This second appeal arises from Suit No. 462 of 1961 brought by the respondent hlazir Ahmed in the Court of the Civil Judge, IV Class, Multan for perpetual injunction restraining the appellants from closing his door opening on the side of the vacant plot and from interfering with his right of easement in respect of the use of water of the well situated in the adjoining vacant plot. The learned subordinate Court by judgment dated 20th April 1963, dismissed the suit on the ground that no right of easement could be claimed in the absence of the owner of the property. The learned Court however came to the conclusion that the vacant plot in dispute is not owned by any of the parties and the respondent was using the well on it for a considerable time. This judgment was challenged in Civil 4ppeal No. 20/13 of 1963 before the Additional District Judge, Multan who by judgment dated 12th February 1954, allowed the appeal on the ground that he did not agree with the view of the sub--ordinate Court that the respondent was not entitled to any relief in the absence of the owner of the plot in question. He further agreed with the finding of the Court below that the occupants of the houses owned by both the parties were using the well in question, for over 30 years. The appellant has challenged this judgment in this second appeal.
2. In second appeal Feroze Nana J., while admitting the appeal, admitted it only for determination of the question whether the Courts below had jurisdiction in the matter as the vacant plot of land is admittedly an evacuee property and vest in Government. By the order dated Ist October 1964, admitted the appeal. His Lordship recorded that the finding on facts are not contested in the appeal. The question, therefore, for consideration in this appeal is whether the Civil Court had jurisdic--petition in respect of the dispute between the parties. Mr. Ataullah Qureshi, the learned counsel for the appellant, has contended that since the property in dispute is an evacuee property, any right claimed on it could only be agitated before the Settlement Authorities. The learned counsel contended that the Settlement Authorities are only competent to consider the right of easement of the adjoining properties and to further consider which of the two parties should be allowed to use the well on the plot in dispute. In support of his contention the learned counsel has placed reliance on sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation)
Act, 1958. He has further referred me to M. Jamil Asgharv. Rawalpindi Improvement Trust (PLD 1962 Lah. 859), Ramzan v. Rahabilitation Cohirnissimer (Legal), Sargodha any another (PLD 1963 Lah.
461) and Mian Muhammad Din v. Sh. Muhammad Ishaque Gaba (PLD 1965 Lah. 507). Noneof these cases has any hearing on the facts of the present case. In PLD 1962 Lah.859 Ortcheson J. Held that sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 bar the jurisdiction of civil Courts to entertain declaratory suits concerning title to evacuee lands. This decision however was set aside by the Supreme Court in Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 699) and any enunciation of law in it for that reason cannot be considered as good law. Their Lordships in that case held that the question of mala fide is the exclusive jurisdiction of the civil Court and that can never be taken away. PLD 1963 Lah. 461 is a case decided on the side of the writ jurisdiction of this Court. In that case a Division Bench of this Court held that land acquired by Government under section 4 (3) of the Displaced Persons (Land Settlement) Act, 1958 even after the acquisition carries with it the label of evacuee property and any order passed by the Rehabilitation Authority in regard to such land is not open to challenge. In PLD 1965 Lah. 507 their Lordships were considering a dispute between two transferees about the ownership of certain portion of the building. In that case the Settlement Authorities gave a finding that a particular portion formed part of house A. The transferee of house B instituted a civil suit for a declaration that the disputed portion was a part of his house. In this context it was held by a Division Bench of this Court that jurisdiction of the civil Court was barred by virtue of the provisions of sections 22 and 25 of the Act. This case also has no bearing on the facts of the present case because in this case the dispute is not as to which portion of the property formed part of the house transferred to the parties. In the present case, the dispute is in respect of an evacuee plot of land which is adjoining to the two houses of the parties and on which a well exists Admittedly both the parties have been using the water of the well for their personal use. The respondent's case is that the appellant is not entitled to prevent him from using the well and this has been accepted as good claim by both the Court below. In my opinion, the dispute of this nature cannot be said to fall within the exclusive jurisdiction of the Settlement Authorities. The learned counsel appearing for the appellants has not referred me to any provision in the Displaced Persons Settlement Act empowering the Settlement Authorities to decide any such dispute. Besides, the respondent did not challenge in the suit any order passed by the Settlement Authorities. In such circumstances it cannot be said that sections 22 and 25 of the Displaced Persons (Land Settlement) Act could be a bar to the dispute which came up for determination before the civil Courts.
3. Ch. Abdul Rehman, the learned counsel for the respon--dent, has referred me to a decision of a learned Single Judge of this Court in Syed A.I Moazzam v. M. A. Effandi and others (PLD 1965 Lah.193). In that case the dispute between the parties was in respect of a path way between the two plots transferred to the parties. Both of them were claiming the path as belonging exclusively to them. It was urged before Sardar Muhammad Iqbal, J. That such dispute could not be determined by the civil Courts. His Lordships repelled this contention on the ground that the jurisdic--petition of the civil Courts cannot be taken away except by express provision or by necessary implications. It is, therefore, for the party who seeks to oust the ordinary civil Courts' jurisdiction to establish his contention. On a careful examination the provision of the Displaced Persons Compensation and Rehabilitation Act, 1958, he came to the conclusion that the Settlement Authorities are not empowered to determine any such question and therefore no implied ouster of jurisdiction can be spelt out from the provisions of the said enactment. This case was also considered in PLD 1965 Lah. 507 and it was not dissented from. I am in respectful agreement with the observations of Sardar Muhammad Iqbal J. It seems to me also that in order to oust the jurisdiction of the civil Court there must either be an express provision to that effect or there must be something in the provision of the enactment itself on account of which by implication it can be said that the jurisdiction of the civil Court has been ousted. In the present case, the dispute between the parties is of an ordinary civil nature which clearly falls within the jurisdiction of the ordinary civil Courts. I would, therefore, hold that the Courts below had jurisdiction in the matter and very rightly determined the dispute between the parties.
4. Since the appeal was admitted only on this ground I am not inclined to consider the other pleas raised by the appellant in the appeal. The learned counsel for the respondent has not pressed the cross objection. In view of this, both the appeals and the cross-objections are---dismissed with no order as to costs.