ISLAMABAD: The Supreme Court will take up in the second week of next month a long pending dispute spanning more than 70 years over a property which belonged to a Hindu family but requires determination: can the asset in question be treated an evacuee property or not?
The last time the case was taken up by the Supreme Court was in 2007 when a two-judge SC bench headed by Justice Faqir Mohammad Khokhar granted leave to appeal to a petition moved by senior counsel Akram Sheikh on behalf of Sheikh Abdul Waheed who bought the property in question during an auction.
The late Lala Roshan Kapoor, who passed away in India on March 19, 1945, owned a number of properties in Lahore including the disputed property. He was survived by his wife Santosh Lata Kapoor and children Permod Kumar Kapoor, Vinod Kuman Kapoor and Anod Kumar Kapoor.
After the partition of the sub-continent, a guardian judge, Lahore, appointed Santosh Kapoor as guardian of the children and properties of the minors and also permitted Permod Kumar to continue his studies at Simla (India).
The last hearing was held in 2007 when the petitioner who bought the property in an auction was granted leave to appeal
On June 18, 1948, the Kapoor family moved an application before the custodian judge under Section 17 of the West Punjab Protection of Evacuee Property Act of 1948 for the restoration of the properties in their favour.
By an order of July 21, 1948, the custodian judge restored the vacant portion of the property known as West End Building Lahore for their residence, but the restoration order came with a condition that the refugee allottees of the properties would not be ousted or dispossessed though the owners would have the rights of landlords.
Another condition was that if the Kapoors chose to stay abroad, the order for restoration of the property would stand cancelled in respect of one of the properties which were in possession of the government of Pakistan.
Later, the Kapoor family obtained from the rent controller, Lahore, an order in 1950 of eviction of Ms Umatul Hussain also known as Begum Mohammad Ismail from the property in dispute. She took an objection that the property in question was still an evacuee property, but the deputy custodian (general), Lahore, in 1955 held that the property was non-evacuee. Later in an appeal, the custodian judge through an order of December 1955 took a contrary view that notwithstanding its restoration, the property continued to be evacuee.
Meanwhile, there was a parallel litigation in respect of the disputed property which was already under equitable mortgage in favour of the New Bank of India. The bank obtained a decree in February 1952 for sale of the property and the same was sold through an auction in November 1956 in favour of the late Sheikh Mohammad Saeed (predecessor in the case).
The executing court confirmed the sale in July 1960 which later gave rise to three revision petitions before the erstwhile High Court of West Pakistan against the confirmation of the sale.
In October 1979, the Lahore High Court held that the property was non-evacuee.
Later, the custodian court through its order of June 1986 took the view that the property in dispute to the extent of the shares of Permod Kumar Kapoor and Vinod Kumar Kapoor who had left Pakistan had reacquired the status of evacuee property and deemed to have been validly allotted in favour of claimants/displaced persons.
When the case was taken up by the Supreme Court, it deliberated that the question of reacquiring the status of evacuee property would not arise merely on the ground that Vinod and Permod Kapoor, who were citizens of Pakistan within the meaning of Section 3 of the Pakistan Citizenship Act 1951, had subsequently left for England on Pakistani passports in 1957-58.
Then it was argued before the apex court that Santosh Kapoor was duly appointed as guardian of the children by the guardian judge, Lahore, besides the children had duly appointed their mother as their general attorney for their properties and to conduct and defend court cases on their behalf.
There was no evidence on record to show that any member of the Kapoor family had left Pakistan on or after 1947 on account of the setting up of the dominions of Pakistan and Indian or on account of civil disturbances or the fear.
Unfortunately, the owners and auction-purchasers of the disputed property were dragged in unnecessary litigation for more than five decades.
It was lastly contended before the court that the confirmation of the sale of the disputed property through public auction could not be invalidated by way of collateral proceedings.
Published in Dawn, November 30th, 2018