' AMIN-UD-DIN KHAN, J.---During the pendency of this civil revision, the petitioners have filed C.M.
No.1440 of 2001. Both the parties prayed that this C.M. Along with the main civil revision be decided.
Therefore, by this single judgment I intend to dispose of the civil revision as well as the aforesaid C.M.
2. This civil revision is directed by the petitioners against the judgment and decree dated 12-12- 2000 passed by the Addl: District Judge, Bahawalpur, whereby the appeal filed by the petitioners was dismissed, and against the judgment and decree dated 30-4-1995 passed by the Civil Judge 1st Class, Bahawalpur, whereby the suit filed by the respondents-plaintiffs for declaration was decreed.
3. The brief facts as leading to this civil revision are that the property in dispute admittedly is evacuee trust property measuring 69-kanals situated in Mouza Bindra Tehsil Bahawalpur, fully described in the head note of the plaint. The respondent No.2-plaintiff, Aziz-udDin, filed a suit for declaration on 7-5-1986 praying therein that he be declared the owner of suit property and he challenged the order dated 8-6-1983 passed by the Chairman Evacuee Trust Property Board, Government of Pakistan, Lahore and the order dated 1-10-1983 passed by the Secretary to the Govt.
Of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad whereby the revision petition filed by the plaintiff was dismissed. The defendants contested the suit by filing written statement. Out of the divergent pleadings of the parties, the trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence. Vide judgment and decree dated 30-4-1995 the suit was decreed by the trial Court. An appeal was Preferred by the defendants, which was dismissed by the first appellate Court vide judgment and decree dated 12-12-2000. Hence, this civil revision.
4. Learned counsel for the petitioner has moved C.M. No.1440-2001 and argued that in paragraph No.2 of written statement, petitioners-defendants clearly mentioned that the civil court has no jurisdiction to entertain and try this suit under section 14 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975); that the trial Court while framing the issues ignored this objection and has not framed the issue on this objection; that framing of issue was necessary and according to the learned counsel for the petitioners, they have been prejudiced by non framing of this necessary issue.
5. On the other hand, the respondents have also filed reply to this application. Learned counsel for the respondents has argued that this application has been moved just to delay the proceedings.
6. I have considered the arguments advanced by the learned counsel for the parties as well as record available on the file on this point.
7. The objection raised in written statement is of law, therefore, no doubt it was incumbent upon the trial Court to frame the issue on this objection. Even otherwise the trial Court is bound first to see that it has jurisdiction to entertain and try the suit or not. The objection being an objection of law, therefore, no evidence is required to prove this objection. Further, when the pleadings of parties are in their mind to prove their case, the framing of issue on point of law makes no defect in the proceedings or by non-framing of issue in this case. I have noticed that no party's case has been prejudiced, therefore, the objection was available with the trial Court and it will remain part of the record even up to the august Supreme Court of Pakistan. When the suit was filed in the year 1986 and even this civil revision is pending since 2001 in this Court, I do not think it necessary even to formal framing of issue at this stage, as I have already observed that case of the party remains in its mind, what it has to prove. The objection being on the point of law is ever available and the court can Consider it even if the issue has been framed on this point or not. Therefore, this objection is available with the petitioners.
8. First of all, I take this objection of jurisdiction of trial Court. According to the objection of petitioners-defendants under section 8 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) declaring of property as Evacuee Trust Property is within the jurisdiction of the Government under this Act and under section 10 of the Act, the certain transfers can be validated by the Chairman, Evacuee Trust Property Board, whose decision shall be final. Further.
Under section 14 of said Act, the jurisdiction of Civil Court has been barred.
9. The paramount rule, is to be kept in mind while scrutinizing the ouster clause of any Act wherein the jurisdiction of civil court hap been barred is that it the order passed under the Act is within the competence and jurisdiction of a person who has passed the order, then certainly the debarring clause is available and that order passed by such person or authority cannot be challenged in the civil court, and if the order passed by a person or authority, is without jurisdiction or beyond the authority conferred through the said Act upon that person or authority then the civil court certainly has jurisdiction to scrutinize the decision rendered by such person or authority.
10. Now I proceed further to the facts of the case. Learned counsel for the petitioners states that in RL-II according to which the plaintiff-respondent No.2 claimed to be the allottee of impugned land, there is a note dated 9-11-1961; that plaintiff's son when appeared as P.W.3 admitted that in 1961 this land was cancelled from the name of his father; that re-allotment of the said evacuee land in the year, 1975 was not within the competence of the Settlement Authorities; that the orders impugned in the suit passed by the Chairman, Evacuee Trust Property Board dated 8-6-1983 (Exh.D-10) and of Secretary to the Govt. Of Pakistan, Ministry of Religious Affairs and Minorities Affairs, dismissing the revision on 10-10-1983 are absolutely in accordance with law and cannot be declared against the law by the civil court and that the civil court has no jurisdiction to entertain and try the suit against these orders because these orders have been passed within the jurisdiction conferred upon those authorities by law.
11. On the other hand, learned counsel for the respondents-plaintiffs stated that originally the allotment was made in the year 1960 in favour of plaintiff and the property was never cancelled by any competent order in the year 1961; that the order passed in the year 1975 was not a fresh order of allotment, it was in the continuation of the original allotment. With regard to the objection of learned counsel for the petitioners-defendants that plaintiff-respondent got alternate allotment in Mouza Khano-wali which is evident from Exh.D-5, the learned counsel states that afterward this allotment was got cancelled by the plaintiff in the year 1968 according to Exh.D-22. With regard to the objection of learned counsel for the petitioners-defendants that actually plaintiff was not a party in the proceedings where the Settlement Commissioner Bahawalpur Division Bahawalpur made the order dated 26-11-1975, the learned counsel states that Aziz-ud-Din was not the petitioner before the Settlement Commissioner and this order cannot be used by the respondent- plaintiff in his favour. Learned counsel for the respondent-plaintiff admitted that though in grounds of revision, the name of plaintiff-respondent is not mentioned in the array of the petitioner but stated that at the end of the revision, there are signatures of Aziz-ud-Din, therefore he was one of the petitioners before the Settlement Commissioner and this order was also in his favour. Lastly, learned counsel for the respondents supported the judgments and decrees passed by the courts below.
12. I have heard the learned counsel-for the parties and also perused the record with their able assistance.
13. So far as the framing of issue is concerned with regard to the objection of jurisdiction of civil court, I hold that framing or non-framing of issue on the objection of law where the case of any party is not prejudiced, makes no difference. In this case I find that no prejudice has been caused to any party because the pleadings were in their knowledge and the objection was available in the written statement.
14. It is not denied that there is a note of cancellation dated 9-11-1961 of the allotment in RL-II, copy of which is available on record as Exh.D-6. Further, Karram Sher the son of plaintiff-respondent when appeared as P.W.3, not only admitted but also asserted in his examination-in-chief that land in question was cancelled in the year 196.1 from the name of his father and as per claim of the plaintiff-respondent this cancellation was set aside vide order dated 26-11-1975 passed by the Settlement Commissioner/Addl: Commissioner, Bahawalpur Division Bahawalpur, the copy of which is available on record as Exh.P-30. I have noticed that the respondent-plaintiff was not arrayed as party in the revision filed, as names of the parties are on title of order, therefore, he cannot take the benefit of this order. The indirect evidence with regard to being party before the Settlement Commissioner is not considerable at this stage. When this is the legal position that even the order Exh.P-30 in which the plaintiff-respondent is not party and that order has not been passed in his favour. In this order the Settlement Commissioner had mentioned that those persons had applied to the Chairman Evacuee Trust Property Board for giving the land in their possession for Cultivation on contract, is further a reason for refusing their claim of allotment.
15. Now I come to the order passed by the Chairman, Evacuee Trust Property Board dated 8-6-1983 which is impugned in the suit. The learned counsel for the respondents-plaintiffs failed to show any illegality except that the case of plaintiff is that the allotment made in the year 1960 was confirmed in the year 1975. But the fact is that allotment was cancelled in the year 1961. Furthermore, in the year 1975 the confirmation of allotment was not permissible in accordance with sub Para (a) of subsection 1 of section 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), the land utilized bona fide under any Act prior to June, 1964 or allotment against the satisfaction of verified claims was under this law was kept intact with certain conditions, but in case in hand, in the year 1975 the land could not have been allotted or confirmed in the name of the plaintiff. Further, the revision petition filed by the plaintiff the order of which is available on record as Exh. D-11, was dismissed on the basis of 5 grounds mentioned in the order, which were; it was badly time-barred, the certified copy of the impugned order was not attached with the petition, other documents referred were also not appended with the petition, no court-fee was affixed, on the revision and it was not on judicial paper.
16. I have noticed that the findings recorded by both the courts below on crucial issue No.3 are the result of misreading and non-reading of the material evidence available on the record. Even both the courts have ignored the admission of P.W.3 and have recorded their findings on the basis of wrong premises of law. I have also observed that the trial court has ignored the fact that this property situates in a rural area and the relaxation of disposal of land up to 1968 was available with regard to the urban property and even the trial court has not kept in mind the nature of property while deciding the issue.
17. In the light of what has been discussed above, I find that the orders impugned in the suit passed by the Chairman, Evacuee Trust Property Board dated 8-6-1983 and of Secretary to the Govt. Of Pakistan, Ministry of Religious Affairs and Minorities Affairs, Islamabad dated 10-10-1983, were within the jurisdiction vested in them by law i.e. The Evacuee Trust Properties (Management and Disposal)
Act (XIII of 1975). When the orders impugned in the suit were passed within the jurisdiction, therefore, bar of jurisdiction under section 14 of the said Act fully attracts and civil court was not having jurisdiction to entertain and try the suit. Resultantly, I accept this civil revision, set aside the impugned judgments and decrees passed by the courts below and dismiss the suit filed by the respondent No.2 plaintiff, with costs throughout.