AMIN-UD-DIN KHAN, J. --- This writ petition is directed against the judgment dated 12.01.2010 passed by the learned Addl. District Judge, Bahawalpur, whereby revision petition filed by the petitioners was dismissed, And against the order dated 15.12.2005 passed by the learned Civil Judge 1st Class, Bahawalpur, whereby an application under Section 12(2) of the C.P.C. Filed by respondent No. 4 was accepted and suit for declaration and permanent injunction decreed in favour of petitioners vide judgment/decree dated 13.05.1992 passed by the learned Civil Judge 1st Class, Bahawalpur, stood dismiss.
2. According to the facts narrated by the learned counsel for the petitioners , case of petitioners is that petitioners were allotted land in Chak No. 5/BC, Tehsil & District Bahawalpur, under 15 years temporary cultivation lease scheme and possession was also transferred in their favour. When under the Notification dated 03.09.1979 issued by the Government of Punjab, petitioners were not granted proprietary rights, then they filed a suit for declaration on 02.01.1991, which was contested by the Government of Punjab. Issues were framed and both the parties adduced their respective evidence. During the pendency of suit, an application I/O. VII, Rule, 11 of the C.P.C. Was tiled by the Province of Punjab, which was dismissed by the Trial Court vide order dated 17.01.1991. After completion of trial, vide judgment and decree dated 13.05.1992, suit was decreed in favour of petitioners: The Province of Punjab has not challenge this in favour of petitioners and they started receiving the amount of instalments of land and in this regard nine instalments were received by the Government. Thereafter respondent No. 4 on 15.03.1995 filed an application under Section 12(2) of the C.P.0 for setting aside judgment/decree dated 13.05.1992 in favour of petitioners. This application was contested and ultimately same was accepted on 01.11.2001 and the suit was dismissed. Against this order, revision petition was filed before the revisional Court. Vide judgment dated 07.10.2004 case was remanded to the Trial Court with a direction to decide the matter of jurisdiction of Civil Court keeping in view the Section 36 of the Colonization of Government Lands (Punjab) Act, 1912, by framing a preliminary issue. Even the revisional Court upheld the order of Trial Court dated 01.11.2001 to the extent of acceptance of application u/S. 12(2) of the C.P.C., and this order was challenged before this Court through Writ Petition No. 112-2005, which was accepted by this Court vide order dated and Paragraphs 4 and 5 whereof are well relevant, which are reproduced for . Ready reference:--- "4. After considering the arguments of both the learned counsels and from the perusal of the record, it is evident that issue No. 2 which was framed with regard to the genuineness of documents was never challenged before any forum/Court by the Province of the Punjab. So those judgments and decrees upto the extent of issue No. 2 had attained finality, and could not be upset in the ancillary proceedings of application under Section 12(2) of the C.P.C. Law is clear on this point that any judgment/order or decree passed by any Civil Court can be challenged/impugned through filing of application under Section 12(2) of the C. P.C., if the C'Court had got no jurisdiction. The applications under Section 12(2) of the C.P.C. By respondent No. 6, Muhammad Hanif and the Province of Punjab can be accepted when these applicants are successful in proving the lack of jurisdiction with the Civil Court the judgments and decrees were passed before that judgments and decrees cannot be reversed. For this purpose, it was incumbent upon learned Civil Judge to frame issue of lack of jurisdiction of the Civil Court in the proceedings being conducted upon applications under Section 12(2) of the C.P.C. And to decide it through its judgment/order. If the impugned judgments/decrees passed in the suits/are found passed without jurisdiction/thereafter the judgments and decrees in the suit could be upset otherwise not.
Resultantly the judgments and decrees passed in favour of the defendants shall remain intact till the decision of application under Section 12(2) of the C.P.C.
S. With these observations/modifications, the case is remanded to the learned Civil Judge who shall proceed to decide the application under Section 12(2) of the C.P.C., filed by Muhammad Hanif and the Province of the Punjab, by framing issue with regard to the lack of jurisdiction of the Civil Court and shall decide it strictly in accordance with law. All the above-mentioned writ petitions are disposed of in the above noted terms.
This Court in its order observed that the findings recorded by the Trial Court with regard to issue No. 2 have not been set aside by any Court, which were never challenged before any forum, therefore, judgment/decree up to the extent of issue No. 2 had attained finality. Issue No. 2 was as follows:--- "Whether the allotment orders in respect of the suit land are based on fraud and forgery? OPO" The Trial Court on 21.09.2005 framed issue with regard to the jurisdiction of Civil Court and vide judgment/order dated 15.12.2005 rejected the plaint u/O. VII, Rule 11 of the C.P.C. Declaring that the Civil Court has no jurisdiction to entertain and try this matter. The revision petition was filed before the revisional Court, which was dismissed vide judgment dated 12.01.2010. Both these orders are under challenge before this Court,
3. Learned counsel for the petitioners states that' the order has been passed in clear violation of order dated 14.06.2005 passed by this Court in Writ Petition No. 625-2005; that after the decree of suit nine instalments were received by the Province of Punjab; that respondent No. 4 (Muhammad Hand) was having no locus standi to file application under Section 12(2) of the C.P.C.; that the findings recorded by the Trial Court issue No. 2 had attained finality. Further states that when the allotment order in favour of petitioners was declared genuine one and the official respondents have not processed their case, then they applied for grant of proprietary rights under the scheme prepared by the Board of Revenue in view of the Colonization of Government Lands (Punjab) Act, 1912 dated 03.09.1979; that the action of official respondents was clearly without jurisdiction and when they were committing illegality and were also passing the orders without jurisdiction, therefore the petitioners rightly tiled suit for declaration because the Civil Court has plenary jurisdiction to check the illegalities committed by the public servants.
4. On the other hand, learned Assistant Advocate General states that there are findings of two Courts below that the Civil Court has no jurisdiction, therefore, no case for interference has been made out. Lastly contended that the refusal by the officials was in accordance with law.
5. No one is in attendance on behalf of respondent No. 4. The name of his learned counsel is notified in the cause list but no intimation has been endorsed with regard to his absence.
Therefore, respondent No. 4 is proceeded against ex parte.
6. I have heard the learned counsel for the petitioners, learned Assistant Advocate General at full length and perused the record.
7. Though the history of case is very lengthy but the sole point involved in this /is is whether the bar contained u/S. 36 of the Colonization of Government Lands (Punjab) Act, 1912 is applicable to this case or not. It is not denied that the findings on issue No. 2 were upheld by this Court while deciding Writ Petition No. 625-2005 vide order dated 14.06.2005. In my view, the only test for pressing the ousting Clause of jurisdiction in any statute is, if the Government functionaries have passed the orders and proceeded the matter within their jurisdiction, then certainly barring Clause of jurisdiction of Civil Court available in this statute, comes in the field and if the public functionaries have not exercised the jurisdiction vested in them by law, then certainly the Court has jurisdiction to check the orders and actions under plenary jurisdiction vested in the Civil Court. In this matter, when it is clear that the allotment orders in favour of petitioners were genuine one and they were having right of conferment of proprietary rights under the scheme prepared by the Board of Revenue (Colonies Department) keeping in view the Colonization of Government Lands (Punjab) Act. 1912 therefore, act of refusal of grant of proprietary rights by the officials to the petitioners was exactly without jurisdiction and in these circumstances Civil Court was having jurisdiction to entertain and try the suit on this point of law. "the findings of two Courts below are not in accordance with law.
8. The crux of above discussion is that this writ petition is allowed . The impugned order dated 15.12.2005 passed by the learned Civil Judge 1st Class and the judgment dated 12.01.2010 passed by the learned Addl. District Judge, are hereby set aside. .