Find a Lawyer

Revision Petition No. 47 of 1957, decided on 4th March 1958.

(a) Limitation Act (IX of 1908)

, S. 5‑Revision petition filed before Custodian of Evacuee Property after time‑Time extended to examine legality or propriety of orders.

A petition for revision was filed against the order of the D. C. G. dated 27th February 1957 on 23rd April 1957. The period prescribed by rule 17 (2) of the Administration of Evacuee Property Rules for filing a petition for revision is 30 days from the order sought to be revised. Application for a copy of the order was made on 5th April 1957, after the time for filing the revision had expired. The copy was supplied on the same day and excluding this and the day the order was passed the last day for filing the revision petition was 30th March 1957. It was not filed until 23rd April 1957 and could have been dismissed on the short ground of limitation but the counsel for the petitioners filed a belated petition for extension of time under section 5, Limitation Act.

Time was extended by Custodian to examine the facts of case in order to see whether there was anything illegal or improper in the con current orders of the two Courts below.

(b) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)

, S. 16 (3) (b) (i)‑Value of property taken in exchange little more than value of property given‑Whether exchange not genuine.

Even if value of the property taken by the petitioners were a little more than the property given by them, that would not prove that the exchange was not a genuine transaction.

(c) Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)

, S. 16‑Land, subject of exchange. in occupation of allottees‑Allottees not made parties to confirmation proceedings before Deputy Custodian ---Immaterial, in absence of prejudice, if joined as objectors by the Deputy Custodian (General).

(d) Evidence Act (I of 1872)

, S. 78 (6)‑Copy of Deputy Custodian (India's) order filed before Deputy Custodian in Pakistan‑Attestation by Deputy High Commissioner of Pakistan in India‑Necessity‑(Quarae).

Sardar Muhammad Iqbal Khan for Petitioners.

Muhammad Ismail Bhatti for Respondents.

Karam Elahi Chauhan for R. A.

A. M. JAN

.‑-- Mr. Baqar Ali Khan and his wife, Alia Sultana, made an application dated 27th January 1948 in the Court of Mr. Fazl Elahi, Deputy Custodian, Lyallpur, for the confirmation of exchange of property effected by a registered deed dated 29th October 1947. The application was kept pending by order dated 24th June 1948 because the policy of the Government about the exchange of agricultural land had not been finalised at that time. It was, however, ordered that the land claimed by the petitioners should not be allotted to any refugees and, if it was allotted, the allottees should be informed in express terms that if the exchange is confirmed they may have to pay batai to the new owners on the usual terms. On 27th November 1950 an amended application for confirmation was made and placed on the record. The hearing of the case was resumed by order dated 16th March 1955. On 25th January 1956, the Deputy Custodian was informed that Mr. Baqar Ali had died on 14th January 1956 and it was prayed that his legal representatives should be brought on the record. This was done and, after taking the documentary evidence produced by the petitioners, Ch. Muhammad Anwar who hack succeeded Mr. Fazli Elahi as the Deputy Custodian, Lyallpur, confirmed the exchange by order dated 20th June 1956. Exh. P‑1 was the registered deed of exchange, dated 29th October 1947. Exh. P‑2 was a copy of an entry dated 20th April 1950 in the Register of the Assistant Custodian, Khurai, Central Provinces, India, relating to exchange of the petitioners' property situated there with the property of Hukam Chand and Bahadur Chand in Lyallpur. Exh. P‑3 was a copy of the report dated 7th June 1950 made by the Assistant Custodian recommending the exchange and Exh. P‑3/A was the order of the Deputy Custodian dated 3rd July 1950 sanctioning the exchange. Exh. P‑4 to P‑6 were copies from the mutation register. Exhs. P‑7 and P‑8 were copies of 'jamabandi'. Exh. P‑9 was another copy of a 'jamabandi'. Exhs. P‑10, P‑11 and P‑12 were copies of the 'goshwara'. Exh. P‑13 was another copy of a 'jamabandi'. Exhs: P‑14 and P‑15 were lists of pro perties exchanged and Exhs. P‑16 to P‑18 were some more copies of 'jamabandi'. The Property Tax and House Tax certificates were also produced by the petitioners. The execution of the Deed of Exchange by Bahadur Chand and his son Hukam Chand had already been admitted byte Hukam Chand on 28th January 1948 in the Court of Ch. Fazli Elahi, Deputy‑ Custodian. The revenue records showed that the petitioners' property in India had been taken possession of by Hukam Chand and Bahadur Chand, evacuees from Pakistan, and that the exchange had been confirmed under section 38 (5) of the Administration of Evacuee Property ‑Ordinance of 1949, applicable to India. The Deputy Custodian was, therefore, satisfied that the petitioners' property in India, which they had given in exchange for the evacuee property in Lyallpur, had been treated as evacuee property by the Indian authorities and there was no reason why the exchange in favour of the petitioners should not be allowed. The certificates from the Income Tax, the House Tax and the Property Tax authorities also showed that they had no objection to the exchange. The value of the property involved was stated to be about Rs. 1,50,000 and the case was sent to the Custodian for confirmation. It was placed before the Deputy Custodian (Genl.) who considered it proper to issue notice to the allottees of the property under rule 12 (5), Administration of Evacuee Property Rules, 1950. A number of persons appeared in consequence of this notice and prayed for opportunity to produce evi dence to show that they were bona fide allottees and the exchange was not a genuine transaction. The Deputy Custodian (Genl.) allowed them to produce evidence to show that the exchange was not genuine though they need not produce any evidence to show that they were bona fide allottees because this was assumed in their favour. The case was postponed to 13th February 1957 for evidence. The objectors neither summoned nor brought any evidence on that date and asked for, another adjournment which was granted on payment of costs. The evidence was produced on 27th February 1957 and consisted of 8 witnesses. R. W.‑1, Allah Yar, said that he owned land in Chak No. 714, Tehsil Toba Tek Singh, District Lyallpur, and the average price of a square of land there was about Rs. 30,000. R. W.‑2, Meraj Din, said that he had purchased some land in Chak No. 714 i 1943‑44 at Rs. 1,235 per acre. R. W.‑3, Muhammad, said that he was a cultivator in Chak No. 711 and Nawab Ghulam Muhammad sold 30 acres of land for Rs. 38,000 in 1948 and Ghulam Qadir sold 34 acres in 1950 for Rs. 65,000. R. W.‑4, Mokhe Khan, was also a cultivator and repeated the evidence given by R. W.‑3. R. W.‑5, Mehdi Khan, said that he lived at a distance of 2 miles from Chak No. 714 and 2 killas of land in his village was sold in 1955 for Rs.5,400 though lie did not know who sold the land and who purchased it. R. W..6, Abdul Aziz, said that he was a refugee allottee and knew that two acres of land were sold for Rs. 5,400 in 1955 but he did not know whether the sale was reduced into writing or any mutation was effected in respect thereof. R. W.‑7, Ibrahim, said that a shop belonging to Hukam Chand and some other evacuees, situated in the Grain Market, Kamalia, was now in possession of Lal Khan and was worth Rs. 10,000 or 11,000. These evacuees had left a bungalow also in Kamalia in which about 40 refugee families were living and was worth about 60,000 to 70,000. Another house, belonging to Hukam Chand and some others, was worth Rs. 20,000. He claimed to know the value of landed property because he was a refugee though he did not deal in property. R. W.‑8, Zakir Hussain, one of the objectors in the case, produced certain documents alleged to have been prepared by a 'patwari' who was not produced as a witness. They showed that the average price of land in this neighbourhood was about Rs. 1,000 to 2,000 per acre. According to him the exchange in question was neither bona fide, nor genuine, nor for adequate consideration. In cross‑exami nation he said that he was not present at the time of the exchange and did not know the nature or extent or value of the property given by the petitioners in exchange for the property given to them. With this evidence the objectors closed their case.

Counsel for the petitioners produced no oral evidence but tendered a letter from the Additional Rehabilitation Commissioner (Lands), to the Assistant Colonization Officer, Multan, dated 25th May 1954, marked Exh. A. P. A. This shows that the A. R. C. (Lands) had ordered that the allottees of the land exchanged should be informed that they may have to vacate it if the exchange is confirmed.

The case was then argued and it was urged by the counsel for the objectors that the value of the property obtained by the petitioners was about three lacs of rupees and, for this reason, the exchange should not be confirmed. The learned Deputy Custodian (Gene.) held by order dated 27th February 1957 that even if it be assumed that the present market value of the property in Pakistan was about three lacs of rupees it must be remembered that the exchange had taken place in October 1947 when both the countries were in a state of disturbance and the value of property on both sides was greatly reduced. Moreover, the objectors, had produced no evidence to show that the property in India given by the petitioners was not of equal value. He, therefore, confirmed the order of the Deputy Custodian dated 20th June 1956 whereby the exchange in favour of the petitioners was allowed. A petition for revision was filed against the order of the D. C. G. dated 27th February 1957 on 23rd April 1957. It was clearly time‑barred. The period prescribed by rule 17 (2) of the Administration of Evacuee Property Rules for filing a petition for Revision is 30 days from the order sought to be revised. Application for a copy of the order was made on 5th April 1957, after the time for filing the revision had expired. The copy was supplied on the same day and excluding this and the day the order was passed the last day for filing the revision petition was 30th March 1957. It was not filed until 23rd April 1957 and could have been dismissed on the short ground of limitation but the counsel for the petitioners has filed a belated petition for extension of time under section 5, Limitation Act and I have decided to examine the facts of this case in order to see whether there is anything illegal or improper in the concurrent orders of the two Courts below.

The grounds for revision are flimsy and of a technical nature. It is urged that no notice was given to the allottees by the Deputy Custodian; therefore, the Additional Custodian should have rejected the exchange rather than confirm it after giving notice or, in the alternative, he should have remanded the case to the Deputy Custodian, Lyallpur, for further enquiry. The order of the Deputy Custodian (Gene.), (now Additional Custodian), dated 7th August 1956 shows that he had directed the petitioners to file a list of the persons interested in the result of this case so that, if he came to the conclusion that Rule 12 (5) was applicable, he may either give them notice himself or remand the case to the Deputy Custodian for complying with the above‑mentioned rule. On 12th Octo ber 1956 counsel for the petitioners gave a list of persons who were in occupation of the exchanged property without conceding that they were entitled to any notice. The Deputy Custodian (Gene.) decided to issue notice himself by beat of drum and publication in the Nawa‑i‑Waqat of Lyallpur. The objectors, who appeared in pursuance of the notice on 11th December 1956, were fifteen in number. None of them suggested that the case should be remanded to the Deputy Custodian, Lyallpur, but prayed for an opportunity to produce evidence that they were bona fide allottees and the exchange was not a genuine transaction. This request was acceded to and the first assertion, that they were bona fide allottees, was conceded in their favour without any evidence. The evidence led by the objectors on the second question, whether the exchange was a genuine transaction, was hardly relevant. It merely showed that in the opinion of certain persons, who were not experts, the market value of the property taken by the petitioners was so much ; without showing the market value of the property given by the peti tioners in exchange. The respective owners had agreed that the value of the property exchanged was the same but even if the value of the) property taken by the petitioners were a little more than the property given by them, that would not prove that the exchange was not a genuine transaction. It was a contract entered into by the parties with their eyes open, without any force, fraud or undue influence and they were bound by it. The second objection taken in the revision petition is that the Deputy Custodian (General) could not use the evidence recorded by the Deputy Custodian, Lyallpur, in the absence of the allottees. The only evidence recorded in the absence of the allottees on 28th January 1948 was the formal statement of Baqar Ali Khan admitting the terms of exchange deed and asking for its registration. He died on 14th January 1956 and could not have appeared in confirmation proceedings which started after his death. Mst. Alia Begum had merely supported the statement of her husband Baqar Ali Khan and Hukam Chahd had pro duced the original Deed of Exchange which he admitted on behalf of himself and his father, from whom he held a power of attorney, and added that he had taken over possession of the petitioners' property in India. He was identified by Nawabzada Ghulam Ali Khan. Notice was then issued by the Deputy Custodian, Lyallpur, to the Rehabilitation Authority who were to represent and protect the interests of the allottees. On an application dated 1.6th March 1948 it had been ordered that the landlord's share in this land should not be sold and on 24th June 1948 it would have to pay 'batai', or the Revenue Authority would have to pay to the petitioners the landlord's share collected by them. All this and the letter of the Additional Rehabilitation Commissioner, Exh. A. P. A. dated 25th May 1954 was sufficient notice to the allottees that confirma tion proceedings were pending in the Court of the Deputy Custodian, Lyallpur, and they could have appeared there if they wished. When the hearing of the case was commenced, on 4th April 1956 counsel for the petitioners merely made a statement tendering in evidence the above mentioned documents, P‑1 to P‑18, and on lath June 1956 he produced the certificates from various Taxing Authorities. No other evidence was produced before the Deputy Custodian, Lyallpur, and I fail to see what prejudice has been caused to the allottees by the case not having been remanded to the Deputy Custodian, Lyallpur, for recording the evidence of the objectors ; or by the Deputy Custodian (General) himself record ing that evidence. The evidence taken by the Deputy Custodian, Lyallpur, was on the record and the allottees had full access to it. They never raised the objection before the Deputy Custodian (General) that he was not competent to look at the evidence admitted by the Deputy Custodian, Lyallpur, who had sent the case to him for confirmation. In all confirmation proceedings the evidence admitted by the lower Court is placed before the confirming Court and if that Court or Authority, at the request of a party, takes additional evidence it does not lie in the mouth of the requesting party to say that they have been prejudiced.

It has been urged before me, for the first time, that the recommenda tions of the Assistant Custodian and the order of the Deputy Custodian in India, Exh. P‑3 and 3/A, should have been attested by the Deputy High Commissioner in accordance with section 78 (6) of the Evidence Act. This was a highly technical objection taken at a very late stage of D the case but the counsel for the petitioners said that, though according to law it was not necessary, he would comply with that formality and has had the documents duly attested.

The allottees, Zakir Hussain. Bagh Muhammad, Fazal Qadar and Wali Muhammad, say that some hundreds of acres of urban agricultural land adjacent or close to the land in question remains to be allotted and if the land in their possession is found to have been given in a valid exchange they may be allotted some other land in lieu thereof. This is a reasonable request and I expect that the allotting authority will take due notice of it on an application being made in this behalf. The petition for revision is dismissed and the Rehabilitation Authority are directed to deliver possession of the property exchanged to Mst. Alia Sultana and other heirs of the deceased Baqar Ali, namely, Agha Muhammad Hasan Khan, Agha All Hasan Khan, Mst. Parveen Sultan and Mst. Malik Taj.

The petitioning allottees request that they may be allowed to work on the land as tenants of the new owners for a reasonable time, say one year, to enable them to secure allotment of some other land as they are refugees with abandoned property in India and entitled to allotment. Counsel for the respondents says that his clients do not propose to personally cultivate the land and will have no objection to giving the petitioners a lease of the land in their possession for a period of one year on half batai system if they execute a lease deed for that purpose. It is up to the petitioners to do so. No order as to costs.

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.