Abdul Lateef Ansari vs Irfan Ahmad etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH MULTAN

JUDICIAL DEPARTMENT

C.R No. 1789-D of 2016.

Abdul Latif Ansari. Versus Irfan Ahmad, etc.

JUDGMENT

Date of hearing: 25.06.2025.

Petitioner by: Mr. Tahir Mehmood, Advocate.

Respondents by: Sh. Tanzeel ul Rehman Ashraf, Advocate Ch. Sultan Mahmood, J. The instant revision petition is directed against the judgment and decree dated 20.10.2016, whereby the learned District Judge, Dera Ghazi Khan, while dismissing the appeal filed by the petitioner upheld the judgment and decree dated 28.07.2015 passed by learned Civil Judge 1st Class, Dera Ghazi Khan.

2.Precisely, the facts leading to filing of the instant petition are that petitioner Abdul Latif Ansari, instituted a suit for declaration asserting that the suit property was previously evacuee property, which is in his possession from the beginning. The petitioner, due to employment obligations, had to go to Azad Kashmir. During his absence, Muhammad Sufyan, the predecessor-in-interest of the respondents, obtained a permanent transfer deed of the suit property in his favour. Muhammad Sufyan was the elder brother of the petitioner, in whom the petitioner had full trust. It was settled within the family through Panchayat that the petitioner would be the owner of the 7 1⁄2 Marla house, while Muhammad Sufyan would hold ownership of the 5- Marla house. The petitioner further claims that all government dues relating to the suit property were duly paid by him, and he has remained in possession of the 7 1⁄2 Marla house by virtue of the family arrangement. Despite repeated requests, Muhammad Sufyan, the predecessor-in-interest of the respondents, refused to transfer the

aforesaid 71⁄2 Marla house in favour of the petitioner, which ultimately necessitated the filing of suit.

The suit was contested by the respondents-defendants No. 1 to 7 on factual as well as legal premises, who submitted their written statement. Whereas, respondents No.8 & 10 filed their conceding written statements and respondent No.9 make a statement not to pursue the suit. From the divergent pleadings of the parties, the learned Trial Court framed as many as 10 issues including the “Relief”. After framing of issues, parties to the suit produced their respective evidence and on completion of the same, learned Trial Court after hearing the final arguments, dismissed the suit of petitioner vide impugned judgment and decree dated 28.07.2015 against which he preferred an appeal, which also met the same fate and dismissed vide impugned judgment & decree dated 20.10.2016 by the learned lower Appellate Court. Hence, this civil revision.

3.Arguments heard. Record perused.

4.Bare perusal of record reveals that by filing the suit, it was the stance of petitioner that his share in the estate was affirmed through a family settlement made under the Panchayat. However, the plaint is completely silent about the particulars of the panchayat, its members, day, date and year, when such panchayat convened. In support of the evidence, neither the petitioner himself appeared, nor was any member of the said panchayat produced before the learned Trial Court to strengthen the stance. There is no direct evidence to establish the occurrence of the panchayat. PW-1 Azhar Latif was not a direct witness to the panchayat and therefore, his testimony holds no probative value. PW-2 Razia Sultana in her statement did not mention the particulars of the event of panchayat with exactitude. The Panchayat was an event, which created financial obligations but the petitioner has failed to prove the same. No non-reading or misreading has been pointed out in this regard.

Another allegation is with respect to issuance of PTD by employing fraudulent means but neither any details of the fraud has been pleaded nor any evidence in this regard has been led.

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5.Both the learned Courts below have concurrently held that suit was not maintainable for want of jurisdiction as the issue in hand pertains to issuance of a Permanent Transfer Deed. The petitioner contends that he is rightful owner of the suit property and disputes the transfer of ownership through PTD issued in favor of Muhammad Sufyan. The claim of an evacuee was to be assessed and verified under the Registration of Claims (Displaced Persons) Act 1956. This Act of 1956 contained an ouster clause embodied in the Section 12. Through the judgment cited as “Syed Abdur Rashid v. Pakistan through the Secretary, Ministry of Refugees and Rehabilitation, Karachi etc.” (PLD 1962 SC 42), the statutory ouster was upheld by the apex Court, wherein it was held that judgment so passed by settlement authorities could be impugned in writ jurisdiction but not through the civil suit. The subject matter property is an urban property and an evacuee having a verified claim had to be allotted property under the Displaced Persons (Compensation and Rehabilitation) Act 1958, to be more precise the relevant rules made under the Act for allotment were to be made under the Permanent Transfer (Houses and Shops) Rules, 1961; firstly, a provisional transfer was to be made and eventually a permanent transfer was to be made. But this was not as simple. Authorities would determine the entitlement of the claimant and if the property was beyond his entitlement, then he could under it good by paying the differential amount and where his entitlement was over and above the assessed value of the property from he could take another property or cash as compensation. These Rules were made under Section 10 of the ibid Act of 1958. The Act of 1958 also contains an ouster clause under Section 25 which curtails powers of the Civil Court to adjudicate upon the matters falling within the realm of the settlement authorities. Section 25 reads as under: - “Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government [or the Provincial Government] or an officer appointed under this Act is empowered under his Act to determine, and no injunction, 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.”

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The Rule 7 of Permanent Transfer (Houses and Shops) Rules, 1961 allowed the settlement authorities to cancel any unlawful allotment.

6.However, through a Notification dated 27th of December 1964 the said rule was omitted. Now, a situation cropped up and anyone aggrieved by a fraudulent allotment the remedy provided under the law. The matter reached to this Court and through the judgment cited as “Abdul Karim v. Sh. Muhammad Rafique, Settlement Commissioner with powers of Chief Settlement and Rehabilitation Commissioner, Lahore and others (PLD 1966 Lahore 33), it was held that after the omission of Rule 7, the Settlement Authorities had no power to cancel a PTD. thus a suit was maintainable because there was no forum to agitate. However the Hon’ble Supreme Court in a case titled as Mohammed Ismail versus Mst. Shamsun Nisa and others CP #104 of 1965 held that, “there is no substance in this contention as the order of issuance of permanent transfer deed was still subject to appeal and revision in accordance with the provisions of the Displaced Persons (Compensation & Rehabilitation) Act of 1958” thus omission of Rule 7 was considered of little consequence and ouster clause contained in section 25 was given due credence by the courts.

7.It has been the consistent view of the Superior Courts that Civil Courts would have no jurisdiction to determine the question of the validity of the transfer of land in view of the sections 22 and 25 of the Displaced Persons (Compensation & Rehabilitation) Act of 1958 which debar any court from questioning any order made by any Officer appointed under the said Act; an order passed under the Act can therefore be challenged either in accordance with the Act or under Article 98 of the Constitution of 19621. Although, the Hon’ble Supreme Court approved writ jurisdiction in tandem to the orders passed by the Settlement Authorities but did not approve filing of civil suits2.

Mr. Muhammad Ismail Asghar v. The Improvement Trust, Rawalpindi PLD 1965 Supreme Court Mohammed Iqbal Khan versus the chief settle commissioner and others PLD 1965 Supreme Court

8.Other than the question of jurisdiction of civil court, there is another question of inheritance in this case which is paramount as the plaintiff/petitioner claims to be have a claim in his own right and claimed that PTD Holder i.e. his real elder brother Sufyan got the subject matter property in lieu of the property of the common ancestor.

9.This principle was also decided in Sher Bahadar Khan vs. Qazi Islam-ud-Din (PLD 1984 SC 213). In this case, the petitioner's suit directly challenged the PTD, which, under the law, was not within the purview of the Civil Court to entertain. The Supreme Court held that the Civil Court cannot entertain a suit to challenge or interpret a PTD, as such actions fall within the exclusive domain of the Settlement Authorities and further holds that the PTD is a formal document issued following a decision of the Settlement Authority and its validity can only be contested through an appeal within the settlement hierarchy, not through civil litigations.

The petitioner’s primary grievance in the instant case is the issuance of the PTD in favor of Muhammad Sufyan, asserting ownership and possession of the suit property. However, the petitioner has failed to challenge the PTD before the appropriate Settlement Authorities, which is the designated forum for addressing grievances related to the issuance of such documents. The relevant law provides that if a party is aggrieved by the issuance of a PTD, the proper course of action is to appeal the decision within the settlement framework. In the present case, the petitioner did not avail the said remedy at the relevant time. This procedural lapse is significant. The petitioner’s failure to challenge the PTD before the Settlement Authorities is fatal to this case and further underscores the lack of jurisdiction for the Civil Court as established in the Sher Bahadar Khan case, the proper course of action for challenging the PTD was to seek relief from the Settlement Authorities. In a judgment cited as Muhammad Saleem and others v. Sardar Ali and others (2004 SCMR 1640) wherein, while adjudicating a case under the Displace Persons (Rehabilitation and Compensation) Act 1958, law point decided in the case of the Displaced Persons (Land Settlement) Act 1958 was followed (the

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reliance was placed on case law titled as “Ahmad Din v. Muhammad Shafi and others” (PLD 1971 SC 762)) it was categorically held that question of inheritance of deceased right holder was required to be decided under the relevant paragraphs of the settlement scheme as such it was a matter within the exclusive jurisdiction of the settlement authorities and jurisdiction of the civil court in such matter is barred.

In another case law titled as Nasir Fahimuddin and others v. Charles Philips Mills and others (2017 SCMR 468), the Hon'ble Supreme Court of Pakistan held that civil court has no jurisdiction, especially where no attempt had been made to challenge the PTDs before the concerned Settlement Authorities.

There is a string of judgments which hold that after the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, all claims pending before cutoff date i.e. 30.06.1974, the officer notified under section 2(2) of the Repealing Act was competent to proceed and decide the objections against PTO or PTD but the jurisdiction of notified officer was only restricted to the pending proceedings. It hardly needs reiteration that after the promulgation of the Repealing Act, the officers notified under that Act, do not possess the jurisdiction to declare any PTO or PTD regarding which no proceedings were pending on the cutoff date, as null and void on the grounds of fraud and forgery; they can only deal with and decide the pending proceedings and cannot initiate any new proceeding. Anyone who wants to challenge any PTO or PTD issued under the repealed laws, and has locus standi to do so, is to knock at the doors of Civil Court, a court of plenary jurisdiction, for the redress of his grievance3.

10.In Muhammad Din’s case, having held as noted above the Court gave due weight to the law of limitation and decided the case on that basis. Following the same and juxtaposing the facts of this case to the principles noted in the said judgment it comes to fore that as per Article 14 of the First Schedule to the Limitation Act 1908, the period Muhammad Ayub v. Ghulam Muhammad 2005 SCMR 1650 & Muhammad Din v. The Deputy Settlement Commissioner and others 2022 SCMR 1481

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of limitation for instituting a suit to set aside any act or order of an officer of Government made by him in his official capacity, not otherwise expressly provided for in the said Act, is one year from the date of the act or order; while under the residuary Article 120, the period of limitation is six years. Whichever of these two periods is applied, the suit of the petitioner having been instituted on 27.02.1979 to challenge the PTD dated 22.05.1965 was badly barred by the law of limitation4.

11.Learned counsel for the petitioner has failed to demonstrate before this Court any misreading or non-reading of evidence, or to point out any material illegality or irregularity committed by the learned Courts below. On the contrary, it appears that the oral and documentary evidence produced by the parties has been duly appreciated in accordance with law and the suit of the petitioner-plaintiff has rightly been dismissed. Even otherwise, concurrent findings on facts cannot be disturbed when the same do not suffer from misreading and non-reading of evidence, howsoever erroneous in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 19085.

12.This Court finds no illegality, infirmity, or jurisdictional defect in the impugned judgments and decrees passed by the learned Courts below. The findings are well-reasoned, in consonance with law, and do not warrant any interference in revisional jurisdiction.

13.Looking at it from any angle, and for the foregoing reasons, the revision petition in hand, having no force or substance, stands dismissed. No order as to cost.

(Ch. Sultan Mahmood) Judge Approved for Reporting.

Judge M. Shahzad/*

Muhammad Din v. The Deputy Settlement Commissioner and others 2022 SCMR 1481.

PLD 2022 Supreme Court 13 Muhammad Sarwar and others v. Hashmal Khan and others, PLD 2022 Supreme Court 21 Mst. Zarsheda v. Nobat Khan & PLJ 2023 SC 8 & Salamat Ali and others v. Muhammad Din and others PLJ 2023 SC 8