TAJ DIN Vs. MRS. RAZIA BEGUM ALVI

JUDGEMENT

(1.) This appeal by special leave is directed against judgment of the West Pakistan High Court, Lahore, in writ petition No. 993 of I960, dated the 19th September, 1961. By this judgment the writ petition was allowed and a writ of certiorari was issued to quash the order of the Custodian of Evacuee Property, Lahore, in review application No. 34 of 1960 and review application No. 73 of 1960. It has arisen in the following circumstances:

(2.) The property in dispute is 366 Kanals and 4 Marlas of land situated in village Kot Mathra Dass, Tehsil Chunian, District Lahore. It belonged to respondent No. 2 Gurbaksh Lal Sarin, son of Lala Lachhman Dass. Respondent No. 1 Mst Razia Begum is the daughter of Lala Lachhman Dass. In 1940, she embraced Islam and married Dr. Zahiruddin Alvi. At the time of partition, Dr. Zahiruddin Alvi was posted at Larkana as District Health Officer. His mother-in-law and brother-in-law were also staying with him. They embraced Islam and started residing with respondent No. 1 who was appointed as Lecturer in the Lahore College for Women in October, 1947. Respondent No. 2, on embracing Islam, adopted the name of Abdul Ghafoor Sarin and got married to Respondent No. 1's sister-in-law Rashida Begum. Respondent No. 2 owned considerable immoveable property including agricultural land situated in village Kot Mathra Dass, Tehsil Chunian, District Lahore. After partition, this property was treated as evacuee property. Respondent No. 2 applied to the Custodian for restoration of his property. The Additional Custodian, by his order dated the 5th July, 1948, held him as an evacuee but restored his 1/3rd share in the joint property under section 15 of Ordinance VII of 1947, on condition that he will not eject the refugees who have already been settled on his land and will not dispose of any part of his property without the permission of Custodian, Evacuee Property. Respondent No. 2 being aggrieved by the quantum of his share in the joint property approached the Custodian of Evacuee Property, Lahore, in revision. The learned Custodian, by order dated the 14th March, 1949, raised his share from 1/3rd to 19/28.

(3.) It appears that Respondent No. 2 was in financial difficulties. He entered into an agreement with respondent No. 1 for the sale of 366 Kanals, 4 Marlas of land to her on the 5th May, 1949, for Rs. 20,000/-, out of which he received an advance of Rs. 16,000 and agreed to receive the balance of sale price at the time of execution and registration of sale deed after the Custodian had given the sanction for the proposed sale. In this connection he moved an application to the Custodian of Evacuee Property for permission to sell six squares of land. The Custodian of Evacuee Property, by order dated the 28th May, 1949, granted the sanction in the following terms: "I have, therefore, no objection if the petitioner sells 150 acres out of land restored to him to any Pakistani purchaser". It is alleged that after obtaining sanction, Respondent No. 2, backed out from his commitment to his sister respondent No. 1 and entered into an agreement of sale on the 13th July, 1949, for Rs 51,000/- with one Mst. Shaukat Begum for the sale to her of 2931 Kanals, 13 Marlas including the land which he agreed to sell to his sister respondent No. 1. This agreement was also not fulfilled. Respondent No. 2 again migrated to India. In 1949, one Ham Din applied to the Custodian of Evacuee Property for declaration that respondent No. 2 had become an evacuee. On an inquiry being held, the learned Custodian declared him an evacuee by his order dated the 24th November, 1951.