This writ petition under Article 199 of the Islamic Republic of Pakistan, 1973, is directed against the order of the learned Civil Judge. Rawalpindi dated 23.01.2007, whereby the application under Order VII, Rule 11, CPC was rejected and the order dated 3.06.2008, passed by the learned Additional District Judge, Rawalpindi, whereby the revision petition was also dismissed.
2. The relevant facts for the disposal of this writ petition are that the Respondent No, 1 namely Sheikh Muhammad Ijaz filed a suit against the present petitioner and the Respondent No, 2, for permanent injunction restraining the Defendant No, 2 from interfering with the possessory and proprietary title of the plaintiff over the disputed shop and from recovering rent thereof from the plaintiff in any manner whatsoever. The claim of the plaintiff was that previously the shop in dispute having two doors, was owned by one Chait Sing a non Muslim in Rawalpindi, which was assigned a Municipal No, U/1352 and thereafter the owner constructed a wall dividing the shop into two parts; that after 1947 the shop became an evacuee property and came into possession of two persons, one opening towards Bazar Dalgran by one Muhammad Saleem Ansari and a room facing Hamilton Road came into the possession of Rustam Giyani. The shop in possession of Rustam Giyani was allotted to the mother of Saleem Ansari in 1959 but the room in possession of Rustam Giyani, which was assigned No, U/1352-A was not transferred to anyone, so the occupant namely Rustam Giyani left the shop, which came into the possession of one Muhammad Younas, who admitted the plaintiff, who was minor as a partner in the shop but later on the said Muhammad Younis dissolved the partnership and so it came into the exclusive possession of the plaintiff. It was further alleged that the shop in dispute was available as evacuee property owned by non-Muslim and the plaintiff was entitled for its transfer but he was not able to apply directly for its transfer due to minority and so his father applied for its transfer on his behalf to the Settlement Authorities and the then Deputy Settlement Commissioner, ordered to summon the plaintiff through his father; that Muhammad Younas was ignorant of the fact that the shop in dispute was an evacuee property and he was induced to take the shop on rent from the Evacuee Trust Property Board and the said Muhammad Younas got the tenancy and had been paying its rent to the Evacuee Trust Property Board and thereafter the tenancy rights were transferred in the name of the plaintiff by the Defendant No, 2, in the year 1997 and so the plaintiff also kept on paying the rent to Defendant No, 2, in good faith without knowing that the shop in dispute did not belong to the Evacuee Trust Property Board. That in the year 2003 the plaintiff came to know that the disputed shop did not belong to Evacuee Trust Property Board, so his father applied its transfer and the District Officer Revenue with the power of Notified Officer, Rawalpindi transferred the shop in the name of the plaintiff vide order dated 6.2.2003 and so the plaintiff became the exclusive owner of the said shop by virtue of said Transfer Deed. -It was in this back ground that it was prayed that the decree for permanent injunction be passed in favour of the plaintiff as mentioned above. The defendants were summoned and before filing the written statement the defendants filed a petition under Order VII, Ruled 11 CPC read with Section 151, CPC for the rejection of plaint. The claim of the petitioner in the said petition was that the jurisdiction of the Civil Courts was barred under Section 14 of the Evacuee Trust Property (Management and Disposal) Act, 1975. The said petition was resisted by the plaintiff. The learned trial Court after hearing the parties vide order dated 23.1.2007, dismissed the petition on the ground that the shop in dispute stands transferred by the Settlement Department in the name of the plaintiff. Feeling aggrieved the Defendant No, 2, namely Evacuee Trust Property Board filed a revision petition, which was also dismissed by the learned Additional District Judge, Rawalpindi vide order dated 3.6.2008, holding therein that there was no proof that the property was owned by the Evacuee Trust Property and prima-facie the property had been transferred by the Settlement Authorities in the name of the plaintiff and so far the evidence has not been recorded. Feeling aggrieved the present petition has been filed.
3. Learned counsel for the petitioner agitated the same points as agitated by him before the learned Courts below contending therein that under Section 14 of the Evacuee Trust Properties (Management & Disposal) Act, 1975, the jurisdiction of the Civil Court was barred. He placed reliance upon Talib Hussain and 12 others vs. Islamic Republic of Pakistan & 6 others (2004 YLR 2888) (Lahore) Abdul Khaliq vs. Chairman, Evacuee Trust Property and others (PLD 2005 Peshawar 16), Raja Ameer Haider vs. Government of Pakistan and 5 others (PLD 2006 Lahore 74), Evacuee Trust Property Board vs. Ali Bahadur (PLD. 2011 SC 126) and Evacuee Trust Property Beard and others vs. Mst. Sakina Bibi and others (2007 SCMR 262).
4. On the other learned counsel for the respondents supported the impugned order of both the learned Courts below and contended that since the shop in dispute had been transferred in the name of the plaintiff, so the Civil Court had the jurisdiction. He placed reliance upon Hamid Hussain vs. Government of West Pakistan and others (1974 SCMR 356), Assistant Administration, Evacuee Trust Property vs. Muhammad Ayub and others (2003 SCMR 841) and Chief Administrator, Auqaf, Sindh, Thandi Sarah, Hyderabad and another (PLD 2001 SC 75).
5. Arguments heard. Record perused.
6. It is admitted fact by the plaintiff as mentioned in the plaint that after 1947 the disputed shop had never been allotted by the Settlement Authorities to anyone from whom the plaintiff obtained the possession and also obtained tenancy rights from the Evacuee Trust Property Board and kept on paying the rent. The said tenancy rights were got transferred by the said Muhammad Younas in the name of the plaintiff by the Evacuee Trust Property Board and the plaintiff himself kept on paying the rent but in the year 2003, got it transferred in his own name by the District Officer (Revenue) as being Notified Officer. The controversy, which is to be resolved is that recording to the plaintiff the shop in dispute does not belong to Evacuee Trust Property Board.
7. On the other hand the contention of the Board is that if there is dispute between the parties with regard to the ownership of the property, it is only the Chairman of the Board, who is competent to pass the appropriate order in this behalf. It is appropriate to reproduce Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which is as under:-- "Sec.
8. Declaration of property as evacuee trust property.-
(1) If a question arise whether an evacuee property is attached a charitable, religious or educational trust, or institution or not it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under sub-section (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be evacuee trust property.
(3) If a property is declared to be evacuee trust property under sub-section (2), the Chairmen may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof."
(4) Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard.
8. The perusal of this section clearly shows that it is Only the Chairman, who is competent to decide that whether the evacuee property is attached to a charitable purposes etc., and his decision shall be final and shall not be called in question in any Court. At this state it is also appropriate to reproduce Section 14 of the said Act, which reads as under:-- Sec.14. Bar of jurisdiction.-- "Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Faderal Government or an officer appointed under this Act is empowered under this Act to determine, and nc 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."
9. In a case law reported in 2007 SCMR 262 mentioned supra the apex Court while taking into the consideration Sections 8 and 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 clearly observe that Civil Court could not assume jurisdiction and proceed in such matter. It was further observed in the said case that Chairman had ample power to decide whether property had a character of evacuee or not while exercising power under Section 8 of the said Act. In a case reported in PLD 2011 SC 126, the facts of the case were that plaintiff sought declaration from Civil Court with regard to suit property as Evacuee Trust Property, the suit was decreed in favour of the plaintiff till High Court and the matter went up to the Hon'ble Supreme Court and then the Apex Court observed as under:-- "when question had arisen at any point of time about status of property, it was the Chairman of Evacuee Trust Property Board alone who, under Evacuee Trust Properties Management and Disposal) Act, 1975, was competent and empowered to determine and decide the question. Civil Court in view of bar contained in Section 14 of the said Act had no jurisdiction in the matter. Courts while considering and appreciating evidence of parties on record had come to the conclusion that property was not established by the defendants to be attached to any charitable, religious trust etc., and was not evacuee trust property, such determination was within the exclusive domain of the Chairman and adjudication thereof by Courts was' encroachment and circumvention on his empowerment, therefore, bar of Section 14 of the Act was duly attracter. Judgments and decrees passed by the all the Courts below were set aside and the suit filed by the plaintiff was dismissed due to lack of jurisdiction."
10. In a case reported in PLD 2006 Lahore 74, the facts were that the plaintiff sought declaration to the effect that the suit property was not an Evacuee Trust Property, in the said suit, the application of the Authorities for rejecting the plaint was dismissed by the trial Court but the Appellate Court in exercise of revisional jurisdiction rejected the plaint and then the matter went to the High Court. It was in this back ground that the High Court observed as under:-- "In case of dispute with regard to a property being an evacuee trust property or not, it was the Chairman of the Evacuee Trust Properties Board, who had the exclusive jurisdiction under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, to decide the issue and the jurisdiction of the Civil Courts under Section 14 of the said Act were barred. It was further observed that the plaintiff instead of approaching Civil Court should have approached the Chairman of the Evacuee Trust Board by raising the question about status of property.'
11.Almost same principle was laid down in a case reported in PLD 2005 Peshawar 16 and Syed Abrar Hussain Shah vs. The Additional Settlement Commissioner and 2 others (2004 YLR 2888). With regard to the same controversy in a case reported in 1979 CLC 761 the Civil Court framed Issue No, 3 that whether the property in dispute a trust property and as such the order of transfer in favour of plaintiff was void and illegal and without jurisdiction, the High Court observed that even the Civil Court was not competent to decide this issue and it was the Chairman of the Evacuee Trust Property Board, who was the competent authority to decide the same.
12.Now I come to the case law cited by the learned counsel for the respondents. The facts of the case reported in 2003 SCMR 841 were distinguishable on the grounds that in the said case the allotment was made in favour of the plaintiff pursuant to auction duly approved by the Additional Settlement Commissioner on 9.8.1960. The transfer price was deposited on 17.3.1962 and the Chairman of the Board by his order dated 6.6.1974 declared the property as Evacuee Trust Property.
In this case Section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 was taken into consideration, by which the plaintiff had acquired immunity from challenge after June, 1968. The facts of the case reported in 1974 SCMR 356 are distinguishable and same is the position in the other case law cited by the learned counsel for the respondents.
13.Thus in view of the above mentioned case law cited by the learned counsel for the petitioner the principle that emerges is that whenever there is a dispute that whether the property in dispute is under Evacuee Trust Property Board or not, it is only the Chairman of the Evacuee Trust Board to decide the said question and the plaintiff instead of approaching the Civil Court should agitate the same point before the Chairman and the Jurisdiction of the Civil Court is barred under Section 14 of the Evacuee Trust Property (Management and Disposal) Act, 1975. Resultantly it appears that both the Courts below had committed illegality by not taking into consideration the above said legal position and so the impugned orders of both the learned Courts below are set aside. This petition is allowed with the result that the application filed by the petitioner for the rejection of the plaint under Order VII, Rule 11, CPC stands accepted and the suit is barred by law filed by the plaintiff and stands dismissed.