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Revision Petition No. 24 of 1957, decided on 28th January 1958.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)

, S. 13 (3)‑Non‑evacuee co‑sharers in property jointly owned by them and evacuee owners have right to demand partition of property by applying to Custodian‑Jurisdiction of other Courts ousted by S. 41.

Held, that non‑evacuee co‑sharers in property jointly owned by them and evacuee owners have the right to demand partition of property under section 13. subsection (3), Act XII of 1957 and under section 41, the Custodian having been empowered to partition the property no other Court or authority appears to have any jurisdiction in that respect.

Khursheed Ahmed for Petitioners.

Sharif Ahmad Petitioner, in person.

M. B. Zaman for Pir Bashir Ahmed etc.

Pir Bashir Ahmed, auction purchaser in person.

Karam Elahi Chauhan, for the Rehabilitation Authority.

Ghulam Qadir & Company made an application on 11th October 1957, praying that the Rehabilitation Authority may be restrained from selling the 3/5th share of the evacuees in the cinemas known as the New Pearl Cinema, Sialkot City, and the Capital Cinema, Sialkot Cantonment, belonging to the firm called Sialkot Cinemas. I ordered on 15th October 1957 that the property above mentioned may be auctioned but on the following conditions :‑

(1) It shall be announced at the time of the auction that the peti tioners assert that only 3/8th share of the property is evacuee and not 3/5th as advertised.

(2) The petitioners shall be at liberty to bid in the auction and it will be made known to all present that the petitioners claim the exclusive right to buy the evacuees' share according to the partnership agreement.

(3) The Secretary to the Rehabilitation Commissioner shall make a report about the facts of the case and the sale shall not be confirmed without the previous approval of the Custodian.

Three‑eighth share of the building of the New Pearl Cinema, Sialkot City, was sold on 18th October 1957, with all the machinery which was evacuee property. It was purchased by Bashir Ahmad Shakoor Ahmad for Rs. 3,10,000. On 16th November 1957, the auction pur chasers made an application for being made a party to the petition filed by Ghulam Qadir & Company. This was allowed after notice on 5th December 1957. The Secretary, Rehabilitation Board, submitted a report dated 3rd December 1957 and the case came up for hear ing on 23rd December 1957. The question arose whether the firm known as Sialkot Cinemas, said to be consisting of two separate firm namely, Ghulam Qadir & Company comprising of four Muslim members and Ramjidas & Company comprising of four non‑Muslim members, one of whom, namely, Lala Prabhu Dayal, had become a Muslim in 1947 and the other three had become evacuees, was still in existence or had ceased to exist. Counsel for the petitioners prayed for an adjournment so that he may call the managing partner, Mr. Sharif Ahmad, from Sialkot to make a statement on this point. Mr. Sharif Ahmad appeared as a witness on 15th January 1958 and said that the aforementioned firm was still in existence. After that the Petitioners filed an application dated 27th January 1958 praying that the abovementioned firm may be dissolved and the evacuees' share in the property may be separated from the non‑evacuees' share by partition. It is said that besides the two cinemas named above there is a Dancing Hall in Sialkot Cantonment which also belongs to the aforesaid firm and may be included in the partition. Under section 25, subsection (2), clause (w), Administration of Evacuee Property Act, XII of 1957, the Custodian may partition or permit a Rehabilitation Authority to partition any property, or rights therein, if a share ill such property or rights consists of evacuee property. Under section 13 of the Act the Custodian can take over the management of the entire property if the majority share in it belongs to evacuees but under subsection (3) of section 13 the Custodian is required, on an applica tion being made in this behalf by all or any of the lion‑evacuee owners, to partition the property, if it is capable of being partitioned, and determine the shares of evacuees. Under section 41 of the Act, no civil or revenue Court or any other authority has jurisdiction in respect of any matter which the Custodian has been empowered by or under the Act to determine. The petitioners have, therefore, the right to demand partition of this property under section 13, subsection (3), Act XII of 1957 and under section 41, the custodian having been empowered to partition the property no other Court or authority appears to have any jurisdiction in that respect. According to section 25, subsection (2), clause (w), the Custodian may partition the property himself or permit a Rehabilitation Authority to do so. The property involved in this case is situated in Sialkot and inspection of the various buildings and the movable property contained therein will be necessary for the purpose of partition. The Deputy Custodian of Evacuee Property at Sialkot is the Senior Civil judge there and is not likely to have the time for this work. I, therefore, direct that the Rehabilitation Authority, through the Secretary Rehabilitation Board, may give notice to the parties concerned and draw up a Partition Scheme which will be submitted to me for approval. The auction purchaser has paid Rs. 5,000 as earnest money for the purchase of the 3/8th share of the New Pearl Cinema. As it is not known what property will go to the evacuees as a result of the partition the auction purchaser may take back his money and await the result of the partition.

A. H. Order accordingly.

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