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(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)‑‑

‑‑‑S. 10(1)(b)‑‑Evacuee trust property‑‑Immunity from challenge‑ Exception‑‑Where permanent transfer of evacuee property validly made by Settlement Authorities in favour of transferee was never challenged on ground that such property was Evacuee Trust Property, transfer, held, was completely protected under S. 10(1)(b) of Act XIII of 1975 and would be completely immune from being challenged on that ground except in accordance with Act XIII of 1975.

(b) Sind Rented Premises Ordinance (XVII of 1979)‑‑

‑‑‑Ss. 15, 21 & 22‑‑Privately Managed Schools and Colleges (Taking over) Regulation, 1972 [M.L.R. 118]‑‑Notification by Sind Government, dated 29‑7‑1980 exempting premises of educational institutions taken over under M.L.R. No. 118 from operation of provisions of Ordinance XVII of 1979, held, would operate only prospectively and not retrospectively so as to impair the existing or vested rights and impose new liability or obligations.

Salim Akhter v. The Government of Sind P L D 1984 Kar. 358 and Mst. Minhaju‑un‑Nisa v. Deputy Commissioner/ District Magistrate, Karachi 1983 C L C 2228 ref.

(c) Civil Procedure Code (V of 1908)‑‑

‑‑‑S. 115‑‑Revisional jurisdiction, exercise of‑‑Finding of Appellate Court below that property in dispute was evacuee trust property, based on misreading of judgment of Supreme Court in that respect was set aside by High Court in exercise of revisional jurisdiction and case remanded to decide accordingly.

A. Wahab for Applicant. Mrs. Salima Nasiruddin for Respondents. Date of hearing: 27th January, 1987.

This order will govern the disposal of Civil Revision Applications Nos. 189 and 190 of 1976 as both these cases arise out of the same order. In order to dispose of the above petitions it is necessary to state here the background of the present controversy.

The applicant is the transferee of premises bearing Custodian No. II‑A‑331 Family Quarters Ward 'B' Nawabshah, corresponding to City Survey Nos. 935 and 967. These premises were transferred to the applicant under the provisions of Displaced Persons (Compensation and Rehabilitation) Act 1958 and a P T D in respect thereof was issued in favour of the applicant on 1‑11‑1963. At the time of transfer of above premises in favour of the applicant, it was occupied by Idara‑e Taraqqee‑e‑Taleem which was running a school in the above premises. (For the sake of convenience, I will hereinafter refer "Idara‑e Tarraqqee‑e‑Taleem" as "the occupant" only). The applicant after transfer of the premises in his favour served a notice, dated 8‑2‑1966 'under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act No. XXVIII of 1958, on the occupant which was duly received and replied by them by their letter, dated 17‑2‑1976. In the reply, dated 17‑2‑1976, the occupant denied the relationship of landlord and tenant between the parties and raised the plea that the premises was Evacuee Trust Property. The applicant then, instituted Rent Case No. 62 of 1966 in the Court of Civil Judge/Rent Controller, Nawabshah, seeking eviction of the occupant on the ground of default in payment of rent. The occupant in its written statement before the Rent Controller denied existence of relationship of landlord and tenant between the parties on the ground that the property was evacuee trust. The learned Rent Controller though found that there existed relationship of landlord and tenant between the parties and that the property is non‑trust and occupant had failed to pay the rent amounting to Rs.1,378 upto 30th May, 1970, yet he refused to pass an order of ejectment against the occupant on the grounds that firstly, the premises were occupied by a society which is running a school, and secondly, the default was the result of bona fide impression on the part of the occupant that the property was an Evacuee Trust Property and as such the default was not wilful. The above order of Rent Controller, dated 30‑6‑1970 was challenged in appeal both by the applicant and the occupant being Appeals Nos. 63 of 1970 and 4 of 1971 respectively. Appeal No. 63 of 1970 was directed against the refusal of Rent Controller to pass an order of ejectment against the occupant while Appeal No. 4 of 1971 was filed against the finding of Rent Controller holding the occupant as tenant of applicant and the property as non‑trust. During the pendency of these appeals the learned 1st Appellate Court passed a tentative rent order on 30th August; 1971, directing the occupant to deposit arrears of rent as well as current monthly rent in Court during the pendency of appeals. It may be mentioned here that during pendency of these appeals the school run by the occupant was taken over by the present respondents and accordingly they were impleaded as parties in the above appeals. It is an admitted position that the rent order passed by the First Appellate Court was not complied with by the respondents with the result their defence in the case was struck off and they were ordered to be evicted from the premises on 26‑2‑1974. It is also an admitted position that the order of eviction passed by the First Appellate Court against the occupant and the present respondents was not challenged any further which attained finality. The applicant thereafter filed Execution Case No. 99 of 1974 against the respondent in which two objections were raised, by the respondents, namely, that no notice under section 82, C.P.C. was served as required under the law and secondly, that the property being Evacuee Trust Property the order passed by the Rent Controller was void. The executing Court rejected the second contention of respondents, in view of the earlier finding by the Rent Controller in Rent Case No. 62 of 1966 in this regard but upheld the first contention and accordingly directed that a report may be sent to the Government of Sind as required under section 82, C.P.C. Both applicant and respondents filed appeals against the above order of executing Court being Appeals Nos. 49 of 1975 and 54 of 1975 respectively and the learned District Judge, Nawabshah by the impugned judgment, dated 3‑4‑1976 upheld the appeal of respondents and dismissed the appeal of the applicant holding that the decree passed by the Rent Controller was not executable under section 9, C.P.C. as the property which is subject‑matter of the dispute was allegedly an Evacuee Trust Property, in view of the judgment of the Supreme Court in the case of Abdul Majid v. Settlement Commissioner, dated 5th March, 1975. The applicant has challenged the above decision of District Judge, Nawabshah in Appeals Nos. 49 and 54 of 1975 in the two revisions.

Mr. Abdul Wahab, the learned counsel for the applicant contends that the order of the First Appellate Court holding the property as an Evacuee Trust Property is based on misreading of the judgment of Supreme Court, certified copy whereof was available before the District Judge, Nawabshah. Alternatively it is contended that the impugned judgment is in excess of jurisdiction vested in the First Appellate Court as it had no jurisdiction to go behind the decree and hold that the order passed by the Rent Controller was a void order. The learned counsel has additionally contended that in any case the property having been transferred permanently in favour of the applicant on 1‑11‑1963, the transfer in favour of the applicant was completely protected under section 10(1)(b) of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975. The learned counsel for the respondent on the other hand contended that the effect of the order of Supreme Court relied by the District Judge, Nawabshah, in the impugned judgment is that the disputed property has been declared as evacuee trust property and as such its transfer in favour of respondent was void. Alternatively it is urged by the learned 'counsel for the respondents that in view of the Notification of Sind Government issued on 29‑7‑1980, exempting the premises of colleges and Schools taken over under Martial Law Regulation (C.M.L.A.) No. 118 from operation of provisions of Sind Rented Premises Ordinance 1979, no execution could be issued against the respondents and as such the First Appellate Court rightly held the order of Rent Controller as inexecutable. After hearing the learned counsel for the parties at length I am of the view that contentions of the learned counsel for the respondents have no substance while contentions raised by the learned counsel for the applicant are well‑founded. The learned counsel for the applicant rightly pointed out that the District Judge, Nawabshah, completely misread the judgment of Supreme Court in holding that the disputed property is evacuee trust. The certified copy of the judgment of Supreme Court in the case of Abdul Majid v. S.C. (K‑151 of 1974), decided on 5‑3‑1975, which is relied in the impugned judgment, clearly shows that properties bearing Survey Nos. 965 and 966 corresponding Custodian Nos. II‑A‑355, 356 and 357 only were the subject of dispute in the above petition. This fact is also established by the order of Settlement Commissioner, Karachi, with the powers of Chief Settlement Commissioner under subsection (4) of section 3 of Act XXVIII of 1958, dated 17‑11‑1969 which was challenged before the Supreme Court in the above petition and which was upheld. Mere mention of several other survey numbers in the order of Supreme Court which was only for the purpose of showing the exact location of disputed survey numbers could not amount to a declaration of these survey numbers as Evacuee Trust Property. The impugned judgment, therefore, is based on complete misreading of the judgment of the Supreme Court, in holding that the property transferred to applicant was declared as an Evacuee Trust Property by the order of Supreme Court. Apart from it the learned counsel for the applicant has very rightly pointed out A that in view of section 10(1)(b) of Act XIII of 1975 the transfer made in favour of the applicant was completely immune from being challenged except in accordance with that Act. There is nothing on record to show that at any time any application was made to the Authorities concerned under Act XIII of 1975 for the purpose of examination of the bona fide nature of transfer in favour of the applicant. In so far the contention of learned counsel for the respondents, that in view of the notification of Sind Government, dated 29‑7‑1980 exempting the disputed property from the operation of the provisions of Sind Rented Premises Ordinance, 1979 is concerned, a complete answer to this submission will be found p in the two decisions of this Court reported as Salim Akhter v. The Government of Sind P L D 1984 Kar. 358 and Mst. Minhaju‑un‑Nisa v. Deputy Commissioner/ District Magistrate Karachi 1983 C L C 2228, wherein it is held that the above notification operates only prospectively and not retrospectively so as to impair the existing or vested rights and impose new liability or obligations.