' MIAN SAQIB NISAR, J.---The suit for declaration etc., filed by the respondent-plaintiff against the appellant-defendant, after the contest and trial, was decreed by the learned Civil Judge, Swabi vide judgment and decree dated 3-7-2002 holding that the house in dispute has been validly transferred to the respondent by the Evacuee Department and it has not been established by the appellant to be attached to any charitable/religious trust etc. To form part of an evacuee trust property. However, on the crucial objection, raised by the appellant which had culminated into Issue No,2 it was ostensibly found by the trial Court having no jurisdiction in the matter, yet strangely the suit as mentioned earlier was decreed. The appeal of the appellant, which was filed through Assistant Administrator, Evacuee Trust Property, Peshawar, was dismissed by the Additional District Judge on 5-3-2003 while upholding the decision of the trial Court as a whole, and for an additional reason that the appeal was instituted by an officer, who was not competent to do so: these judgments and decrees have been sustained by the Peshawar High Court through its judgment dated 19-12-2003.
' Leave to appeal was granted in this case on 26-1-2006 in the following terms:-- "Contention of the learned counsel for the petitioner is that the suit filed by the respondent/plaintiff was barred by law as such civil Court has no jurisdiction to grant the declaration prayed for in view of the bar contained in section 14 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) and such plea was raised before the trial Court and as such issue was also framed and finding of the suit on Issue No,1 was to the effect that the Court had no jurisdiction to entertain the suit yet the suit was decreed and declaration was granted declaring the suit property to be non-evacuee."
2. The brief facts germane for the disposal of the present appeal, are: the house in question measuring about four marlas, situated in village Zaida (Swabi) was transferred to the respondent by the Assistant Settlement Commissioner (Lands), Mardan through PTO dated 6-10-1967 on the payment of Rs,1010. On the strength of the above, the respondent on 13-6-1996 brought the suit seeking declaration about his exclusive ownership of the house and asserting that the appellant has no right or concern thereto, with an additional claim of permanent injunctive relief that the appellant should not meddle with his ownership and possessory rights qua the suit property. The appellant in its written statement took up the specific objection regarding the jurisdiction of the civil Court to entertain and try the suit, which objection obviously was in terms of section 14 read with other enabling provisions of Evacuee Trust Properties (Management and Disposal) Act (XIII), 1975 (hereinafter referred to as the Act). It may be pertinent to mention here that in the first instance the learned Civil Judge seized of the case vide order dated 3-4-2000, rejected the plaint of the respondent under Order VII, Rule 11, C.P.C. Holding that it has no jurisdiction to hear the matter, which (jurisdiction) is barred by law. The respondent preferred an appeal which was allowed and by setting aside the order impugned therein, the case was remanded with the direction that such objection should form into an issue and should be decided along with other issues involved in the matter. Upon trial, the learned Civil Judge on the issue of jurisdiction has come to the conclusion "in the light of above discussion, it is held that this Court has no jurisdiction to entertain the instant suit. This issue is therefore decided in positive"(emphasis supplied). It may be relevant to mention here that from the reproduced part of the findings of the trial Court and of the leave granting order, an impression can be gathered that the Civil Judge seized of the matter decided the issue of jurisdiction against the respondent and yet decreed the suit. But upon reading of the specific wordings of Issue No,2 i.e. "whether this Court has not jurisdiction to restrain (sic) the present suit?" Our view is otherwise, because the discussion on this issue by the trial Court especially the portion "the objection with respect to Bar of jurisdiction under section 14 of TTB, B(sic)
Act, 1975 appears to have no force" leads us to form an opinion that the finding is, that the Court has the jurisdiction. Be that as it may, the revisional Court (the High Court) having final say in the matter by relying upon the judgment of this Court reported as Evacuee Trust Property Board through Assistant Administrator, Evacuee Trust Property Board at Mirpurkhas v. Abdul Aziz Khan and 6 others (2000 SCM R 1371) particularly by quoting a portion therefrom i.e. "Since in law the disputed property had not been treated as evacuee trust property, therefore, the bar of jurisdiction cannot be pressed into service. For the ouster of jurisdiction, the petitioner ought to have proved through cogent evidence that the disputed property was attached to a charitable trust and as such no suit was maintainable in respect thereof."
' Therefore, on the touchstone of the above and while examining the documentary evidence, produced by the appellant, the revisional Court came to the conclusion that from none of such documents it is established if either the suit property was declared to be an evacuee trust property by the Chairman or was ever so treated; and/or even the said documents do not relate to the suit property. It is, therefore, on account of this that the decisions of the two Courts were upheld by dismissing the revision petition of the appellant.
3. Learned counsel for the appellant states that in terms of section 8 of the Act that it is the exclusive jurisdiction of the Chairman, Evacuee Trust Property Board to adjudge, decide and declare as to whether any property is an evacuee trust property or not; besides the validation of certain transfers of the properties which are considered to be evacuee trust properties shall also be within the sole and exclusive empowerment of the Chairman and the jurisdiction of the civil Courts in relation to these powers/questions is expressly barred by the two noted provisions of law.
Further by making reference to section 14 of the Act, it is submitted that there is an express bar for the exercise of the jurisdiction by the civil Court in respect of any action which an officer appointed under the Act is empowered to determine or to take or to be taken in exercise of any power conferred upon him by or under the Act. In support of his submissions, he has also relied upon the cases reported as Evacuee Trust Property Board and others v. Ahmed and others (2004 SCM R 440), Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others (2007 SCM R 262), Auqaf Department through Chief Administrator Auqaf, Punjab, Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs, Government of Pakistan, Islamabad and 3 others (2009 SCM R 210) and Evacuee Trust Property Board v. Sheikh Abdul Sattar and another (2009 SCM R 1223).
Whereas, contrary to the above, learned counsel for the respondent, has relied upon 2000 SCM R 1371 (supra) the judgment on which reliance has been placed by the High Court.
4.Heard. From the above mentioned provisions of the Act and the case-law cited, it is clear that for the actions/orders etc. Mentioned in the section, an express bar has been placed upon the exercise of jurisdiction by the civil Courts. However, when the facts of the present case are examined in the light of the evidence brought on the record by the parties particularly the appellant, it has conspicuously emerged that no declaration under section 8 of the Act assigning the suit property a status of evacuee trust property has been made by the Chairman, Evacuee Trust Property Board.
Likewise, the validity of the transfer made in favour of the respondent by the evacuee department through the PTO referred to above has not been determined and adjudicated by. The Chairman as required under section 10 of the Act. Obviously, in such a situation the specific bar contemplated by the noted two sections shall not be attracted. As regards, the general bar of section 14 is concerned, on the basis of which leave was granted by this Court, it (the section) reads as under:-- - ' Bar of jurisdiction.--Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
' Analyzing section 14 ibid, it is unambiguous that the jurisdiction of the civil Courts have been barred with respect to any matter.:.. Which an officer appointed under the Act is empowered to determine: such jurisdiction is also ousted to grant and issue an injunction, process or order in respect of any action taken or to be taken by such officer in exercise of any power conferred by or under the Act. Undoubtedly, the Chairman of the Evacuee Trust Property Board is an officer within the contemplation of the section. Therefore, in order to settle the question about the ouster of jurisdiction it seems expedient to examine, what was the proposition involved in the suit and whether such a question was determinable by the Chairman or not: In this respect, it is foundational to evaluate the claim of the respondent in his suit/plaint; on the perusal thereof it is vivid that the respondent is seeking a declaration that the suit property is his exclusive ownership and is not an evacuee trust property, consequently the appellant should be precluded from interfering into his ownership rights and apprentices thereto; the appellant in defence joined issue with the respondent on these factual aspects and claimed the suit property being an evacuee trust property and it is on this account that the jurisdiction of the Court was challenged. Therefore, the key issue before the Court would be whether the property is an evacuee trust property or otherwise? Now when the provisions of section 8 of the Act are adverted to, it specially mention "if a question arises whether an evacuee property is attached to a charitable, religious or educational trust, or not it shall be decided by the Chairman" meaning thereby that notwithstanding whether a declaration in terms of section 8 has been made or not by the Chairman, yet even if a question has arisen at any point of time about the status of the property it shall be the Chairman alone who under the Act shall be competent and empowered to determine and decide the question and the Court in view of the bar contained in Section 14 shall have no jurisdiction in the matter.
5. Whether the question of the above nature was/is involved in the matter is clear from the pleadings of the parties and from the findings of all the Courts below on Issue No,5 i.e. Whether the plaintiff is entitled to decree as prayed for? As the Courts while considering and appreciating the evidence of the parties on the record have come to the conclusion that the property is not established by the appellant to be attached to any charitable, religious trust etc. Thus is not an evacuee trust property. This determination, in our considered view, was within the exclusive domain of the Chairman and the adjudication thereof by the Courts is an encroachment and circumvention on his empowerment. Therefore, the bar of section 14 ibid was duly attracted.
5A. In the light of the above, while allowing this appeal the judgments and decrees of all the Courts below are hereby set aside and the suit of the respondent is dismissed due to the lack of jurisdiction of the civil Court.