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Writ Petition No. 294 of 1961, decided on 2nd January 1963.

S. 8 read with S. 5‑Right of residence of evacuee non --proprietor in house built on land belonging to proprietary body of village‑Not a "grant" within meaning of term as used in S. 8-- Right liable to be forfeited in accordance with entries in wajib -ul‑arz or with custom on "voluntary" abandonment‑Evacuee's migration deemed to be "voluntary"‑S. 5 not effective in vesting such right in Custodian-‑Words and phrases‑"Voluntarily" Permission to reside in such cases not a "right at all."

The right of residence given to non‑Muslim non‑proprietors in villages which now form part of Pakistan cannot be treated as evacuee property if the non‑Muslim non‑proprietors had left that property voluntarily ; and they must be deemed to have left voluntarily unless there be evidence that they were forced by the proprietors to leave.

Section 8 of the Pakistan (Administration of Evacuee Property) Act, 1957 was not intended to apply to those rights which could come to an end at any moment, or at a specified time.

According to the wajib‑ul‑arz of the villages concerned and the customary law, the rights of the evacuees terminated as soon as they left because the departure of the evacuees was voluntary for the purposes of the entries in the wajib‑ul‑arz as well as of the manuals of customary law, and so the provisions of section 8 of the Act cannot be called in aid by the Custodian to revive a right which had been extinguished earlier.

Section 5 of the Act does not mean that a person who became an evacuee shall be deemed to have left behind more rights than he would have had if he had not become an evacuee.

The rights of the non‑Muslim non‑proprietors were not "grants" for purposes of section 8.

The term "voluntarily" means, of one's own accord, and the fact that departure was under the force of circumstances cannot make it involuntary.

Policy underlying the laws relating to evacuee property, which were brought on the statute‑book in and after 1947, cannot be invoked for interpretation of a wajib‑ul‑arz compiled about a century earlier, or a manual of customary law which was compiled many a decade earlier than the Partition of British India.

Entries in wajib‑ul‑arz of the village concerned indicated that non‑proprietors who had merely a right of residence on the land over which they had built their houses lost the right if they left the houses.

Per Manzur Qadir, C. J.‑The supposed "right" to reside in these two cases is not a right at all and section 8 has no applica tion to it.

S. 3(1)‑Right of residence of evacuee non proprietors in village‑Not treated by authorities as evacuee property before 1‑1‑1957‑Cannot be treated as such subsequently.

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----S. 41‑Custodian's exclusive jurisdiction‑To declare a property "to be evacuee or non‑evacuee property"‑Whether rights constitute "property"‑Question not within exclusive jurisdiction of Custodian‑Custodian treating "rights that did not exist" as "property" and "evacuee property"‑High Court's jurisdiction not barred ‑ Custodian's order made ineffective ‑ Constitution of Pakistan (1962), Art. 98‑Relief‑High Court's jurisdiction to prevent injustice‑Custodian's order "not to be acted upon."

The Custodian had declared as evacuee property the right of residence of non‑Muslim non‑proprietors in villages of the former Punjab‑a right which had ceased to exist, in accordance with custom and with entries in the wajib‑ul‑arz, on the abandonment by the evacuees of their houses built on land given to them by the proprietors of the villages:

Held, that before a right can be declared to be "evacuee property," it should satisfy the condition that it is "property" ; and the exercise of jurisdiction by the High Court, to grant relief to a person who is sought to be deprived of his property by the Custodian on the assumption of premises that have no existence, is clearly indicated.

The High Court directed that the impugned order of the Custodian which had no effect, shall not be acted upon.

Art. 98‑High Court entitled to interfere where Custodian in determining status of property had done that which he had no power to do‑Pakistan (Administration of Evacuee Property) Act (XII of 1957), S. 41.

Ataullah Sajjad with Sh. Shaukat Ali and D. M. Awan for Petitioner.

Major Ishaq Muhammad Khan, Settlement Commissioner (Legal) for Respondent 1.

Dates of hearing : 11th and 20th December 1962.

This petition and Writ Petition No. 488 of 1961, in both of which the same relief, namely, the issue of a writ, is asked so as to make ineffective the orders passed by the Custodian of Evacuee Property, West Pakistan will be disposed of together, because the main questions arising in both are the same. This petition has been presented by Malik Amir Muhammad Khan of Kalabagh, District Mianwali, while Writ Petition No. 488 of 1961 has been presented by Muhammad Saleh Shah and ten others, who are residents of Nur Shah, Tehsil and District Montgomery. The averments in each of the two petitions are to the same general effect, namely, that the property in dispute which has been declared by the Custodian of Evacuee Property to be evacuee property is not property of that character but private property of the persons who have petitioned to this Court with a view to having the orders of the Custodian made ineffective.

2. That the pieces of land to which the dispute relates are owned by the petitioners is not denied and indeed a denial to that effect would have been entirely futile because the evidence furnished by the entries in the revenue records of many a decade would have proved the contrary. It is common ground between the parties to each of the writ petitions that some non‑Muslim non‑proprietors had built some houses on the pieces of land in dispute and were living therein. However, when the sub continent of British India was divided into the Dominions of Pakistan and India, those non‑Muslim non‑proprietors left their places of abode and went to India. The owners of the pieces of land concerned claim that the non‑Muslims having left volun tarily the land upon which they had built their houses reverted to the owners free of any encumbrance. The finding given by the Custodian was that as the non‑Muslims who were residing in houses built over the pieces of land in question had a right of residence in the houses for as long as they chose to live therein, section 8 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957), to be hereinafter referred to as the Act, had application, and the rights of the non‑Muslims did not get extinguished by reason of the fact that they had left the houses. In arriving at this conclusion, Mr. Justice Masud Ahmad, acting as the Custodian of Evacuee Property, relied on section 8 of the Act, which is in the following terms:-

"(1) Where the rights of an evacuee in any land or in any house or other building consist or consisted of occupancy or tenancy rights, or rights as lessee or grantee, nothing contained in any law for the time being in force or in any contract or in any instrument having the force of law or in any decree or order of any Court or any other authority shall extinguish or be deemed to have extinguished any such rights on the occupant, tenant, lessee or grantee becoming an evacuee or at any time thereafter so as to prevent such rights from vesting in the Custodian or being dealt with as evacuee pro perty, and neither the Custodian nor the evacuee shall be or shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default‑

(a) the evacuee committed after he became an evacuee or within a period of one year immediately before the date of his becoming an evacuee, or

(b) the Custodian.

(2) Where any person acquires or has acquired any rights in respect of any property by reason of his being in possession of that property whether in pursuance of a grant, lease or allotment made by any authority or otherwise, the acquisition of such rights shall not in any way affect or be deemed to have affected the rights and powers conferred on the Custodian under this Act in respect of that property."

3. One of the questions for decision is whether the right of residence which the non‑Muslim non‑proprietors had was a right which survived after they had left. A right of residence only which confers on a person who is not a proprietor in a village the right to live on a piece of land by building his own house thereon, is a peculiar feature of the customary law which pervaded the Punjab, now a part of the Province of West Pakistan, before this law was in some respects replaced by the Muslim Law. In the official records known as wajib‑ul‑arz of all districts in that region of the present Province of West Pakistan that used to be the Punjab, entries had been made that non‑proprietors who had merely a right of residence on the land over which they had built their houses lost the right if they h left the houses, subject to the condition that if they chose they could take away material which had been used in constructing the houses. The right which has immemorial custom to support it was almost invariably conferred on people commonly called kamins, (the literal translation of which term is workers) who get a place of residence in the village and work for the proprietary body, their wages partly being the right of residence which had been given to them. This subject has been exhaustively dealt with by Rattigan in his incomparable book on Punjab Customs in paragraphs 236 to 238, which read as under :‑

"236. In the absence of a well‑established custom, a non proprietary resident in a village cannot dispose of the site on which his house is built, or a right of residence in the house, without the consent of the proprietors of the village, but he is ordinarily entitled to sell the materials, and the purchaser must remove the same within a reasonable period.

237. A non‑proprietary resident who obtains a site for building purposes must build upon it within a reasonable time, or surrender it to the proprietors.

238. If a non‑proprietor abandons his house the site reverts to the proprietors and he cannot re‑claim it afterwards upon his return to the village."

The right dealt with in the above‑reproduced paragraphs, which are in almost precisely the same terms as the wajib‑ul‑arz relating to the property in dispute, is heritable but could not be transferred by the person on whom it has been conferred unless the proprietary body agreed. It is not necessary to detail here the numerous decisions of the Punjab Chief Court and its successor the High Court of Judicature at Lahore with regard to these rights and the limitations to which they were subject, because the rights and the limitations thereon mentioned in paragraphs 236 to 238 of Rattigan's book were, unless there was a special custom, held by Courts to be precisely the same as mentioned above.

4. It was contended by learned counsel who appeared in support of the two petitions that the right of mere residence had this peculiarity that it terminated the moment a person who had that right left the property of his own accord, and in this connection they placed reliance on the wajib‑ul‑arz of the village concerned and to the manuals of customary law of their respective districts. Major Ishaq Muhammad Khan, Settlement Commissioner (Legal), who appeared on behalf of the Custodian of Evacuee Property, contended that though the right was no better than that mentioned by the learned counsel for the petitioners, it was nevertheless a right covered by section 8 of the Act, which provision has been reproduced in paragraph 2 above. When pressed to state which of the rights mentioned in the section relied upon by him could the rights under consideration be deemed to be, the learned Settlement Commis sioner (Legal) said that they were grants and added that by reason of the provisions contained in section 8 of the Act, the fact that the non‑Muslim non‑proprietors had left the houses built by them did not extinguish their rights in the houses if they existed and in the land on which the houses had stood if the houses had vanished on account of demolition or otherwise. He added that even if the entries in the wajib‑ul‑arz of the villages concerned, supported as they are by the custom of the respective districts and the general custom of that part of the Province of West Pakistan which used to be the Punjab, be applicable, the departure of the non‑Muslim non‑proprietors in the cases under consideration could not be said to be voluntary because they had left not because they wanted to leave but because they had no option but to leave, the compulsion having been brought about by the communal riots which broke out on the Partition of British India.

5. Before dealing with the other questions that were agitated, I might dispose of the question whether the departure of the non‑Muslims, whose property the Custodian claims, was voluntary or not because the wajib‑ul‑arz of the villages concerned and the customary law make it clear that a proprietor or proprietary body as the case may be will get back the land on which houses of the kind under consideration were built only if person who had been allowed to build thereon left it voluntarily. Major Ishaq Muhammad Khan urged that as the non‑Muslims left some of the territories which are now a part of Pakistan because they were afraid of harm coming to them in the communal riots that had broken out near about the birth of Pakistan, they could not be held to have left voluntarily, and I proceed to consider whether this contention merits acceptance. The term "voluntarily" means of one's own accord, and I am clear in my mind that the fact that departure was under, the force of circumstances cannot make it involuntary. If, for example, a person who had a right of residence in a house left the village because he felt that by going to some other place he would get living wages which he was not getting, it could not be reasonably contended by anyone that the departure was not voluntary. Similarly, if such a person were to leave because he felt that his safety or that of his near and deer ones lay in departure, it would be difficult to assert that the case was not one of voluntary departure. Equally similarly if a person feels that the village in which he is residing is unsafe by reason of the fact that it is populated by turbulent people or because the neighbouring villages are populated by marauders and dacoits who have but little compunction in attacking and looting neighbouring villages, it is obvious that the departure motivated by these considerations could not be said to be involuntary. If, however, the proprietors or some one else turned out the person who resided in the village, by means of causing or threatening harm, that departure could not be said to be voluntary. There is no evidence, direct or circumstantial, to establish that anyone of the non‑Muslims whose rights the Custodian wants to take possession of, had left the village concerned because an injury had been caused to him or a threat of injury had been held out to him, and though I am not saying that such threats were not held out nor that injuries had not been caused at the time of Partition to some persons, I am clear in my mind that some non‑Muslims left because they felt that their safety or betterment lay in going to the newly‑set‑up Dominion of India. Major Ishaq Muhammad Khan contended that the laws made in Pakistan regarding evacuee property, such as the Act, and those statutes which it had replaced, were based on the assumption that the communal disturbances that had occurred near-about the time of Partition of British India were the cause of the departure of the non‑Muslims from territories that became Pakistan and that this was sufficient for holding that the departure was not voluntary and, therefore, it should be held that the departure of non‑Muslims, the extent of whose rights is under consideration, was involuntary for the purposes of the relevant wajib‑ul‑arz and the customary law. I cannot accept this contention because I am clear in my mind that the policy underlying the laws relating to evacuee property, which were brought on the Statute‑book in and after 1947, cannot be invoked for interpretation of a wajib‑ul‑arz compiled about a century earlier, or a manual of the customary law which was compiled many a decade earlier than the Partition of British India as the wajib‑ud‑arz and the customary law of the villages and the districts concerned were. It follows, therefore, that unless section 8 of the Act is applicable, the entries in the wajib‑ul‑arz and the manuals of the customary law will have application and the land would have to be held to have reverted to the proprietors without any encumberance as soon as the non‑Muslim non proprietors who had been permitted to build houses on the land abandoned those houses.

6. The effect of section 8 of the Act on the matter under consideration may now be considered. If the right conferred on the non‑Muslim non‑proprietors, who are no longer in Pakistan, be held to be a grant, it is obvious that section 8 of the Act would be attracted and the property, which the evacuees in question left, would be evacuee property and will, under the provisions of the Act, vest in the Custodian. The stand of Major Ishaq Muhammad Khan was that the term "grant", included a right which a person has in any property however meagre the right may be, while the contention on behalf of the petitioners was that the term "grant" meant a grant ordinarily so understood such as grants made to persons in places declared to be colonies under the Colonization of Government Lands (Punjab) Act 1912, or under the Government Grants Act, 1895 (Act XV of 1895). An examination oft he section itself would disclose indications that the rights of the non‑Muslim nonproprietors, which the Custodian has held to be evacuee property were not grants for the purposes of the section. It would be noticed that contingency mentioned' at (a) in subsection (1) of section 8 of the Act is to the effect that if a default was made within a year immediately before the date of any person becom ing an evacuee, the default could not be treated as material for the purpose of attracting penalties that attached to defaults. I have indicated already that entries in the wajib‑ul‑arz and manuals of customary law whereby the rights of the proprietors and the non‑proprietors were governed, are to the effect that as soon as a person voluntarily left the place in which he had merely a right of residence, his right would stand extinguished. If the contention of Major Ishaq Muhammad Khan to the effect that the case was one of a grant were sound the result would be that the right of residence which. a non‑Muslim non‑proprietor had lost say about six months before the Partition of British India would get revived and that is a result which cannot be believed to have been intended unless the language in the section were clearly to that effect which, as is apparent, it is not. Nor can I accept the contention of Major Ishaq Muhammad Khan that, as is clear that, because of its fifth section, the Act would override the provisions contained in any other law for the time being in force or in any instrument, section 8 of the Act would be applicable because it is manifest that section 5 of the Act does not mean that a person who became an evacuee shall be deemed to have left behind more rights than he would have had if he had not become an evacuee. According to the wajib‑ul‑arz of the villages concerned and the customary law, the rights of the evacuees under consideration in the present cases terminated as soon as they left because, as I have already shown, the departure of the evacuees was voluntary for the purposes of the entries in the wajib‑ul‑arz as well as of the manuals of customary law, and I am clear in my mind that the provisions of section 8 of the Act cannot be called in aid by the Custodian to revive a right which had been extinguished earlier.

7. There is a commonsense way of looking at the matter which may be mentioned here. It is undeniable that under the law as it stands a Custodian of Evacuee Property can get only that property which belonged to an evacuee and cannot get rights better than those which the evacuees had. To put it in another way, the Custodian stands in the shoes of the evacuees concerned, i.e., his rights are the same as those of the evacuees as the law has not made them any greater or lesser. If the non -Muslim non‑proprietors who are now evacuees had been living in the villages concerned, they may have left the property at any time and on the happening of that event it would have devolved free of charge and encumberance of any kind on the Muslim proprietors. If, however, the property is to be deemed to be evacuee property that had vested in the Custodian, the result would be completely different from what it would have been if the person in whose shoes the Custodian stands had not left for India. The Custodian held that the whole property is evacuee property. In other words, the right of residence in a house built on a piece of land has been treated as standing on the same footing as the right of ownership of the piece of land and it is intended as admitted by the learned Settlement Commissioner (Legal), that the land on which the houses of non‑Muslim non‑proprietors had stood should be given to some refugees. If the Custodian were competent to do so, the result would be that the Muslim proprietors would be entirely deprived of the land on which the houses of non‑Muslim non‑proprietors had at one time stood, though the Muslim proprietors would not have been deprived of the land permanently if the Partition of British India had not taken place. This startling result that would flow from the interpretation favoured by the Custodian would make it clear that section 8 of the Act was not intended to apply to those rights which could come to an end at any moment, or at a specified time. If, for example, an evacuee held a piece of land as a tenant for a fixed term, could the Custodian claim the tenancy rights to be evacuee property after the time for which the tenancy had been given had expired. The answer to this question cannot but be in the negative, and for the same considera tions that apply to tenancies for a fixed period the right of residence given to non‑Muslim non‑proprietors in villages which now form part of Pakistan cannot be treated as evacuee property, if the non‑Muslim non‑proprietors had left that property voluntarily and they must be deemed to have left voluntarily unless there be evidence that they were forced by the proprietors to leave, of which evidence there is a compete absence.

8. Another contention raised on behalf of the petitioners was that as the rights of the non‑Muslim non‑proprietors under consideration had not been treated as evacuee property before the 1st day of January 1957, section 3 of the Act came into play and the rights could not have been treated as evacuee property. There is considerable force in this contention because it would appear that till the coming into force of the Act which became law on the 15th of March 1957, the right of residence possessed by non‑Muslim non‑proprietors, who had left Pakistan, did not fall within the ambit of the definition of "evacuee property". Subsection (1) of section 3 of the Act is in the follow ing terms :‑

"Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January 1957, shall be treated as evacuee or, as the case may be, as evacuee property, on or after the said date."

It was conceded by Major Ishaq Muhammad Khan, Settlement Commissioner (Legal), that the rights to which the dispute relates were not evacuee property under the provisions of the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), the Pakistan (Administration of Evacuee Property) Ordinance (XVIII of 1956), or the Pakistan (Administration of Evacuee Property) (Second) Ordinance (XX of 1956), the first of which was replaced by the second, which was, in its turn, replaced by the third, which has been wiped off the statute book by the Act which continues in force, and as I find that the concession made by the learned Settlement Commissioner (Legal) is correct, I hold that the rights of non‑Muslim non‑proprie tors, to which the present dispute relates, could not be deemed to be evacuee property by reason of the fact that they fell within some provision of the Act, but I am not to be under stood to be saying that section 8 or any other section of the Act has application to the matter.

9. This leads me to the question whether any order should issue from this Court. From what I have already said it will have become manifest, that my finding is that the right of residence, which the non‑Muslim non‑proprietors held in the villages to which the writ petitions relate, is not evacuee property. This raises the question whether such a finding is competent in the face of section 41 of the Act, which confers exclusive juris diction on a Custodian of Evacuee Property to declare whether any property is evacuee property. Subsection (1) of section 41 of the Act, which is its only material part for the present purposes, reads as under :‑

"(1) Save as expressly provided in this Act, no Civil or Revenue Court or any other authority shall have jurisdiction‑

(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property ;

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the .Custodian is empowered by or under this Act to determine."

The points that the Custodian had to determine before giving his finding were these :‑

(1) Were the rights to which the dispute related property

(2) If the rights were property, were they evacuee property

It is hardly open to doubt that the second of the above questions falls within the exclusive jurisdiction of the Custodian of Evacuee Property, but I am clear in my mind that the same cannot be said of the question that precedes it. I am further clear in my mind that if a Custodian of Evacuee Property treats any property as evacuee property on the assumption that some rights therein are property and that those rights subsist, the question whether or not those rights subsist is not within the exclusive jurisdiction 'of the Custodian. It is true that while dealing with the second of the abovementioned two questions the Custodian may deal with the one that precedes it but as the first question is not within the exclusive jurisdiction of the Custodian, the jurisdiction vested in this Court by virtue of the power conferred on it to issue writs as was done by means of section 223‑A of the Government of India Act, 1935, Article 170 of the Constitution of the Islamic Republic of Pakistan, and Article 2 of the Laws (Continuance in Force) Order, 1958, and the power to prevent injustice which has been conferred on this Court by means of Article 98 of the Constitu tion of the Republic of Pakistan which was enforced on the 8th of June 1962, has not been taken away and the Court can pass orders so that injustice is not done. The view I take about this matter is in accord with that expressed by me in Muhammad Husain and others v. Salah‑ud‑Din (Election Tribunal), Lahore (P L D 1960 Lah. 1130) which was upheld by the Supreme Court of Pakistan in Civil Appeal No. 31 of 1961 (Muhammad Akbar Khan v. Muhammad Tufail Bhatti etc.) decided on 25‑4‑1962. The Custodian has declared that to be evacuee property which did not exist, and as it is abundantly clear that before a right can be declared to be evacuee property, it should satisfy the condition that it is property, the exercise of jurisdiction by this Court, to grant relief to a person who is sought to be deprived of his property by the Custodian on the assumption of premises that have no existence, is clearly indicated. Another aspect of the case is that even if the rights under consideration were evacuee property under the provisions of the Act, its third section debarred the Custodian from declaring them to be evacuee property because those rights, even if they be deemed to have subsisted, in spite of being abandoned, were not treated as evacuee property till the coming into force of the Act on the 15th March 1957. Whichever way, therefore, the matter is looked at, interference by this Court is called for, and even if only one of the above two grounds had existed the jurisdiction to issue an appropriate order would have existed. I would, therefore, direct that the impugned order of the Custodian in each of these two cases, which has no effect, shall not be acted upon, but, in view of all the circumstances, I shall pass no order as to costs.

.‑I concur in the judgment and order of my learned brother, but would like to add my own reasons for coming to that conclusion.

2. The question raised for decision is this : Under custom prevailing in certain parts, a village proprietor sets apart a portion of his land for the residence of some families that perform certain functions in the life of the village community. Those families do not acquire any rights in the land but are entitled to continue to reside on it for as long as they wish. If however, they choose to leave, the landlord is entitled to deal with the land as he pleases. The only right left to the departing resident is to take away whatever material belonging to him there may be on the land. In each of the two cases before us the petitioner is a village proprietor who had so set apart a portion of his land In one of two cases the aforesaid conditions are also specifically incorporated in the relevant "wajib‑ul‑arz".

In both cases the persons who had been permitted to reside on the land were non‑Muslims who migrated to India at the time of the Partition of this Sub‑continent. The Custodian of Evacuee Property has ordered that persons chosen by the authorities concerned should now perpetually reside on the lands on which the migrants previously resided. The petitioners contend that the Custodian has exceeded his powers in making these orders, and have asked this Court to declare that those orders are of no legal effect.

3. Before deciding the point at issue, ft is necessary to say a word or two about the jurisdiction of this Court in relation to evacuee property. It is declared in the legislation relating to evacuee property that the Custodian alone, to the exclusion of all others, is competent to determine the status of a person or that of any party, as evacuee or otherwise. That declaration, however, cannot take anything away from the jurisdiction conferred and duty placed upon this Court by the Constitution to see that no powers in excess of those granted by law are exercised. If it be found that while determining the status of person or property, the Custodian had done that which he had no power to do, this Court would undoubtedly have the jurisdiction to declare that thing to be of no legal effect.

4. Coming now to the point at issue. It is contended on behalf of the Custodian that section 8 of the Pakistan (Admi nistration of Evacuee Property) Act (XII of 1957), in effect requires that for the purposes of determining rights in or over property, the fact that a person has migrated from Pakistan must be ignored and those rights be determined as if he were still present where he was. Applying this test it is said that the fact that the non‑Muslim residents on the land in question have gone away must not be noticed, and on the assumption that they are still residing where they were, it should be held that their right to continue to reside there is alive and available to the Custodian. While I agree with the principle on which this contention is based, I am of the opinion that it is incapable of application to the kind of "right" with which we are dealing. What is this "right" As I see it, it is nothing more than a permission given by a proprietor to certain families in an integrated village community to reside on his land, coupled with an undertaking, that he will not turn them out or use that land for any other purpose so long as those families continue to reside there. The appearance of "right" flows from the undertaking not to evict, but that undertaking is of a personal character between the proprietor and the particular family. The proprie tor has not parted with any right of his in or over the land. The only right he has parted with is his right to withdraw or revoke the permission he has given to a particular family. As soon as that family is not there to claim or enforce this personal obligation against the proprietor, that obligation must lapse. To me it seems that the correct way of looking at this kind of transaction is that the families which were allowed to reside on the land, at no stage acquired the right to reside on that land, but were given an immunity available only to those families from being evicted by the landlord, To hold otherwise would be productive of results that it seems unreasonable to suppose were intended by the Legislature. Will the persons whom the autho rities now propose to settle on the lands in question fit into the village community as did their predecessors and fill their place If after being settled, any of them wishes to leave, will the right to reside continue in the Custodian in perpetuity Will the Custodian not have a more secure hold on the right to reside on the land than did the evacuee himself, whose successor‑in‑interest the Custodian is It appears to me clear that the supposed "right" to reside in these two cases is not a right at all and the said section 8 has no application to it.

5. Moreover section 3 of the Pakistan (Administration of Evacuee Property) Act debars the Custodian from declaring any property as evacuee property if that property was not treated as evacuee property before the 1st of January 1957. It is clear that the question of treating the "rights" in question as evacuee property could not have arisen under the law as it stood before that date. Some cases were cited at the hearing to show that in certain circumstances properties not previously treated as evacuee property could be declared to be evacuee property after that date, consistently with the provision of section 3. Those circumstances, however, are quite different. It does not seem possible to bring these cases within those circumstances.

A. H. Petition accepted.

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