Mirza Pehlwan etc VS Province of Punjab etc

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI.

JUDICIAL DEPARTMENT

Civil Revision No.575 of 2007.

Mirza Pehlwan, etc.

Versus

Province of Punjab and others.

J U D G M E N T.

Date of hearing: 10.05.2022.

Petitioners by: Ch. Imran Hassan Ali, Advocate.

Respondents by: Syed Qalb-i-Hassan, Advocate.

AHMAD NADEEM ARSHAD, J. Through this Civil Revision, filed u/s 115 of The Code of Civil Procedure, 1908, the petitioners have challenged the propriety and legality of judgments & decrees passed by learned Courts below, whereby, their suit for declaration, permanent injunction and possession was dismissed, concurrently.

2.Succinctly, facts forming background of the proceedings in hand are that plaintiffs/petitioners and respondents No.17 to 29 instituted a suit for declaration, permanent injunction and possession on 03.08.1986 by seeking declaration therein that they are owners in possession of Abadi Deh with regard to land measuring 27 kanals, 14 marlas, situated in Abadi of village Nara, Tehsil Kahuta, District Rawalpindi and challenged the allotment made in favour of defendants No.4 to 18/respondents No.4 to 16 with the contention that they are descendants of Haider Khan and Sher Khan (deceased) and their ancestors Hayat Ali and Hasmat Ali were owners of Abadi Deh, had given said property to non-Muslim evacuees for residence being licensees and it was settled that at the

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

time of their abandonment, the suit property would automatically revert back to their predecessor; that non-Muslim evacuees left the suit property in the year 1947, but the same was illegally transferred in the names of defendants No.4 to 18; that entries were made in the revenue record by showing the suit property as “Lapara” in column No.6 of the Register Haqdaran Zamin for the year 1956-57 whereas it was land of “Abadi Deh”; that Deputy Commissioner Settlement had no jurisdiction to transfer the suit property to defendants No.4 to 18 under Displaced Persons (Land Settlement) Act, 1958 nor the suit property was available as an evacuee property for allotment. On the other hand, respondents hotly contested the suit by filing their separate written statements in contrast by stating the suit property was an evacuee property and it was rightly transferred to defendants No.4 to 18 in accordance with law. Learned trial Court framed necessary issues out of the divergent pleadings of the parties and invited them to produce their respective evidence. After recording oral as well as documentary evidence of parties, pro & contra, dismissed the suit vide judgment and decree dated 15.10.1995. Feeling aggrieved, they preferred an appeal which also met the same fate and dismissed by the learned appellate Court vide judgment & decree dated 18.06.2007. Being dissatisfied, petitioners filed this revision petition.

3.Learned counsel appearing on behalf of the petitioners maintains that impugned judgments & decrees of the Courts below are against the law & facts and result of mis-reading and non-reading of evidence available on record; that suit property was not evacuee property and it was illegally allotted to the respondents; that the entries in the names of respondents are result of fraud and without jurisdiction, hence, void ab initio having no effect; that learned Courts below did not evaluate the evidence of parties in its true perspective; that learned trial Court did not frame proper issues; that documentary evidence produced by the petitioners was carrying presumption of truth but the same has been overlooked by the Courts

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

below. In last, while relying upon “Mst. GHULAM BIBI and others versus SARSA KHAN and others” (PLD 1985 Supreme Court 345), “MUHAMMAD ABDULLAH KHAN NIAZI versus Rais ABDUL GHAFOOR and others” (PLD 2003 Supreme Court 379) payed for acceptance of Revision Petition in hand and decree of the suit of the petitioners.

4.On the other hand, learned counsel appearing on behalf of the respondents argued that nothing is wrong with the impugned judgments and decrees and the learned Courts below have rightly dismissed the suit of the petitioners concurrently by evaluating the evidence came on the record in its true perspective; that Civil Courts have neither jurisdiction to decide the character of the suit property nor questioned the validity of orders of settlement authorities as jurisdiction of Civil Court is barred in this regard. He while placing reliance upon “NASIR FAHIMUDDIN and others versus CHARLES PHILIPS MILLS and others” (2017 SCMR 468), “ELAHI BAKHSH and others versus MUHAMMAD SIDDIQUE and others” (2008 SCMR 312), “MUHAMMAD SARWAR and 5 others versus MUHAMMAD ALI and 18 others” (2002 SCMR 829), and “Syed ABDUL HAKIM versus MUHAMMAD AZAM KHAN and another” (1991 SCMR 1976 prayed for dismissal of the revision petition.

5.I have heard the learned counsel for the parties at length and perused the record with their able assistance.

6.During pendency of instant civil revision, on 16.04.2019, petitioners moved an application under Order VI Rule 17 read with Section 151 C.P.C. for seeking permission of amendment in their plaint. Reply was called upon on 17.04.2019, which was filed on behalf of respondents No.4 to 16 through C.M. No.441-C of 2019 on 23.04.2019. First of all, I would like to decide said application.

7.Learned counsel for the petitioners maintains that proposed amendments will not change the nature of case and are essential to do the complete justice between the parties; that it was

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

not in their knowledge that suit land was not allotted to defendants No.4 to 17 and this fact, for the first time, was came into their knowledge during pendency of instant revision petition; that it will be in the interest of justice that the proposed amendments be allowed. Conversely, learned counsel for the respondents while opposing it argued that proposed amendments ought to change the character and whole complexion of the case, hence, the same is not permissible under the law, which necessitates the submission of written statement and recording of evidence by both the parties after a period of 33 years of protracted litigation; that the suit property was allotted and transferred in the name of respondents in accordance with law and prayed for dismissal of the application.

8.The petitioners through their suit sought declaration to the effect that they are being owners in possession of Abadi Deh are owners of suit land and challenged the allotments made in the names of respondents by stating it against law, facts and without jurisdiction. Now through proposed amendment they took a summer-salt by taking a stance that suit land was not allotted to the respondents. The petitioners through this C.M. sought permission to make following amendments in their plaint:- “6-A. That the suit property/land was never allotted to defendants No.4 to 17 and the suit property was deleted from RL-II in favour of defendants No.4 to 17 and refused to be allotted to the defendants.

6-B. That defendants No.4 to 17 in connivance with the revenue officials/employees of defendants No.1 to 3 fraudulently and illegally showed defendants No.4 to 17 as owners of the suit property in the revenue record.

Admittedly, amendment can be allowed in the pleadings at any stage of the proceedings even by the first or second Appellate Court or in revision or even in appeal before the august Supreme Court. There is no cavil with the proposition that Courts should be exercised their powers and authority of allowing amendments liberally by keeping in view that proposed amendment is expedient for the purpose of determining the real questions in controversy

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

between the parties and must not be tainted with dishonesty. It is pertinent to mention here that the petitioners earlier moved an application (C.M. No.1007-C of 2015) under order XLI read with Section 151 C.P.C., seeking permission to summon the official concern/Record Keeper of the office of Assistant Commissioner, Kahuta along with record of RL-II No.1 to 7 and prayed for production of said RL-II’s as an additional evidence. This Court after taking its reply dismissed said application vide order dated 03.04.2019. The petitioners instead of challenging said order any further moved instant application on the next date of hearing. Earlier they tried to bring on record RL-II No.1 to 7 through additional evidence. On failure, they took a device to bring such documents on record by making amendment in the plaint, which clearly suggest that proposed amendment is tainted with dishonesty of purpose. The august Supreme Court of Pakistan while setting forth principles which should be kept in view by the Courts while deciding fate of an application seeking permission to make amendment in the pleadings through judgment “ABAID ULLAH MALIK versus ADDITIONAL DISTRICT JUDGE MIANWALI and others” (PLD 2013 Supreme Court 239) held as under: - “There can be no cavil that the court has ample authority and discretion to allow amendments of the pleadings in appropriate cases, which authority may be exercised at any stage of the proceedings in the trial, and in certain cases amendments can be permitted at the stage of appeal or even in the revisional jurisdiction. There also can be no disagreement that the power and authority in allowing the amendments shall be liberally exercised, however, keeping in view the salutary rule, that the proposed amendment(s) is/are expedient for the purposes of determining the real questions in controversy between the parties, it should not alter the nature of the suit or the defence. Similarly, at the same time some important fundamentals should also not be lost in sight and must be kept in mind by the courts while exercising such authority, in that, the amendment sought/proposed must not be tainted with dishonesty of purposes; it is not meant to withdraw and resile from an admission made in the pleadings of the parties, it should not cause prejudice to the opposite side, particularly to deprive such (Opposite) side of a benefit attained by it

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

from the evidence adduced on the record by the party asking for the amendment; the conduct and the motive of the party and the object/propose behind the request for the amendment.”

No doubt the conduct and the motive of the party and the object/purpose behind the request seeking for the proposed amendment is very relevant for deciding the fate of the application of amendment. From the facts discussed supra, it appears that proposed amendments not only change the earlier stance taken by the petitioners in their plaint but also tainted with dishonesty of purpose. Therefore, said application for seeking amendment in their plaint is hereby, dismissed.

9.The petitioners set-up their case that the suit property was not belonged to non-Muslims evacuees because their ancestors namely Hayat Ali and Hashmat Ali were owners in possession of Abadi-Deh and they had given the suit property to non-Muslims evacuees for residence and their status was merely licensees and had no interest, right or title upon the suit property. After their abandonment of residence at the wake of independence in the year 1947, the suit property reverted to their forefathers. Therefore, the suit property was neither evacuee property nor did it from part of compensation pool and was not available for allotment. The Deputy Settlement Commissioner has no jurisdiction to transfer the same to respondents under the provisions of Displaced Person (Land Settlement) Act, 1958. In this back ground the moot points are whether the suit property was evacuee or not, the Settlement Authorities were competent to transfer the same and Civil Courts have jurisdiction to decide the controversy.

10.Learned counsel for the respondents seriously objected upon the maintainability of the suit for declaration before the Civil Court, as dispute between the parties, concerning the evacuee nature or otherwise of a property and its further alienation by the Settlement Authorities and argued that the jurisdiction of the Civil Court is completely barred under the relevant laws. On the converse, learned

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

counsel for the petitioners submits that with regard to preliminary objection of jurisdiction raised in written statement by the respondents, learned trial Court framed issue No.3 as under: - “Whether this Court has no jurisdiction to try this suit? O.P.D” And, while answering it in negative held that as the Evacuee Laws has been repealed, so the mode for determining evacuee nature of property rests with Civil Court and not with Custodian and a Civil Court has jurisdiction to try the suit and to decide the nature of the suit property Said finding was not challenged by the respondents before any forum and it attained finality.

No doubt, the respondents did not challenge the findings of learned trial Court upon issue No.3 but this Court while exercising the revisional powers have supervisory jurisdiction to supervise and control subordinate Courts in the interest of administration of justice. Admittedly, interference is to be limited to correction of errors of jurisdiction or non-compliance of any statutory provisions of law. The superintending and visitorial powers should be used to correct jurisdictional errors and irregularities. When a subordinate Court acts without jurisdiction, the errors can be corrected by the High Court in the exercise of its supervisory jurisdiction. This reaction confers an exceptional and necessary power intended to secure effective exercise of this Court’s superintending and visitorial powers of correction, unhindered by technicalities. For reference “MANDI HASSAN alias MEHDI HUSSAIN and another versus MUHAMMAD

ARIF” (PLD 2015 SC 137).

11.In the wake of section 7 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1957) (herein after referred to as ‘the Act 1957) all evacuees properties shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947 which reads as under: - “7. Vesting of evacuee property in Custodian. (1) All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March, 1947,

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

(2)Where any evacuee property which has vested in the Custodian or of which possession has been taken by the Custodian is property in trust for a public purpose of a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding anything contained in the instrument of trust or any law for the time being in force, to appoint, by general or special order, new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian or in his possession only until such time as the new trustees are so appointed; and pending the appointment of such new trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as for as possible, the purpose of the trust.

(3)Where any property in Pakistan belonging to a joint stock company has vested in or been taken possession of by any person exercising the powers of a Custodian under any law in force immediately before the first day of January, 1957, nothing contained in clause (3) of section 2 shall affect the operation of sub-section (1), but the Central Government may, by notification in the official Gazette direct that the Custodian shall be divested or dispossessed of any such property in such manner and after such period as may be specified in the notification.”

“Evacuee property” was defined in Section 2(3) of the Act, 1957 in the following terms:- “(3) “evacuee property” means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes, - -

(a)Any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same; or

(b)Property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodia;

But does not include- -

(i)Any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of an evacuee.

(ii)Any property belonging to a joint stock company the registered office of which was situated before the fifteenth day of August, 1947, in any place in the territories now comprising India and continues to be so situated after the said date.”

If any person claiming any right or interest in any property treated by Custodian or Rehabilitation Authority as evacuee property,

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

rescue was provided in section 22 of the Act, 1957 that he may prefer a claim to the custodian, which reads as under: “22. Claims by interested persons.(1) 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 on the ground that, --

(a)The property is not evacuee property, or (b) His interest in the property has not been affected by the provisions of this Act.

(2)An application under sub -section (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.

(3)On receiving an application under sub-section (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefor, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose.”

The jurisdiction of Civil or Revenue Courts have been barred under Section 41 of the Act, 1957, as under: - “41. Jurisdiction of Court barred. (1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction. - -

(a)To entertain or adjudicate upon any question arising in ay suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property;

(b)To question the legality of anything done under this Act by or at the instance of the Custodian, of (c) In respect of any matter which the Custodian is empowered by or under this Act to determine.

(2)Whenever any question such as is referred to in clause (a) of sub-section (1) arises in any Court, or before any other authority, the Court o authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.

(3)No decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March, 1947, and the fifteenth day of October, 1949, shall be binding on the Custodian or affect any right or interest of an evacuee in any property affected by such

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

decision, decree or order unless it is accepted or approved by the Custodian.

(4)[Save as provided by or under this Act, no Court] or other authority shall be competent to grant an injunction or other order in relation to any proceeding before the Custodian under this Act, or anything done or intended to be done by or at the instance of the Custodian under this Act.

(5)Nothing in the foregoing sub-section shall prevent the adjudication by a Civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian’s previous approval.”

It is settled proposition of law that where a question arises at any point of time about status of property whether such property was evacuee or non-evacuee, the Custodian was only competent to decide the controversy and jurisdiction of Civil Courts was barred. In order to provide permanent settlement of displaced persons on land and to compensate them for the losses suffered by them on account of expropriation by the Government of India of their rights in property in India or in any area occupied by India and for matters incidental thereto or connected therewith “The Displaced Persons (Land Settlement) Act, 1958 [Act XLVII of 1958] (herein after referred to as ‘the Act 1958’) was introduced. Section 14 of the Act, 1958 provides procedure for allotment and disposal of land. Remedy of appeal, revision and review was available for aggrieved persons before Settlement Authorities in the light of Sections 18 to 20 of the Act, 1958. The jurisdiction of Civil and Revenue Courts have been barred under Section 25 of the Act, 1958, which reads as under:- “25. Bar of jurisdiction. Save as otherwise provided in this Act, no Civil or Revenue Court shall have jurisdiction in respect of any matter which the Central Government [or a Provincial Government] or an officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act.”

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

In this way, if any person was aggrieved of any action or decision of settlement authority, he had remedy of appeal, revision etc., and jurisdiction of Civil Courts was barred.

12.The august Supreme Court of Pakistan while dealing with a dispute concerning evacuee nature or otherwise of property, declared that the Act, 1957 bars the jurisdiction of Civil Courts. For reference see “AZIZUDDIN versus MUHAMMAD ISMAIL and others” (1985 SCMR 666) wherein it was held as under:- “A dispute concerning the evacuee nature or otherwise of a property could be brought in two ways before the Custodian for his determination. One is under section 41(2) of Act XII of 1957 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 if 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, whereunder 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.”

The august Supreme Court of Pakistan remained consistent with regard to bar of jurisdiction by holding that Civil Courts have no jurisdiction and their jurisdiction are clearly barred to entertain the suit involving disputes of title relating to the evacuee property and with regard to orders passed by the Settlement Authorities. In this regard following case laws are relevant: - In case titled “Lt. Col. ® Hamid Tarique Hanif and others V. Muhammad Shahid and others” (2010 SCMR 687), it is held as follows:

“6 ... Admittedly, the suit filed by the respondents was not maintainable in law, the civil court has no jurisdiction in respect of Displaced Persons (Compensation and Rehabilitation) Act, 1958 as the evacuee properties are involved in dispute ... The decision of the Settlement Authorities in 1960 and issue of PTD in 1962 attained finality. It has never been questioned before 1978 whereas relevant law

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

has also been repealed in 1975 ... In respect of jurisdiction of civil court, it is obvious that dispute was relating to the title of the property besides bar of jurisdiction under sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Keeping in view the above-referred judgments, the jurisdiction of the civil court was barred to entertain the suit involving disputes of title relating to the evacuee property. It was incumbent upon the civil court to decide the point of jurisdiction before proceeding with the case on merits. The learned High Court has omitted to attend issue No.3 framed in the civil suit under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 which was no more available in the present case after the repeal of evacuee laws in 1974 and thus committed a jurisdictional error. In view of principles of settlement laws, civil court had no jurisdiction to entertain and decide the matter whereby it has adjudicated the dispute relating to the title of the property. We are of the view that the orders passed by the Settlement Authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 have attained finality and the civil court has no jurisdiction either to determine the character of the property under the above-said law or entitled a person for allotment due to statutory bar ...”

It is held in case titled “Muhammad Sadiq (decd.) through L.Rs and others V. Mushtaq and others” (2011 SCMR 239), as follows:

“4 ... There is no denial of the fact that the remedy before the Civil Court availed by the petitioners was clearly barred under section 41 of the Act, 1957 as well as under the provisions of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958. Not only this, but the suit instituted by the petitioners was also hopelessly time-barred, as the suit land was provisionally allotted to the respondents/their ancestors in the years 1952/53, and thereafter the whole process of such transfer in their favour was completed much before the repeal of the Settlement laws.”

In another case titled “Member Board of Revenue Punjab and another versus Mst. Siddiqan through L.Rs., and others” (2015 SCMR 1721) held as under: - “2 ... It is a settled principle of law that where a property is rightly or wrongly treated to be an evacuee property, such treatment of the property, can

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

only be assailed through proceedings before the appropriate forum ...”

The august Supreme Court of Pakistan while dealing with this subject in a case “NASIR FAHIMUDDIN and others versus CHARLES PHILIPS MILLS and others” (2017 SCMR 468) held as under:- “4 ...It is settled law that once a property is treated to be an evacuee property even erroneously, then the same cannot be held to be otherwise and the Civil Court in this behalf would have no jurisdiction, specifically where no attempt had been made to challenge the PTDs before the concerned Settlement Authorities before the repeal of the evacuee law or even conceding for a moment that the Civil Court has jurisdiction in this matter, before the Civil Court directly”

13.Now the question arises after repeal of the Act, 1957 and the Act, 1958 through the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 [Act XIV of 1975], bar of the jurisdiction of Civil Courts to call in question of the character of property and its alienation by the settlement Authority existed or not? The Hon’ble Supreme Court of Pakistan while answering this question in its esteemed judgment reported as “NAZEER AHMAD and others versus GHULAM MEHDI and others” (1988 SCMR 824) held, the arguments that with the repeal of the Act of 1957, the bar contained in section 41 on the jurisdiction of Civil Court was also wiped off is untenable, in the following terms: - “Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, explicitly bars the jurisdiction of the Civil Court in clear and unambiguous terms and as such no Civil Court can give declaration about the status of a person or property being evacuee or non-evacuee. The order of the Custodian dated, 10th June, 1963, on which reliance is placed for challenging the validity of the subsequent order of the Custodian, dated 29th March, 1974, has not been shown to relate to the disputed property, therefore, the very basis of the claim set up in the suit appears to us to be groundless. Additionally this appears to be a new case set up in the suit in that the appellants did not rely upon the previous order of the Custodian passed in 1963 when they themselves moved the Custodian subsequently to obtain declaration with regard to the status of the property

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

now in dispute. The reason appears to be obvious that the previous order did not relate to the property now the subject matter of dispute.

In the light of the forgoing, the claim of the appellants in the suit substantially was to call in question the subsequent order of the Custodian which did relate to the disputed property but was protected from challenge in the civil Court under the existing law by virtue of Section 41 of the Act of 1957 and as stated above, the repeal of the said Act did not have the effect of removing the bar of the General Clauses Act so far as the orders passed during the operation of the repealed law. The arguments that with the repeal of the Act of 1957, the bar contained in section 41 on the jurisdiction of the civil Court was also wiped off is untenable. This being the position, upsetting the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality.” (Emphasize supplied)

This was followed by this Court in a judgment titled as “MUHAMMAD NAWAZ and others versus ABDULLAH and others” (1988 CLC 1285) by observing as under:- “The objection that without availing the special remedy provided by the Pakistan Administration of Evacuee Property Act, 1957 or the Displaced Persons (Land Settlement) Act, 1958, the respondents could not come to Civil Court, appeared to be indefensible. It happened to be a dispute of special nature for which exclusive forum and special remedies were created by the law. The very idea of arranging special forums and remedies took out the matter from the plenary jurisdiction of Civil Courts. The rule laid down in the precedents supra applied with full efficacy here and the suit was not maintainable even though apparently it was based upon the respondents’ title created by otherwise a solemn document. It is a consequence of the respondents’ own failure to be vigilant and they have to blame themselves.

The contention that the so-called partition of the non- Muslims’ Khata was made without necessary application of mind on the part of the Rehabilitation Authorities cannot be heard, for, the same too could be challenged in the special hierarchy. It was made under a settlement scheme and being a proceeding conducted by the Rehabilitation Authorities in their exclusive jurisdiction could not be assailed in a civil suit. Section 25 of the Displaced Persons (Land Settlement) Act, 1958, bars the jurisdiction of Civil Court to call it in question. Repeal of evacuee laws does not mean to confer jurisdiction on Civil Courts to undo what has

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

been already done under those laws. Section 2 and 4 of the Evacuee Property and Displaced Persons laws (Repeal) Act, 1975, clearly mean fait accompli of those matters, inasmuch as these provided for disposal of only the ‘proceedings which, immediately before such repeal, may be pending’. The necessary corollary was not to allow Civil Courts to re-open the pandora’s box which the law in its sagacity treated as transactions past and closed. Such a prohibition is also provided by section 6(b) of the General Clauses Act. The Courts below were in apparent error on this point and their view cannot be sustained in law.” (Emphasize supplied) This Court in its another judgment reported as “QAMAR ZAMAN and others versus ELAZI BEGUM and others” (1997 MLD 2408) held that bar of jurisdiction of Civil Court is still available even after repeal of evacuee laws in the following terms: - “Be that as it may, there is another reason as to why the petitioners cannot succeeded before this Court and the suit was not maintainable which was that the jurisdiction of the Civil Court to enter into the question as to whether the land in question has been properly transferred to the respondents under the Displaced Persons (Land Settlement) Act, 1958 and stood ousted by section 25 of the aforesaid Act. This protection remains available even after the repeal of the evacuee laws as held by the Supreme Court of Pakistan in Muhammad Akhter, etc. v. Abdul Hadi (1981 SCMR 878) and Nazir Ahmad v. Ghulam Mehdi (1088 SCMR 824). That being so, the suit on the face of it was barred by law and the Courts below were justified in rejecting the plaint.” (Emphasize supplied)

Though this Court in a case titled “IQBAL KHAN AND

9 OTHERS VERSUS SHAHID ULLAH BAIG AND

ANOTHER”(1989 CLC 1265) held that “after the repeal Act XII of 1957 the only forum to determine whether a property is available property or not, is the Civil Court and not the Residual Authorities” and in another case titled as “MST. KUBRA BEGUM AND OTHERS VERSUS SHAMS DIN AND ANOTHER” (2014 YLR 1456) held that “after the repeal of Settlement Laws the ultimate jurisdiction only vests with Civil Court” but in the light of dicta laid down by august Supreme Court of Pakistan in Nazir Ahmad’s case supra, I have no doubt in my mind that the Civil Court has no jurisdiction to entertain a suit concerning the evacuee nature or otherwise of a property and a

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

proceeding conducted by the Settlement Authorities in their exclusive jurisdiction and the bar contained in the repeal laws on the jurisdiction of the Civil Courts remains available.

14.The maxim “Ubi jus ibi remedium” (wherever there is a right, there is a remedy), is a fundamental principle of law. By virtue of section 9 of the Code of Civil Procedure, 1908 granted general jurisdiction to try all suits of a civil nature unless the jurisdiction of the Court is barred. Although said Section indicates that Civil Courts cannot try suits in respect of which their jurisdiction is expressly or impliedly barred under any law, but proceedings challenged as coram-non-judice are not covered by the exceptions contained in it. The petitioner without deciding the lis from the Custodian that suit property was not an evacuee property cannot claim that Settlement Authorities have no jurisdiction to allot the suit property and their orders are coram-non-judice.

The remedy availed by the petitioners before the Civil Court by way of instituting the suit was clearly barred under Section 41 of the Act, 1957 as well as under the provisions of Section 26 of the Act, 1958. It is settled law that once a property is treated to be evacuee property then the same cannot be held to be otherwise and the Civil Court in this behalf would have no jurisdiction. If the non- evacuee owners did not seek their remedy under the law enforced at the relevant time, their title to such property stood extinguish and they could not assert their right of ownership before the Civil Court, even after the repeal of the Evacuee/Settlement Law on account of lack of jurisdiction.

15.The petitioners have remedy to approach the Custodian for redressal of their grievance under Section 22 of the Act, 1957 that the suit property was illegally declared as evacuee property. They can also challenge the orders of Deputy Settlement Commissioner with regard to allotment of lands to the respondents before higher fora of settlement authorities under Sections 18 to 20 of the Act, 1958. But they failed to do so. The jurisdiction of Civil Courts was

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

barred under both enactments even after repeal. The finding of the learned trial Court upon issue No.3 is not maintainable. The Civil Court has no jurisdiction to entertain the suit, therefore, petitioner’s suit was not maintainable and barred by law.

16.The petitioners raised objection that the suit property was Abadi-Deh, owned and possessed by their predecessors and sought declaration that being legal heirs they be declared as owners in possession of the suit property. In order to strengthen their contentions, they pointed out Exh.P-4 which is copy of kharsa abadi of village Nara pertaining to the year 1860 by contending that said document proved the ownership of residents of Abadi-Deh. They also relied upon copy of Misal Haqiat for the year 1905-06 (Exh.P-5) wherein, in the column of ownership and in the column of cultivation Abadi-Deh has been shown and in column No.4 with regard to name of Pattidar, the name of Dilawar Khan etc., were present, from whom they allege to derive their title. They further contended that in the copy of Misal Haqiat for the year 1956-57 (Exh.P-8) the suit property has been shown as Abadi-Deh in the Column of ownership, whereas, in the column of cultivation their names are reflected and in the column No.6 (with regard to nature of land) the classification of the land has been shown as “Lapara” ()لپاڑہ. The learned counsel for the petitioners argued that the land was illegally classified as “Lapara” (Lapara means cultivable) because it is Abadi-Deh’s land and cannot be said as cultivable land (Lapara). The said arguments were not verified from the available record. From the perusal of Misal Haqiat for the year 1905-06 (Exh.P-5), the khasra No.2639 of Village Nara has been described as “Ghair Mumkin Abadi”. After third settlement operation Misal Haqiat was prepared in the year 1956-57 (Exh.P-8) wherein khasra No.2639 was further bifurcated. One khasra number was given to the Abadi-Deh and other khasra numbers were allocated to the persons who were given suit property in pursuance of orders of Settlement Authorities. The suit property was not included in the settlement operation and the same was

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

allotted to the migrants as an evacuee property. From the perusal of Misal Haqiat for the year 1905-06 (Exh.P-5) the names of their alleged predecessors have not been mentioned in the column of ownership or in the column of cultivation. The same situation is in the Misal Haqait for the year 1955-56 (Exh.P-8) wherein ownership of khasras have been mentioned as Abadi-Deh in column No.3 and the names of some of plaintiffs or their predecessors i.e. Pehlwan, Khan Bahadar, Farzand Ali and Ali Bahadar have been mentioned in the column of cultivation whereas neither petitioners nor their predecessor were mentioned in the column of ownership. It is not evident from any of the documentary evidence that suit property was ever remained in the ownership of the petitioners. The arguments of the learned counsel for the petitioners that the land having status of Abadi-Deh automatically came in their ownership as their predecessors remained in possession of said land, is mis-conceived because the property of Abadi Deh vests in proprietors of the village who own agricultural land in the village. It is settled law that proprietors of the village who owns agricultural land holds share in Abadi-Deh to the proposition of their ownership of land/estate. No evidence available on the record which suggest that petitioners or their predecessors/ancestors were owners of agricultural land in the village Nara. Plaintiffs had to prove their case through independent evidence and stand on their own legs but they miserably failed to do so.

17.The suit property was duly transferred to the defendants No.4 to 18. From perusal of record of rights for the year 1963-64 (Exh.D-19) predecessor of defendants namely Muhammad Shair was shown “Ghair Morousi Awal” under commissioner settlement. In the record of right for the year 1975-76 (Exh.D-18) same was the situation, wherein, record of rights for the year 1991-92 (Exh.D-23) Defendants were shown in the column of cultivation. In the record of rights for the year 1991-92 (Exh.D-24) defendants were shown in the column of owner, which clearly suggested that suit property was

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

transferred to them and now they are owners in possession to their extent. Initially the petitioners instituted suit for declaration and permanent injunction without seeking any relief of possession by claiming their possession over the suit property, but later on they moved an application for amendment of their plaint and sought permission to insert the relief of possession in their plaint. In this way, they themselves admitted that they were not in possession of the suit property. Learned Courts below keeping in view facts and circumstances of the case and evidence available on the record rightly dismissed their suit concurrently. Learned counsel for the petitioners failed to point out any mis-reading and non-reading of evidence and jurisdiction defect in the impugned judgments and decrees of the courts below.

18.I have seen no illegality, irregularity and mis-reading or non-reading of evidence on the part of learned Courts below while passing the impugned judgments and decrees. There are concurrent findings of facts in the matter recorded by learned Courts below and the Courts below while passing the impugned judgments and decrees have considered every piece of evidence, oral as well as documentary, produced before them and nothing is shown to have been overlooked any part of the record from their judicious consideration. The findings on question of facts and law having based upon proper appreciation of oral as well as documentary evidence produced in the suit, are not liable to be reviewed or substituted by this Court while exercising jurisdiction under section 115 of the CPC. In this regard, reliance is placed upon “Syed HUSNAIN NAQVI and others versus Mst. BEGUM ZAKARA CHATHA through LRs and others” (2015 SCMR 1081), “NOOR MUHAMMAD and others versus Mst. AZMAT-E-BIBI” (2012 SCMR 1373), “Muhammad Akhtar versus Mst. Manna & 3 others” (2001 SCMR 1700), “Ghulam Muhammad & 3 others versus Ghulam Ali” (2004 SCMR 1001), “Abdul Mateen and others versus Mustakhia” (2006 SCMR 50) and “Malik Muhammad Khaqan versus Trustees of the Port of Karachi (KPT)

(Mirza Pehlwan, etc. v. Province of the Punjab, etc.)

and another” (2008 SCMR 428). The case law produced by learned counsel for the petitioners have no nexus with the facts and circumstances of the instant case, hence, not helpful to the petitioners.

19.For what has been discussed above, the instant Civil Revision is without any merits, hence, the same is hereby dismissed with no order as to costs.

(AHMAD NADEEM ARSHAD)

JUDGE.

APPROVED FOR REPORTING.

JUDGE.

A.Razzaq*