Law: Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949)

Section: 34

(a) Pakistan (Administration of Evacuee Property) Ordi­nance (XV of 1949), S. 34--Declaratory suit under custom re: alienation, of ancestral property-Evacuee alienee defendant---­Issue or issues to be referred to Custodian. In an ordinary declaratory suit under Punjab custom chal­lenging an alienation of ancestral property, the issue, which, in the case of an evacuee alienee, is to be referred to the Custodian under section 34 of Ordinance XV of 1949, is the extent of the right or interest of the evacuee in the property in suit, but, the other issues, viz., those relating to the ancestral nature of property, to the want of legal necessity or considera­tion and whether the alienation was at all subject to tribal custom, are included in the issue as to the right or interest of the evacuee in the property in suit, because it is in accordance, with the findings on those issues that the evacuee's interest in the property is to be determined. Hence, although the issue to be referred to the Custodian is the one as to the right or interest of the evacuee, the Civil Court should not give a finding on the other issues arising out of the application of tribal custom to the case. Issues as to maintainability of suit relating to matters of procedure in which is included the issue as to limitation will of course be determined by the Civil Court. Ghulam Mohi-ud-Din v. Kishori Lal P L D 1951 Lah. 214 distinguished. (b) Custom (Punjab)-Alienation-Issues as to legal neces­sity and consideration-Proof -Burden on, alienee. JUDGMENT KAIKAUS, J.---This judgment will 'dispose of Civil Revi­sions Nos. 210, 211 and 212 of 1954, in which the point involved is the same. These revision petitions arise out of three suits filed by Riaz Ahmad Javed, the petitioner before me, to impeach three alienations made by his father on the ground that the property in dispute is ancestral and the alienor was governed by custom. The alienees are in all the three cases evacuees. The learned Civil judge, who was trying these cases, framed the following issues :- (1) Whether the suit is time-barred ? (2) Whether the transaction sought to be impeached was without legal necessity and consideration ? (2) (a).…

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