' MUHAMMAD SAIR ALI, J.--- Re spondent No.1 Ahmad son of Muhammad filed his suit for declaration and perpetual injunction seeking to get allotment in favour of the petitioner out of the land leased to him, as invalid and illegal. The petitioner and, respondents Nos.2 and 3 filed contesting written statements whereupon six issues were framed by the learned trial Judge. Evidence was recorded.
The learned trial Judge thereupon through judgment and decree dated 26-9-2000 dismissed the suit of respondent No.1. On appeal, the' learned Additional District Judge, Jhang as the First Appellate Court reversed the judgment and decree of the learned trial Court and accepted the appeal through judgment and decree dated 20-2-2002 and consequently the suit of respondent No.1 was decreed. Hence the present civil revision.
2. The learned counsel for the petitioner contended that the petitioner was a refugee from Jammu and Kashmir and the land in question was included in the Schedule to be permanently allotted to Azad Jammu and Kashmir refugees while lease in favour of the respondent plaintiff was under temporary scheme of fifteen years which had expired in 1986. And that it was after expiry of the lease and continuation of the respondent in illegal occupation that the land in question was allotted to the petitioner on 14-4-1987. Further that under the law laid down in the case of "Alam Sher through Legal Heir v. Muhammad Sharif and 2 others" (1998 SCM R 468), the Hon'ble Supreme Court of Pakistan held that civil Court was incompetent to interfere where the revenue Courts/ authorities had exclusive jurisdiction. And that as in the present matter, the revenue Courts/authorities had exclusive jurisdiction wherefor under section 36 of the Colonization of Government Lands (Punjab) Act, 1912, the jurisdiction of the Civil Court was barred.
' Contrarily the learned counsel for the respondent No.1 supported the impugned judgment and decree dated 20-2-2002 of the learned Additional District Judge, Jhang.
3. Heard.
4. The principal legal proposition raised by the learned counsel for the petitioner is that section 36 of the Colonization of Government Lands (Punjab) Act, 1912, the civil Court lacked jurisdiction in a matter in which a Collector was empowered to take cognizance and to decide and dispose of the same in the exercise of powers vesting in him under this Act. Support to this proposition was drawn by the learned counsel for the petitioner from the observations of the Hon'ble Supreme Court of Pakistan passed in the case of "Alam Sher through Legal Heir v. Muhammad Sharif and 2 others"
(1998 SCM R 468) wherein laying down the law on section 36 ibid, the Hon'ble Supreme Court of Pakistan observed that the provisions of section 36 were mandatory in nature and that the civil Court would have no jurisdiction to entertain the dispute over which the Collector etc., had authority to decide. It was further observed that "learned counsel was unable to show as to how the orders passed by the competent Revenue Authority were without jurisdiction", wherefor "the petitioners had, remedy to move appeal/revision before the Member, Board of Revenue which they, admittedly, failed to avail of." It was in view of this observation that the Hon'ble Supreme Court was pleased to further observe that "we, accordingly, hold the view that Civil Court was not competent to interfere where the Revenue Courts/ Authorities had the exclusive jurisdiction". Also that the petitioners had violated the conditions of lease of the disputed land.
5. In the present case, respondent No.1 was initially granted land on lease in 1968 for a period of three years and on expiry of this period, he was again granted lease under the relevant scheme in 1971 for a period of fifteen year which expired around the end of 1986. Respondent No.1 as the plaintiff claimed that he continued in cultivating possession of the suit-land and regularly paid rent/lease amount in the government treasury and fulfilled all the conditions of lease wherefor under Notification No.11-3215-79/3339/C-II dated 15-5-1979 he was entitled to the grant of proprietary rights of this land. Further that the matter of allotment was neither considered nor terms of the notification .Were attended to. He further claimed that the petitioner was never in cultivation possession of the land but was allotted land in question on 14-4-1987 under the scheme for Rehabilitation of Refugees from Jammu and Kashmir in terms of Notification dated 13-2-1971.
Respondent No.1 is learned counsel also contended that the suit-land was never part of the Scheme or the Schedule introduced for Rehabilitation of Jammu and. Kashmir Refugees wherefor the Collector or any other Revenue authority had. No power to allot the same to the petitioner and the proceedings of allotment therefore, were without jurisdiction. It was also contended by the learned counsel for the respondent plaintiff that no notice of either resumption of land or otherwise to take possession or to undertake any penal proceedings against respondent No.1 was ever given to him. And that in the absence of the mandatory notice to respondent No.1 for the resumption of land from him and also without incorporating that the suit-land in the Schedule of the Scheme for Rehabilitation of Refugees of Jammu and Kashmir, the action and proceedings of allotment to the petitioner' by respondents Nos.2 and 3 were without lawful authority, coram non judice and legally incompetent.
6. The learned counsel for the petitioner was unable to show that the suit-land was included in the schedule for the scheme of Allotment of Jammu and Kashmir Refugees in terms of the Notification dated 13-2-1971. The learned counsel for the petitioner also admitted that there was nothing on record to show that the notice of resumption of land or termination of lease of respondent No.1 was ever served or acted upon in terms of the law by respondents Nos.2 and 3 before proceeding to allot the land in question on 14-4-1987 to the petitioner.
7. In the impugned judgment and decree dated 20-2-2002, the learned Additional District Judge, Jhang therefore, was justified to hold that in the absence of notice of resumption of land from respondent No.1 and non-incorporation of the suit-land in the Schedule to the Scheme for Rehabilitation of Jammu and Kashmir Refugees, the allotment to the petitioner by respondents Nos.2 and 3 was illegal and without jurisdiction.
8. Under these circumstances, the action and orders of respondents Nos.2 and 3 being without jurisdiction and void for the above stated reasons, respondent No.1 as plaintiff was competent to maintain his civil suit and the civil Court under section 9 of the Civil Procedure Code enjoyed the jurisdiction to adjudicate and rule upon the act of respondents Nos.2 and 3 as invalid and without jurisdiction.
9. As held by the Hon'ble Supreme Court of Pakistan in the above referred case of Alam Sher through legal heirs, where the Collector or any other Revenue Officer in the hierarchy exercises the power vesting in him under law, the jurisdiction of the civil Court would be barred. And that in other words, if such authority acts beyond the provisions of the law and the Act and without jurisdiction, bar of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 does not apply. And that as such, in the present case, the civil Court could competently proceed to entertain and adjudicate upon the suit of the plaintiff.
10. For what has been discussed above, this Court does not find any merit in this civil revision which is accordingly dismissed with no order as to costs.