' NASIR-UL-MULK, J.-Muhammad Hanaf (deceased) represented by his legal heirs have filed these petitions for leave to appeal, impugning the judgment of the Lahore High Court in Intra Court Appeals Nos. 606 and 607 of 2006, allowing the appeals on 20-5-2009, filed by the respondents, Member Judicial, notified officer, Settlement Commissioner, Punjab and others, thereby setting aside the judgment of the Judge-in-Chamber of the High Court dated 25-5-2006, whereby Writ Petition (No, 2305 of 2005) of the petitioners was allowed and the District Officer (Revenue)
Faisalabad and others were directed to implement the order of the Custodian dated 11-9-1959.
2. Nabi Bakhsh, father of the petitioner, had claimed to have purchased land measuring 123 Kanals and 4 Marlas, situated in Faisalabad on 18-7-1947 from one Saudagar Singh, who later migrated to India. It is claimed that on the application of Nabi Bakhsh under section 22 of the Administration of Evacuee Property Act, 1957, the Deputy Custodian vide order dated 18-11-1957, declared the said land not to be evacuee property thereby confirming the sale of 18-7-1947. That the said order was confirmed by the Custodian on 11-9-1959.
3. The Provincial Government was entered as owner in the Revenue Record. It is not clear from the record as to what efforts had been made by the petitioner or his predecessor-in-interest regarding such entries but it does appeal that the petitioners had filed a suit against the Provincial Government and others for correcting the entries in the Revenue Record and an ex parte decree was passed in their favour. On the application of the respondents under section 12(2), C.P.C., the ex parte decree was set aside on 30-4-2005 and it appears that those proceedings are still pending adjudication. In Writ Petition, No, 2305 of 2005, the petitioners had prayed for the implementation of the judgment and decree of the Civil Court and thus to make the, necessary correction in the Revenue Record in terms thereof. The Single Judge of the High Court, however, directed the implementation of the order of the Custodian dated 11-9-1959. By the impugned judgment, the Division Bench of the High Court, taking note of the serious factual controversy involved regarding the genuineness or otherwise of the sale deed dated 18-7-1947, refrained from deciding the case on merits and considered it appropriate that the contentious issue be decided by the Civil Court where controversy was pending adjudication.
4. Mr. Maqbool Elahi Malik, Senior Advocate Supreme Court, appearing for the petitioners, assailed the judgment of the High Court on the only ground that the Intra Court appeal before the Division Bench was not maintainable under the Law Reforms Ordinance, 1972, as section 43 of the Administration of Evacuee Property Act, 1957 provided remedy to an aggrieved party to file review to the Custodian against his orders. The same objection was taken up before the Division Bench of the High Court and it was rejected on the ground that order of the Custodian .Dated 11-9-1959 relied upon by the present petitioners was not appealable.
5. The ex parte decree passed in favour of the petitioners of which they sought implementation in Writ Petition No, 2305 of 2005, has since been set aside. The impugned judgment of the High Court shows that at that time an appeal emanating from the said suit was pending before the District Judge and direction was given that the same be decided with in 6 months. When questioned as to the fate of the appeal or the other proceedings before the Civil Court, the learned counsel for the petitioners was unable to furnish any definite information. Even if the appeal or the civil suit has by now been disposed of, the remedy to an aggrieved party would be before the Court to which an appeal or revision would lie. The Division Bench of the High Court had rightly left the dispute to be decided in the suit. Not only that the said suit was filed by the petitioners but the dispute could not be resolved without recording of the evidence as the respondents have questioned the very genuineness of the sale deed of 18-7-1947. Furthermore after the ex parte decree in favour of the petitioners was set aside, the very basis on which the petitioners had filed Writ Petition No,2305 of 2005 no longer existed.
6. In view of the above, notwithstanding the issue as to whether or not the Intra Court Appeal before a Division Bench was maintainable, the judgment of the Judge-in-Chambers in Writ Petition No, 2305 of 2005 was not sustainable in law. Consequently, these petitions are dismissed and leave to appeal declined.