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Writ Petition No. 94 R of 1982, decided on 13th March, 1982.

‑‑Art. 17 ‑Judge of High Court sitting as Custodian, Evacuee Property passing order on 24‑3‑1981 after promulgation of Provisional Constitution Order, 1981‑Time fixed for taking oath being 1‑30 p. m. of 24th March, 1981 and any Judge not taking oath at such time ‑ presumed to relinguish office, Judge Custodian not thus taking oath could not function thereafter but be could certainly function till 1‑30 p. m. of appointed date and any order passed before such time not without jurisdiction.

-------S. 20 and Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 25 (1) and Constitution of Pakistan (1973), Art. 199‑Custodian hearing arguments on 4‑11‑1980 and announcing order on 24‑3‑1981‑Contention that Custodian might have forgotten arguments, held, without force since contentions raised dealt with and disposed of in order passed.

--S. 11 and Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 25‑Res judicata‑Contention that Deputy Custodian having ordered partition of joint Khatas in 1956‑57 in pursuance of which A.R.C. passed orders as such order operated as res judicata in subsequent proceeding's‑Such point not raised before Custodian and order from Deputy Custodian obtained by petitioners without impleading allottees on whose motion subsequent proceedings taken by Deputy Custodian as well as Custodian‑Affected parties having not been impleaded, orders, held, not binding on them and contention without force.‑[Res judicata].

‑‑S. 20. Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 25 and Constitution of Pakistan (1973), Art. 199‑Finding of Custodian as to possession of land having been given to vendee/ evacuees under sale‑deeds available‑Land allotted to refugees from Hissadari possession of non‑Muslims‑Mutations not sanctioned due to Partition of sub‑continent‑‑Contention that sale‑deeds by which petitioners' predecessors‑in‑interest said to have been sold land not effective because possession not delivered thereunder to evacuee, held, has no force.

‑‑S. 20 and Pakistan (Administration of Evacuee Property Act (XII of 1957), S. 25 and Constitution of Pakistan (1973), Art. 199 Contention that petitioners' predecessors‑in‑interest being co‑owners in joint Khatas, unless his share separated from non‑evacuee, he was not entitled to retain entire land including one allotted to refugees‑Deputy Custodian allowing land from Hissadari possession of non‑Muslims to allottees and order upheld by Custodian -Constitutional jurisdiction, held, cannot be invoked in matter concluded by finding of facts and authority having exclusive jurisdiction therein.‑[Jurisdiction].

PLD 1959 SC (Pak.) 9; PLD 1978SC (AJ&K) 75;PLD1959 Pesh. 26; P L D 1962 S C 284; P L D 1971 Lah. 825 and P L D 1978 Lah. 71 ref.

‑‑S. 20 and Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 25 and Constitution of Pakistan (1973), Art. 199‑ Allotment made to refugees in 1952 found by A. R. C. to be from Hissadari of evacuees maintained by Deputy Custodian and upheld by Custodian‑Orders passed by authority of exclusive jurisdiction and based on facts, held, cannot be interfered with after 30 years even though erroneous.

Muhammad Hussain Munir and others v. Sikandar and others P L D 1974 S C 139 fol.

Ch. Hameed‑ud‑Din for Petitioners.

According to the case of the petitioners, their predecessor‑in‑interest, Kaisra alias Muhammad Din, was owner of 4031 kanals 7 marlas of land in village Mallian Kalan, Tehsil and District Sheikhupura. It was part of the joint holding with evacuees in Khewat Nos. 11 to 20, 24, 25, 32, 33, 35, 36, 54, 55, 60, 62 and 63. Rehabilitation authorities made allotment, to refugees out of the joint khatas. Aforesaid Kaisra challenged these allotments on the ground that those could not be made without getting joint khata partitioned, but Mr. Ghulam Hussain Khan Leghari, Additional Rehabi litation Commissioner, Punjab, rejected the appeal on 5‑11‑1952 holding that no area under the possession of hissaddari Khata of Kaisra was allotted to the refugees and the allotments were in regard to those areas which were previously under‑ the hissadari possession of they non‑Muslims. It wail observed that the allotments will not in any way prejudice the legal rights of Kaisra in the partition proceedings Kaisra applied under section 20 (2) (c) of the Pakistan (Administration of Evacuee Property) Ordinance, XV of 1949, impleading evacuees and Rehabilitation Department as parties, and obtained orders for partition from the Deputy Custodian, Sheikhupura, on 14‑9‑1957, 17‑11‑1956 and 16‑3‑1957. In implementation of the orders, the A.R.C (L), Sheikhupura partitioned Khata Nos. 12, 15. 18, 19, 20, 24, 25, 55, 60 and 62 measuring 2119 kanals 12 marlas. One Ijaz Ahmad who had been made allotment out of the aforesaid khatas filed appeals which were dismissed as time barred. His revision petitions were dismissed by the Rehabilitation Commissioner on 7‑5‑1962. He filed W.P. No. 2401‑R/1962 but without success. He filed LPA No. 1207/66 which too was dismissed in limine on 25 11‑1966 but it was observed that the sale‑deed in favour of the evacuee, on which Ijaz Ahmad relied, be produced before the Custodian authorities. Ijaz Ahmad then filed an application under section 25 (1) of the Pakistan (Administration of Evacuee Property) Act XII of 1957 before the Deputy Custodian on 26‑9‑1966. The Deputy Custodian in detailed order dated 26‑9‑1974 came to the conclusion that the land measuring 579 Kanals 18 marlas sold by the predecessor‑in‑interest of the petitioner in favour of the evacuees vide registered sale‑deed dated 5‑2‑1946 and 9‑7‑1947, was evacuee property. He, further, held that the land allotted to the refugees on various R. L 11 mentioned in his order was also evacuee and restored to the allottees. He directed the Deputy Settlement Commissioner (L) concerned to recover batai from the petitioners from March. 1947 till Rabi 1974 as land revenue. The petitioners challenged the order by means of a revision petition before the learned Custodian. Another matter concerning some other land claimed by the petitioners was pending before the Deputy Custodian. The learned Custodian called for the file of this case and ordered to be taken up with the revision petition. The learned Custodian heard the revision petition on 4‑11‑1980 and reser ved judgment. He dismissed the same on 24‑3‑1981.

2. Learned counsel for the petitioners has contended that the order of the learned Custodian who was a sitting Judge i.e. Mr. Justice Zaki‑ud‑Din Pal dated 24‑3‑1981, is without jurisdiction for the reason that the Provisional Constitution Order was promulgated in the night between 23rd and 24th March, 1981 and it came into force at once. The learned Custodian having not taken oath as a Judge of the High Court on 24-3‑1981, his order is without jurisdiction.

A perusal of the Article, 17 of the P.C.O. reads as follows :‑

"A person holding office immediately before the commencement of this Order as Chief Justice of Pakistan or other Judge of the Supreme Court, or Chief Justice or other Judge of a High Court, or Chairman or member of the Federal Shariat Court, shall not con tinue to hold that office if he is not given or does not make, oath in the form set out in the Schedule before the expiration of such commencement as the President may determine or within such further time as may be allowed by the President."

From this, it is clear that a Judge was not to hold the office if he were not to be given oath, or, were not to take oath before the expiration of such time as the President were to determine or till such time as were to be allowed by the President. We can take judicial notice of the fact that the time fixed for taking oath was 1‑30 p.m on 24‑3‑1981 and it was thereafter that if some one were not to be given, or, were not to take oath, that he was not to continue to hold the office. The learned Judge who passed the impugned order did not take the oath. Therefore, it would be after the expiry of the time that he was not to continue to hold the office under the aforementioned provisions. Before that, there was no bar for his acting as the. Judge and when he bad passed the order, obviously during the day of 24‑3‑1981 before 1‑30 p.m. he had the jurisdiction to pass the order. Consequently, the contention has no force.

3. It was next urged that the learned Custodian heard the arguments on 4‑11‑1980 and announced the order on 24‑3‑1981, therefore, he bad forgotten the arguments and consequently the order is illegal. The contention has no force. It proceeds on the basis that the learned Custodian had forgotten the arguments. There is no basis for the argument. The impugned order does show that the contentions raised have been dealt with and disposed of.

4. It was then contended that the partition of the joint khatas having earlier been ordered by the Deputy Custodian in 1956‑57 in pursuance of which the ARC had passed the orders, that operated a res judicata in the subsequent proceedings. Firstly, this point was not urged before the learned Custodian and, secondly, the orders from the Deputy Custodian bad been obtained by the petitioners without impleading the allottees or Ijaz Ahmad, on whose motion the subsequent proceedings were taken by the Deputy Custodian and the Custodian. In the absence of impleading the parties who were affected, the orders were not binding on them. Consequently, the contention has no force.

5. Learned counsel, further, contended that two sale‑deeds dated 5‑2‑1946 and 9‑7‑1947 by which the petitioners' predecessor‑in‑interest Kaisra is said to have been sold the land measuring 579 kanals 18 rnarlas were not effective because possession had not been delivered thereunder to the evacuees. The contention has no force for the reason that as far back as 1952, the Additional Rehabilitation Commissioner in his order dated 5‑11‑1952 on the motion of the petitioners had held that the land allotted to the refugees was from the hissadari possession of the non- Muslims. Although on account of partition of the Sub‑Continent, mutations were not sanctioned in pursuance of the registered sale deeds but the possession bad been delivered to the vendee‑evacuees under the sale‑deeds and so is the finding of the learned Custodian that possession had been delivered to the vendees. Therefore, contention is without force.

6. Learned counsel next contended that the petitioners' predeces sor‑in‑interest being co‑owner in the joint khatas. unless his share was separated from the non‑evacuees, he was entitled to retain the entire land including the one allotted to the refugees. He placed reliance on P L D 1959 S C (Pak.) 9 at 12, P L D 1978 S C (A J & K) 75 and P L 1959 Pesh. 26. As seen above, the land allotted to the refugees is from the hissadari kabza of the evacuees and it was so found some 30 years ago by the Additional Reh. Commissioner in 1952. The contention is without merit. Learned counsel submitted that the Custodian has the same rights as the evacuees had and he placed reliance on P L D 1962 S C 284, P L D 1971 Lah. 825 and l: L D 1978 Lah. 71. There is no qualm with this proposition but the learned Deputy Custodian had allowed the land from the hissadari possession of the non‑Muslims to the allottees and the order has been upheld by the learned Custodian. The authorities had the exclusive jurisdiction in the matter and it being concluded by findings of facts, can hardly be interfered with in these proceedings under the Constitutional jurisdiction.

7. Learned counsel for the petitioners then submitted that assuming that area measuring 579 kanals 18 marlas was sold through the two sale, deeds in favour of the evacuees was valid, even then, that was to be adjusted in calculating the entitlement of the petitioners and it has to be decided as to how much the petitioners were entitled to and how much area was available for allotment. The learned Additional Rehabi litation Commissioner in 1952 had held that the refugees had been allotted land from the hissadari kabza of the evacuees. The learned Deputy Custodian has allowed the allotments and the order has been upheld by the learned Custodian, which clearly show that whatever has been allotted to the refugees was from the evacuee share and from the rest. the entitlement of the petitioners can be ascertained and specified. The last contention raised that another case before the Deputy Custodian was ordered to be heard together but the learned Custodian had not decided that case, therefore the impugned order of the learned Custodian dated 24‑3‑1981 is without lawful authority has no force for the reasons that this is not only not material but that case is still pending and shall be decided by the learned Custodian on its own merits.

8. From what has been stated above it would be quite clear that the allotments made to the refugees in 1952 which were found to be from the hissadari kabza of the evacuees by the Additional Rehabilitation Commissioner and which have been maintained by the learned Deputy Custodian whose order bad been upheld by the Custodian, can hardly be interfered with now after 30 years, and the orders of the authorities of exclusive jurisdiction based on facts, cannot be interfered with, even if those were to be erroneous, which they are not so found, in view of the pronouncement of law by the learned Supreme Court of Pakistan in Muhammad Hussain Munir and others. v. Sikandar and others (P L D 1974 S C 139).

In view of what has been stated above, there is no force in this Constitutional petition and the same is, accordingly, dismissed in limine.

M.Y.H. Petition dismissed.

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