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Writ Petition No. 617 of 1974, decided on 3rd June, 1979.

----- S. 23-Notice-Evacuee only mortgagee of land--Custodian allowing -application of mortgagor for redemption without issuing notice to at alottees-Meantime petitioners purchasing land from allottees--Custodian extending time of payment of mortgage money without notice to petitioners or allot tees-Notice of extension of time to petitioners held, necessary. -[Notice].

--- S. 20-Notice-Mortgage of land with evacuee redeemed-Meantime petitioners purchasing land from allottees-Allotment cancelled without notice to petitioners, or allottees-Settlement Commissioner (Land), held, bound to issue notice to petitioners and allottees before cancelling allotments.-[Notice].

Law Notes 1971 S C 70 and Imtiaz Ali Malik v. Surraya Begum 1979 SCMR22 ref.

Habibur Rashid for Petitioners.

Shamsuddin M. Bhagio for Respondents.

Date of hearing : 8th May, 1979.

The petitioners claim to be transferee from the allotees of Survey Nos. 87-88 measuring 11.37 acres in Deh Lyari, Sinjhoro District Sanghar. The said land had been treated as Evacuee Property and had been permanently allotted to predecessors of the petitioners, viz. Fiaz Muhammad, Khurshid Ahmad and others as claimants. The petitioners purchased the land from those permanent allottees by a registered sale deed dated 19-4-1967, and claim to have been in possession of the same from the said date and they have got their name mutated it village Form VII and thus the petitioners were owners of the said land for all intents and purposes.

It appears that on 15-4-1965, the Custodian of Evacuee Property had allowed the application of Khamiso Khan for redemption of the mortgage of the lands in dispute which respondent Khamiso Khan as owner of the land ad alleged to have mortgaged with Evacuee. Before passing this order the Custodian does not appear to have issued any notice to the permanent allottees of the land the predecessors of the petitioners. The Custodian ordered that the mortgage be treated as redeemed after respondent Khamiso Khan, had paid Rs. 580 as interest within two months from 15-4-1965.

The respondent Khamiso Khan did not pay Rs. 580 within the stipulated tithe, but applied in 1972 for making payment of the amount, and thereupon on 13-12-1973 the Custodian permitted Khamiso Khan to pay the amount before 31-12-1973. No notice was issued of this to the petitioner or his allottee predecessors before the making of the order of extension by the Custodian although by this time admittedly the petitioners had purchased the land and had come into the possession of the same and had also got the same mutated in their favour. On the basis of the order of Custodian dated 13-12-1973 respondent Khamiso Khan paid Rs. 580 to the Settlement Authorities and on 3-4-1974 the Settlement Commissioner (Land), Sanghar, cancelled the allotment of the allottees from whom the petitioners had purchased the land in question. The order of the Settlement Commissioner does not show whether he had issued any notice to Ghulam Muhammad or his legal representative before making the order of cancellation of allotment. No notice could have been issued to them as they were not impleaded as respondents. Obviously no notice was issued at least to the petitioners before the making of that order. The petitioner therefore filed this petition.

I have heard Messrs Habibur Rasheed learned counsel for the petitioner and Mr. Izzat Khan Jakhio, learned counsel holding brief for Mr. Shamsuddin Bughio for respondent No. 3, the Settlement Department is not defending the petition. Mr. Habibur Rashid's main argument is that no notice had been issued either to the petitioners or to their predecessors in interest before the passing of the order by Custodian in 1965, or 1973 or by the Settlement Commissioner in April, 1974, when he cancelled the allotment. He says such notice was necessary and be has relied upon P L D 1967 S C 92 ( ) and Law Notes 1971 S C 70 where it had been held that the permanent allottees have heritable and transferable rights and they should be heard before, either the Custodian passes an adverse orders against their interest or the allotments are cancelled. In 1979 S C M R 22 even the transferees from the allottees of land were held entitled to notice where the allotments of the transferees were cancelled. Mr. Izat Khan Jokhio, has contended that the order of the Custodian of 1965, was passed at the time when the petitioners predecessors have not been shown to be the existing allottees of this land. The submission of Mr. Izat Khan is not without any force as the petitioners have not disclosed as to whom the allotments were actually made in favour of their predecessors, but the difficulty for Mr. Izat Khan is that order of 1965, made by the Custodian was not complied with by the respondents within two months from 15-4-1965 and the same had therefore become ineffective, and thereafter, on 19-4-1967 the petitioner without having any knowledge of any order of Custodian had purchased, in due course and for consideration by a registered sale deed, the rights of the allotteed and had also moved into the possession of the said land and had got mutation affected in their favour in Village Form VII and they were thus the owners of the said land. Therefore, if the Custodian was passing a order on 13-12-1973 condoning the delay on the part of the respondent No. 3 and extending the time for payment then it was necessary that the existing right holders in that land, viz. the petitioners should have been issued notice as by now they had vested right in those lands. After all the Custodian shout have at least considered that the period between 965 and 1973 was quit long and interests of innocent persons could have been created in the evacuee property during this period. Even otherwise the petitioner has stated that his predecessors had settled in District Sanghar, right after partition and for all that one knows they might have been allotted the said land much before 1965. In any case Settlement Commissioner Land, Sanghar was bound to issue notice in 1974 to the petitioners and their predecessors in interest before cancelling the allotments.

In this view of the matter I hold that it was necessary that notice should have been issued to the petitioners before the order dated 3-4-1973 was passed by the Custodian, .Evacuee Property, Sind or the Settlement Commissioner cancelled the land on 3-4-1974, but such notice was not issued. The result is that the petition is accepted, the impugned orders are set aside. And the matter is remanded to the Custodian, Evacuee Property, Sind to decide upon the application from Khamiso Khan, regarding the redemption of mortgage, after notice to the petitioners, and their predecessors, respondent No. 3 and the Settlement Authorities. Thereafter the Settlement Commissioner will consider the question of allotments.

Petition is accepted and case is remanded flack to the Custodian of Evacuee Property, Sind.

K. M. A. Petition accepted.

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