' CH. MUHAMMAD IBRAHIM ZIA, J.---The captioned appeal with leave of the Court has been filed against the order of the High Court dated 7-5-2009 through which writ petition filed by the present appellant was dismissed.
2. Brief facts giving rise to the instant appeal are that the appellant herein claims ownership of the land comprising Khasra No, 110 measuring 22 kanals and 19 marlas, situated in Chatter Kalas, Tehsil and District Muzaffarabad on the basis of adverse possession. It is alleged that respondents tried to dispossess the appellant from the said land whereupon he filed a writ petition before the High Court challenging the validity of the action of the respondents on 20-10-1998. The writ petition was disposed of by the High Court vide order dated 18-11-1998 on the ground that relief claimed therein is of civil nature and is to be granted by the Civil Court. It appears that on the aforesaid observation, appellant herein, filed a suit for declaration and perpetual injunction on the ground of adverse possession in the Court of Civil Judge/Traffic Magistrate, Muzaffarabad on 5-3-1999. An ex parte decree was granted in his favour on 30-4-2002. The learned Custodian, through the said order, came to conclusion that the aforementioned land is evacuee and the appellant being an illegal occupant of the same be ejected from it. However, if he wants to retain the possession, he could do so after obtaining lease. The case of the appellant before the High Court was that the order of the Custodian in presence of decree of the civil Court is without jurisdiction and lawful authority. The respondent filed comments before the High Court which were treated as written statement on their request. The respondents, in the comments denied the contention of the appellant. Learned single Judge in the High Court dismissed the said writ petition through the impugned order dated 7-5-2009, hence, the present appeal.
3. Mr. Ashfaque Hussain Kiani Advocate, the learned counsel for the appellant contended that the impugned judgment of the High Court is non-maintainable as decree of the civil Court dated 30- 4-2002 has attained finality for having not been challenged at any appropriate forum. He argued that the custodian, being a party to the said decree, was bound by the declaration and in presence of this decree, the order of the Custodian for ejectment of the petitioner or direction for obtaining lease of the land is illegal, unjustified and uncalled for. The learned Advocate further contended that if the order passed by the Custodian remains in the field, then, it has an affect of setting aside the decree of the Civil Court, which powers are not vested in the Custodian. The . Learned counsel further pressed into service that the High Court is not justified in dismissing the writ petition filed by the appellant. In support of his submission, the learned Advocate, placed reliance on the following case-law:--
(i) 2006 CLC 1857
(ii) PLD 2D06 SC (AJ&K) 5
4. On the other hand, Muhammad Aslam Rathore Advocate, the learned counsel for the respondents contended that admittedly the land in question is evacuee land and hence, jurisdiction of civil Court is barred and decree recorded by Civil Judge/Traffic Magistrate Muzaffarabad on 30-4-2002 has no force of law. The learned counsel further contended that section 41 of the Rehabilitation Act, ousts the jurisdiction of civil Courts in the matters pertaining to evacuee land. The learned counsel lastly contended that the High Court has committed no irregularity or illegality while recording the impugned judgment, hence, the present appeal is liable to be dismissed.
5. We have heard the learned counsel for the parties and have also gone through the record.
6. A perusal of the record reveals that the learned Custodian, through the order declaring the property as evacuee, has asked the petitioner to obtain the same on lease. In case of non-compliance of the order, it was directed by him that the petitioner be ejected from the said evacuee land. As to whether 'the property 'is evacuee or not, is to be decided by the Custodian and to that extent, the order can be challenged through a revision petition before the Division Bench of the High Court. Contention of the learned counsel for the appellant that judgment of the learned Civil. Judge/Traffic Magistrate, Muzaffarabad dated 30-4-2002 was binding on the Custodian, is also devoid of any force. Though the Civil Court, being the Court of ultimate jurisdiction, can pass any decree or judgment regarding the civil rights of the parties but when its jurisdiction is expressively or impliedly barred and despite this it has passed the judgment or decree, the same can be treated as a nullity in the eye of law and can be avoided whenever it is pressed. Moreover, an ill-gotten gain cannot be protected in the writ jurisdiction. Our this view finds support from the following case-law:- ' In a case titled Muhammad Rashid v. Azad Jammu and Kasmir Government, Civil Appeal No, 6 of 1985, reported as (PLD 1987 AJK 60) this Court has made following observation:-- "Apart from the above, grant of relief in writ jurisdiction, being entirely discretionary with the High Court, the High Court would have certainly acted in aid of injustice in allowing the writ petition. It is settled principle that the High Court's writ, jurisdiction can be invoked in aid of justice and not to help retention of ill-gotten gains."
' In another case titled Habibullah v. Mehmood, Civil Appeal No,67 of 1979 reported as 1984 CLC 309 this Court has recorded the following observation:- "Therefore if a decree is a nullity, absence of an appeal, suit or cross-objections to avoid such a decree is no bar and such a decree ought to be ignored wherever and whenever it is pressed in service. Such a decree or order is considered as to have been never passed."
7. Now we advert to case-law relied upon by the learned counsel for the appellant:-- ' In a case titled Muhammad Khalid and others v. Abdul Sattar and 8 others, reported as 2006 CLC 1857, it is held that cancellation of registered document is regulated by a separate law and procedure. It was further held that the Custodian while exercising the jurisdiction under a special law, is not competent to cancel the sale-deed. This case-law is not applicable in the present case, hence, it is of no help to the appellant!
' In another case relied upon by the learned counsel for the appellant titled Riaz and 8 others v.
Pervez Mehdi and 72 others, reported as PLD 2006 SC (AJ&K) 5, it was observed that when the facts and circumstances, out of which the case arises require elaborate and detailed examination and analysis, the proper course is to approach the civil Court which has proper regular jurisdiction under law to record the evidence, examine record and thus pass order. No such eventuality is involved in the present case, hence, this case-law is also of no help to the appellant.
8. Moreover, section 41 of the Administration of Evacuee Property Act, 1957, ousts the jurisdiction of civil Courts in respect of all the matters sought to be protected indirectly has been handed down in violation of the aforesaid law, hence, cannot be protected in exercise of writ jurisdiction. Section 41 of the Administration of Evacuee Property Act, 1957 is reproduced as under:-- "41. Jurisdiction of Courts barred.---(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction--
(a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or not evacuee property or what right or interest, in any, an evacuee has in any such property."
9. The appellant in this case has invoked the jurisdiction of High Court for protection of a void judgment, therefore, his writ petition was very rightly dismissed by the High Court.
' The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed.