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Civil Petition for Special Leave to Appeal No. 624 of 1966, decided on 28th March, 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 28th November, 1966, in Writ Petition No. 508 of 1963).
‑‑ S. 3‑Constitution of Pakistan (1973), Art. 185(3) ‑ Leave to appeal ‑Question whether petitioners had not perfected title by adverse possession prior to 1st March, 1947 on basis of revenue record and whether High Court not justified in holding that benefit of S. 3 available only to persons who possessed property under lawful authority‑Questions raised of general public. importance‑Leave to appeal granted.
Abdur Rasheed, Senior Advocate Supreme Court (Maqbool Ahmad Sheikh, Advocate Supreme Court with him) instructed by Abdul Karim, Attorney for Petitioners.
Nemo for Respondents.
Date of hearing : 28th March, 1967.
:The dispute in this case is with respect to 1,418 Kanals and 14 Marlas of land of Khewat No. 2 in Mouza Ahmad Sbah in the Tehsil and District of Montgomery (Sahiwal).
The said lands belonged to Hindus who became evacuees on Partition of India. The petitioners who own the lands of Khewat No. 1, are claiming title to the disputed lands by adverse possession for more than 12 years before March, 1947. In 1961, the Settlement and Rehabilitation Commissioner out of the said land allotted 408 Kanals and 5 Marlas to respondents Nos. 4 to 11. The petitioners then filed a petition under section 22 of the Pakistan (Administration of Evacuee Property) Ordinance (XII of 1957) for a declaration that they were owners of the said land and that it was not an evacuee property and their petition was accepted by the Deputy Custodian. On appeal by the allottees, the Custodian remanded the case to the Deputy Custodian who thereafter rejected the application and his order was also upheld on appeal by the Custodian. They then moved a writ in the High Court, but the same was dismissed. It may be mentioned here that their contention that the land not having been treated as evacuee property up to 1961 their possession was protected by section 3 of Act XII of 1957, was not at all considered by the Deputy Custodian or the Custodian.
The learned Judges of the High Court found that the petitioners had failed to prove their adverse possession for more than 12 years before 1st March, 1947. They then relying on the Full Bench decision of that Court in Syed Ali Iqtiaar Shah and others v. The Custodian of Evacuee Property, West Pakistan (P L D 1964 Lab. 724), held that protection of section 3 was not available to parties who were in unauthorized possession or management of evacuee properties.
Mr. Abdur Rasheed, the learned counsel, has contended, inter alia:
(i) that the finding that the petitioners had not perfected the title b adverse possession prior to 1st March, 1947, was not based on proper appreciation of the entries in the revenue records on which the petitioners relied, and
(ii) that in view of the language of section 3 of the Act the High Court was not justified in holding that the benefit of the said section was available only to persons who possessed the property under lawful authority. As the questions raised require interpretation of section 3 and some other sections of Act XJI of 1957, which are of general public importance, we grant leave to appeal on the above as well as the other points raised in the petition.
Security for costs‑‑Rs: 1,000.
Slay already granted will continue till disposal of the appeal.
Leave granted.
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