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Civil Petition for Special Leave to Appeal No. K‑188 of 1974, decided on 12th March, 1975.
(On appeal from the judgment and order of the High Court at Karachi, dated 24‑6‑1974 in Writ Petition No. 191 of 1972).
‑--S. 3‑A‑House in dispute consistently treated as evacuee property since 1953 ‑ Held, cannot be declared as non‑evacuee under S.3‑A.
Kishanchand Bharwani, Advocate Supreme Court instructed by M.I. Memon, Advocate‑on‑Record for Petitioner.
Nemo for Respondents Nos. 1 and 2.
Respondent No. 3 in person.
Date of hearing: 12th March, 1975.
This civil petition is from the order of the High Court at Karachi dated 28‑6‑1974 dismissing Writ Petition No. 191 of 1972 by the petitioner herein.
The dispute concerns property bearing. No. C. S. No. D/58‑1658 Sonar Bazar, Hyderabad and the question raised is whether the same is evacuee property. The essential facts bearing on the question are that by means of a registered sale‑deed executed in 1942, one Dr. Lekhraj, a private medical practitioner purchased the property in dispute, allegedly in the name of his wife Mst. Lachmi Bai as a Benamidar for himself and thereafter rented it to Dr. Alam Shah, a local since deceased and predecessor‑in‑interest of respondents Nos. 3 to 7 herein. On 16‑5‑1950, on an application made in that behalf, Dr. Lekhraj was declared by the Custodian, a non‑evacuee. Dr. Alam Shah continued in occupation of the house, but it appears, he initiated. some proceedings to have the house declared evacuee property. Ultimately, on 21‑7‑1953, he succeeded in securing allotment order by the Rent Controller/A. R. C. in his favour, as if it was evacuee property. Later, he also appears to have filed L. H. form for its transfer, his form was accepted and . P. T. O. was also issued in his favour. Dr. Lekhraj filed a revision against the transfer of the house in favour of Dr. Alam Shah. The revision was accepted by the Additional Settlement Commissioner by order dated 20‑7‑1961 and the P. T. O. issued in favour of Dr. Alam Shah was cancelled on the ground that the property was non‑evacuee and therefore, was not transferable under the Schedule to Act XXVIII of 1958. Against the above order, a further revision before the Settlement Commis sioner by Dr. Alain Shah was however, accepted by order dated 25‑2‑1971. The learned Settlement Commissioner took the view that the house has been treated by the Rehabilitation Authorities as evacuee property since 1953 despite the declaration with regard to the non‑evacuee status of Dr. Lekhraj Aggrieved by the abode order, Mst. Lachmi Bai and the petitioner herein filed a writ petition which was dismissed on 28‑6‑1974 by a learned Single Judge, who took the view that the fact that the house was allotted to Dr. Alam Shah in 1953 by the A. R. C.‑cum‑Rent Controller, clearly showed that it was treated as evacuee property and that the declaration as to the non‑evacuee status of Dr. Lekhraj did not enure to the benefit of Mst. Lachmi Bai, who was owner of the house in dispute.
After hearing learned counsel for the petitioner at some length, we are of the view that the case was rightly decided by the High Court. Barring the bald allegation that Mst. Lachmi Bai was a Benamidar for he husband Dr. Lekhraj, there is nothing to show that she was merely an ostensible owner of the house. That apart, the house, as found by the High Court and the learned Settlement Commissioner, has been consistently treated as evacuee property eversince 1953. That being so, it could not have been treated‑ as non‑evacuee, vide section 3‑A of Act XII of 1957.
The petition is accordingly dismissed.
S. Q. Leave refused.
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