This civil revision has been filed against the concurrent findings recorded by two Courts below, whereby the learned trial Court vide judgment and decree, dated 12-6-1994 dismissed the suit of Amanat Ullah deceased petitioner and the learned Additional District Judge, Bahawalnagar rejected the appeal vide his judgment and decree, dated 26-2-1996.
2. The facts briefly stated are that the petitioner Amanat Ullah (since expired) and Asmat Ullah, Muhammad Sarwar and Nemat Ullah are sons of Aziz ur Rehman and they occupied House No.26/E, Chishtian City District Bahawalangar in the year, 1947 after their migration to Pakistan. The petitioner and respondents Nos. 1 to 3 along with their mother Mst. Hajran being predecessor-in- interest of Aziz ur Rehman filed joint C.H. Form No.1345, dated 15-7-1959 before the Settlement Authorities seeking transfer of the Property No.26/E situated in Chishtian in their name. According to the petitioner/plaintiff the said house was transferred jointly in the name of the petitioner and his three brothers respondents Nos. 1 to 3 by the Settlement Department in equal .Shares. On 18-2-1989 the petitioner Amanat Ullah filed a suit before the learned trial Court claiming himself as joint owner in possession of the suit property to the extent of 1/4th share and also challenged the proceedings conducted by, the Settlement Department transferring petitioner's share to respondent No.1 being illegal, against facts, collusive and void, hence ineffective of his rights. As a consequential relief, permanent injunction was sought restraining the respondents from interfering into his ownership and possesory rights over the suit property. In para.4 of the plaint, Amanat Ullah alleged that earlier a dispute had arisen between respondents Nos. 1 and 3 namely Asmat Ullah and Nemat Ullah in respect of share of respondent No.3 in the suit property which resulted in initiation of civil litigation between the said two brothers and during the pendency of the said suit the petitioner came to know through respondent No.3 that the respondent No.1 had got petitioner's 1/4th share transferred in his name from the Settlement Department and on knowing the said fact, the petitioner got the record checked, and came to know that respondents in connivance with Settlement Department managed the name of the petitioner removed from the record; whereas, the petitioner was entitled to equal share in the inheritance of his father Azizur-Rehman along with respondents Nos. 1: to 3. It is further pleaded that since 1947 till date, he had been in continuous possession of the suit property till the institution of the suit neither he ever paid rent to any person nor anybody interfered in his possession and as such the possession over the suit property being more than twelve years the petitioner has also matured his ownership by way of adverse possession and that the cause of action accrued to him one month before on the examination of the record.
3. The respondents Nos. 2 and 3 filed consenting written statement whereas respondent No.1 filed contesting written statement wherein besides taking preliminary objections regarding under valuation; time-barred of the petitioner's suit, also pleaded on facts that the petitioner had surrendered/relinquished his rights in the suit property in the year, 1959 after obtaining compensation of his share and had been also shifting his residence to grain market and other different places, hence, he had no concern with the property in dispute. It was also pleaded by respondent No.1 in his written statement that the petitioner/plaintiff had left his residence from the property in dispute since, 1959, however, the petitioner being his elder brother was allowed by respondent No.1 to occupy one room of the disputed property in order to look after the family affairs. The respondent No.1 in his written statement besides praying for dismissal of the petitioner/plaintiffs' suit also prayed for special costs.
4. Keeping in view the divergent pleadings of the parties, the learned trial Court framed the following issues:-- ' ISSUES:
(1) Whether the suit is deficiently stamped? OPD.
(2) Whether the suit is barred by time? OPD.
(3) Whether the plaintiff received cash compensation of his share in the suit house? OPD.
(4) Whether the suit is bad due to misjoinder of the parties? OPD.
(5) Whether the plaintitI is owner in possession of 1/4th share of the suit house? OPP.
(6) Relief.
' Amanat Ullah petitioner/plaintiff in his affirmative evidence produced P.W.1 Muhammad Ali; P.W.2 Muhammad Amin and closed his evidence by tendering documents Exh.P-1 to Exh.P-4 on 3-4-1990: However, reserved his right to appear as his own witness in affirmative along with his rebuttal but subsequently on 11-6-1991 he got his own statement in affirmative recorded as P.W-3 and also produced more documents Exh.P-5 to Exh.P-9 and thus closed his entire evidence. To disprove the evidence of the petitioner/plaintiff, the respondent No.1 produced Mst. Maryam Bibi D.W-1; Muhammad Sharif Settlement Clerk D.W-2; Ch. Rashid Ahmad, Advocate D.W-3; Abdul Hameed Patwari D.W-4; Ch. Abdul Ghafoor, Advocate D.W-5; Miraj Mirza D.W-6 and besides appearing himself as D.W-7, closed his evidence after producing documents Exh. D-1 to Exh.D-10. On conclusion of the trial, the learned Civil Judge, feeling not satisfied with the contentions of the petitioner/ plaintiff proceeded to dismiss the petitioner/ plaintiff's suit vide judgment and decree, dated 12-6-1994. Against the said judgment and decree of the learned trial Court, petitioner Amanat Ullah filed an appeal in the Court of learned District Judge, Bahawlanagar which was entrusted to learned Additional District Judge-III, Bahawalnagar who vide his judgment and decree, dated 26-2-1996 while maintaining the judgment and decree of the learned trial Court dismissed the same. It would, however be not out of place to point out that Asmat Ullah respondent No.1 feeling aggrieved against the findings of the learned trial Court under Issue No.2 also filed cross-objection and the learned Appellate Court while deciding the appeal of the petitioner through the said impugned judgment, allowed the cross-objection and reversed the findings of the learned trail Court under Issue No.2 in his favour i.e. Asmat Ullah respondent No.1. Against the judgments and decrees of both the learned Court below, Amanat Ullah petitioner/ plaintiff (on his death, now represented by his legal heirs) has come to this Court through the instant civil revision.
5. Mr. M. M. Bhatti, Advocate representing the petitioner while initiating arguments has vehemently attacked the findings of the two Courts below on Issues Nos.2, 3 and 5 by arguing that:-
(I) Although affidavit (Exh.D-2) allegedly deposed by Amanat Ullah deceased petitioner can ,by no stretch of imagination be considered as relinquishment deed, yet if the same is so considered, as wrongly considered by the two Courts below, then the same was compulsorily registerable under section 17 of the Registration Act and as the same was not got registered, hence, the same could neither create any right in favour of the respondents nor extinguish the right of the deceased petitioner in the suit property. In this respect, learned counsel has placed reliance on the case "Muhammad Saeed v. Mst. Naheed Shugufta and others" (PLD 1990 Lahore 467);
(II) That the findings of the two Courts below accepting Exh.D-2 as relinquishment deed on behalf of Amanat Ullah deceased petitioner suffer from want of evidence as the respondents have failed to produce any evidence to prove that Amanat Ullah appeared before the Settlement Authorities to own the affidavit, dated 14-12-1959 (Exh.D-2) as well as the alleged statement of relinquishment as recorded on CH-Form (Exh.P-5);
(III) That the two Courts below have also failed to properly appreciate the effect of order, dated 12- 12-1963 (Exh.D-11) which is later in time as against Exh.D-2 and Exh.P-5;
(IV) That there is no an iota of evidence on the record to hold that Asmat Ullah respondent was either appointed as attorney on behalf of deceased petitioner or Asmat Ullah was vested with any authority to act on behalf of Amanat Ullah deceased petitioner and get the property in dispute transferred in his own name;
(V) That without conceding if Asmat Ullah was considered as attorney of Amanat Ullah deceased then in terms of section 215 of the Contract Act, the attorney could not get the property of his principal alienated/transferred in his own favour and any such alienation or transfer without consent of the donor is not only improper but void also. Reliance has been placed on the case "Fida Muhammad v. Pir Muhammad Khan (deceased) through. Legal Heirs and others" (PLD 1985 SC 341) and "Muhammad Siddique and 2 others v. Mst. Shagufta Begum alias Shagufta Rafiq and another"
(VI) That there is no evidence on the record to prove that the petitioner received any compensation from the Settlement Department in lieu of alleged transfer of his share in favour of Asmat Ullah respondent;
(VII) That where the question of fraud or misrepresentation has not been raised, Civil Court has got the jurisdiction to entertain the suit. He has further argued that as the Settlement laws stood repealed w.e.f. 1-7-1974, hence the jurisdiction of the Civil Court was not barred after the repeal of Settlement laws and as such, the Civil Court had got the jurisdiction to try the suit of the deceased petitioner. Reliance is placed on 2002 MLD 941. He has further argued on the question of jurisdiction that neither the plea of want of jurisdiction was even raised in the written statement nor any findings by the two Courts below have been recorded hence, the respondents are now estopped from raising the plea of jurisdiction at this stage; and finally;
(VIII) That the learned Appellate Court acted illegally by reversing the findings of the trial Court on Issue No.2 viz. Limitation, as in the case of fraud and misrepresentation and where the plaintiff is in possession of the suit property as the deceased Petitioner is admittedly in possession in the present case, even last attack on the title of the plaintiff furnishes fresh limitation and as Amanat Ullah deceased petitioner came to know of the disputed transfer/alienation of the property in dispute in favour of Asmat Ullah respondent one month prior to the institution of the suit from the inspection of the record, of the Settlement, hence, the suit filed on 18-2-1989 was well in time within the purview of Article 120 of the Limitation Act. He has also argued that as the claim of the deceased petitioner was that he was in occupation of the suit property as a co-sharer, hence, no plea of limitation, waiver or estoppel is available against him because every co-owner is deemed to be owner in possession of each inch of the disputed property. Reliance is placed on PLD 1990 SC 1 and PLD 1998 SC 1512.
6. On the other hand, while controverting the above mentioned argument of the learned counsel for the petitioner, Messrs Ijaz Ahmad Ansar and Chaudhry Abdul Sattar, Advocates appearing on behalf of the respondent Asmat Ullah have argued:--
(I) That as the documents Exh.D-2 and Exh.P-5 were issued by a competent authority under the Settlement laws, hence the same were not required to be compulsorily registered, therefore, have rightly been acted upon by the two Courts below;
(II) That the petitioner has not been able to rebut the evidence of Mst. Maryam Bibi (D.W-.1) the real sister of the petitioner and respondents, Muhammad Sharif, Settlement Clerk (D.W-2), Chaudhry Rashid, Advocate (D.W3) and Abdul Hamid Patwari (D.W-4) who have fully proved the execution of affidavit of Amanat Ullah deceased petitioner Exh.D-2 which purports to be relinquishment deed;
(III) That Amanat Ullah deceased petitioner in his statement has admitted Asmat Ullah as his attorney;
(IV) That it is established from the evidence that Amanat Ullah did receive the compensation from the Settlement Department in lieu of relinquishment of his share in the property in favour of Asmat Ullah respondent;
(V) That Civil Court had got no jurisdiction to try the suit of the respondent;
(VI) That the learned Appellate Court correctly reversed the findings of the trial Court on Issue No.2 holding the suit of the deceased petitioner as time-barred keeping in view the petitioner's own admission in para.4 of the plaint that he had got the knowledge of disputed transfer of property in favour of Asmat Ullah respondent in the year, 1979 whereas the suit was filed after lapse of ten years viz. In 1989; and lastly both the learned counsel prayed for dismissal of the civil revision by arguing;
(VII) That the findings of the two Courts below being concurrent and based on evidence do not suffer from any misreading, non-reading of evidence nor from any jurisdictional defect.
' In support of his contentions, the learned counsel for the respondents have placed reliance on "Pakistan v. Abdul Ghani" (PLD 1964 Supreme Court 68); "Syed Murtaza v. Rehiman and 5 others"
(PLD 1979 Lahore 538); "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336); "Din Muhammad and another v. Subedar Muhammad Zaman" (2001 SCMR 1992); "Muhammad Sarwar and 4 others v. Fazal Din" (1980 CLC 216); "Abdul Majid v. Syed Muhammad Ali Shamim and 10 others" (2000 SCMR 1391); "Sher Bahadar Khan v. Qazi Islamuddin and another" (1975 SCMR 157); and "Zafarul Hassan and others v. Muhammad Kalim and others: (1993 SCMR 2028).
7. I have given my conscious consideration to the above noted contentions of the learned counsel for the parties; examined the evidence produced by the parties and the judgments referred to by the learned counsel for the respective parties.
8. My appraisal of evidence as well as perusal of the above-noted judgments relied upon by the learned counsel for the parties, lead me to conclude that determination of this Civil Revision mainly hinges upon decision of the following points:-
(I) Whether the affidavit, dated 14-12-1969 (Exh.D-2) and the CH-Form can be construed as relinquishment deeds by Amanat Ullah deceased petitioner in favour of Asmat Ullah respondent.
(II) Whether Amanat Ullah petitioner ever acknowledged the documents Exh.D-2 and Exh.P-5 as relinquishment deed and ever appeared before the competent authorities to admit Exh.D-2 as well as Exh.D-11 and consciously relinquished his share in the disputed property in favour of Asmat Ullah.
(III) Whether Asmat Ullah respondent was in fact the attorney of Amanat Ullah deceased petitioner and he had the power to alienate the share of Amanat Ullah petitioner in the disputed property in his own name.
(IV) What is the evidence of consideration for the relinquishment of his share in the property in disputed, paid to Amanat Ullah.
9. Amanat Ullah never conceded to have surrendered or relinquished his share in the disputed property in favour of Asmat Ullah respondent nor did he concede the execution of affidavit, dated 4-12-1969 (Exh.D-2) or to have ever appeared before the Settlement Authorities for making any statement of the nature passed on CH-Form (Exh.P-5) admitting to have relinquished his share in the disputed property in favour of Asmat Ullah. Hence, the onus to prove the execution of Exh. D-2 and making of statement before the Settlement Authorities withdrawing his name as recorded in Exh.P-5 shifts on Asmat Ulah in terms of Article 117 of Qanun-e-Shahadat Order, 1984 being the beneficiary under the same and to discharge the said onus, he has produced his sister namely Mst.
Maryam as D. W-1, Muhammad Sharif Settlement Clerk D.W-2 and Ch. Rashid, Advocate as D.W-3, beside appearing himself as D.W-1. These D.Ws. Have not said even a single word about the appearance of Amanat Ullah deceased petitioner before the Settlement Authorities either for acknowledging the affidavit Exh.D-2 or making any statement to this effect. The most important evidence on this point must have been of Muhammad Sharif, Settlement Clerk, D.C. Office, Bahawalnagar (D.W.2) who appeared before the trial Court with the original file but he has not said even a single word to this effect except deposing that price of the house in dispute was not deducted from the compensation book of Amanat Ullah deceased petitioner. His statement is mainly on the point that PTD of the disputed property was issued in favour of the Nemat Ullah and Asmat Ullah. He has also admitted that CH-Form of the disputed house was filed. Similarly, Mst.
Maryamm Bibi has deposed about the earlier relinquishment of house in disput by Amanat Ullah deceased petitioner. The last witness on the point is Ch. Rashid Ahmad, Advocate who attested the affidavit Exh.D-2 and nothing more, because he never appeared before the Settlement Authorities nor Amanat Ullah deceased petitioner ever appeared before the Settlement Authorities in his presence. This statement indicates mere attestation of affidavit Exh.D-2 which does not mean that the same was submitted before the Settlement Authorities by the deponent and that the Settlement Authorities completed the formalities of relinquishment on his behalf. Asmat Ullah while appearing as his own witness as D.W-7 has also said nothing as to whether Amanat Ullah ever appeared before the Settlement Authorities for making any statement about relinquishment of his share. He has in his statement also admitted that house in dispute was transferred in favour of four brothers, three sisters and mother including Amanat Ullah deceased petitioner. The appraisal of what has been discussed above, lead me to conclude that Asmat Ullah respondent has miserably failed to prove that Amanat Ullah deceased petitioner ever relinquished his share in the disputed property and in consequence thereof, he appeared before the Settlement Authorities either to acknowledge the affidavit Exh.D-2 or to make any statement to this effect. It is also astonishing to note that according to Asmat Ullah respondent, Amanat Ullah relinquished his share in the property in the year, 1959 but no such assertion was made by Asmat Ullah before the Claim Commissioner while passing the order, dated 12-12-1963 (Exh . D-11) according to which the share of all the owners of the disputed house were re-verified especially in the presence of Asmat Ullah respondent. This order was passed much after Exh.D-2 and Exh.P-5 and in this order not only the share of Amanat Ullah deceased petitioner was specified but also his share in the compensation book was re-determined. At this stage, Asmat Ullah could easily lay his claim by pressing into service the factum of relinquishment in the disputed house on behalf of Amanat Ullah petitioner.
This silence on his part also supports the contention that Amanat Ullah never relinquished his share in the disputed property. Even no efforts on the part of Asmat Ullah respondent were made to get the alleged signatures of Amanat Ullah on affidavit Exh.D-2 compared from the Handwriting Expert after express denial about the execution of Exh.D-2 by said Amanat Ullah. He remained alive till the institution of present Civil Revision before this Court. From the said omission of respondent Asmat Ullah, this Court is justified in drawing conclusion in favour of the assertion of Amanat Ullah deceased and against respondent's claim. Though the report of Handwriting Expert has never been considered as conclusive evidence yet the same is always taken as one of the modes of evidence to prove disputed handwriting as held by the Hon'ble Supreme Court of Pakistan in the case reported in (PLD 1995 SC 381). The net result of above discussion is that, findings of two Courts below holding that Amanat Ullah having relinquished his share in favour of Asmat Ullah are not based on any evidence and the same are not sustainable. The claim of the petitioner that the disputed affidavit Exh.D-2 required compulsory registration under section 17 therefore becomes redundant.
10. Asmat Ullah has also taken the plea that he was acting as attorney on behalf of. Amanat Ullah petitioner but neither any Power of Attorney to his effect has been placed on record nor has any evidence to this effect been produced by him to substantiate his plea. It is an established principle of law that no person can act as attorney on behalf of a person nor can he make any statement having the effect of relinquishing any right in the immovable property worth Rs.100 situated in the urban area, unless he is holding some registered Power of Attorney. The learned counsel for the respondent in this respect has referred to certain portions of the statement of Amanat Ullah to say that Amanat Ullah has conceded Asmat Ullah as his attorney. However, neither any attorney can be constituted orally nor such attorney can represent the principal before the competent authorities under the law. In this case Asmat Ullah has set up a plea that after relinquishment of his share in the disputed property, in lieu thereof Amanat Ullah received compensation from the Settlement Authorities and that compensation was collected by him (Asmat Ullah) from the Bank and same was paid to Amanat Ullah. I wonder. How Asmat Ullah by claiming himself as attorney orally could collect the amount of compensation from the Bank on behalf of Amanat Ullah petitioner.. Similarly, there is no evidence on the part of Asmat Ullah showing payment of amount to Amanat Ullah as compensation. I am therefore, inclined to hold that the case set up by Asmat Ullah that he was attorney of Amanat Ullah and that he collected the amount of compensation from the Bank and in turn passed the same to Amanat Ullah, is not supported by any evidence and again the two Courts below have recorded their findings on the above issues without any evidence.
11. The learned counsel for du petitioner with reference to the authority of Asmat Ullah respondent as an attorney ha also argued that without admitting Asmat Ullah as attorney his alleged act of getting the property in dispute transferred in name, is also violative of the provisions section 215 of the Contract Act and also law declared by the Hon'ble Supreme Court of Pakistan in the case reported in (PLD 1985 SC 341) and this Court in (1994 CLC 1690) referred to above holding that an attorney cannot transfer the property of his principal either in his own favour or in favour of any of his legal heirs without prior approval/consent of the principal. But in the instant case no such prior approval/consent from the deceased petitioner was obtained therefore, all the proceedings taken by Asmat Ullah as alleged attorney of the deceased petitioner were not only violative of the above mentioned provision of the Contract Act and also the ratio of the cited judgments, hence without jurisdiction. The learned counsel for the respondents have not been able to meet these contentions of the learned counsel for the petitioner and as such I am inclined to hold that if Asmat Ullah be taken as an attorney, he could not get the share of the petitioner in the disputed property transferred in his own name without approval/consent of the deceased petitioner and no evidence to this effect has been brought on the record to prove that either such permission was obtained from the deceased petitioner. For this reason also the alleged transfer of the disputed property in favour of respondent Asmat Ullah as an alleged attorney of the deceased petitioner can neither be approved under any law nor can be held to be with lawful authority but this aspect of the case has again been over-looked by the Courts below while deciding Issues Nos.3 and 5 in favour of respondent No.3 and as such the findings of the two Courts below declaring he respondent as attorney of the deceased petitioner, are not only against law but also without evidence as discussed above.
12. For what has been discussed above, have no option but to reverse the findings the two Courts below on Issues Nos.3 and 5 by holding that the same are based on no evidence, hence suffer from jurisdictional defect.
13. So far as the finding of the learned Appellate Court on Issue No.2 holding the suit of the petitioner as time-barred, is concerned, I am not satisfied with the same, as the respondents have failed to prove the factum of relinquishment of his share in the disputed property by the deceased petitioner and that he and after his death his heirs being admittedly in possession of the suit property to the extent of his share since 1947 and his possession is also admitted by the respondent in his written statement, though in a different capacity, hence, the petitioner was right in filing the suit from the time of last attack on his title. Even it is an established Principle of law that co-sharer in the property is always deemed to be in possession and no plea of estoppel, limitation, etc. Can be raised to non-suit a co-sharer. Reliance is placed on the cases reported in PLD 1990 SC 1 and PLD 1998 SC 1512. As I have reversed findings of the two Courts below on Issues Nos. 3 and 5 and have held the deceased petitioner as co-sharer in the disputed house, therefore, the suit filed by him was within time and the learned Appellate Court illegally held the said suit as time-barred.
The findings of the learned Appellate Court on Issue No.2 are therefore, set aside and reversed in favour of the petitioner.
13. Learned counsel for the respondents have argued that as the petitioner did not specify the particulars of fraud within the meaning of Order VI, rules 4 and 6, C.P.C., hence, neither any evidence to this effect could be led or could be considered nor any evidence to this effect could be recorded. They have placed reliance on the case "Pakistan v. Abdul Ghani" (PLD 19154 Supreme Court 68); "Syed Murtaza v. Rehiman and 5 others" (PLD 1979 Lahore 538); "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336); "Din Muhammad and another v. Subedar Muhammad Zaman" (2001 SCMR 1992). Similarly, the learned counsel by placing reliance on section 90 of the Evidence Act (Now Article 100 of the Qanun-e-Shahadat Order) have argued that as the affidavit Exh.D-2 is thirty years old document, there is a presumption of truthfulness attached to said document in terms of above mentioned provision of Evidence Act/Qanun-e- Shahadat Order. They have also placed reliance on the case "Muhammad Sarwar and 4 others v.
Fazal Din" (1980 CLC 216-SC (AJ&K). But I do not find any force in these contentions of the learned counsel for the respondents for the short reason that presumption attached to thirty years old document in terms of above mentioned provision of Evidence Act/Qanun-e-Shahadat Order are not only rebutable but also loose importance when in fact there is no such document in existence at all. Since the respondents have not been able to prove the execution of Exh.D-2 nor there is any evidence about the presence of Amanat Ullah before the Settlement Authority acknowledging the execution of Exh.D-2, hence, no such presumption can be attached to this document. Even otherwise, such type of presumption is hardly available to a private document. Had this document been public/registered document, the contention of the learned counsel might have some force.
The case of the respondents is further weakened by the fact that Asmat Ullah got the suit plan of the area in his possession sanctioned and also raised construction but the area in possession of Amanat Ullah was never included in that constructed portion and the fact that Nemat Ullah and after his death his heirs are in possession of the said area till date and no step has been taken by .Asmat Ullah to obtain possession of the said area also leads to the conclusion that the said area was never relinquished by Amanat Ullah in favour of Asmat Ullah.
14. Similarly, the contention of the learned counsel that petitioner's suit did not give the details/particulars of fraud, misrepresentation, etc. Within the meaning of Order VII, rules 4 and 6, C.P.C. Is also not sustainable, in view of expressed denial by Amanat Ullah in his plaint about any relinquishment in favour of Asmat Ullah. It is an established principle of law that in the pleadings only material facts are to be asserted and not the evidence is to be mentioned. I am therefore, satisfied that the contents of the plaint sufficiently disclose the particulars/details of the claim of the petitioner/claim and the respondent was never put to surprise and he contested the suit fully knowing the controversy between the parties.
15. Before parting with the judgment I would also like to decide the objection raised by the learned counsel for the respondents regarding want of jurisdiction by the Civil Court to try the suit of the petitioner. The learned counsel for the respondents in this respect have placed reliance on the judgment reported in "Sher Bahadar Khan v. Qazi Islamuddin and another" (PLD 1984 SC 213) and "Zafarul Hassan and others v. Muhammad Kalim and others" (1993 SCMR 2028). On the other hand, learned counsel for the petitioner by placing reliance on "Mst. Surayya Begum and 4 others v. Abdul Hag and another" (2000 MLD 941) has contended that after repeal of Settlements Laws through Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the bar of jurisdiction on Civil Court was no more available. He further contended that as the question of jurisdiction was neither raised in the pleadings nor any issue to this effect was framed, hence, the respondents were debarred from raising such plea before the High Court for the first time.
16. I have considered the above submissions of the learned counsel for the parties and am inclined to agree with the contention of learned counsel for the petitioner that as the question of jurisdiction was never agitated neither in the pleadings nor any issue to this effect was framed and even no findings of the two Courts below have been recorded, such plea for the first time cannot be allowed to be raised in the High Court. Even on merits, the suit was filed in the year, 1989 i.e. After the appeal of Settlement Laws through the above mentioned law; hence, the bar of jurisdiction provided by sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 cannot be invoked. I am fortified in my view by the judgment of this Court reported as "Mst. Surayya Begum and 4 others v. Abdul Haq and another" (2002 MLD 941). As regards the judgments relied upon by the learned counsel for the respondents, the same are distinguishable because the question of validity/legality of transfer by the Settlement Authorities on the basis of the relinquishment etc. Was determined by the Settlement hierarchy before the repeal of Settlement Laws. The objection raised by the learned counsel for the respondents about jurisdiction of Civil Court to entertain the suit of the present petitioner is accordingly turned down.
17. It has also been argued by the learned counsel for the respondents that this Court should be slow in interfering with the concurrent findings of the two Courts below while sitting in revisional jurisdiction under section 115, C.P.C. Prima facie the contention of the learned counsel for the respondents is maintainable, however, in the instant case as I have held that findings of the two Courts below on Issues Nos.3 and 5 are based on no evidence and also perverse appreciation of evidence available on record, hence, the same cannot be considered as sacrosanct and are liable to be interfered with by this Court keeping in view the law declared by the Hon'ble Supreme Court of Pakistan in the case "Muhammad Khan v. Mst. Rasool Bibi" (PLD 2003 SC 676).
18. The net result of the above discussion is that this Civil Revision is allowed, the judgments and decrees of both the two Courts below are set aside and the suit of the deceased petitioner Amanat Ullah is decreed as prayed for, leaving the parties to bear their own costs.