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Constitutional Petition No.S-50 of 1979, decided on 3rd March, 1986.

---Ss.4 & 10--Constitution of Pakistan (1973), Art.199'--Transfer of evacuee land--Nothing on record available to show that before 1-1-1957 property in dispute was ever treated as evacuee property by Rehabilitation Authority but on the contrary said property was not only recorded in the ownership of a Muslim but was also in his undisputed possession--Assertion of petitioner that his father purchased the property in dispute in 1941 through a registered sale-deed supported by original sale-deed and entries made in revenue records on basis of such sale--Certified copy of Deh Form 7 filed by petitioner showing that even in Custodian Khata the disputed property was in the name of petitioner's father--Property in dispute could neither be acquired in compensation pool nor validly transferred under the provisions of Act XLVII of 1958--Mere fact that in the Khatuni b issued in favour of respondent in 1961, disputed survey number was entered alongwith other survey numbers could not make the property as evacuee property which formed part of compensation pool--Initial act of allotment of property in dispute under the provisions of Act of 1958, held, was wholly without jurisdiction--Allotment and subsequent proceedings being without notice to petitioner who on becoming aware of mutation in 1979, which was made in favour of 7 respondent, filed appeal before Revenue Authorities who, accepting the petitioner's contention, set aside the said mutation-- Petition having been presented in Court on 6-5-1979, there was neither any delay nor laches on part of petitioner--Petition was allowed and allotment of disputed survey number by Settlement Authorities in favour of respondent was declared to be void and without jurisdiction.

Hussain Adil Khatri for Petitioner.

Syed Abbas Zia for Respondent No.4.

Abdul Sattar Shaikh, Addl. A.-G. fox Respondents Nos.1 to 3.

Date of hearing: 3rd March, 1986.

By this constitutional petition the petitioner has challenged the allotment of survey No. 299 of Deh Bhango, Taluka Faiz Ganj, District Khairpur Mir, to respondent 4 by the Settlement Authorities against this claim. The following facts may be stated here which are borne out from the record before me:

Agricultural land bearing survey No. 299 Deh Bhango Taluka Faiz Ganj, Distt. Khairpur Mir was purchased by the petitioner's father through a registered sale-deed dated 6-7-1941. The name of the petitioner's father appeared as owner of the land in the revenue record and in Deh Form 4 the petitioner is shown to be in possession of the above property. These facts asserted by the petitioner in his petition are not denied by the official respondents and the private respondent in the petition has not filed any counter-affidavit to controvert these facts. It is alleged by the petitioner that in January, 1979 he came to know that Khata of above land was changed in the name of respondent 4 on the basis of a Khatooni issued to him in 1961. It is further alleged that the Khatoni issued to respondent 4 in 1961 contained several survey numbers including the disputed survey No. 299 but mutation in respect of all the survey numbers shown in the Khatoni of respondent 4 was effected by the Revenue Authorities on 28-12-1963 except survey No. 299. The petitioner accordingly, having come to know in the year 1979 regarding mutation of survey No. 299 in favour of respondent 4 filed an appeal before the Deputy Commissioner concerned who set aside the mutation order in favour of respondent 4 by recalling the clearance certificate issued in favour of respondent 4. It is alleged in the petition that thereafter under the influence of some military officer the Deputy Commissioner again called the petitioner and asked him' to surrender the certified copy of the order dated 12-2-1979 and further allegedly threatened the petitioner to sell the land to respondent 4. It is claimed in the petition that the petitioner did not succumb to the aforesaid pressure of Authorities and filed the above petition challenging 'the allotment of survey No. 299 to respondent 4 through Khatoni dated 6-9-1961.

Learned counsel for the respondents contends that the land having been treated by the Rehabilitation Authorities as evacuee properties and allotted as such to respondent 4, the only course open to the petitioner was to move the Custodian of Evacuee Properties by way of an application under section 18 of Act 12. of 1957. It is further contended by the learned counsel that in any case the land having been surrendered by the respondent 4 under MLR 89 the court jurisdiction to examine the status of the land is completely ousted. The contention raised by the learned counsel for the respondent 4 have not impressed me. The assertion of the petitioner that his father purchased the land in dispute in the year 1941 through a registered sale-deed is supported by the original sale-deed executed in favour of the petitioner's father filed alongwith petition and the entries in the revenue records on the basis of above sale. The official respondents in their counter-affidavit filed in the case admitted existence of entries in favour of petitioner's father as owner of the land in revenue record as well entry regarding possession of petitioner over the disputed land in "Khasra Girdawari". The petitioner has filed alongwith the petition a certified copy of Deh Form 7 showing that even in the custodian Khata the land is shown in the name of the petitioner's father. In these circumstances there is no doubt that on the date of issuance of notification under section 4 of the Displaced Persons (Land Settlement) Act, 1958 acquiring the evacuee lands in the Province of West Pakistan the land in dispute could neither be acquired in the compensation pool nor it could be validly transferred to respondent 4 under the provisions of Displaced Persons (Land Settlement) Act, 1958. There is nothing on record to show that before 1-1-1957 the property was ever treated as evacuee property by any Rehabilitation. Authority. On the contrary the record shows that the property was not only recorded in the ownership of a Muslim but was also in his undisputed possession. In these circumstances mere fact that in the 'Khatoni' which was issued in favour of respondent 4 in the year 1961 the disputed survey number was also entered alongwith other survey numbers, could not make the property as evacuee property which formed part of the compensation pool. The initial act of allotment of this land to respondent 4 under the provisions of, Displaced Persons (Land Settlement) Act, 1958 was therefore wholly without jurisdiction. Learned Counsel for the respondent 4 attempted to show that present petition is highly belated as the allotment in favour of respondent 4 was made in the year 1961 while the present petition has been filed in 1979. There is no force in this contention. The allotment in favour of respondent 4 and all subsequent proceedings were without notice to the petitioner who was not only shown as the owner of land in Revenue record but was also in actual and physical possession of the property. He became aware of the mutation in 1979 which was made recently in favour of respondent No. 4 and without loss of any time he filed appeal before the proper Revenue Authorities who accepted the contention of petitioners and set aside the mutation and recalled the clearance certificate issued to respondent 4. The present petition was thereafter presented in this Court on 6-5-1979 challenging the allotment in favour of respondent 4. In these circumstances there is neither any delay nor laches on the part of the petitioner. I accordingly allow this petition and declare that the allotment of survey No. 299 on Deh Bhango Taluka Faiz Ganj, District Khairpur Mir by the Settlement Authorities in favour of respondent 4 as void and without jurisdiction. However, in the circumstances of the case I have the parties to bear their respective costs.

S.Q./K-44/K Petition allowed.

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