Through this Revision Application, the applicants have called in question the judgment and decree dated 18-5-1987, passed by the learned IIIrd Additional District Judge. Nawabshah, in Civil Appeal No,52 of 1985, whereby he confirmed the judgment and decree dated 7-7-1985, passed by the learned 1st Senior Civil Judge, Nawabshah, who while allowing Review Application filed by private respondents, had decreed Suit No,18 of 1971, which was earlier dismissed on merits.
2. Precisely, the facts relevant for the purpose of disposal of this revision application are that a Writ Petition No,97 of 1970 was filed by the private respondents against Deputy Commissioner, the Additional Settlement Commissioner (Lands), Nawabshah and the predecessor-in-interests of applicants. The said writ petition was summarily dismissed at Katcha Peshi stage on 2-3-1970.
However, observation was made in the said order that the petitioners may seek declaration in respect of their heirship from the Civil Court.
3. The private respondents, accordingly filed Suit No,18 of 1971, in the Court of 1st Class Civil Judge, Nawabshah praying therein for the following reliefs:-- "(a) Judgment and decree be passed declaring that the plaintiffs and not defendants 2 and 3 are the legal heirs of deceased Asghar, entitled to succession to his right, title and 'interest in respect of agricultural land allotted in his name by the Rehabilitation Authorities mentioned in para.3 of plaint and mutated in the names of defendants Nos.2 and 3 by way of succession and inheritance.
(b) Restraining the defendants Nos.2 and 3 from alienating, assigning, transferring and selling their right, title and interest in, the suit property.
(c) Cost of the suit be awarded to the plaintiffs.
(d) Any other relief.
4. The suit of the private respondents/plaintiffs were dismissed by the learned trial Court vide ex parte judgment dated 30-3-1972, on the following two grounds:--
(i) That the jurisdiction of Civil Court was barred.
(ii) That no sufficient evidence was led to show that the respondents were the legal heirs of deceased Asghar.
It appears that subsequently, review application under Order XLVII, rule 1, C.P.C. was filed in the matter. The review application was heard by Mr. Ghanshamdas v. Jagani, 1st Senior Civil Judge, Nawabshah, who vide order dated 9-7-1985, allowed the same and the suit was decreed. The applicants challenged the said order in Civil Appeal No,52 of 1985, but their appeal was dismissed vide judgment, dated 18-5-1987, passed by the learned IIIrd Additional District Judge, Nawabshah.
Hence, this revision application.
6. Since at present stage, the private respondents were not represented by any counsel, direct intimation notices were ordered to be issued against them, vide order, dated 25-10-2000. The order was also passed by this Court for issuing the notices to the respondents by registered post.
Accordingly, compliance was made and the postal receipts are available on record. Yet, no body has appeared on behalf of the private respondents.
7. In the above circumstances, I am left with no option but to proceed with the matter, as the revision application pertains to the year 1987.
8. Accordingly, Mr. Hassan Mehmood Baig, learned counsel for the applicants has been heard.
9. It was contended by learned counsel for the applicants that the scope of review was limited and the order passed in review application was in excess of the powers of review as provided under Order XLVII, rule 2, C.P.C. It was further argued that appreciation/reappraisal of the evidence was not permissible in a review, yet, the learned Reviewing Judge did so, which was illegal. It was next contended that the jurisdiction of the Civil Court was barred under section 25 of Displaced Persons (Land Settlement) Act. In the alternative, it was argued that there was no legal evidence adduced on record by the plaintiffs to prove their case, therefore, even on merits the judgment was not sustainable. He further argued that no substantive right of a party can be taken away by a mere obiter dicta of Court. He further argued that the learned Appellate Court failed to exercise its jurisdiction properly inasmuch as that the judgment was recorded without judicial application of mind. Learned Appellate Court merely endorsed the view taken by the learned trial Court. In support of the above contentions, learned counsel placed reliance on (1) PLD 1965 Lahore 580, (2)
PLD 1960 SC 229, (3) 1975 SCMR 115, (4) 1991 MLD 1456, (5) PLD 1998 Lahore 239 and PLD 1988 Karachi 261.
10. I have considered the arguments, perused the judgments passed by the two Courts below and have also had the benefit of the case-law relied upon by the learned counsel for the applicants.
11. It appears that the private respondents filed a Writ Petition No,97 of 1970 before this Court. But the same was summarily dismissed at Katcha Peshi stage, as is apparent from the order dated 2-3- 1970. No notice was ordered against the present applicants. The said order was passed behind the back of the applicants. However, the learned Single Judge of this Court made an observation that the proper course for petitioners was to obtain a declaration from the Civil Court on the question of heirship. It seems that true facts of the case were not brought to the notice of the learned Single Judge, who passed the above order. It has come on record that the heirship of deceased Asghar already stood determined by the Settlement Authorities, as the Settlement Authorities were fully competent to determine the heirship of the deceased as provided under section 10 of the Displaced Persons (Land Settlement) Act.
12. The perusal of the judgment dated 30-3-1972 passed by the learned Civil Judge, First Class, Nawabshah, reveals that it was held in the said judgment that the declaration which has been sought by the plaintiffs, if given, would make the decision taken by the Rehabilitation Authority in regard to the inheritance ineffective. Since the question of inheritance was already determined by the Rehabilitation Authorities under the Settlement Laws, it was against the Settlement Scheme as the perusal of plaint does not show that there was any allegation against the Rehabilitation Authorities to the extent that they had acted malafidely or contrary to the legal provisions. Taj Muhammad the applicant No,2, had already been declared by them to be the legal heir of the late Asghar. Since want of good faith was not spelt out in the plaint against Rehabilitation Authorities, the learned Civil Judge observed that the jurisdiction of the Civil Court was barred. The view taken by the learned Judge appears to be absolutely correct.
13. On perusal of section 25 of the Displaced Persons (Land Settlement) Act, it transpires that the jurisdiction of Civil Court is specifically barred in the matters relating to the Settlement Authorities. It was held in Mst. Zainab v. Mst. Raji and others PLD 1960 SC (Pak.) 229, that the Rehabilitation Resettlement Scheme read with the parent legislation provides a complete Code for allotment of evacuee lands to refugees or other persons and contains elaborate provisions for dealing with the claims made by refugees in respect of lands abandoned in India. It has been further held in the said authority that section 4(2) of the said Act declares that every order purporting to be made or signed by the Rehabilitation Authority, in lawful exercise of any power concerned by or under the Act, shall be presumed to have been so made by such an authority and no such order shall be called in question in any Court. It was accordingly held in the said authority that by necessary intendment, the jurisdiction of Civil Court was barred to entertain declaratory suit, or for any thing done in good faith.
14. It was held in Mst. Sughran and another v. Rehmat Ali PLD 1965 (W.P.) Lahore 580 that it was within the exclusive jurisdiction of Rehabilitation Authorities to decide the question of allotments of evacuee property and their mutations and they in the performance of their duties, can decide as well all incidental questions in respect of the same. It was also held in the said authority that the determination of the status of a person whether or not she was the daughter of the deceased was within the scope of the authority and the Rehabilitation Authority has done so, if the decision on this question was necessary for the adjudication of the rights of the parties in an evacuee property.
15. In: Muhammad Sarwar and 5 others v. Muhammad Ali and 18 others 2002 SCMR 829, it was held as under:-- "It is an established law that an order passed by Settlement Authorities under Displaced Persons (Land Settlement) Act, 1958 would attain finality if it is not challenged in the same hierarchy and the Civil Court would have no jurisdiction either to determine the character of property under the said law or entitlement ,of a person for allotment due to the statutory bar."
16. In view of the above legal position no other view can be taken except to hold that the jurisdiction of Civil Court in such circumstances was barred.
17. So far as' the scope of review is concerned, it hardly needs any argument to hold that the same is very limited as will be apparent. from the plain reading of Order XLVII, C.P.C. itself.
18. The scope of review was considered in M. Moosa v. Muhammad and others 1975 SCMR 115, wherein their Lordships of Honourable Supreme Court of Pakistan were pleased to observe that, "the ground that the Court has fallen into error in deciding on a particular question, or that a new ground which could have been urged, was not urged at the original hearing, is not a ground for review, for a review is not an appeal and cannot be allowed to be treated as an appeal". It was further laid down in the said report, that "a review is not a rehearing of the case. It is only available in certain special circumstances, namely, where some relevant evidence has been discovered which could not in spite of due diligence, have been known to the party or been produced at the time of hearing or the Court has overlooked some material questions of fact or of law which would have a bearing on the decision or there is otherwise some apparent mistake or error on the face of the record".
Similar view was taken by the Honourable Supreme Court in Muhammad Ramzan's case reported in 2002 SCMR 1336.
In review proceedings neither the same arguments could be re-examined, nor the material or evidence previously considered, could be sought to be reconsidered. For reference Mazhar Hussain v. Mst. Zohra Bibi PLD 1990 SC 924 can conveniently be cited.
19. Adverting to the facts of the present case, it may be observed that the learned Reviewing Judge started to rehear the case, which was beyond the scope of review as contaminated under Order XLV'', rule 1, C.P.C. The review admittedly cannot be equated with the remedy of appeal. Learned Reviewing Judge was absolutely misconceived and committed a gross illegality in holding that it was an error of law, as the. learned Judge, who dismissed the suit did not consider the observations made by this Court.
I do not find myself in agreement with this conclusion: Even if, for the sake of arguments it is deemed to be an error of law, it did not confer jurisdiction upon the Reviewing Judge to reappreciate the evidence, which was minutely discussed by his predecessor, who passed the judgment on merits and dismissed the suit of the private respondents. The evidence, brought on record, was fully considered and discussed as such reconsideration and reappreciation of the same in review proceedings was an illegality. The learned Appellate Court merely repeated the findings recorded by the learned Reviewing Judge. It did not seem to have applied independent mind while disposing of the matter. The judgments passed by the two Courts below are erroneous having resulted in miscarriage of justice.
20. The revisional jurisdiction of this Court is meant to rectify the errors made by the subordinate Courts. Having arrived at the conclusion that the two Courts below committed jurisdictional defects thereby rendered perverse judgments, I am of the firm view that the order/judgment passed by the two Courts below, being not sustainable in law, require to be revised. Accordingly, I allow the revision application and the order/ judgment passed by the two Courts below are set aside. Consequently, the suit stands dismissed. There shall, however, be no order as to costs.