Find a Lawyer

Civil Petition for Special Leave to Appeal No. 1301 of 1980, decided on November, 1980.

(On appeal against the Order of the Lahore High Court passed on 7tb July, 22nd 1980 in R. S. A. No. 405 of 1965).

---Ss. 21, 22 & 41 and Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 25‑Declaration as evacuee property‑Juris diction of civil Court‑Possessory rights claimed by plaintiff on ground of their predecessor having unauthorisedly sold disputed land to one subsequently becoming evacuee and such suit decreed in favour of plaintiffs with provision that they would be entitled to claim possession on death of their predecessor ‑ Land allotted to petitioners on Partition of country ‑ On death of their pre decessor suit filed by respondents and petitioners pleading property to be evacuee property and having been allotted to them, jurisdiction of civil Courts barred‑Held : Only such rights in property could be acquired by Custodian as were evacuee property hence only right of evacuee to remain in possession of property in dispute during lifetime of respondents' predecessor had become evacuee and allowed to petitioners and allotment in facts of case made only of evacuee rights and such rights extended only to hold possession till death of respon dents' predecessor‑Petitioners deprived of land allotted to them, held further, presumed to have been entitled to it under evacuee laws and incumbent upon Government to allot them land in lieu thereof.‑[Juris diction].

M. A. Zafar, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.

Azam Suharwardy, Advocate Supreme Court and M. A. Qureshi, Advocate‑on‑Record for Respondent No. 1.

Date of hearing : 22nd November, 1980.

.‑Respondents Nos. 1 to 3 filed a suit for possession of the land in dispute on the ground that their predecessor Rehmat Khan who sold the land in dispute in 1936 to one Ishar Singh could not have done so. On 28‑2‑1946 the suit was decreed in favour of the plaintiffs with the provision that they would be entitled to claim possession on the death of Rehmat Khan. Meanwhile in 1947 partition of the country intervened and the land was allotted to the present petitioners.

2. On 12‑11‑1962 Rehmat Khan died and respondents Nos. 1 to 3 filed a suit for possession on the basis of the decree obtained by them on 28‑2‑1946. The petitioners contested the suit on the ground that the property was an evacuee property and that it was allotted to them as such and the civil Court had no jurisdiction to go into the matter. On 16‑5‑1964 the Civil Judge decreed the suit. On 22‑1‑1965 an appeal filed by the petitioners was accepted by the learned District Judge.

3. The respondents then filed R. S. A. No. 406 of 1965 in the Lahore High Court which was accepted by it on 7‑7‑1980. Hence this civil petition for special leave to appeal.

4. It has been submitted before us that the land having been acquired under section 4 of the Displaced Persons Act only the Custodian was competent to look into it and to determine its character. Under the la there could have been an acquisition only of such rights in the property were evacuee and since all official acts are presumed to have been regularly done and there being nothing against this presumption, we would assume that it was only the right of Isher Singh to remain in possession of the property in dispute during the lifetime of Rehmat which had become evacuee and was allotted to the petitioners. That being so, the moment Rehmat died on 12‑11‑1962 the petitioners ceased to have any right in the property in dispute and no declaration from the Custodian was called for to dispossess them from it.

5. It was stated that since the allotment was not challenged under section 21 or 22 of the Pakistan Administration of Evacuee Property Act, it became final and the jurisdiction of the civil Court was, therefore, barred under section 25 of the Displaced Persons (Land Settlement) Act and section 41 of the Administration of Evacuee Property Act.

Assuming this to be a correct statement of the law applicable to the facts of the case, the answer already given by us in the preceding paragraph is equally applicable to it. The allotment in the facts of the case was only of evacuee rights and the evacuee rights were only to hold possession of that property till the death of Rehmat Khan. We, therefore, reject this petition and refuse to grant leave to appeal.

6. Before parting with this case, however, we would like to observe that since an allotment was made to the petitioners they should be presumed to have been entitled to it under the evacuee laws, and now that they have been deprived of it for no fault of theirs it is incumbent upon the Government to allot to them land in lieu of that which they have now to forfeit. We need not say that we expect that this will be done in the shortest possible time.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.