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Civil Petition for Special Leave to Appeal No. K‑228 of 1974, decided on 11th March 1975.
(On appeal from the order of the High Court of Sind & Baluchistan, Karachi dated 13‑8‑1974 in Constitution Petition No. 808 of 1974).
‑‑S. 21.‑Declaration of character of property‑Petitioners filing appeal against order of Deputy Custodian and Custodian hearing appeal; deciding it on merits, and holding land in dispute not to be evacuee property‑Contention that Custodian's order was bad since he did not give notice to allottees of land before confirming sale and holding property to be non‑evacuee, held, of no force in circum stances‑Main issue, i.e., character of land, held, stood concluded by finding of fact.
M. I. Memon, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 11th March 1975.
The land in dispute was purchased by' respondents Nos. 3 to 5 by registered sale deed from Hindu owners oar 22‑10‑1947 and 10‑5‑1949. Mutations in revenue records were effected in their names. Possession was delivered to them and they have paid assessment on the land ever since. Nevertheless this land was allotted to one Ahmad Ali Baig, who, in turn, sold it to petitioners Nos. 2 to 5. Respondents Nos. 3 to 5, thereupon filed an application before the Deputy. Custodian of Evacuee Property under section 20 of the Administration of Evacuee Property Act who confirmed the sale as a genuine transaction and further found the vendors as Pakistani Nationals. The order was confirmed by the Custodian of Evacuee Property.
Later on the petitioners filed an appeal from the order of the Deputy Custodian before the Custodian on the ground that the land was evacuee property and that no notice of the confirmation proceedings was given to them.
The Custodian ruled out the 2nd ground by relying on the observation of the Court in Ataullah Malik v. The Custodian of Evacuee Property and others:‑
"The question whether the title in the property which is vested in the, Custodian should be confirmed in favour of a transferee by the Custodian himself would appear to lie exclusively between then Custodian and the party seeking the confirmation. As has been; observed already, the sense of the law which the Custodian is appointed to administer is distinctly favourable to the retention by the Custodian of the property vested in him, and against any thing resembling easy divestment,"
On merits, the Custodian of Evacuee Property re‑armed the earlier finding that the vendors were Pakistani Nationals and the sales in favour of respondents Nos. 3 to 5 were genuine transactions. The appeal was accordingly dismissed against which petitioner filed a writ petition in the High Court reiterating the same grounds which had been ruled out by the Custodian.
The writ petition has been dismissed in limine firstly on the ground that the petitioners had not placed on record any document to show that Ehtram Ali, petitioner No. 1 had any entitlement in the land and secondly that the mere fact that the vendors were Hindus, did not make the lands evacuee property. Nor did the petitioners place on record any evidence to show that the Hindu owners had, at any stage, migrated to India.
In seeking leave to appeal, learned counsel for the petitioners urged vehemently that the Custodian on Evacuee Property had not given notice to the allottees of the land before a the sale in favour of respondents Nos. 3 to 5 was confirmed. There is little force in the contention as the petitioners, in fact, filed an appeal from the order of Deputy Custodian which was heard and disposed of on merits by the Custodian holding that the land in dispute was not evacuee property. The main issue arising in the petition viz., the character of the land stood concluded by a finding of fact against which the learned counsel had nothing to urge.
In the circumstances no exception can be taken to the order passed by the High Court. The petition for leave to appeal is dismissed.
Petition dismissed.
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