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Writ Petition No. 21 of 1955, decided on 29th February 1956, under section 223‑A of the Government of ,India Act, 1935.

, S. 10‑Does not imply that Custodian cannot claim exclusive possession of evacuee's share equivalent to fifty per cent or less.

Section 10, Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) authorises the Custodian to take over the management of property as a whole in which the evacuee's share exceeds fifty percent in value of the whole. It does not imply that where the evacuee's share is fifty percent or less in any property, the Custodian has no right to claim exclusive possession of that share.

, S. 20 (2) (O)‑Does not mean that power to partition residential immovable property is impliedly withheld Custodian may have such property partitioned by private agree ment or through Civil Court‑S. 12 not a bar‑Custodian in position of owner of evacuee property.

The Custodian is, for all practical purposes, in the position of an owner of evacuee property and as such can claim to have property which an evacuee owns jointly with a non- evacuee, partitioned.

Clause (o) of subsection (2) of section 20, Pakistan (Admi nistration of Evacuee Property) Ordinance (XV of 1949) expressly empowers the Custodian to permit a rehabilitation authority to partition land or rights in land, if a share in such land or rights consists of evacuee property. From this it cannot be argued that as no similar provision exists in the Ordinance in respect of residential immovable property, there is no right in the Custodian to have a partition effected of such property, in order to manage or administer in severalty the evacuee's share in the property.

The right to have such property partitioned may be exer cised by private agreement between the joint owners or failing that enforced through the ordinary Civil Courts by a partition suit.

Section 12 of the Ordinance does not oust the jurisdiction of Civil Courts in this matter. In terms section 12 is applicable only to properties which are exclusively evacuee properties and not to properties which are jointly owned by evacuees and non‑evacuees.

Mazhar‑ul‑Haq for Petitioner.

Karam Elahi Chauhan for D. R. C. and A. A. K. Lodhi for Respondent No. 2.

---This is a petition by Malik Nisar Ahmad under section 223‑A of the Government of India Act, 1935, praying for a writ of mandamus to be issued against Abdul Hamid, respondent No. 2, directing him to deliver back to the petitioner the possession of bungalow No. 1 /7‑A, Rahimyar Khan, of which, he asserted, he had been illegally and wrongfully dispossessed. He also asked for a writ of certiorari or mandamus, whichever may be appropriate, against 1956 the first respondent, the Deputy Commissioner, Rahimyar Khan, who also functions as the Deputy Rehabilitation Commissioner of the area, in order to restrain him from taking any steps towards the partition of the bungalow in question. A notice was issued on this petition to the respondents.

The relevant facts may be briefly summarized. The peti tioner is the son of Rai Sahib Karam Chand who owned considerable property within the Bahawalpur area as well as at Mianwali. He was a man of substance and an Honorary Magistrate in his time. He had three sons, including the petitioner, whose original name was Pandit Sohan Dutt. By a will executed in 1935, Rai Sahib Karam Chand had devised the bungalow which forms the subject‑mutter of the present petition to the petitioner and his brother, Pandit Thakar Dutt, in equal shares. The will was drawn up in June 1935, and in the next month Rai Sahib Karam Chand died. After his demise the petitioner continued to occupy the bungalow which was jointly owned by him and his brother, Pandit Thakar Dutt. His right. was recognised in mutation No. 297 effected on the 1st of February 1945. After the Partition of India, the petitioners brother, Pandit Thakar Dutt, migrated and became an evacuee. The petitioner, however, claimed that he had remained in Pakistan and embraced Islam. His rights as a non‑evacuee were recognised by order of the Custodian dated the 26th of March 1950, who also declared him to be the owner of a half share in the bungalow in dispute. For some time the appellant continued in undisturbed possession of the whole bungalow. According to him, he was paying rent for his evacuee brother's share in the bungalow to the rehabilitation authorities. Later, however, the department, after making a reference to the Custodian, had erected a partition wall m this bungalow so as to divide it into two portions, one being retained by the petitioner and the other being allotted to respondent No. 2. The petitioner claimed that the Custodian had no legal right to authorise this partition of the bungalow or to deprive the petitioner of his possession of the whole bungalow.

It appears that during the pendency of this petition, the Additional Rehabilitation Commissioner, Bahawalpur Division, has dealt with the matter and rejected the contentions raised on behalf of the petitioner by order dated the 15^th of February 1956. We have seen a copy of this order which has been produced.

Mr. Mazhar‑ul‑Haq, who appeared for the petitioner, principally relied on the provisions of section 10 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, (Ordinance XV of 1949), which is in the following terms:-

" Power to Custodian to manage property part of which is evacuee property.‑(1) Where any property is held by or on behalf of persons one or more of whom are, and one or more of whom are not, evacuees, then if the greater part of such property, reckoned according to the value of the whole, is held by or on behalf of those of such persons who are evacuees, the Custodian may take possession and assume control and management of the whole of such property.

(2) Where such property is joint Hindu family property, the Custodian shall deem the property to have been parti tioned into notional shares, and if the notional shares held by or on behalf of those members of the family who are evacuees constitute the greater part of such property, reckoned according to the value of the whole, the Custodian may take possession and assume control and management of the whole of such property."

It is agreed by all the parties that the Custodian has in fact declared the petitioner to be a non‑evacuee owner of a half share in the bungalow under consideration. That finding is conclusive on the point by virtue of the provisions of section 34 of the Ordinance and it cannot be questioned in the Civil Courts. Undoubtedly, therefore, the evacuee's share in this property does not exceed fifty per cent and so section 10 of the Ordinance is not attracted to the case. BUL that section only authorises the Custodian to take over the management of such property as a whole, in which the evacuee's share exceeds fifty percent in value of the whole. It does not imply that where the evacuee's share is fifty percent or less in any property, the Custodian has no right to claim exclusive possession of that share. There appears to be no positive prohibition in the Ordinance or in any other law', restraining the Custodian from claiming exclusive possession of the evacuee's share in any such joint property.

To determine the position occupied by the Custodian in relation to evacuee property, it may be useful to refer to certain provisions of Ordinance XV of 1949. The provisions of the Ordinance override all other laws as is laid down in section 4 of the Ordinance. Section 6 provides that 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. Section 7 further declares that every person who is or has at any time after the twenty‑eighth day of February 1947, been in possession, supervision or management of any evacuee property, shall be deemed to hold or to have held, as the case may be, such property on behalf of the Custodian. Section 9 empowers the Custodian to take possession of any evacuee property if it is not surrendered to him by the person in possession on demand and he can even use necessary force for the purpose after giving reasonable warning to the inmates. He can raise loan on the security of or even sell evacuee property if need be, by virtue of the power conferred by section 20(2) (j) and (m). It would thus appear that the Custodian is, for all practical purposes, in the position of an owner of evacuee property and as such it is B difficult to see why he cannot claim to have property which an evacuee owns jointly with a non‑evacuee, partitioned.

Mr. Mazhar‑ul‑Haq invited our attention to the pro visions of section 20 (2) (o) of the Ordinance. Subsection (1) of that section prescribes that the Custodian may take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property which has vested in him and may;, for any such purpose as aforesaid, do all acts .and incur all expenses necessary or incidental thereto. Subsection (2) contains various clauses illustrating the type of action that a Custodian might take in respect of evacuee property, without prejudice to the generality of the provisions contained in subsection (1). Clause (o) of that subsection expressly empowers the Cus todian to permit a rehabilitation authority to partition land or rights in land, if a share in such land or rights consists of evacuee property. From this learned counsel attempted to argue that as no similar provision existed in the Ordinance in respect of residential immovable property, there was no right in the Custodian to have a partition effected of such property, in order to manage or administer in severalty the evacuee's share in the property. In our opinion, no such inference follows. Clause (o) of subsection (2) of section 20 merely means that partition of land in which an evacuee has a share, may be effected by a rehabilitation authority as distinguished from the revenue authorities whose function normally is to partition such lands. That may be a special provision with regard to evacuee lands but it does not, mean that the Cus todian is absolutely powerless to enforce a partition in respect of residential immovable property in which an evacuee may have a share. Such a power would not be inconsistent with the provisions of section 20. In his capacity as a virtual joint owner, there can be no ground for withholding such right from him. The right may be exercised by private agreement between the joint owners or failing that enforced through the ordinary Civil Courts by a partition suit.

At this juncture it may be profitable to notice an argu ment raised by Mr. Karam Elahi Chauhan on behalf of respon dent No. 2 to the effect that Civil Court might have no jurisdiction to entertain a claim for partition of property in which an evacuee holds a share. In this connection he relied on section 12 of the Ordinance which provides inter alia that property which has vested in or of which possession has been taken by the Custodian, shall be exempt from all legal pro cess 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, In terms this provision is applicable only to properties which are exclusively evacuee properties and not to E properties which are jointly owned by evacuees and non evacuees, for in the case of the last‑mentioned category of properties it cannot be predicated of the whole or any part of such property that it is exclusively evacuee property. As at present advised, therefore, we cannot see any force in the contention that a suit for partition of such joint properties would not be entertainable by the Civil Courts. The Civil Courts' jurisdiction can only be ousted either expressly by the words of an enactment or by necessary implication, in respect of any matter. No such express words have been pointed out to us in the Ordinance, excluding the jurisdic tion of the ordinary Civil Courts in matters of the kind under consideration, nor can such an implication be spelt out of the provisions of the Ordinance. We do not think, therefore, that any insuperable difficulty exists in the way of effecting a partition of such property through the Civil Courts, if not agreed to privately, by the joint owners themselves.

At this stage Mr. Karam Elahi Chohan and respondent No. 2 the allottee, who is present in person, have both indi cated that the bungalow in question has been divided into two parts by a partition wall and they would have no objec tion if the petitioner exercises his choice and takes over one of the two portions and leaves the other for the allottee of the department. This offer is in accord with the order passed by the Additional Rehabilitation Commissioner to which reference has been made in an earlier part of this order. The right of the Custodian or his agent, the Rehabilitation Department, to partition the property, as we have observed above, rests on a solid foundation. In the circumstances, the offer made by the respondent is a very fair one. The petitioner is also present and has stated that he would, in the circumstances, retain the portion which is already in his possession, though he reserves the right to ask for a regular partition of this and other properties which he jointly owns with the evacuee, subsequently. In the circumstances, this petition requires no further orders. The notice is discharged and the petition dismissed. The parties will bear their own costs in this Court.

A. H. Petition dismissed.

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