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Petitioner: AZIZUDDIN VS Respondent: MUHAMMAD ISMAIL And Other
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Haleem, M. S. H. Qureshi, Shafi-ur-Rehman Title: AZIZUDDIN vs MUHAMMAD ISMAIL And Other Case No.: Constitutional Petition No. 955 of 1974 Civil Appeal No. K-86 of 1983 Date of Judgment:1985-01-09 Reported As: 1985 SCMR 666 Result: Appeal dismissed
JUDGMENT
JUDGMENT M.S.H. QURAISHI, J.-- Appellant Syed Azizuddin claimed title to the agricultural land measuring 257 Acres 32 Ghuntas, situate in Deh Quboyagan and Deh Shahdadpur, Taluka Shahdadpur, District Nawab Shah, by purchase from Boolchand, a non-evacuee. A question arose whether the land was non-evacuee property or hidden evacuee property. The Custodian, by his order dated 14-6-1974, held that it was non---evacuee property but his order was quashed in its constitutional jurisdic-- tion by the High Court by the impugned judgment dated 6-3-1983, on the ground, inter alia, that it was hit by the principle of res judicata, the earlier decisions of the High Court on the question being of a binding nature. Leave was accordingly granted to consider whether the order of the Custodian was hit by the principle of res judicata in view of the earlier judgments of the High Court. 2. The disputed land along with some urban property had been jointly owned by Naraindas and his eight sons, namely, Natharlal, Gagandas, Boolchand, Lokomal, Vessumal, Dharmomal, Phatumal and Kessumal. The first to sons, namely, Natharlal and Gagandas, separated from the joint family under a partition arrived at on the basis of an award on 16-9-1943 and registered with the Sub- Registrar, Shahdadpur. By this partition, agricultural lands measuring 30 Acres 39 Ghuntas in village Quboyagan and to houses in Shahdadpur town were given to Natharlal and 30 Acres 20 Ghuntas of agricultural land in village Quboyagan together with one house in Shahdadpur town went to Gagandas. The agricultural lands so acquired by the to brothers, were, however, leased out by them to their father Naraindas. A further partition, by a deed registered with the Sub-Registrar, Shahdadpur, was effected on 2-7-1946, whereby the next to sons, namely, Boolchand and Lokomal, also separated from the joint family. Boolchand got 31.17 Acres of land in Deh Shahdadpur together with the lease hold rights for the un expired period of lease of the lands taken by Naraindas from
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his to sons, and 1/4th share in houses Nos. 616 and 617 in Shahdadpur town, while Lokomal received 27.18); Acres of land and 1/4th share in House No. 616 in Shahdadpur. The rest of the property remained joint with Naraindas and his remaining four sons who were minors. 3. According to the appellant, a third partition took place on 21-12-1946, whereby the entire property of the family, as originally held, was re-distributed, in the result of which Boolchand got the entire agricultural land measuring 257 Acres 32 Ghuntas while the others received shares in the urban properties. Naraindas signed the deed for himself and his four minor sons and by Boolchand and Lokomal. Natharlal and Gagandas who had separated in 1943 were neither party nor signatory to this deed. It is to be noted that this third partition was neither registered nor did the Revenue authorities at the same upon at that the. Instead, on the death of Naraindas in August 1947, the property owned by him and his minor sons was mutated, vide mutation No. 74 dated 6-11-1947, in the name of his widow Mst. Murlibai and the minor sons, namely, Vessumal, Dharmomal, Phatumal and Kessumal. All the sons of Naraindas, except Boolchand, admittedly migrated to India and became evacuee. 4. The case of appellant Syed Azizuddin is that he, on 2-5-1949, purchased the disputed land from Boolchand by a sale agreement for the consideration of Rs.36,092 of which he paid Rs.15,000 vide receipt dated 2-5-1949 and the balance of Rs.21,092 vide receipt dated 22-7-1949. It is to be noted that this agreement is not on record and according to the appellant's pleading in the civil Court, Boolchand who lost it took it away but he executed another agreement on 21-4-1953. No sale-deed was, however, executed in pursuance of this agreement. The third partition deed of 21-12-1946 was also not in evidence. A photocopy of the same was produced for the first the on 28-8-1967. However, Lokomal and Vessumal, it is stated, visited Pakistan in July 1949 and made a statement on 21-7-1949 before the Mukhtiarkar Shahdadpur to the effect that the disputed land had been given to Boolchand according to a partition deed effected three years back and that they had no objection if the same was entered in his name. The land was accordingly mutated the, same day in the name of Boolchand. The next day, Boolchand made a statement before the Mukhtiarkar admitting the sale made by him of the entire land in favour of the appellant and expressing no objection if the same was mutated in the appellant's name. The land was thereupon mutated in the name of the appellant on 22-7-1949. Both the entries, were, however, cancelled by the Special Mukhtiarkar on 22-1-1950 and 25-2-1950 on the ground that they had been made without the requisite permission of the Custodian. 5. On 17-10-1949, the appellant filed application No. 510 of 1949 under section 12 of the Pakistan (Protection of Evacuee Property) Ordinance (XVIII of 1948) before the Deputy Custodian for confirmation of the sale. In support of the application he also filed affidavits including one by Boolchand dated 23-6-1950 in which the latter admitted the transaction of sale and delivery of possession of the land to the appellant. The Deputy Custodian, however, by his order, dated 9-3- 1953-expressed doubt if the case was tenable under section 16. The Ordinance having been substituted by the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949), the appellant made another application (No. 1513 of 1953) under section 17 of this Ordinance (XV of 1949) for a certificate permitting registration of the sale. The Deputy Custodian (Mr. S.M. Mir) by order, dated 9-4-1953 granted such permission subject to the approval of the Additional Custodian, on the ground that the vendor was non-evacuee and as such both parties were amenable to the execution and registration of the sale. The Additional Custodian (Mr. S. Riazuddin Ahmad) by his order, dated 20-4-1953 agreed with this and as such held that no approval was necessary. The appellant's earlier application No. 510 of 1949 later came up for decision before another Deputy Custodian, namely, Mr. Hibatullah, on 31-8-1953 who rejected the same for the reason that there was no registered document pertaining to the transaction and that there was no evidence to show that full consideration had been paid. He also declined to grant permission to the
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appellant to sue for specific performance under section 12(3) or for registration under section 17 of Ordinance XV of 1949. He consequently directed that "the properties in question will be evacuee properties" within the meaning of section 2(3)(b) of the said Ordinance. The appellant's appeal was, however, allowed by Mr. S. Riazuddin Ahmad, Additional Custodian, on 10-12-1953, for the reason, as earlier given by him, that the vendor not being evacuee, the question of confirming the agreement of sale did not arise. 6. It appears that Boolchand did not oblige in the matter of execution of the sale-deed. The appellant, therefore, instituted Civil Suit No. 24 of 1953 on 17-12-1953 for specific performance of the sale agreement. During the pendency of the suit, the appellant discovered that Collector's permission was necessary under section 5(2) of the Sind Rural Credit and Land Transfer Act (XLIX of 1947). He accordingly obtained such permission on 17-7-1954. The suit was then decreed on 31-7- 1954 subject to payment of Rs.11,000 to Boolchand at the the of registration of the sale. The appellant appealed against the condition of payment but his appeal was dismissed as the-barred. Consequently, the Special Deputy Collector, on 8-9-1954, cancelled the revenue entries made on 22-1-1950 and 25-2-1950, and restored the entries made on 21-7-1949 and 22-7-1949 in favour of Boolchand and the appellant, respectively. 7. The matter appears to have rested there until 27-3-1964 when an application was made by Muhammad Ismail and others respondents, before the Settlement Commissioner for correction of the Revenue record and transfer of the property to the evacuee pool and for allotting the same to them in lieu of their claim. When the appellant received notice of this application, he challenged it through Writ Petition No. 464 of 1964 but the same was summarily dismissed on 21-8-1964 as being premature. The appellant moved this Court through a Civil Petition, wherein an ad interim stay was also issued in his favour on 25-8-1964 but before that date, the Deputy Settlement Commissioner had on 22-8-1964, disposed of the application of Muhammad Ismail and others, treating the share in the property of the sons of Naraindas other than Boolchand, to be concealed evacuee property, taking the same in the evacuee pool and directing that steps be taken to allot the property against pending claims. The Deputy Settlement Commissioner also declared the revenue entries in Deh Quboyagan and Deh Shahdadpur made in favour of the appellant and Boolchand to be void. 8. This order of the Deputy Settlement Commissioner was challenged by the appellant through, Writ Petition No. 994 of 1964 but the same was dismissed on 22-4-1969 (Judgment reported in PLD 1969 Kar.. 586). The learned Single Judge held that-- (1)the facts were prima facie against the execution of the third partition deed dated 21-12-1946 between the members of the joint family headed by Naraindas which appeared "to have been forged to save the agricultural lands of Natharlal and Gagandas in the joint family headed by Naraindas or being declared or treated as evacuee property" and that, therefore, B,oolchand would seem to have no right or title in any of the agricultural lands except those given to him under the second partition deed, dated 2-7-1946; (2)since the character of the land had been concealed from the competent authority, the appellant could not claim protection under section 3(1) of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) as the matter fell under subsection (2)(b) of that section and section 3 of the Displaced Persons (Land Settlement) Act (XLVII of 1958); (3)the order, dated 9-4-1953 of Mr. S.M. Mir, Deputy Custodian, and the orders of the Additional Custodian (Mr. S. Riazuddin Ahmad) could be confined to the property which was the right of Boolchand and could not be extended to the property to which Boolchand had no legal or valid title; and (4)the Deputy Settlement Commissioner who was also Rehabilitation Authority under the Pakistan Rehabilitation Act (XLII of 1956) by virtue of the Provincial Government's notification, dated 1-6-1959,
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was under section 22 of Act XII of 1957 competent to make an order treating the disputed land as evacuee property. The learned Judge, therefore, categorically held that the appellant could not "in these proceedings" claim relief as regards lands which belonged to Boolchand's mother and his brothers. However, he added "that this judgment will not preclude the petitioner from taking such steps as he may be advised, under the laws relating to evacuee property, and settlement of displaced persons, to enforce his claim to these lands if he has any such claim at all". 9. The order of the Single Bench was upheld by a Letters Patent Bench which dismissed the appellant's L.P.A. No. 79 of 1969 in limine on 2-5-1969. The learned Judges of the Bench, in repelling the contention that the Deputy Settlement Commissioner was bound to refer the question of the nature of the property for adjudication to the Custodian, expressed the view that as the interests of the evacuee members of the joint family had by operation of law become evacuee property and vested in the Custodian, there was no question which required a reference to be made to the Custodian for adjudication. The learned Judges further held that no declaration could be spelt out from the various orders passed by the Custodian authorities, that the provision of section 17 of Ordinance XV of 1949, under which the appellant had moved his second application before the Custodian authorities, did not grant any such declaration, that the entire land was not evacuee property nor was it in the exclusive ownership of Boolchand and that the provision of section 3 of Act XII of 1957 could not be invoked to help the appellant. 10. The appellant then moved this Court for leave to appeal through C.P.S.L.A. No. 65 of 1969 in which leave was granted on 28-1-1970 but the appeal (No. 2-K of 1970) was dismissed as withdrawn on 13-2-1974. 11. It so happened that after the dismissal of the Letters Patent Appeal, the appellant had also applied, on 11-11-1969, to the Custodian under section 22 of Act XII of 1957, for a declaration to the effect that the disputed land was non-evacuee. This application was accepted on 14-6-1974 as earlier mentioned, and the entire disputed land was declared to be non-evacuee. In reaching this conclusion the learned Custodian acted upon the assumption that-- (1)by the deed of composition, dated 21-12-1946 which was signed by "all the parties interested" and "acted upon", Boolchand became the sole exclusive owner of the disputed land and nobody from amongst the members of the joint Hindu family or their heirs ever questioned the genuineness of the family settlement; (2) "the widow of one Naraindas who was a party to the settlement, set up a claim but the same was rejected by the Revenue authori--ties in view of the family settlement arrived on 21-12-1946;" (3)mutation proceedings such as made in the name of Boolchand on the statement of Lokomal and Vessumal, on the basis of the family settlement, "have been always held legal under the Revenue law" and "these entries made in favour of Boolchand in 1946 in the revenue record were not only legal and correct but cannot be made even a subject-matter of controversy by this Department because this transaction pertains to a period prior to 1-3-1947"; (4)the decree obtained by the appellant made him "exclusive legal owner of the property in question"; (5)the order of the Deputy Settlement Commissioner, dated 22-8-1964 was illegal, null and void; and (6)"all the authorities including the Custodian, Rehabilitation and Settlement accepted the family settlement as perfectly genuine." The learned Custodian also rejected the respondents' plea of limitation for, the reason that the appellant had been contesting the matter throughout. He further held that the property not having been treated as evacuee property on or before 1-1-1957, could not be declared evacuee property.
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12. The order of the Custodian was challenged by Muhammad Ismail and others through Writ Petition No. 955 of 1974, which was accepted by the impugned judgment of the High Court, dated 6-3-1983. The learned Judge held that the order of the Custodian was hit by the principle of res judicata as the earlier orders passed by the High Court were "binding" on him. Nevertheless, he proceeded to examine the case on merits also and held that the Custodian's order could -not be sustained for the reasons that-- (1)the provisions of sections 49 and 50 of the Registration Act had not been taken into consideration in giving effect to the unregistered partition deed of 21-12-1946 which is against the earlier registered partition deeds; (2)there was no evidence before the Custodian to show that any mutation in favour of Boolchand existed prior to 1-3-1947 and that in fact the first mutation had been entered .On 21-7-1949 and that to without the approval of the Custodian; (3)the Custodian had "in utter contravention of the decision of this Court given in W.P. No. 494/64 and L.P.A. 79/69, by which the order, dated 22-8-1964 of the learned Deputy Settlement Commissioner (Land), Shahdadpur was held valid and legal, declared the said order as illegal, null and void"; and .(4)Boolcharid had never come forward before the Custodian or the High Court to support that the third partition, dated 21-12-1946 was genuine and had been acted upon by all members of the joint family. 13. The main controversy on which leave was granted is thus whether the earlier decisions of the High Court operated as a bar, on the) principle of res, judicata, to the exercise of jurisdiction by the Custodian for determining the nature of the property. In this connection Mr. S.M. Zafar, learned counsel for the appellant, submitted that the Custodian had; under section 22 of Act XII of 1957, exclusive jurisdiction to determine the nature of the property, that any determination by the Settlement authorities in regard to the nature of the property would not bind the Custodian nor could the previous decisions of the High Court operate as res judicata in the matter of such determination by he Custodian and that in any case, the High Court in its order, dated 22-4-1969 had left it open for the appellant to enforce his claim to the lands in dispute under the relevant laws. He further submitted that:- (1)The property not having been treated as evacuee property upto 1-1-1957, the same could not be treated as such property after that date under section 3 of the said Act. (2)In the background of the litigation concerning the property, the same could not be held to be concealed evacuee property so as to attract the provision of section 3(2) of the Displaced Persons (Land Settlement) Act (XLVII of 1958). (3)The respondents, Muhammad Ismail and others, being rank outsiders, had no locus standi to invoke the constitutional jurisdiction of the High Court to challenge the determination made by the Custodian. 14. A dispute concerning the evacuee nature or otherwise of a property could be brought in to ways before the Custodian for his determination. One is under section 41(2) of Act XII of 157 by a --Court or any other authority where a question arises whether any property is or is not evacuee property or what right or interest a. Any, an evacuee has in such property. In such situation, the Court or the authority shall state the question with relevant particulars and remit it to the Custodian for his decision. The other is under section 22 of the said Act, where under any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian. The Act bars every Civil or Revenue Court or other Authority from exercising jurisdiction to entertain or adjudicate upon any such question. 15. The appellant, as already mentioned, had moved the Custodian authorities first in 1949 for confirmation of the sale of the land in his favour and again in 1953 for the grant of a certificate
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permitting registration of the sale and in both proceedings the Additional Custodian had held that the vendor not being evacuee, the question of confirmation of the agreement of sale did not arise. However, the decision given by the Additional Custodian cannot be pressed into service because if the owner be held to be non-evacuee, the same would not per se be sufficient to exclude his property from being treated as evacuee property as was held by this Court in Hajiran Sughra v. District Judge & Settlement Commissioner 1969 SCMR 686. Moreover, as noted by the High Court in the earlier proceedings, there had been no determination as to the extent of the property of Boolchand and as such the property not properly established to be his own, cannot be treated to be non-evacuee. Then the transaction on the basis of which the appellant was claiming was only an agreement to sell. In Ghulam Muhammad v. Custodian of Evacuee Property PLD 1966 (W.P) Lah. 953 it had been held that a non-evacuee cannot claim relief on the basis of an agreement to sell executed in his favour by an evacuee as an agreement to sell does not create any right, title or interest in immovable property, that where the non-evacuee vendee had not applied for a declaration that the property was not evacuee and had only sought confirmation of the transaction, such confirmation, even if accorded, could not confer any right and that the Custodian could, in that event, only direct him under section 16 of Act XII of 1957 to file a suit for specific .Performance of the agreement and it was only when such decree had been obtained and then confirmed by the Custodian that the property could cease to be an evacuee property. The appellant, therefore, on the basis of the orders passed by the Additional Custodian (Mr. S. Riazuddin Ahmad) could not advance his case that the entire property was non-evacuee property and to this extent the observation made by the High Court in the earlier round that the orders of Mr. S. Riazuddin Ahmad could not be interpreted to spell out a declaration that the entire land was exclusive ownership of Boolchand and non-evacuee property is not open to exception. The appellant had, no doubt, obtained a decree from the Civil Court but as no confirmation of the decree had been sought from the Custodian, that decree, to, was not executable in the absence of a competent decision in regard to the nature of the property. For such decision, the matter had to be referred to the Custodian either by the Court or the Settlement Authority under section 41 or by the appellant under section 22 of the Act. 16. The High Court had in the earlier round expressed that no question requiring a reference to the Custodian arose for adjudication as in the view of the learned Judges, the share in the property other than that of Boolchand had by operation of the law become evacuee property. It is true 'that the Court is not bound to make a reference to the Custodian merely because a question as to the nature of the property is raised before it. In Muhammad Ishaq Haji Dost Muhammad v. Abdul Ghani PLD 1960 Kar.. 155 and Settlement Commissioner v. Ghulam Hussain Brohi PLD 1970 Kar.. 51, a distinction had been drawn between the terms "arise" and "raised" and it had been expressed that a question can arise even without raising and at the same the, a question cannot be said to arise merely because it is raised, as a plea may be irrelevant, inadmissible or without substance, and that the question can be said to arise only if it is material and well-founded. However, since section 22 is not controlled by section 41(2), a person claiming right or interest in the property could prefer a claim before the Custodian notwithstanding the refusal by the Settlement Authority or the Court to make a reference, and the Custodian, if the matter fell within his jurisdiction, was competent to determine the nature of the property and in such determination he would not be bound by any decision, decree or order of any Court or Authority and his determination would be conclusive, subject, of course, to the revisional power of the High Court under section 43-A (the section was repealed with effect from 1-1-1961) or review by the High Court in its constitutional jurisdic--tion. The exclusive nature of the jurisdiction of the Custodian in this regard was highlighted by this Court in Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 and reiterated in Muhammad Hashim v. Muhammad Asghar PLD 1970 SC 326 and it was held that with respect to the nature of
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the property, neither the Civil Court nor the Settlement authorities have any jurisdiction to record a binding determination and that if the property be not evacuee and not vesting in the Central Government, the Settlement authorities could not grant to themselves jurisdiction to deal with it. In this connection it was also held in Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner PLD 1965 SC 356 that the Settlement authorities have no power to decide which property should or should not come into the compensation pool or adjudicate whether the property was rightly treated as included in the compensation pool. The jurisdiction of the Custodian was, therefore, not affected by the judgments, or observations if any contained therein, of the Settlement authority or the High Court in the earlier round. Those proceedings were neither directed against nor in continuation of any order of the Custodian nor were the Custodian a party thereto. The view taken by the learned Single Judge in the impugned judgment that the order of the Custodian passed on 14-6-1974 was hit by the principle of res judicata because of the earlier orders of the High Court, is, therefore, not sustainable in law. 17. It was contended on behalf of the respondents that the appellant having himself invited the jurisdiction of the High Court in the earlier round in regard to the nature…
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