' The property in dispute measuring 25 kanals, 16 marlas was allotted to the appellants under the Rehabilitation Scheme but subsequently that allotment was cancelled. Since the property was waqf property, its right of cultivation was auctioned with effect from 1st July to Rabi 1964, in which admittedly the appellants took part and being the highest bidders, they became tenants under the Auqaf Department. When the property was about to be put to further auction for a further period of three years, the appellants filed a suit to challenge the cancellation on the ground firstly that the Deputy Rehabilitation Commissioner or any Officer under him could not cancel the confirmed allotment, secondly that the defendants had no right to declare the land as trust property, thirdly that the plaintiffs were not given a notice about the cancellation and were not given any area in exchange and fifthly that, in any case, they had received the amount of Patta up to the 30th of June 1964, and had no right to interfere in their possession. The suit was resisted mainly on the ground that the civil Court had no jurisdiction. The learned trial Court gave a finding on this issue in favour of the respondents and rejected the plaint of the appellants placing reliance on section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957.
2. In appeal the learned Additional District Judge, Jhelum, maintained the order but on different grounds. He found that the case was governed by section 25 of the Displaced Persons (Land Settlement) Act, 1958, and not by section 41 of the Pakistan (Administration of Evacuee Property)
Act, 1957.
3. The learned counsel submitted that the Assistant Settlement Commissioner being a Subordinate Officer of the Deputy Settlement Commissioner could not cancel the allotment made by the Deputy Settlement Commissioner. This argument is without force since it is not a question of cancellation of the allotment but a question of the very allotment being absolutely without jurisdiction for the reason that Waqf property could not be allotted by the Rehabilitation Authorities under the Rehabilitation Scheme. In any case, from the facts given above, it is clear that the jurisdiction of the Assistant Rehabilitation Commissioner, on this ground, was not challenged that as a Subordinate Officer he could not cancel the allotment made by the Deputy Rehabilitation Commissioner.
4, The learned counsel placed reliance upon the provisions of section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, which validates the transfers made of immovable evacuee trust properties situated in rural areas and utilised bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims. This section would certainly have been applicable if the allotment in favour of the appellants had not been treated to be an absolutely void allotment and depriving them of that very allotment if the allotment had subsisted uninterruptedly upto the 30th of June 1974, this Act would have benefited them because it was enforced with effect from the 1st of July 1974. But this is not the position.
5. The appellants' remedy, in fact, was by applying to the relevant Authority for a declaration that the property was not evacuee trust property. But the mere fact that the learned counsel is relying upon section 10 of Act XIII of 1975 proves that the appellants also admit this property to be an evacuee trust property. In this view of the matter, the appellants' remedy could be neither before the Settlement Authorities nor before this Court. No relief can be allowed to the appellants for an additional reason and that is that the appellants themselves admit having taken part in the auction held by the Evacuee Trust Property Board and having held the property in the capacity of tenants under that Board. It is, therefore, clear that they had reconciled themselves to the cancellation of the allotment or to the virtual treatment of the allotment as being void. They could not turn back and file this suit.
6. In the above circumstances, the appeal is without merit and is dismissed. But since no one has appeared on behalf of the respondents, there will be no order as to costs.