Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst . K H URSH ID BIB I VS Respondent: The CUSTODIAN, EVACUEE PROPERTY, SIND and 23 JUDGMENT
Court Name: Sindh High Court Judge(s): Saleem Akhter Title:Mst . K H URSH ID BIB I vs The CUSTODIAN, EVACUEE PROPERTY, SIND and 23
JUDGMENT
Reported As: 1985 CLC 395 Result: Order accordingly Judgment JUDGMENT ' By this judgment the following petitions shall be disposed of:- ' Constitutional Petition No.S.1191/74, {{TABLE}} ft rt 1256/74, It It " 1257/74, II II a 1429/74, tt 11 1287/74, ti 1176/74, {{TABLE}} ' In all these petitions the order of the Custodian, the respondent No.1, dated 27-6-1974 has been challenged, whereby the application for confirmation of exchange under sections 16 and 17 of the Ordinance XV of 1949 originally filed by late Haji Muhammad Ishaq in respect of properties of which petitioners claim to be the transferees from the Settlement Department has been granted. ' In petition No.S.1191/74 the peitioners have stated that evacuee plots bearing No.G.R.E 664/1,2 & 3 situated at Karachi were purchased by the petitioners in an auction held on 11-6-1960, by the Settlement Authorities at Karachi. On approval of the auction and on payment of the auction price P.T.O. dated 27-8-1962 was issued in the peitioner's name. However, during 1965 the petitioners Nazim was made a respondent in the proceedings which had been initiated on behalf of Muhammad Ishaq under sections 16 and 17 of the Ordinance XV of 1949 with regard to an exchange allegedly made by him on 1-5-1961 at Delhi for his land measuring 4,65,000 sq. yards out of a big
---
## Page 2
plot in an area known as Kharera New Delhi with Karachi Evacuee Property belonging to Paradab Dayal Das and three other Hindu evacuees permanently settled in India. ' In Petition No.1256/74 the petitioners are displaced persons and on 28-7-1948 they purchased plot bearing No.A M 281 III-B-18, Karachi, measuring 960 sq. yds. with possession in their firm's name known as International Trade Agency from its original owner Balram Dayaldas while he was at Karachi, and was a Pakistani citizen, and had not migerated to India. It is alleged that the sale was confirmed by an order of the Additional Custodian dated 13-5-1951, and a charge of Rs.25,575/9/7 was created on the property.The petitioners thereafter, sold out 2/3 share in the charge to Muhammad Yasin. Again on 20th September, 1960 the parties entered into another agreement to settle their shares and got the said plot transferred jointly in their names under P.T.0 dated 5-11- 1960 and obtained the transfer order dated 14-6-1974 in the same manner. These petitioners were also made parties in the proceedings filed by late Muhammad Ishaq as stated above. ' In Petition No.1257/74 the petitioner's predecessor-in-interest and mother late Qamar Jehan was a claimant displaced person and being in possession of a portion of evacuee house bearing No.C.S. No.G.R.E-530/1 Gurumandar, Karachi applied for its transfer under scheme No.1 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The other occupant of the house had also applied for transfer, and the matter remained under litigation which resulted in a settlement whereby it was agreed that half of the house in possession of Mst. Qamar Jehan be transferred to her, and the other half be transferred to the other occupant. Accordingly transfer price was paid and P. T. D. dated 25-3-1964 was issued in their names. In 1967 notice of proceedings initiated by late Muhammad Ishaq was published in Daily Dawn to which Mst. Qamar Jehan joined as respondent No.5. During the pendency of those proceedings Mat. Qamar Jehan by a registered deed transferred her half share to the petitioner which was duly notified to the Additional Custodian. ' In Petition No.1429/74 petitioner No.2 was a partnership firm of Sh. Muhammad Yaseen the predecessor-in-interest of petitioner No.1 (a) to 1 (h). Under an agreement of sale, dated 30th August, 1948 he agreed to purchase plot No.A.M.281 measuring 960 sq. yards situated in the Artillery Maidan Quarter from its Hindu owner Balram Diyaldas respondent No.14 who is alleged to be present in Pakistan at that time and had not migrated. In pursuance of the agreement, the petitioner No.2 obtained possession and raised permanent construction at a sub stantial investment. The agreed price was Rs.60,000 and since the petitioner No.2 had not paid 80% of this price, permission for filing a suit for Specific Performance was refused, but by order dated 13-11- 1956 a charge for Rs.25,575/9/9 with interest at 6% was created in favour of the petitioner No.2. The original petitioner No.1 & 2 entered into an agreement under which Sheikh Muhammad Yaseen purchased 2/3 share of the charge so created and the Additional Custodian (Judi.) by order dated 29-7-1954 allowed Muhammad Yaseen's name to be substituted as holder of 2/3 of the charge created on the plot in place of International Trading Agency. The petitioners have alleged that they have made additions and alterations paid taxes, and are in continous possession and occupation of the building. A P.T.O., dated 5-11-1960 was issued in the joint names of Muhammad Yaseen and M/s. International Trading Agency. In 1965 Muhammad Yaseen came to know of the proceedings and claim made by late Muhammad Ishaq the predecessor in interest of the respondent No.2 to 11 and on their application they were impleaded as party in the said proceedings before the Custodian. ' In Petition No.1287/74 the petitioner's predecessor in interest and father late Haji Munshi Raza Khan was a displaced person and being in possession of evacuee house bearing No.CS No.GRE/530/1 Gurumandar, Karachi applied for its transfer under settlement scheme No.1, However, Mst. Qamar Jehan the other occupant of a portion also made a claim resulting into a litigation which ended in a settlement whereby half of the portion was transferred to him. Accordingly on 25-3-1964 P.T.D for
---
## Page 3
their separate shares was issued. In 1967 notice of proceedings initiated by late Haji Muhammad Ishaq was published in Daily Dawn, inviting the transferees of the subject property to join the said proceedings. The petitioner therefore, joined proceedings as respondent No.6 before the Custodian. ' In Constitution Petition No.1176/74 the petitioner is a statutory Body established under the provisions of West Pakistan Cooperative Board Dissollution Act II of 1966 as successor of West Pakistan Cooperative Development Board Lahore. Plots bearing Nos.267, 268, 269, 288, 289, 290 and 291 situated at Victoria Road, now known as Abdullah Haroon Road, Karachi were acquired by the Government of Pakistan under Notification No.F/6(6) 57-P-II dated 8-2-1957. In the records of right Hindu evacuee Bhai Partab Diyaldas was recorded as the owner of these plots. The said plots were transferred to K.D.A., who constructed building thereon known as "Super Market Building". K.D.A. transferred the said building to West Pakistan Cooperative Development Board which paid on 25- 4-1963 a sum of Rs.15,74,500 being the cost of super structure. The petitioners also paid transfer price, interest and settlement fee in respect of these plots amounting to Rs.10,25,762.50, Rs.1,25,905 and Rs.5,109 respectively to the Settlement & Rehabilitation Commissioner. The petitioners were therefore, joined the proceedings initiated by late Haji Muhammad Ishaq which inter alia related to these plots. All these petitions were originally filed against the official respondents and legal heirs of late Haji Muhammad Ishaq. In petition No.1429/74 besides the aforestated respondents the Hindu evacuees have also been joined as respondents. During the pendency of these petitions the legal heirs of Ghulam Aulia filed application for joining them as respondents which was granted on 6-11-1977. Thereafter, certain respondents died whose legal heirs have been brought on record. ' The facts of the procedings filed by late Haji Muhammad Ishaq in which the petitioners in the aforestated petitions were joined as respondents are as follows:- ' Late Haji Muhammad Ishaq through his attorney Haji Hafeezuddin filed an applicatiqn under sections 16 and 17 of the Ordinance XV of 1949 before the Deputy Custodian Evacuee Property, Karachi on 14-6-1951 for permission to get the Exchange Deed registered which he had entered with Bhai Partab Dayal Das, Kashab Lakumal Kriplani, Balram Dayaldas and Radhabai Naraindas Manwani on 1-5-1951 at Delhi and for its confirmation. It was alleged that he was the owner of a big plot of land measuring 11 lacs sq. yards situated at New Delhi in the area known as Kharera. Out of this property he exchanged 4,65,000 sq. yards with Bhai Partab Dayal Das and three other Hindu evacuees who are permanently settled in India. It was stated in the application that the Hindu evacuees have executed a general power of attorney in favour of his two relations to act on their behalf. It was further stated that price of Delhi land was Rs.9,75,000 while the Karachi property was evaluated at Rs.9,00,000. Muhammad Ishaq alleged that he received Rs.75,000 in cash and delivered the possession to those evacuees.The particulars of the Karachi Properties which were exchanged and were subject-matter of the application are as follows:- (a) Open plots of land bearing S. Nos. 267, 268, 280, 289, 290 and 291. Sheet No.A.M. of Artillery Maidan Quarter, Victoria Road, Karachi. (b) Bungalow at Survey No.120 J.M. Quarter, Muhammad All Jinnah Road, Karachi. (c) Two bungalows bearing S.No.530/1, 530/2 Sheet G.R.E. Garden Quarter, Karachi. (d) A plot of land bearing S.No.664, Sheet Garden East, Jail Road, Karachi". ' The Agreement of exchange was made at Delhi on 25-12-1949, the Deed of Exchange was executed on Ist May, 1951 and registered on 5-5-1951. A certified copy of the general power of attorney executed by the Hindu owners in favour of the relations of the applicant was stated to have been filed with the application. On 15th June, 1951 the said attorney of the Hindu evacuees filed a written statement before the Deputy Custodian admitting the applicant's claim for confirmation of the exchange and the registration of the deed of exchange. The application was opposed by the Pakistan General Hawkers Union (Registered) Saddar, Cloth Market, Karachi, who
---
## Page 4
contended that the transaction contravened in the Notification dated 10-1-1950 under Ordinance XV of 1949 as amended by Notification dated 9th April, 1951 restricting the transfer of evacuee property. It was also averred that on the dates when the agreement of exchange and deed of exchange were executed. Haji Muhammad Ishaq was not a refugee, nor his property situated in New Delhi evacuee property and that permission for the registration of the deed of exchange by the Custodian of the Evacuee Property Delhi was obtained by misrepresentation and supression of material facts. Four other persons namely M.Muhammad Ahmad, Shamsul Haq, Muhammad Faizuddin Rahmani and S.Khalil-ur-Rahman who were in possession of the vacant plot bearing survey Nos.288, 289' and 290 raised objections as those of Pakistan General Hawkers Union. On 4th March, 1952 late Haji Muhammad Ishaq replied to both the objections and asserted that objectors were not parties to the proceedings, and they had no locus standi to object the confirmation of the exchange. During the pendency of these proceedings, the learned Dy. Custodian ordered late Haji Muhammad Ishaq to produce (1) the requisite income-tax clearance certificate, (2) Notification in the official Gazette of the property in India having been treated as evacuee property prior to transaction, copy of Certificate permitting registration of exchange in India, Notice under sub-rules (4) & (5) of rule 20 the Indian Evacuee Property Rules, (5) Certified copy of order confirming transfer of property in Indian, and (6) affidavit to the effect that the property in India was not declared as non-evacuee subsequent to the Notification, and that the same has not been released or restored since then. As Haji Muhammad Ishaq could not produce all these documents and absented himself for one reason or the other, the learned Deputy Custodian on 22-11-1962 dismissed the application. Haji Muhammad Ishaq went up in appeal to the Additional Custodian (Judl). The appeal remained pending for more than one year and was dismissed on 28-4-1953 on the ground that in essence the application before the Deputy Custodian of Evacuee Property was under section 17 of 'the Ordinance for the grant of a certificate for the registration of a deed of exchange and no appeal lay from that order. Haji Muhammad Ishaq invoked the Revisional Jurisdiction of the Custodian Evacuee Property, Karachi. The petition was dismissed by Mr. Mansoor Alam, the then Custodian of the Evacuee Property who affirmed the view expressed by the Additional Custodian. However, by an order dated 21-12-1954 Mr. Mansoor Alam suo motu issued notice to the Rehabilitation Commissioner, Karachi and to the parties to appear before the Deputy Custodian of Evacuee Property, to show cause as to why the order dated 22nd November, 1962 dismissing the application for confirmation of the Exchange deed and its registration may not be revised. In the order it was observed that although at the time when the Deputy Custodian passed the order there was every justification for it, but the position has since then changed, and the policy in the matter of such exchange has been relaxed. The learned Custodian placed reliance on the Notification dated 30th August, 1954 whereunder the exchange in question was not restricted and could be considered for confirmation. ' After the issue of notice the hearing of the case was fixed on 1-3-1955 which continued to be adjourned and eventually arguments were heard on 13-10-1956 and order was reserved. On 30-10- 1956 Mr. Mansoor Alam the learned Custodian passed an order that in view of the contention of Haji Muhammad Ishaq that the exchange is not prohibited under law a reference shall be made to the Central Government. He accordingly made a reference to Mr. Y.A. Khan the Deputy Secretary by means of which he made a querry to the Ministry of Refugees and Rehabilitation, as to whether the exchange in question between the Urban Property in Karachi and the agricultural land in Delhi should be allowed or not. It was pointed out that the latest Notification restricting such transactions was silent and that is why clarification of the Central Government was sought. On 14-12-1956 Mr. Y .A .Khan referring to Notification dated 10-4-1956 replied that the Ministry has no objection to the confirmation provided it is otherwise unobjectionable. In the meantime Muhammad Ishaq had in support of his claim placed before the Custodian a copy of the deed of exchange and a copy of
---
## Page 5
the order of the Deputy Custodian (General) Punjab Lahore dated 5-12-1955 in appeal No.3/54 whereby a similar exchange was confirmed in his favour by Mr. Abdul Majeed Asghar. On 2-3-1957 Mr. Muhammad Buksh A.Memon who had succeeded Mr. Mansoor Alam passed an order observing that under Notification No.F-9(4) 56-B, dated 11-4-1956 transfer of any urban immovable evacuee property by exchange with such immovable property which has not been treated as evacuee property under any law for the time being in force in India is prohibited, but there was no prohibition whatsoever for transfer by exchange of urban immovable evacuee property in Pakistan with any agricultural property in India. According to the learned Custodian the exchange was valid and must be confirmed, and that he would have immediately set aside the order of the Dy. Custodian dated 22-11-1952 but another complication had arisen in the meantime namely the open plots situated in Saddar had been acquired by the Central Government for constructing a multi-storeyed building to rehabilitate the refugees. He accordingly thought it fit to stay his hand till the matter was clarified by the Government as granting, sanction for the exchange would have obstructed the construction and rehabilitation work. With regard to the remaining property involved in the exchange the learned Custodian thought that there will be no objection to sanction the exchange and to issue the requisite certificate for registration of the exchange deed, but as the deed was a consolidated one, he cannot pass order piecemeal because the deed of exchange was one and could not be vitiated. For these, reasons he postponed the announcement of the final order in the case; for a week. Haji Muhammad Ishaq challenged this order in Writ Petition No.131/57 which was dismissed on 14-6-1958. Haji Muhammad Ishaq filed Latter's Patent Appeal against the judgment passed in the Writ Petition. During the hearing of the appeal a statement was filed on behalf of the Custodian and Government of Pakistan in which it was stated that if Haji M. Ishaq withdrew the appeal and moved the Custodian to decide the pending Revision Petition No.239 of 1955 the Custodian will hear and decide the matter according to law not influenced by any observation contained in judgment passed in the Writ Petition No.131/75. Upon this statement Haji Muhammad Ishaq withdrew the appeal which was dismissed on 10-4-1963. ' In the year 1965 the matter came before the learned Custodian and he directed late Haji Muhammad Ishaq to implead the transferees of Karachi properties. Some of the transferees were joined but some other were left out. In the meantime the learned Custodian was replaced by another Custodian Mr. Manzoor Elahi and he took the view that the learned Dy. Custodian while passing the order dated 22-11-1952 did not allow late Haji Muhammad Ishaq to produce evidence and this by order dated 26-5-1967 remanded the case to the Additional Custodian, Karachi for disposal with direction that parties be given opportunity to lead evidence. When the matter came up before the learned Additional Custodian, a notice was published in Daily Dawn and served other transferees of Karachi properties joined the proceedings as respondents and submitted their objections. Before the Additional Custodian documents were produced and statement was recorded. Hafeezuddin son of Fariduddin, Salahuddin son of Ghulam Aulya, Abdul Rahman and Haji Muhammad Ishaq who was suffering from disability and was unable to speak were examined. The learned Additional Custodian by his order dated 28-2-1974 refused to confirm the exchange on the ground that despite repeated orders respondents Nos. 3 to 10 did not produce the claim verification order passed in favour of late Haji Muhammad Ishaq by a competent authority under the provision of Registration of Claims (Displaced Persons) Act of 1958 and it was presumed that he must have got the subject land also included in the claim filed by him. Both the parties challenged this order before the Custodian. In those proceedings the respondents instead of producing the claim verification order in favour of late Haji M.Ishaq produced the verification order passed by the Deputy Claims Commissioner, Karachi in favour of the legal heirs of Ghulam Aulia including Salahuddin for the properties of late Ghulam Aulia, and it was stated that late. Haji Muhammad Ishaq had not filed any claim at all. From this order of claim verification dated 27-8-1959 it
---
## Page 6
transpired that the land in New Delhi actually belonged to Ghulam Aulia and late Haji Muhammad Ishaq and Muhammad Suleman were benami owners. This was also confirmed by late Haji Muhammad Ishaq before the claim authorities. The learned Custodian therefore, dismissed the Revision Application filed by the petitioner and allowed the Revision of the respondent i.e. the legal heirs of the Muhammad Ishaq and confirmed the exchange by the impugned order dated 27-6- 1974. ' Mr.Maroof Ali Khan the learned counsel for the petitioners has contended that in the absence of any documentary evidence to show that Haji M.Ishaq was the owner of the New Delhi property, exchange with the evacuee property of Hindus at Karachi was not competent. In this regard the learned counsel has referred to the evidence produced before the Additional Custodian in which Khasra and Khatoni were produced. According to the learned counsel as it is authenticated by the High Commission of Pakistan in India as required by sections 78 and 84 of the Evidence Act, it is not admissible in evidence. The same objection has also been raised in respect of certified true copy of the exchange deed registered with the Registrar at New Delhi. The learned counsel contended that Khasra and Khatoni are public documents and unless the same are proved in terms of the provisions of the Evidence Act they cannot be accepted in evidence before a Court or Tribunal. The learned counsel has referred to Muhammad Usman v. Lal Muhammad PLD 1975 Kar. 352 where in an appeal from the judgment of the Election Tribunal, the question came for consideration about the admissibility of birth certificate which was issued by the Ajmer Municipality and because the same was not authenticated in terms of sections 78 (6) of the Evidence Act, it was held to be inadmissible. In M/s. Bengal Friends & Co. v. Gour Benode Saha & Cc. Calcutta and another PLD 1969 SC 477 the copies of extract from the Register of Miscellaneous. Cases mentioned in the Court of Third Presiding Magistrate Calcutta pertaining to a criminal complaint were held inadmissible, as they did "not bear certificate of genuines and accuracy by a Represen tative of the Government of Pakistan in India as required by section 86 of the Evidence Act". With regard to copies of application for export of Coeltar to East Pakistan in 1948 and licences for export purported to have been granted by the Government of India, as well as two telegrams received from some customers in East Pakistan it was observed that they "stand at still lower footing as they are not copies of any judicial record, and could not be received in evidence without proof of signature and handwriting of persons alleged to have been signed or written them as required by section 67 of the Evidence. Act". ' Mr. Muhammad Sharif the learned counsel has contended that the proceedings before the Custodian are not governed by the provision of Evidence Act, and the same is not applicable, and therefore, for any non-compliance of the provisions of the Evidence Act, the order cannot be said to have been passed without lawful authority. The learned counsel relied on Mst. Moselle Ellias v. Khawaja Ahmed Said PLD 1959 Kar. 760 where it was held that "section 86 of the Evidence Act does not relate to 'the admissibility or otherwise of a copy of a judicial record of a foreign country. It merely enables the Court to raise a presumption that judicial record of a foreign country is genuine and accurate if it bears a certificate as required by that section". It is thus plain that the genuineness of the record is certainly capable of being proved by other means. The absence of the certificate merely excludes the raising of a presumption. The section nowhere says that a copy of judicial record of a foreign country is not admissible in evidence, unless it bears the certificate as required by it". The documents which have been questioned are not judicial records. They are public documents, and were produced to establish that the land was in the name of Muhammad Ishaq. In fact the land was recorded in the name of Muhammad Ishaq but from evidence it is established that he was benami of Ghulam Aulia. The fact that his name was on record seems to have been established by the private respondents by producing oral evidence also. The Additional Custodian and the Custodian have accepted this evidence and have not given finding that he was
---
## Page 7
not competent to file this application for exchange. In Muhammad Usman's case although it was held that the copy of the birth certificate was not admissible in evidence, the Court considering the fact that oral evidence of the applicant's father including a medical certificate of X-Ray Specialist to prove the age at the relevant time was accepted by the Court below, it was observed that determination of age is a question of fact, and if the learned Judge relying on other evidence on record given its finding it cannot be vitiated in that proceedings, which was in the nature of second appeal. Somewhat similar situation has arisen in the present case. Whether Muhammad Ishaq's name appeared in the records of rights or not is purely a question of fact. On the basis of evidence on record which included the oral testimony of witnesses, the order of verification of claim, which makes reference to the order of the Collector, in 1939, the registered deed of exchange supported by the witness before whom it was executed the Additional Custodian and the Custodian have given finding in favour of the respondent. The proceedings Constitutional Petitions are completely different from appeal, and finding of fact, unless they are found to be completely…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.