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SAVED ZAHID HUSSAIN, J. The declaratory suit instituted by the appellant against the non-official respondents/defendants and the Settlement Authority that he was owner/allottee of the property in dispute i.e. Khasra No. 721/1 2-Kanals 9-Marlas and 741/1 4-Kanals 19 Marlas situated in Mauza Peran Ghep Jhelum, and that its auction by the Settlement Department later on in presence of his allotment was illegal, without jurisdiction, void and of no legal effect was dismissed by the Trial Court, on its preliminary findings that the Civil Court had no jurisdiction, in the matter; the suit was not maintainable and that the same was barred by time. This,judgment of the. Trial Court dated 2.2.1982 was maintained by the learned Appellate Court while dismissing the first Appeal Sp 22.9.1982. This is second appeal by the plaintiff against the same.
2. While assailing the judgment of the Courts below, the learned counsel, contends that the Courts below have clearly acted in misconception of the legal and factual position inasmuch as that once the property had been allotted to the predecessor-in-interest of the appellant in satisfaction of his verified claim it could not be disposed of, by the Department through auction as the allotment of the appellant had never been assailed or lawfully cancelled. According to him the appellant has been non-suited on an erroneous and untenable view of the matter without even going into the real controversy on merits as to the legality of the later auction. It is contended that after the repeal of the evacuee laws, the appellant had no forum available within that hierarchy and the jurisdiction of the Civil Court was fully available and attracted for the determination of the legality or otherwise of the orders and actions of. The Settlement Authorities. It is also contended that the suit has wrongly been held to be time-barred as the last order passed in the matter by the Settlement Commissioner was of 1975, and of the Deputy Settlement Commissioner, Rawalpindi was of March 1977. Abdul Saeed and others v. Ch. Muhammad Latif Khan and others (1983 CLC 2491), Major (Retd.) Barkat Ali and others v. Qaim Din and others (2006 SCM R 562) and Sultan Hassan Khan and 2 others v. Mst. Nasim Jahan and 17 others (1994 SCM R 150) have been cited by him.
The learned counsel for the respondents on the other hand supports the concurrent view taken by the Courts below that the findings of the Courts as to the non-maintainability of the suit; lack of jurisdiction of the Civil Court and that the same was barred by time are consistent with law. It is contended that the finality under the then prevailing taw to the auction made in favour of the respondent/defendant was attached, therefore, the Civil Court lacked jurisdiction. According to him no question of law was involved in this second appeal, which was liable to be dismissed. Relies upon Sardar Muhammad v. Barkat Ali (1986 SCM R 770), Sh. Fazal-ur-Rehmah v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others (1987 SCM R 1036) and Zafarul Hassan and others v. Muhammad Kalim and others (1993 SCM R 2028).
3. The respective contentions have been considered and record has been perused.
4. What emerges from the record is that Khasra 'No. 721/1 2-Kanals, 9-Marlas and 741/1 4-Kanals, 19- Marlas situated in Mauza Peran Ghep Jhelum were allotted in the name of Abdullah Shah, the predecessor-in-interest of the appellant against his verified claim on 16.6.1960. The nature of the land mentioned in RL-II (Ex.P.1), was "Banjir Qadim". Such allotment purports to have been made under the Settlement Scheme and the provisions of Displaced Persons (Land Settlement) Act, 1958. It had not been .Assailed by anyone nor there appear any order of cancellation thereof by any of the Settlement Authority in that hierarchy. From the application made by the appellant on 14.1.1963 (Ex.P.2), it appears that on coming to know of the auction of the said property, he made that application before the Deputy Settlement Commissioner, Jhelum for cancellation of the auction. The auction was said to have been made on 11.1.1962. On this application the Deputy Settlemeht Commissioner ordered inquiry and called report from the Settlement Inspector, on 16.1.1964 observing that if the plot had "already been transferred by the D.R.C. Land it could not be put to auction by the Settlement department." On this the Settlement Inspector recommended on 7.5.1964 after verification on the spot that since the property had already been transferred to Abdullah Shah, "the order for the cancellation of the two auctions be obtained from the learned A.S./R.C., Rawalpindi as the bids of the two auctions have been approved." The Deputy Settlement Commissioner, thus referred the matter to the Additional Settlement Commissioner for cancellation of the auction. These proceedings are reflected in Ex.P.3.
Accordingly the auction was cancelled. Sh. Muhammad Bashir respondent No. 1, then made a miscellaneous application for restoration of the auction before the. Additional Settlement Commissioner who vide an ex parte order dated 11.3.1966 (Ex.P.5) remitted the matter to the Deputy Settlement Commissioner for hearing both the parties. The Deputy Settlement Commissioner, Jhelum then passed order dated 28.3.1967 (Ex.P.6). In view of the statement of the Patwari that though the nature of the property was "Banjir Qadim" yet it was not "subjected to agricultural purposes" therefore, its disposal as such was not legal and that it was rightly put to action. This order was then appealed against by the appellant, which was upheld Additional Commissioner, Rawalpindi on 3.8.1967 (Ex.P7). Against that the revision filed by the appellant was dismissed by the Settlement Commissioner, as not competent in view of the repeat of evacuee laws) on 27.3.1975 (Ex.D.1).
Another order was thereafter passed by the Deputy Settlement Commissioner, Jhelum on 15.3.1977 (Ex.D.4) in order to dispose of the Forms submitted by certain persons under RSS-VIII. The perusal where of also goes to show that in the Revenue Record it was mentioned as "Banjir Qadim". It was in this context that the civil suit was filed by the appellant on 13.1.1977 claiming his ownership to the property in dispute on the basis of allotment made in favour of his predecessor-in-interest in the year 1960; which was contested by the respondent/Department. Only preliminary issues were framed by the Trial Court, which are as under:--- ISSUES:
(1) Whether the suit is not maintainable in its present forum? OPD
(2) Whether the Court has no jurisdiction to try the suit? OPD.
(3) .Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(4) Whether the suit is bad for non-joinder and mis-joinder of parties? OPD.
(5) Whether the suit is time-barred? OPD.
5. As noted above, the dismissal of suit and first appeal was assailed through the present regular second appeal (R.S.A. No. 8/1983), which was admitted to regular hearing with the note that "Initially there was a conflict between the Settlement Authorities on the urban side and Settlement Authorities on the rural or land side because, according to the ,former, it was an urban property and, according to the later, it was an agricultural land. Eventually the appellant took recourse to the Civil Court. There too the question of jurisdiction was raised by his opponent and the learned Trial Court as well as the learned District Judge, Jhelum, both came to the conclusion that the Civil Court had no jurisdiction and the suit was also time-barred. Both these are subtle law points which, in the circumstances of the case , need to be considered." The appeal was thereafter dismissed for non-prosecution on 14.11.2000 as also the restoration applications. Such orders were assailed by the appellant before the Hon'ble Supreme Court of Pakistan, through Constitution. Petition No. 1249/2003,. Which was converted into appeal and was allowed on 7.6.2005 with the observation that the appeal shall be dealt with by the High Court in accordance with law. It is thus that this appeal (perhaps one of the oldest before this Court) has come before me for hearing.
6.. The precise issue is about the jurisdiction of the Civil Court in the matter. It may be observed that by virtue of Section 9 of the Code of Civil Procedure, 1908 the Civil Courts are Courts of general jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly, barred. The question whether the act of an executive authority or Judicial. Tribunal is without jurisdiction, illegal and not binding on a party, being a matter of civil nature, is always to be decided by the Civil Courts except to the extent to which such jurisdiction may have been taken away. The provisions of. The repealed evacuee laws ie.'Section 25 of the Displaced Persons (Land Settlement) Act, 1958 and the Displaced Persons (Compensation and Rehabilitation) Act, 1958 are sought to be invoked for the exclusion of jurisdiction of the Civil Court. There is however, by know, consistency that if the very vires of orders and actions of the Settlement Authorities are in question the bar of jurisdiction as contained in Section 25 of the above-mentioned Acts or the finality attributed to the actions or orders do not operate. Obviously where there are conflicting orders passed by the Settlement Authorities one on the land side and other on the urban side, there has to be a forum to resolve such controversy. In the instant case, the learned counsel for the appellant has endeavoured to show that the property though was mentioned in the Revenue Record as "Banjir Qadim" it continued to be agricultural land and its disposal in favour of the predecessor-in- interest of the appellant in satisfaction of his verified claim in the year 1960 was perfectly valid. Reference in this context is being made to Abdul Saeed and others v. Ch. Muhammad Latif Khan and others (1983 CLC 2491). While that allotment was existing, the Settlement Authorities without cancelling that allotment proceeded to put it to auction as urban property in the year 1962. Once an allotment is made unless the same is cancelled it prima facie holds the ground. See for reference Sh. Barkat Hussain v. Additional Settlement Commissioner and 16 others (1985 SCM R 446) and Dalloomal through His L. Rs. v. Nasir Hussein and others (1989 SCM R 18). Thus such a conflict had.To be resolved by the Civil Court as the revision petition filed by the appellant was dismissed by the Settlement Commissioner as incompetent as the evacuee laws had been repealed. That there is no total and absolute exclusion of jurisdiction of Civil Court is manifest from Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671) and Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698). In the later case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (Supra) it was held that "If the property was in fact not evacuee property and was not vesting in the Central Government the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by, holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary Civil Court on the ground that they had no jurisdiction with respect to the property transferred at all." Even from the case of Sh. Fazal-urRehman's v. Pakistan through the Secretary, Ministry of Works and Rehabilitation, Islamabad and others (Supra) decided by five Honourable Judges it is discernable that in cases of where there is any allegation of fraud, misrepresentation and mala fide on the part of the Settlement Department or when the nature of the property,, was in question the jurisdiction of the Civil Court was not ousted. Similar is the view taken in Sultan Hassan Khan and 2 others v.
Mst. Nasim Jahan and 17 others (1994 SCM R -150), and Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heirs (2002 SCM R 1470). The Civil Court in the peculiar circumstances and the background of this case had to decide the /is on its merits and the suit could not be dismissed on the ground of lack of jurisdiction. The findings thus recorded by the Courts on issues Nos. 1 and 2 as to non-maintainability of the suit due to lack of jurisdiction are unsustainable in law.
7. So far as issue No. 5, that the suit is time-barred, is concerned, the approach adopted by the Civil Court was clearly erroneous and unwarranted inasmuch as though the litigation between the parties commenced during the decade of sixty yet the ultimate order passed by the Settlement Commissioner was in the year 1975 when the revision was dismissed as not competent (Ex. D.1), and the order of Deputy Settlement Commissioner, dated 15.3.1977 (Ex,D.4). The suit therefore in such circumstances could not be treated as barred by time. The findings of the Courts below as to possession have also been disputed by the appellant. The dismissal of the suit on the view that it was barred by time is untenable.
8. Had the suit been tried and decided by the Courts below on merits this Court would have decided the appeal itself in order to bring to an end the long standing litigation between the parties but since the suit was dismissed merely on preliminary issues the only course left open is to remand the matter to the Trial Court for trial and decision of the suit in accordance with law, after framing all necessary issues and affording opportunity of producing evidence to the parties concerned.
9. The appeal is accordingly allowed and the judgments are set aside. The matter will go back to the Trial Court, which will make its utmost endeavour to decide this long standing litigation as expeditiously as possible. Office to transmit the record to the Trial Court as early as possible. Parties to cause their presence before the learned District Judge, Jhelum on 19.3.2007 who will entrust the file to the Court of competent jurisdiction for proceedings in the suit. No order as to costs.