Find a Lawyer

Reference No.4 of 1982, decided on 18th June, 1986.

(a) Civil Procedure Code (V of 1908)--

---0. XLI, R. 27--Pakistan Administration of Evacuee Property Act (XII of 1957), S. 30--Additional evidence, production of--Application seeking to produce additional evidence filed long after parties closed their evidence, held, could not be allowed to re-open case at such belated stage.

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

---S. 55--Notification No.SRO-1025-K, dated 12-8-1960--West Punjab Protection of Evacuee Property Act (VII of 1948), S. 17--Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2 (2)--Restoration of property to non-Muslims after return to Pakistan within statutory period--Re-acquiring status of evacuee property after such restoration, determination of--Non-Muslim owners after restoration of property leaving Pakistan during childhood, receiving education in India and thereafter, migrating to England and permanently settling there, losing contact with rest of family members, held, would become evacuee and property to extent of their shares would re-acquire status of evacuee property, and could be validly allotted /transferred in favour of claimant /displaced persons.

P.G. Bhandari v. The Rehabilitation Authority, Lahore and 2 others P L D 1961 S C 89; Sheikh Muhammad Saeed and others v. Muhabbat Ali and 8 others PLD 1966 S C 781 and Begum Darab Sultana etc. v. Custodian etc. P L D 1982 S C 330 ref.

Aamer Raza A. Khan for Petitioners.

Sh. Muhammad Ashraf for the Auction-Purchasers.

Sh. Abdul Aziz and Maqbol Sadiq for the Remaining Respondents.

The Supreme Court of Pakistan, vide order, dated 15-5-1982 passed in Civil Appeals Nos. 230 and 231 of 1979 and Civil Appeals Nos.117 and 118 of 1981 remanded this case with a direction to the following effect:-

"The only point arising from the 1966 decision, which still remains to be settled, is whether the property had re-acquired the status of evacuee property. The Custodian did not return a finding. The learned Judges of the High Court, however, expressed that it was nobody's case that the owners ever refused to reside in Pakistan. But it is urged on behalf of the appellants that the observation was not merited, for evidence had been led on behalf of the appellants to establish the contrary, and that the question being one of fact ought to have been decided first by the Custodian and not in the writ petition by the High Court. On the other hand, it is urged that a reference on this question was not mandatory as the direction was thq4,t "the Custodian will be at liberty to consider" the question. We are, however, of the view that since a direction had already been given by the Supreme Court and since the point is in controversy, it requires a decision which in terms of the direction has to be rendered by the Custodian, for which purpose the reference made to him was competent.

While, therefore, setting aside part of the judgment of the High Court as relates to the power of the Custodian to review suo motu, we maintain the other part whereby the High Court had, held, that the orders of the Custodian of 30-11-1955 and 6-12-1955 were without lawful authority and of no legal effect and that the property was non-evacuee upon its restoration on 7-9-1948. We now remit the matter to the notified officer with powers of Custodian to decide the question whether the property had since then re-acquired the status of evacuee property in consequence of any actions or movements of some or all of the owners after that date and to communicate his decision to the High Court to enable it to dispose of the civil revision. The appeals are disposed of in these terms."

2. At the very outset, 1 may record with regret, that this case has a chequered history extending over a period of three decades. It is not necessary to reproduce its details but I would, refer to those events only which are essential for determination of the point at issue.

The property in dispute (Nos. 57--R-89 and 52-R-91) known as 7-Nisbet Road, Lahore was owned by one Lala Roshan Lal Kapur. He died in India. At the Partition of the Sub-continent Mst. Santosh Lata, his widow and his three minor sons, namely Venod Kumar, Permod Kumar and Amod Kumar "hereinafter referred to as owners" returned to Pakistan. On 18-6-1948, they applied to the Custodian for restoration of the property in dispute. The learned Additional Custodian vide order, dated 7th September, 1948 passed under section 17 of the West Punjab Protection of Evacuee Property Act, 1948, restored the disputed property to them, subject, however, to the conditions, that the refugees/allottees in occupation of the disputed property would not be ousted or dispossessed, that the owners would have landlord's right in respect of the properties, that they would not alienate the same and that upon their refusal to reside in Pakistan the order of restoration would stand cancelled.

It appears that the occupants /allottees of the property in dispute did not pay rent, to the owners, which led Mst. Santosh Lata to obtain order of their ejectment. On objection, that the property in dispute was Evacuee, the executing Court referred the matter to the Custodian for determination of the status of property in question. The Custodian vide his orders, dated 30-11-1955, and 6-12-1955, held, that property having once been taken possession, as evacuee property and having vested in the Custodian, does not cease to be evacuee property, if it is restored to the owner on the conditions imposed by the Custodian. The owners challenged that order in writ jurisdiction but withdrew the petition to avail other remedy. In the meantime the Central Government issued Notification No.SRO-1025 (K), dated 12-8-1960 purportedly under section 55 of Pakistan (Administration of Evacuee Property) Act, 1957 and exempted "all evacuee property which may have been, or is hereafter/ restored, under any law for the time being in force, to any evacuee or any person claiming to be the heir or survivor of an evacuee, from all the provisions of the said Act, with effect from the date of such restoration."

It is significant to mention here that the property in dispute was also under equitable mortgage with the New Bank of India. On 28-2-1952 the aforesaid Bank obtained a decree for its sale. On 17-11-1956 it was sold in auction to Sh. Muhammad Saeed deceased and on 23-7-1960 the sale was confirmed in his favour. Three civil revisions bearing Nos. 131, 132 and 247 of 1960, were filed in the High Court, one by the allottees, challenging the validity of confirmation of sale, the other two by the auction-purchasers. The High Court accepted allottee's petition and set aside the sale in favour of the auction-purchasers with a direction to refund the amount received from them. The auction purchasers preferred appeal before the Supreme Court and the latter relying on P.G. Bhandari v. The Rehabilitation Authority, Lahore and 2 others P L D 1961 S C 89, held that Notification, dated 12-8-1960 issued by the Central Government under section 55 of the Pakistan (Administration of Evacuee Property) Act, 1957 was valid and retrospective in effect; the property in dispute lost its evacuee status since 7-9-1948. The appeal was allowed and the matter was referred to the Custodian for fresh decision by way of review and it was further observed that the Custodian would be at liberty to consider as to whether the property had re-acquired the status of evacuee property in consequence of any actions or movements of some or all of the evacuee owner after that date. The decision of the Custodian was to be communicated to the High Court on the basis of which the Civil Revisions were to be decided. The decision of the Supreme Court is reported as Sheikh Muhammad Saeed and others v. Muhabbat Ali and 8 others P L D 1966 S C 781. The Custodian on remand declined to review order of his predecessor passed in 1955, in view of 'the amendment made in section 43 (6) of Act XII of 1957 by Ordinance (LXIII of 1962) by which the Custodian could review order only to the extent of clerical or arithmetical errors arising out of an accidental slip or omission. The aforesaid order of the Custodian was challenged in Writ Petition Nos.6-R of 1977 and 145-R of 1977 which were allowed by the High Court holding that after the Central Government's Notification, dated 12-8-1960, all taints of evacuee status had been erased from the disputed property and the Custodian could review order of his predecessor under the direction of the Supreme Court. The allottees and others preferred appeals against the aforesaid order of the High Court. On 15-5-1982 the appeals were disposed of by the Supreme Court. The order of the High Court to the extent of holding, the property in dispute to be non-evacuee was maintained but it was set aside whereby it was held that the Custodian could review order of his predecessor. It appears that at that juncture it was noticed that the Custodian in the previous reference did not return his finding on the question as to whether the property in dispute after restoration had re-acquired the status of evacuee property, due to any actions or movements of some or all of the owners after that date. Consequently, the case was remitted to the Notified Officer (Custodian) for determination of this point.

3. Mr. Aamer Raza A. Khan Advocate, learned counsel for the petitioners contended that the property in dispute having been declared non-evacuee since the date of its restoration and this position affirmed by the Supreme Court, the property in dispute cannot re-acquire Evacuee status in consequence of any action or movement of the owners. It was argued that the conditions imposed on 7-9-1948 lost their efficacy particularly on 12-8-1960 when the property in dispute was exempted from the provisions of Pakistan (Administration of Evacuee Property) Act, 1957.

Learned counsel then referred to evidence on the record, to show that the owners were Pakistani nationals. Mst. Santosh Lata, was appointed guardian of her minor children. Permod Kumar received education in India with the permission of the Guardian Judge, Lahore. On 11-6-1955 Mst. Santosh Lata produced before the Deputy Custodian, her own passport and those of two sons namely Vinod Kumar and Amod Kumar which proved that they were nationals of Pakistan, It was pointed out that Permod Kumar and Mst. Santosh Lata died during the pendency of litigation. They are survived by Vinod Kumar and Amod Kumar, Vinod Kumar is residing in England and Amod Kumar in Pakistan. It is contended that the mere fact, that Vinod Kumar is living abroad cannot debar him to own property in Pakistan or inherit property owned by his predecessors. It was contended that the Supreme Court had referred the matter to the Custodian only because in earlier reference, the Custodian did not address himself to this point, otherwise, it is clear that after 1960 even the movements and actions of the owners cannot change the status of the property in dispute which had ceased to be evacuee property by virtue of the Notification dated 12-8-1960. He referred to statements of Mst. Santosh Lata recorded by the Deput custodian, and vehemently contended that even Vinod Kumar never refused to reside in Pakistan. Learned counsel further submitted that the application moved by the respondents for production of additional evidence at this stage merits no consideration, since the parties had already closed their evidence and also because the documents sought to be brought on record, do not conclusively prove that Permod Kumar and Vinod Kumar were not Pakistani Nationals. It was submitted that even a foreigner can retain dual nationality.

Sh. Muhammad Ashraf, Advocate for Auction-Purchasers and Syed Said Ali Shah, Advocate for New Bank of India adopted the arguments of Mr. Aamer Raza A. Khan, Advocate.

4. Sh. Abdul Aziz, Advocate and Mr. Maqbool Sadiq, Advocate appearing on behalf of the other respondents, frankly conceded that Amod Kumar is undoubtedlv Pakistani national, and there is no dispute to the extent of his share in the disputed property. It was however, maintained that Vinod Kumar is not Pakistani national. He left Pakistan since 1955, for good and permanently settled in England. It was pointed out that the petitioner produced to thing on the record to show that after 1955 Vinod Kumar or Permod Kumar ever visited Pakistan. It was stated that after 1955 Vinod Kumar the other surviving heir, of the deceased owners, by his conduct established that he had refused to live in Pakistan and thus violated the conditions imposed upon them for restoration of the property in dispute. Learned counsel did not join issue on the question that the property had ceased to be Evacuee, in face of Supreme Court's verdict in P.G. Bhandari v. The Rehabilitation Authority, Lahore etc., Sheikh Muhammad Saeed and others v. Muhabbat Ali and 8 others and Begum Darab Sultana etc. v. Custodian etc. but controverted the contention of Mr. Aamer Raza A. Khan, learned counsel for the petitioners that the disputed property cannot re-acquire the status of Evacuee Property as the statutory conditions imposed on the restoration of the property had lost their efficacy. It was stated that the Supreme Court had twice referred the matter to the Custodian with specific direction to find out as to whether the property in dispute had re-acquired the status of evacuee property in consequence of the actions and movements of the owners after 7-9-1948. It was stated that Permod Kumar and Venod Kumar on the basis of their conduct refused to reside in Pakistan, and became evacuees. The property in dispute, to the extent of their share, therefore, re-acquired the status of Evacuee Property. The allottees who are claimant /displaced persons and settled in the disputed property for the last over a quarter of century are entitled to its transfer.

5. I have considered the contentions raised by learned counsel for the parties and have gone through the evidence on record.

As noticed above there is no dispute on the question that the property in dispute had ceased to be evacuee property on its restoration, the only question left for determination is, as to whether the property in dispute re-acquired the status of evacuee property as consequence of any action or movement of some or all of the owners after that date.

The main contention of Mr. Aamer Raza A. Khan, Advocate learned counsel for owners that after notification, dated 12-8-1960, the conditions imposed by the Custodian on 7-9-1948 lost their efficacy, and even subsequent movements of owners could not alter the status of the property which had ceased to be evacuee, has little merit, in face of the fact that the Supreme Court after considering the effect of the aforesaid notification, twice referred the matter to the Custodian to decide the question as to whether the property in dispute re-acquired status of evacuee property in consequence of any action or movement of the owners after the date of restoration. The owners did not agitate against the last order of the Supreme Court passed on 13-5-1982, by way of review or clarification as such are estopped to raise this point before the Custodian Evacuee Property.

The relevant record reveals that Mst. Santosh Lata, mother of Venod Kumar, Permod Kumar and Amod Kumar made various statements before the Deputy Custodian. On 11-5-1950, she stated that her three minor sons were residing at Lahore, to her second statement recorded on 30-3-1955, she admitted that Permod Kumar had gone to India in the year 1951 and did not return to Pakistan. He passed his Junior Cambridge Examination from Bishop Cotton School, Simla and was receiving education in India with permission of the Guardian Judge, Lahore. She pointed out that her other two sons were studying at Lahore. Again said, that Venod Kumar had left his studies and doing nothing. On 11-6-1955, she made another statement and produced before the Deputy Custodian two Pakistani passports, one in the name of Venod Kumar issued on 28-9-1953, and the other in the name of Amod Kumar issued on 13-8-1953 respectively. She, however, admitted that Permod Kumar had no Pakistani passport as he was in India. In her last statement recorded on 8-5-1972, she admitted that Permod Kumar and Venod Kumar were residing in England. According to her, Venod Kumar left for England in 1957 while Permod Kumar followed him a year later. She deposed that Permod Kumar was residing in England since 1958. She further admitted that a portion of the West-End building was sold without obtaining permission from the Custodian Evacuee Property. In support of her version, she produced two witnesses; namely. P.L. Singha and Amod Kumar.

P.L. Singha, her second husband, appeared before the Deputy Custodian on 5-12-1972 as R.W. 13 and deposed that Venod Kumar left for England in 1957 while Permod Kumar followed him in 1958. He stated that they were doing business there. On 15-2-1972 Amod Kumar appeared as R.W.15 and deposed that his other two brothers were residing in England since 1957-58. He admitted that he was not aware of their addresses in England nor could state as to when he received last letter from them.

The opposite party produced as many as 12 witnesses in support of their case. Messrs Bashir Ahmad, Muhammad Aslam Record Clerk, Shaukat Ali Record Keeper, Habib Ahmad Settlement Inspector, Bashir Ahmad Clerk, nawaz U.D.C., Ghulam U.D.C., Habib Ahmad, Clerk , Mumtaz Hussain Clerk and Nazir Ahmad Record Keeper are mostly formal witness, they could not advance, their case. Hakim Ali (R.W.2.), stated that he was residing in he neighbourhood of owners but did not see anybody else residing with Mst. Santosh Lata. Similarly, Shaukat Ali, Special Attorney of Mst. Durab Sultana deposed that three sons of Lala Roshan Lal Kapur, namely, Venod Kumar, Permod Kumar and Amod Kumar were permanent residents of India. Mst. Santosh Lata at one time was directed by the Guardian Judge, Lahore to produce the minors in Court but she failed to produce them as they were not residing in Pakistan.

From the evidence on record, it is apparent that Permod Kumar went to India in 1951 and completed his education there. He went to England somewhere in 1957-58 and did not. come to Pakistan until died on 9-8-1977. An application was moved before me for permission to lead additional evidence to show that Permod Kumar was Indian National. He migrated from India to England and became British National. The documents sought to be produced, even if allowed to be read into evidence do not conclusively prove that Permod Kumar abandoned Pakistan for good. The application which has been filed long after, the parties closed their evidence cannot be allowed to re-open the case at such a belated stage.

It is otherwise clear that Permod Kumar left Pakistan during his childhood, received education in India, migrated to England and died there. There is nothing on the record to show that he ever visited Pakistan after 1957-58. These facts clearly prove that he left Pakistan for good, had no intention to reside in Pakistan, and thus became evacuee.

As regards Venod Kumar it is in evidence that he went to England in 1957-58 and since then did not return, to reside in Pakistan. He is permanently residing in England. He has even lost contact with his brother, Amod Kumar who is Pakistani National. He, too, became evacuee.

This conclusion finds additional support from the fact, that the dispute as to whether the owners had, become evacuees with reference to very valuable property in Lahore, is pending decision for the last over three decades; neither Permod Kumar nor Venod Kumar even once visited Pakistan to put up appearance before any Court to show that they are residing in Pakistan. It, therefore, follows that they had no mind to reside in Pakistan. Resultantly, both Permod Kumar and Venod Kumar became evacuees.

In these circumstances, I feel ho hesitation to hold that the property in dispute to the extent of the .shares of Permod Kumar and Venod Kumar re-acquired the status of evecuee property and deemed to have been validly allotted/ transferred in favour of the claimant/displaced persons.

A copy of this order be sent to the Lahore High Court for disposal of the abovementioned civil revisions, pending decision in that Court.

There shall be no order as to costs.

A.A. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.