SYED HAMID ALI SHAH, J.--- Facts of the case necessary for the disposal of the instant revision petition are that the respondents filed a suit in the Court of learned Senior Civil Judge, Kasur. It was asserted in the plaint that predecessor of the plaintiffs/respondents namely Nihala migrated from India. He submitted his claim in Mouza Orara, Tehsil Kasur under Form No.2669 and 1605 PIUS were allotted to him. After his death Mutation of inheritance No.100 was sanctioned on 17-8-1960, which was subsequently reviewed vide order, dated 14-7-1962, resultantly the land allotted to Nihala devolved upon Budhu to the extent of 2/3rd share and Mst. Sughari to the extent of 1/3rd share.
Budhu died in the year 1957 and Mutation of Inheritance No.123 qua his estate was sanctioned on 9-10-1963. His son Rustam inherited 7/8th share in the estate of deceased while widow Basry inherited 1/8th share. Rustam died in the year 1959 and by virtue of Mutation of Inheritance No.124, dated 9-10-1963, his property devolved upon Mst. Basry to the extent of 1/3rd share, Mst. Sughari took 1/6th share and the collaterals namely Chander Khan, Sajan and Chad Mahal were given the remaining land. The respondents were not given their share, being the sons of' Rustam/brother of deceased. The respondents challenged Mutation No.124 through a civil suit. The petitioner filed an application under Order VII, rule 11, C.P.C. Seeking the rejection of plaint on the ground that, Mutation No.I24 was passed on the basis of order, dated 26-10-1960, of the Settlement and Rehabilitation Department. The order passed by Settlement Authorities cannot be challenged through civil suit.
Learned trial Court vide order, dated 27-2-1995 rejected the plaint and held that the suit of the respondent is barred under sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act (Act XXVIII) of 1958. Learned trial Court while holding so followed the dicttrn of law laid down in the case of Muhammad Bashir v. Ghulam Sarwar and 3 others 1991 M LD 2072 and Sheikh Fazal-ur-Rehman's v. Pakistan through The Secretary, Ministry of Works and Rehabilitation and others 1987 SCM R 1036. Respondents assailed the order, dated 27-2-1995 before the learned Additional District Judge and during the pendency of appeal, they made a request for remand of the case to allow the appellants to withdraw the suit with the permission to file a fresh suit. The Appellate Court keeping in view the judgment in the case of Muhammad Rafique v. Abdul Ghafoor 1992 SCM R 1971 accepted the request. Case was remanded to the learned trial Court, for disposal of the application for withdrawal of the suit. Learned Appellate Court vide order, dated 19-6-1999 directed the trial Court to decide the application, for withdrawal of the suit with the permission to file a fresh if moved. According to its own merits. Hence this petition.
2.Learned counsel for the petitioner took exception to impugned order by submitting that the learned trial Court has no jurisdiction to entertain the suit; the plaintiffs/respondents instituted the suit after the lapse of more than thirty years which was hopelessly barred by limitation, the suit suffers from the defects of misjoinder and non-joinder of necessary parties: and description of the land has also not been given by the plaintiff in the suit. Learned counsel further contended that permission to withdraw the suit can be granted regarding the cases where the Court is satisfied that there are formal defects, which can result into dismissal of the suit, otherwise the suit can proceed by removing formal defects. It was contended that the defects were basic and there is no justification to grant permission to withdraw the suit. Learned counsel argued further that since the suit was not competent in any manner, therefore, it was not liable to be remanded and the appeal was to be decided on its own merits. Learned counsel in support of his contentions has referred to the cases of Muhammad Bashir v. Ghulam Sarwar and 3 others 1991 M LD 2072; Ali Muhammad and others v. Taj Muhammad and another 1986 CLC 2511; Muhammad Siddiq and 2 others v.
Muhammad Sharif and 2 others 1992 SCM R 2260; Faizuddin Ahmad v. Muhammad Yousaf and another 1988 SCM R 1289; Raham Din and others v. Fatima Bibi 1989 SCM R 1430 and Muhammad Saleem and others v. Sardar Ali and others 2004 SCM R 1640.
3. Learned counsel for the respondents, on the other hand, has fully supported the impugned order.
He has submitted that the suit can be allowed to be withdrawn, at any time, after its institution on the basis of formal defects and within the contemplation of the provisions of rule 1 of Order XXIII.
The plaintiff has the right to withdraw the suit as and when it is so desired. He has further submitted that the petitioner has no locus standi to contest the withdrawal of the suit as the total land was 1605 PIUs; of which the petitioner's share (1/3rd) comes to 535 PIUs and 1/6th share thereof comes to 169 units. The total entitlement of the petitioner is 714 units, while the petitioner holds 811 units in Village Ucha Pind. Petitioner holds land more than his share, therefore, she has no locus standi to object to withdrawal of the suit. Learned counsel has referred to the case of Muhammad Rafiquc v.
Abdul Ghafoor 1992 SCM R 1971 in support of his contentions.
4. Heard learned counsel for the parties and examined the record.
The respondents have challenged the order, dated 26-10-1960 of the Additional Commissioner, Lahore on the basis of fraud which statedly was committed by the defendant who concealed material facts and asserted that Nihala had only one son. The factum of the birth of Muhammad Shari!' and Abdul Qadir, who were born out of wedlock of Mst. Basry and Sarjan, was concealed. The dispute of the parties is with regard to the evacuee land. The question of inheritance of deceased right holder in such property falls within the ambit of Displaced Persons (Land Settlement) Act, 1958 and jurisdiction of civil Court in this respect is barred. The Honourable Supreme Court of Pakistan in the case of Fazal--ur-Rehman's v. The State through The Secretary, Ministry of Works and Rehabilitation and others 1987 SCM R 1036 has held that validity of allotment of evacuee land cannot be questioned in the civil Court. It was held in the case of All Muhammad and others v. Taj Muhammad and another 1986 CLC 2511 that any determination relating to the status of allotment to the allottee and any order passed thereabout falls within the ambit of Displaced Persons (Compensation and Rehabilitation) Act (Act XXVIII) of 1958 and a civil suit regarding the entitlement of evacuee land is not maintainable. In the case of' Faizuddin Ahmad v. Muhammad Yousaf and another 1998 SCM R 1289 it was held that the jurisdiction of the civil Court in respect of the matters, which fall within the competence of the Chief Settlement Commissioner, is barred. The Chief Settlement Commissioner is empowered to cancel an allotment under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act (Act XXVIII) of 1958 if he is satisfied that the allotment has been obtained regarding property which is not of evacuee nature. The jurisdiction of civil Court under section 25 of the Displaced Persons (Compensation and Rehabilitation) Act (Act XXVIII) of 1958 is ousted but the learned Appellate Court has ignored this aspect of the matter and has allowed through the impugned order the request for withdrawal of the suit.
6. Respondents instituted the suit against the petitioner on 4-9-1994, wherein Mutation No.124 dated 9-10-1963 and order dated 26- 10-1960 was challenged. The suit has been instituted after the lapse of a period of more than thirty years. The suit was hopelessly barred by limitation and the plaint was liable under law to be rejected on this were alone. The Honourable Supreme Court of Pakistan in the case of' Raham Din and others v. Fatima Bibi 1989 SCM R 1430 upheld the decision of rejection of plaint under Order VII. Rule 11. C.P.C. Regarding the claim of a petitioner who being collateral of Allah Din in fourth and fifth degree brought a suit in the year 1979. The suit was filed after the lapse of 26 years and the plaint was rejected by the learned tial Court, which order was affirmed in appeal by the Appellate Court as well as in revision by this Court. The suit, which on the face of' it is barred by limitation, cannot be allowed to be withdrawn with the permission to file a fresh one. The permission to withdraw the suit with a view to file a fresh can be accorded on the basis of formal defects. The suit cannot be allowed to be withdrawn with regard to the defects.
Which go to the root of the case. The respondents/appellants failed to demonstrate that there was sufficient ground for withdrawal of the suit. While holding so I am fortified by the dictum of law laid down by the Apex Court in the case of Haji Muhammad Boota v. M.B.R. Punjab and others PLD 2003 SC 979. The suit was instituted in the Court which had no jurisdiction. It was hopelessly barred by limitation and suffered from the defect of misjoinder and non-joinder of parties. These defects cannot be termed as - formal defects as they go to the root of the case. There is no cavil with the proposition that an incompetent suit should be nipped in bud. Permitting the respondents to file a fresh suit on the basis of claim, which is legally not entertainable, would amount to prolonging the agony of the parties, which is neither the intent nor purpose of law.
7. From the bare perusal of rule 23 of Order XLI, C.P.C. It is essential that a case is to be remanded when the decree should have disposed of the whole of' the suit; the suit has been disposed of on preliminary point and not portion of it; the decree is reversed in appeal and retrial is necessary on one or more issues. The remand of the case to the trial Court to consider, an application for withdrawal of the suit, does not fall within the ambit of the provisions of rule 23 (ibid).
8. For the foregoing, the instant revision is allowed and order of the learned Appellate Court is set aside. There is however, no order as to costs.