MUHAMMAD AMEER BHATTI, J. --- Through this civil revision the present petitioners have challenged the judgment and decree of both the Courts below dated 16.4.2002 and 25.6.2002 passed by the learned Civil Judge and learned Additional Judge respectively.
'2. The brief facts of the case are that one Inayat-ul-Haq respondent No. 2 filed a suit on 13.5.1996 for declaration with the prayer for permanent injunction of a house on the ground of his possession since partition and by virtue of Scheme No. 7 he is entitled for its allotment and the allotment of the same house in favour of the petitioner is illegal . The remaining respondents/Government officers/officials filed their joint written statement, however, ' respondent No. 1 filed his separate written statement and the petitioner also filed his written statement where he controverted all the threats and also raised objection about the suit being time-barred. Another suit for declaration was also filed by respondent No. 1 Zulfiqar Ahmed claiming therein that he is also entitled to the allotment of this house under Scheme No. 7 being a refugee. This suit was also contested by the respondents and the petitioner. Both the suits were consolidated and consolidated issues were framed according to the pleadings of the parties.
3. All the parties produced their evidence and after completing the process. Both the suits were dismissed by the learned Trial Court vide his judgment dated 16.4.2002, however, while dismissing the suit, the allotment of the present petitioner which was under challenge before the learned Trial Court, also set aside.
4. Two appeals were filed, one by Zulfiqar Ahmed and the other by Inayat-ul-Haq, however, the present petitioner filed the cross-objection. The learned District Judge vide his judgment dated 25.6.2002 dismissed the appeals as well as the cross-objection filed by the petitioner. Aggrieved from the judgments of both the Courts below, the petitioner through this C.R. Has raised the contention that both the Courts below have misread and misdirected the- evidence available on the record. The Courts below have wrongly held that the allotment order in favour of the petitioner is non-existence in the record of the department.
Although, the record was available with the respondent/Government officials who were bound to produce the same but they have failed to produce and chronology has been withdrawn by the Courts below that the record is not available. Since they have concealed the record of the allotment of the petitioner hence it cannot be relied upon by the Courts below. It is further contended that Appellate Court where the order of allotment of the petitioner were challenged as verified after scrutiny of whole record of the case and held that the allotment order is in accordance with law, even then both the Courts below have held the non-existence of the original allotment order in favour of the petitioner while ignoring the order of the Appellate Settlement Authority. Even otherwise, the Courts below have wrongly assumed' the jurisdiction as it has been apart under the Settlement Law to exercise the jurisdiction about the validity of the allotment orders by the Settlement Department. Since the law has been repealed and it was not within the jurisdiction of Civil Court to exercise the power about the validity of the allotment order which had after verifying by the Appellate Authority of the Settlement Department declare it a valid allotment hence the judgments impugned are not sustainable in the eye of law. As he relied on the judgment of the Hon'ble Supreme Court on the point of limitation as well as the jurisdiction of the Civil Court in the cases of settlement 2010 SCM R 1630 and contends that the Civil Court has no jurisdiction in such like case and also the suit was time-barred and this question has not been decided by both the Courts below as per law laid down by the Hon'ble Supreme -Court and this Court. For that mater, he has referred judgment of the Hon'ble Supreme Court reported as 2005 SCM R 1660, 2004 SCM R 817 and 2003 CLC 93.6.
5. On the other hand, learned counsel for Zulfiqar Ahmed, respondent No. 1 has referred Scheme No. 7 and contends that according to this scheme, the petitioner was not eligible for filing of the application for allotment of the land under this scheme, neither he is a refugee nor he was in possession of the house in dispute so he otherwise is not entitled for the allotment of this house and Courts below have rightly held him not entitled of this allotment which is fake and having no record with the respondent officials. The learned AAG also supported the judgment of both the Courts below and contends that since there is no record available of the allotment of the present petitioner, so he is not entitled to any relief from this Court, as the concurrent findings have been delivered against the present petitioner about the allotment letter as on the basis of non-availability of record of the allotment, hence both the Courts below have rightly held non-existence of allotment letter of the present petitioner.
6. I have considered the arguments of the learned counsel for the parties and gone through the relevant record with the assistance of the learned counsel for the parties and the precedent referred by the learned counsel for the petitioner.
7. The main stress of the Courts below about the allotment order dated 18.12.1972 declare it non- existence on the ground that there is no record available with the respondents. Thee petitioner has placed on record Ex.P.1 which is the certificate issued by the Settlement Department about the allotment of the house in favour of the petitioner under Scheme No. 7, the matter of allotment was challenged before the Settlement Officer/Collector, Sialkot who after verification and summoning the report from the Settlement Department vide his order dated 2.8.1977 declared that the allotment order dated 18.12.1972 passed in favour of Falak Sher is a valid order and should be enforced in the revenue record. This impotent order of the Settlement Officer/Collector, Sialkot remains? Unattended rather no weightage has been given by the Courts below for deciding the matter. Since the respondents are the custodian of the record and after the repeal of the settlement laws, it is out of the approach of the petitioner to obtain any certified copy from the department.
8. On the other hand, the Courts below have failed to summon the original file so that verify the correct position, however, out of the available record, the most important document which is available on the record is the Exh.D.3, the order of the Settlement Officer/Collector, Sialkot. This order was passed after providing the opportunity of hearing to Zulfiqar plaintiff to this case. The detailed report was submitted according to the direction of the Settlement Officer/Collector, Sialkot and after scrutiny of that, the Settlement Officer/Collector, Sialkot reached on this conclusion that the order dated 18.12.1972 passed in favour of Falak Sher is a valid order so in the light of this order, there is no need to further exercise the jurisdiction which has been otherwise as per settled law cannot be exercised by the Civil Court about the settlement laws as it has been prohibited under Section 25 of the Settlement. Act and many times this Court as well as the Hon'ble Supreme Court has restrained to exercise the jurisdiction by the Civil Court in 2003 CLC 936.
"As regards the question of jurisdiction of the Civil Court, it may be held that the petitioners' predecessor was well aware of the disputed allotment, in the year 1962, but he did not avail his appropriate remedy, under the evacuee laws, thus under the general principles even if the Civil Court has the jurisdiction to set aside the orders, which are passed without jurisdiction or lawful authority and are mala fide, in nature, yet in the circumstances of the case, where the jurisdiction of the Civil Court was expressly barred under the special law, after the repeal of the such law, the Civil Court would have no jurisdiction, even if the orders are without jurisdiction."
2004 SCM R 817 The Courts below have held that the P.T.D. In dispute in favour of Abdul Ghaffar was issued under the Settlement Laws, therefore, the petitioners could not claim title in the property on any ground. Even otherwise, we are also of the view that after having failed to get the P.T.D.
Amended under the Settlement Laws in appeal or revision, the petitioners could I:lot reopen the case before the Civil Court as the jurisdiction of the Civil Court under the laws as they then stood was barred."
2010 SCM R 1630 It will be pertinent to mention here that a distinction is to be drawn between an order passed by a Tribunal having jurisdiction in the matter, though the said order may be, for other reasons, erroneous or illegal, and an order without jurisdiction. It is only in the latter case that the jurisdiction of the Civil Court can be invoked on the ground of lack of jurisdiction of, the Tribunal in passing such order, but not in the former case, as in the instant matter."
9. Getting guidelines from the law laid down by the Hon'ble Supreme Court as well as this Court as mentioned in supra case. The Settlement Authority has passed allotment order in favour of the petitioner and this order was challenged by Zulfiqar All respondent No. 1 before the Settlement Officer where he disputed the allotment of the -present petitioner on the ground that his application was prior to the application of the present petitioner henbe he was entitled for the allotment of this house instead of the petitioner. This order of the Settlement Officer/Collector, Sialkot .Dated 2.8.1977 shows that it has been passed not only after providing opportunity of hearing to Zulfiqar Ahmed here as respondent No. 1 but also detailed report has been summoned from the department. From this order, one thing is clear that the order has been passed by the competent authority whether it is illegal, unlawful, without jurisdiction and erroneous but having jurisdiction in the matter. In suchlike cases, the Civil Court has no jurisdiction as repeatedly held by the Hon'ble Supreme Court as well as by this Court.
10. So far as the limitation of this case is concerned, Zulfiqar Ahmed was well aware about the order dated 18.12.1972, allotment order of the petitioner as he challenged it before the Settlement Officer/Collector, Sialkot vide his order declared the allotment order of the petitioner is a valid allotment order and direction has been issued for Revenue Officer for its implication but even then the Revenue Authority has not incorporated the name of the petitioner in the revenue record although, for that matter the petitioner has filed the application in the year 1976 which has been placed on record as Ex.P.13 but even then the revenue hierarchy has not incorporated the name of the petitioner in -the revenue record and the claims of the respondent officials are that there is no record in favour of the petitioner through which he can claim that the name has been incorporated in the revenue record. Both the Courts below have also taken the wrong view on the basis of assumption that the value of the house was more than Rs. 12,000/7 although Ex.D.1 shows that his price was determined as Rs. 4,320/-, this certificate is issued by the Settlement Department at the time of allotment.
11. Since the Civil Court 'jurisdiction cannot be invoked due to lack of jurisdiction hence neither the suit was maintainable apart from it was time-barred. Moreover, the cancellation of the allotment of the petitioner has been made on misreading and non-reading and beyond the exercise of jurisdiction vested to the Courts below.
12. In this view of the matter, civil revision is allowed and the judgments of both the Courts below are modified to this extent that the suit of the plaintiff will remain dismissed. However, the declaration of the allotment of the present petitioner as invalid is set aside. No order as to costs.
Civil revision .