' ABDUL SAMAD KHAN, J.---Through instant petition for revision petitioners Abdul Ghani and others have called in question the judgment and order dated 9-7-2009 passed by Additional District Judge-V Haripur vide which appeal filed by them against the judgment and order dated 23-5- 2006 of the trial court qua return of plaint, was dismissed.
2. The background of the case in brief is that land measuring 146 kanals 15 marlas situate Mauza Sanjiala Tehsil and District Haripur, being evacuee property was allotted to respondent No,1 Abdul Ghani, an Indian refugee, through RL-II dated 18-5-1972 and Mutation No,1129 was attested in his favour on 16-8-1973. The said land was purchased from him by predecessors of petitioners through Mutations Nos.1130 and 1131 on 16-8-1973.
3. It appears from record that allotment of respondent No 1 was challenged before Deputy Settlement Commissioner, Abbottabad in case titled "Attiq Raza Khan v. Abdul Ghami" but to, no avail hence appeal thereagainst was preferred before Additional Settlement Commissioner (Lands) Hazara 'which also met the same consequences. Once again allotment in favour of respondent No I was challenged in case titled "Muhammad Mohsin v. Abdul Ghani" before DSC Abbottabad but with no fruitful results whereafter appeal was tiled which too, was dismissed by Additional Settlement Commissioner vide order dated 29-1-1979.
4. The matter did not end here and yet another round started when respondent No 2 through attorney challenged allotment made in favour of respondent No,1 being in excess in village Sanjiala, Haripur, the then Hazara District, before Additional Settlement Commissioner Abbottabad which was accepted on 29-6-1974 and some of allotments of respondent No, 1 (to the exclusion of property purchased by petitioner) was cancelled.
5. Respondent No, 1 through his attorney challenged validity of aforesaid order in Writ Petition No,236 of 1974 before this court which remained pending till the year 1985, however, in view of joint statement of counsel for parties therein, the same was allowed on 31-3-1985 thereby remanding the matter back to DSC for decision afresh, in accordance with law.
6. Mis-fortune befell upon petitioners when after remand attorneys of respondents Nos.1 and 2 entered into a compromise dated 24-7-1985 culminating into cancellation of allotment order passed in favour of respondent No,1 regarding land purchased by predecessors of petitioners thereby declaring it to be in excess.
7. Aforementioned order dated 24-7-1985 pssed by Deputy Settlement Commissioner in view of compromise was assailed by the petitioner in civil suit purportedly on the grounds of fraud, collusion and misrepresentation of facts, in consequences whereto respondents 2-7 appeared' through attorney and submitted written statement whereas respondent No,1 was placed exparte. It is worth mentioning that the trial court framed issues in view of divergent pleadings of the parties, lists of witnesses were filed whereafter statement of P.W.1. Patwari halqa was got recorded when in the meanwhile respondents 2-7 tiled an application dated 29-3-2006 under Order VII Rule 11, C.P.C.
For rejection of plaint which was duly. Replied to however, vide judgment and order dated 23-5- 2006, suit filed by the petitioners was returned by the trial Court.
8. Judgment/Order of the trial Court was got challenged in appeal before the District Judge Haripur which upon entrustment to Additional District Judge-V was dismissed vide judgment dated 9-7- 2009 hence instant petition for revision.
9. Learned counsel for the parties have been heard at length and case file perused with their valuable assistance.
10. Record of the case reveals' that application for rejection of plaint was moved on the ground that the case could not proceed due to certain legal points but those points were not specified therein nor any remote reference in respect thereto was given hence the same was liable to rejection outrightly but the trial Court dealt with the matter totally on wrong premises by holding .Order of DSC dated 24-7-1985 to be a decree and non suited petitioners on the ground that the same was amenable to challenge under section 12(2), C.P.C. Furthermore, by referring to sections 10 and 11 of Land Settlement Act, jurisdiction of civil courts was held to he barred. Likewise, the appellate court, too, dilated upon the matter in controversy in -illegal manner by resorting to section 25 of Displaced Persons (Land Settlement) Act.
11. From averments Of plaint, it would be borne out that the order of DSC' was challenged on the ground of fraud, misrepresentation and collusion in between attorneys of respondents .1-2 and the Deputy Settlement Commissioner which aspect of the case has not been attended to by both the courts below in judicious manner.
12. It is well settled law that civil court being court of plenary jurisdiction has got the authority to determine as to whether an action or orders of the forums constituted under Evacuee Laws were with or without jurisdiction particularly after- repeal thereof when settlement authorities were. No longer entities much less legal entities, therefore, civil court can validly assume jurisdiction to adjudicate upon such matters.
13. No doubt, petitioners were transferees from original allottee but. Since they stepped into his shoes therefore, they could not have been deprived of the same without an opportunity of being heard.
14. Admittedly, suit was instituted by petitioners against respondents thereby challenging validity of order on the grounds of fraud, misrepresentation and collusion wherein factual controversy was involved, therefore, in view of repeal of evacuee laws and otherwise, too, civil court alone could take cognizance of the matter so as to judge veracity of the order.
15. If the vires of orders and actions of settlement authorities are in question then the bar of jurisdiction contained in section 25 of Land Settlement Act would not operate in that there has to be a forum to resolve such controversy. Else, in the instant case after ,framing of issues some evidence was also recorded, therefore, the lower courts ought to have refrained from passing impugned judgments.
' In view of what has been mentioned hereinabove, judgments and orders of both the courts below respecting return of plaint to petitioners are totally without jurisdiction and lawful authority hence of no legal effect.
' Consequently, instant petition for revision is admitted and allowed and judgments and order dated 9-7-2009 of Additional District Judge-V Haripur and that of Civil Judge dated 23-5-2006 are set aside thereby remanding the case back to the trial Court for decision afresh on merits, from the stage plaint was returned to petitioners, after recording complete evidence, in accordance with law.