' MUHAMMAD NAWAZ ABBASI, J.--- The above four appeals by leave of the Court have been directed against a consolidate judgment, dated 24-11-1994 passed by a learned Single Judge of Peshawar High Court, Peshawar, in exercise of his revisional jurisdiction under section 115, C.P.C.
Leave was granted in these appeals vide order, dated 2-6-1996 as under:-- "We propose to dispose of above mentioned four petitions by a common order as the impugned judgment in the petitions is the same.
(2) The petitioner was transferred land measuring 28 Kanals, 16 Marlas bearing Khasra Nos.4 to 10 situated in Mauza D.I. Khan under the provisions of Displaced Persons (Land Settlement) Act, 1958 (hereinafter to be as the Act only). The land allotted to the petitioner was permanently settled in his favor on 13-8-1958. The transfer in favor of the petitioner was subsequently cancelled by the.
Deputy Settlement and Rehabilitation Commissioner by order, dated 21-9-1963 on the ground that the suit-land was situated within urban area while the claim of the petitioner was verified in respect of rural area. The petitioner filed an appeal against the order of Deputy Settlement and Rehabilitation Commissioner on 21-9-1963 which was allowed by Additional Settlement and Rehabilitation Commissioner by order, dated 3-6-1965. The order of Additional Settlement and Rehabilitation Commissioner was challenged by the Government of Pakistan in appeal before the Settlement Commissioner but the same was dismissed on 14-10-1965. A further revision before the Chief Settlement Commissioner against the order of Settlement Commissioner also failed. The Chief Settlement Commissioner, thereafter, in exercise of power under section 11 of the Act issued notice to the petitioner to show cause why his allotment should not be cancelled. However, it appears that subsequently, the notice issued to the petitioner was withdrawn on 3-5-1971 and the proceedings were dropped. It appears that while proceedings were going on as aforesaid, the land which was subject-matter of the above proceedings was allotted to the respondents in the above petitions on 31-8-1969. The allotment made in favor of the petitioner was also finally cancelled by the Chief Settlement Commissioner by his order, dated 25-5-1974. Against the allotment of land in favor of respondents in the above petitions, the petitioner filed Writ Petition No,229 of 1974 while against the order of Chief Settlement Commissioner cancelling his allotment, the petitioner filed another Writ Petition No,132 of 1976. Writ Petition No,229 of 1974 was withdrawn by the petitioner on 21-11-1984 while the petition filed against the order of Chief Settlement Commissioner cancelling allotment of the petitioner was accepted on 6-3-1985 with the result the allotment made in favor of the petitioner in 1958 stood restored. On the strength of the judgment passed in Writ Petition No,132 of 1976 the petitioner instituted a civil suit against the respondents in the above petitions on 23-4- 1986 for possession of the suit-land and recovery of rent. The trial Court after recording evidence of the parties in the suits decreed the same in favor of the petitioner. The judgment and decree of the trial Court was upheld by the First Appellate Court by judgment, dated 24-2-1993. The respondents in the above petitions then preferred four revision petitions against the judgments and decrees in the suits which were allowed by the learned Judge in chambers through the impugned judgment giving rise to the present petitions.
(3) In seeking leave to appeal, the learned counsel for the petitioner contended before us that the order, dated 31-8-1969 passed by the Settlement Authorities allotting the suit-land to respondents in the above petitions and subsequent issue of P.T.O. Dated 18-5-1985 in their favor were wholly without jurisdiction and void as on the date allotment was made in favor of respondents the suit- land was not available for allotment. It is further contended by the learned counsel that the order passed in Writ Petition No,132 of 1976 declaring the order of Chief Settlement Commissioner cancelling the allotting of petitioner as without lawful authority and illegal, had the effect of restoring the allotment of suit-land in favor of the petitioner, which was permanently settled in his favor as far back on 31-8-1958 and as such no right could be claimed by the respondents on the basis of a void order passed in their favor allotting the same land to them on 31-8-1969. It is also contended that the Civil Court had the jurisdiction to examine the validity of the order passed by the Settlement Authority transferring the land to respondents after the repeal of Displaced Persons (Land Settlement) Act, 1958, and as such the civil suit instituted by the petitioner for recovery of rent and possession against the respondents was fully competent. The above contentions, inter alia, require examination and we, accordingly, grant leave to appeal to consider the same."
3. The above appeals arose from separate suits filed by the appellant against the respondents for possession of the houses in their occupation and recovery of rent from April, 1983 to April, 1986. The appellant pleaded in the suits that the land measuring 28 Kanals, 16 Marlas, was transferred to him by the Settlement and Rehabilitation Department in the year 1958 and pending his litigation with the Settlement Department, the respondents having occupied a portion of land constructed the houses in their possession and ultimately got the same allotted in their names from the Settlement Department. The suit was decreed by the learned trial Judge vide judgment, dated 28-6-1990 and the decree was further maintained in appeals preferred by the respondents; by the Appellate Court vide judgment, dated 24-2-1993. The respondents assailed the concurrent judgment and decree in the suits before the High Court and a learned Single Judge in the light of the order of dismissal of Writ Petition No,229 of 1974 filed by the respondent against the order of Deputy Settlement Commissioner by virtue of which the houses in question were transferred to the respondents reversed the concurrent findings of the two Courts and by setting aside the judgment and decree and allowed the revision petition through the consolidated judgment impugned in the present appeals.
4. The property in dispute being an evacuee land was allotted to the appellant, in lieu of his verified claim but subsequently it was cancelled by the Chief Settlement Commissioner in 1974 on the ground that it was an urban property which could not be allotted for satisfaction of the claim pertaining to the rural property. The appellant having availed the statutory remedies invoked the Constitutional jurisdiction of the High Court in the matter and a learned Single Judge of the High Court set aside the order of Chief Settlement Commissioner vide judgment, dated 6-3-1985 in Constitution Petition bearing No,132 of 1976. Prior to the cancellation of allotment of the appellant the Deputy Settlement Commissioner, D.I. Khan vide order, dated 31-8-1969 transferred ,the houses in question build on a portion of the land of the allotment of appellant to the respondents. The appellant assailed the order of the Deputy Settlement Commissioner before the High Court by way of filing a Writ Petition bearing No,229 of 1974, but subsequently on the cancellation of his allotment by the Chief Settlement Commissioner, the appellant did not press this petition which was dismissed vide order, dated 21-11-1984. The learned Judge in the High Court while disposing of the civil revision being influenced by the order of dismissal of Writ Petition No,229 of 1974, held that the order passed by Deputy Settlement Commissioner having been not set aside was still holding field and the judgment in Writ Petition No,132 of 1976 in which the respondents were not party would not "affect their right in the property.
5. Learned counsel for the appellant has contended that the houses in question were constructed on the land allotted to the appellant which were not available for transfer as an independent property under the settlement scheme in question and that the two Courts having concluded on the controversial question of facts in the light of the evidence brought by the parties on record have correctly held that the claim of the respondents was based on a void order therefore, their possession would not be recognized in law. The learned counsel has forcefully argued that the learned Single Judge in the High Court through the misconception of law and facts reversed the concurrent findings of facts of the two Courts and set aside the decree in writ petition.
6. Learned counsel for the respondents on the other hand has submitted that the order passed by the Deputy Settlement Commissioner having been not set aside by any authority or Court was holding field at the time of disposal of Writ Petition No,132 of 1976 in which respondents were not party, therefore, the decree passed in the civil suits would be ineffective to their rights and that the houses in their possession were transferred to them as an independent property much before the repeal of evacuee law, therefore, the Civil Court could not declare the order of Deputy Settlement Commissioner as without jurisdiction and void.
7. The allotment of urban land was confirmed in the name of appellant in lieu of his claim of rural land without the permission of the Central Government, therefore, a notice under section 11 of the Displaced Persons (Land Settlement) Act, 1958 was served upon him which was withdrawn in 1971, but subsequently the Chief Settlement Commissioner cancelled the allotment of appellant. This order of the Chief Settlement Commissioner was set aside by the High Court in Writ Petition No,132 of 1976 with the result that the original allotment of the appellant including the land on which the houses in question were constructed stood restored and consequently the appellant availed the remedy Of civil suit for the possession of the portion of his property in occupation of respondents.
Thus, the first question requiring determination in the given facts would be regarding the jurisdiction of Civil Court to adjudicate the dispute. This is an admitted fact that land was allotted to the appellant in 1958 and the houses in question subsequently, constructed on a portion of land were transferred to the respondents in 1969 whereas the suits for possession were filed by the appellant in 1986 on the basis of verdict given by the High Court in the judgment in Writ Petition No,132 of 1976. The evacuee laws were repealed with effect from 1-7-1974 and before the repeal of evacuee law and orders passed by the Settlement Authorities under Displaced Persons (Land Settlement) Act, 1958 could not be challenged before the Civil Court due to the bar of jurisdiction under the relevant statutes and the civil suit would not be maintainable for adjudication of the disputes arising out of such orders rather an aggrieved person could invoke the Constitutional jurisdiction of the High Court against the orders passed by the Settlement Authorities. In the present case, the orders of transfer of the houses in question in the name of respondents were challenged by the appellant by way of filing the Writ Petition No,229 of 1974 and pending disposal of the said petition, the Chief Settlement Commissioner cancelled the allotment of the appellant as a result of which the Writ Petition No,229 of 1974 became in fructuous and in consequence thereto the appellant without further pressing the said petition preferred to purse the remedy for restoration of his allotment. The Deputy Settlement Commissioner transferred the houses in question forming part of the allotment of the appellant much before the cancellation of the allotment of appellant by the Chief Settlement Commissioner, therefore, the same were not available for transfer as an independent property, and the order of Deputy Settlement Commissioner would be without jurisdiction and void which would not create any right, title or interest of the transferee in the property and the appellant on restoration of his allotment had no other remedy except to file a civil suit for possession of the land in occupation of the respondents.
8. The perusal of record would reveal that it was not the case of the respondents at any stage that the Kacha houses build on the land forming part of the allotment of appellant was a separate property in the settlement record or that the same was declared as such by the Settlement Authorities for disposal as independent property. The learned counsel for the respondents has not been able to satisfy us from any document on the record that the houses in question were not part of the property allotted to the appellant or the same at the time of transfer by Deputy Settlement Commissioner in 1969 having the status of an independent property were available for transfer. The respondents have also not raised such plea either before the Settlement Authorities or in the High Court and a question of fact, which was not pleaded before the appropriate forum, would not be allowed to be taken for the first time before this Court.
' In the light of, the factual position in the background the crucial question for determination in the present case would be as to whether the order of the transfer of houses in the name of respondents would be annulled by the judgment passed in Writ Petition No,132 of 1976 or the same having been not independently challenged would still be holding the field. We have already observed that the order of Deputy Settlement Commissioner by virtue of which the houses in question were transferred to the respondent was a void order which had no legal effect and consequently the respondent having acquired no right to retain the possession of the said houses would be deemed to be unauthorized occupants. In consequence to the setting aside of the order of Chief Settlement Commissioner by the High Court, the allotment of the appellant in original as it existed on 13-8-1958 stood restored and all subsequent orders passed by the Settlement Authorities including the order of Deputy Settlement Commissioner would become ineffective. The learned counsel for the respondent laid much stress on the point that since respondents were not party in the Writ Petition No,132 of 1976, therefore, the judgment in the said petition would not affect their rights in the property and in any case no order adverse to their interest could be passed in their absence. We are afraid the writ petition was filed by the appellant to challenge the order of the Chief Settlement Commissioner through which his allotment was cancelled and no relief was sought against the respondents, therefore, they were not required to be impleaded as party in the writ petition and further for the decision of the dispute between the Settlement Department and appellant involved therein the presence and participation of the respondents in the proceedings was not necessary. The appellant filed suit for possession on 23-4-1986 on the basis of judgment, dated 6-3-1985 given in the Writ Petition No,132 of 1976 by virtue of which the order of Chief Settlement Commissioner and the order passed by the Deputy Settlement Commissioner on the strength of which respondent asserted their claim as owner in possession of the property were rendered illegal and the dismissal of W.P. No,229 of 1974 having become infructuous which was filed against the order of the Deputy Settlement Commissioner would have no adverse effect on the right of appellant established through the verdict given by the High Court in Writ Petition No,132 of 1976 and in consequence thereto the title and possession of the respondents would not be protected on such technical grounds.
8. For the reasons given above, the judgment passed by of the High Court in civil revision impugned herein is set aside and the judgment and decree passed by the trial Court in the suit and affirmed by the Appellate Court in appeal is restored. These appeals are allowed with no order as to costs.