evacuee property, was not withdrawn by them. Instead of pursuing the application further by a writ petition in the High Court the appellants in obedience to the direction given by the Custodian in his order dated 9th September, 1960, filed a fresh application for recession of the exchange and restoration of the land given by Diwan Mauj Rai to Sher Bahadur. In the circumstances we would have kept this appeal in abeyance, and directed the applicants to file a writ petition in the High Court for quashing the aforesaid order of the Custodian, but this necessity is avoided by the concession made by the Settlement Commis sioner (Legal). He appreciates that if the exchange is set aside by a civil Court and the land given by Dewan Mauj Rai is restored to the defendants it will entail great hardship to the refugees settled on the land since 1947‑48. He therefore agrees that the original application made by the appellants under section 22 of the Administration of Evacuee Property Act, XII of 1957 should be allowed and a declaration granted that 47 kanals and 14 marlas of land situated in village Thakra belonging to the appellants is non‑evacuee property. He undertakes that if a direction is given by the Court, the order passed by the Custodian on 9th September, 1960, will be substituted by the declaration in the aforesaid terms.

In the result we allow this appeal and direct the Custodian to substitute his order dated 9th September 1960, with the declaration that 47 kanals and 14 marlas of land being 1/30th share of Khewat No. 9, situated in village Thakra, belonging to the appellants is non‑evacuee property.

As the respondents have not contested this appeal there will be no order 4s to costs.

Appeal allowed.

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