' QAISER RASHID KHAN, J.---Aggrieved of the judgment and decree dated 12-9-2006 passed by the learned Additional District Judge-IV D.I.Khan, the petitioner, namely, Assistant Administrator, Evacuee Trust Property D.I.Khan, has preferred the instant revision petition.
2. The brief facts leading to the instant revision petition are that respondent No,1 filed a suit for perpetual mandatory and prohibitory injunction against the petitioner and respondent No,2 in respect of restraining the defendant from blocking the passage of his shop No,C-4739 situated at Commissionary Bazar, D.I. Khan and not to raise any construction thereon.
3. The respondent No,1/plaintiff averred in the plant that he is the owner of the aforesaid shop on the basis of Wasiqa No,841, Bahi No,1, Volume No,534 dated 5-1-1982 with 19 feet open front towards the east with a passage and stairs to the upper storey of the shop and that the defendants on the pretext of claiming the passage in question to be that of a Mander (temple), are bent upon to construct a shop thereon as the passage in question does not lead towards the temple and even if the passage is proved to be that of the Mander (temple), still the defendants are liable to keep it as 'passage and not to construct the shop thereupon.
4. On being summoned, the defendants contested the suit and respondent/defendant No,2 filed an application under Order VII Rule 10, C.P.C. For the return of plaint being barred under section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.
5. After calling for the written reply of the plaintiff, the learned trial court vide order dated 21-1-2006 returned the plaint to the plaintiff for its presentation before the proper forum, against which an appeal was preferred before the appellate court which was accepted and the case was remanded to the trial court for decision on merits after recording pro and contra evidence of the parties and after framing an issue as to whether the disputed property is an evacuee trust or not vide judgment and decree impugned herein.
6. The learned counsel for the petitioner argued that the property bearing No,C-2207 is evacuee trust property and has been in possession of Chaudhry Imam Din (since dead and represented through his legal heirs) since long as tenant and have been regularly paying its rent and towards its eastern side is the main gate of Mander (temple) which was in dilapidated condition, therefore, proper permission was sought from the petitioner department for its repair which was duly granted and that is why the suit was brought by respondent No,
1. He argued that in view of the bar of section 14 ibid, the civil courts have no jurisdiction to entertain the suits where the evacuee trust properties are involved and it has also been the consistent view of the superior courts in many cases and thus the impugned judgment is liable to be set aside and that of the trial court restored.
7. The learned counsel for respondent No,2 fully supported the submissions made by the learned counsel for the petitioner.
8. On his turn, learned counsel for respondent No,1 vehemently disagreed with the submissions of the learned counsel for the petitioner and that of respondent No,2. He argued that in the garb of making repairs in the gate, respondent No,2 is interested in constructing shop on the passage which leads to his shop and that the said passage is not the ownership of Evacuee Trust Property Board, therefore, the civil court has got the jurisdiction to resolve the controversy after properly framing issues and recording evidence.
9. I have anxiously considered the arguments of the learned counsel for the parties and perused the record. .
10. Respondent No,1 has claimed his ownership of Shop No,C-4739 on the basis of Wasiqa No, 841, Bahi No,1, Volume No, 534 dated 5-10-1982 with its specific boundaries. However, in the suit brought before the trial court, he came up with different boundaries and thus sought a perpetual injunction both in prohibitory and mandatory forms in respect of evacuee trust property to bring it within the jurisdiction of civil court.
11. Admittedly, the property bearing No,C-2207 is evacuee trust property and with the permission of the petitioner, the respondent No,2 wanted to carry out repair of the main gate of the passage to the said property and in such matters, the civil courts lack jurisdiction in view of the bar contained in section 14 of the Act ibid which reads as under:--
14. 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".
11(sic) It has been held in 1992 SCM R 1313 that:-- "where property has been declared to be evacuee trust property, proceedings before Civil Courts were coram non judice".
12. Similarly, section 8 of the aforesaid Act provides that questions relating to declaration of property as evacuee trust property are to be decided by the Chairman, Evacuee Trust Property Board whose decision shall be final and shall not be called in question in any court.
13. Thus the lower court has erred by overstretching the jurisdiction of civil court in the impugned judgment in utter disregard to the statutory provisions of the Act ibid mentioned above.
14. For the reasons stated above, this revision petition is accepted, the impugned judgment and decree dated 12-9-2006 passed by the learned Additional District Judge-IV D.I. Khan is set aside and that of the learned Civil Judge-I D.I. Khan dated 21-1-2006 is resorted.