' CH. MUHAMMAD MASOOD JEHANGIR, J.---The facts of the case are that the present petitioners are the successors of Abdul Jamil Qureshi (deceased) who was a refugee and after partition settled at a place in Lahore known as. Ahata Bansi Lal, presently, known as Bengali Mohallah, Saddar Bazar, Lahore Cantt. The said predecessor-in-interest of the petitioners Abdul Jamil Qureshi applied for the transfer of House No,1260/A in which he was settled. In the ground-floor of the said house, Khursheed and Balloo were residing whereas the predecessor-in-interest of the petitioners was in occupation of the first floor of the said house. The Settlement Authorities issued a Provisional Transfer Order No,468239 (Exh .P-2) dated"4-2-1960 in favour of Abdul Jamil Qureshi (deceased) with regard to the disputed house and thereafter a permanent transfer deed (Exh.P-3) dated 6-10- 1965 was also issued in favour of the predecessor-ininterest of the petitioners. Another Property bearing No,1263 was auctioned on 4-9-1967 and transfer order dated 10-12-1976 was issued in favour of Muhammad Sharif and prior to the issuance of transfer order, respondent No,2/Deputy Settlement Commissioner passed the order dated 20-9-1976 to the effect that the ground floor of House No,1260/1 was in fact the House No,1263 which had been purchased by respondent No,1 Shams Din. The predecessor-in-interest of the petitioners filed a Civil Suit for declaration and permanent injunction against the respondents seeking a declaration to the effect that he was the owner of House No,1260/A and no portion of it was bearing Property No, 1263. He also challenged the order of respondent No,2 and sought an injunction against respondent No,1 not to claim any right, title or interest in the property owned and possessed by him. The said suit was contested by the respondents by filing their written statement.
2. The learned trial Court framed the following issues out- of the divergent pleadings of the parties:-
(I) What are the boundaries of Property No,1260/1 horizontally and vertically?
(2) Whether defendant No,1 has been transferred any porton out of Property No,1260/1? If so to what extent and with what effect?
(3) Whether the impugned order dated 20-9-1976 is lawful, without jurisdiction and violation of a valid transfer order already passed?
(4) Whether the suit is barred by law? If so, to what effect?
(5) Whether the suit is barred by time?
(6) Whether this Court lacks jurisdiction to entertain and try this suit?
(7) Relief.
3. After recording evidence of the parties, the suit instituted by the predecessor-in-interest of the petitioners was dismissed by the learned trial Court vide its judgment and decree dated 14-2-1982.
Feeling dissatisfaction of the said judgment and decree, said Abdul Jamil predecessor-in-interest of the petitioners filed an appeal before the learned lower appellate Court which was taken up by the learned Addl. District Judge, Lahore, who also dismissed the said appeal vide his judgment and decree dated 6-6-2002.
4. The petitioners have assailed the concurrent findings of facts arrived at by both the courts below through the impugned judgments and decrees by filing the instant Civil Revision.
5. The learned counsel for the petitioners has argued that the findings of the two courts below to the extent of Issues Nos. 1 to 3 are against law and facts as they failed to appreciate the evidence in its proper perspective. He has further argued that the respondent No,1 had never challenged the order dated 21-11-1959 passed by Deputy Settlement Commissioner (Exh.P-1) and Provisional Transfer Order dated 4-2-1960 and PTD dated 6-10-1965 (Exh.P-3) issued in favour of Abdul Jamil, which are still intact having attained finality and in the presence of such documents respondent No,2 had no jurisdiction to review his previous order. The learned counsel for the petitioners has also argued that after the repeal of the Settlement Laws in 1974, respondent No,2 had no legal entity to pass the order dated 20-9-1976 (Exh.P-5) and he was also not authorized to issue the Transfer Order (Exh.D-2) in favour of respondent No,
1. He has next argued that after the issuance of PTD with regard to the house in favour of the predecessor of the petitioners, the Settlement Department having become functus officio had no jurisdiction to pass any order regarding same property, which had been finally transferred to the predecessor-in-interest of the petitioners. It is further argued that even no record regarding the Property bearing No,1263 is available with the Settlement Department till now and the judgments and decrees passed by the two courts below are reflective of misreading and non-reading of evidence, which may be set aside and the suit be decreed.
6. None appeared on behalf of respondent No,1 and the order sheet of this Court shows that he has already been proceeded ex parte on 7-3-2013.
7. Conversely, the learned counsel for respondent No,2 has controverted the arguments advanced by the learned counsel for the petitioners and supported the judgments and decrees.
8. Arguments heard and record appended with the civil revision perused.
9. Before dealing with the matter, it revealed from the order sheet of this Court that record of the learned trial Court was requisitioned, but the same has not been produced despite the repeated reminders. Anyhow, today the learned counsel for the parties have shown their willingness to address arguments on this old matter as perusal of the file with their assistance has depicted that each and every document got exhibited by the parties during the trial has been appended with the instant Civil Revision and nothing special has to be seen from the record of the lower court. As such the production of the record of the lower court is dispensed with.
10. The petitioners in their oral evidence produced Syed Masood Ahmad as P.W.1 and Muhammad Ali as P.W.2 while predecessor-in-interest of the petitioners Abdul Jamil Qureshi himself appeared as P.W.3. The said witnesses fully corroborated the facts as narrated in the plaint. The documentary evidence produced by the petitioners is relevant for the disposal of the instant case. Exh.P-1 is the copy of order dated 21-11-1959 which pertains to the House No,1260/A and perusal of the said document depicts that upper portion of the house was shown to be in possession of Abdul Jamil Qureshi, predecessor-in-interest of the petitioners while the lower portion was shown to be in possession of Khursheed Ali and Balloo Khan. However, the perusal of Transfer Order (Exh.P-2) has revealed that full House No,1260/1 had been provisionally transferred to Abdul Jamil Qureshi, the predecessor-in-interest of the petitioners whereas Exh.P-3 copy of PTD has also confirmed the transfer of the said house in favour of Abdul Jamil Qureshi. These are the documents pertaining to the transfer of the house in favour of Abdul Jamil Qureshi, predecessor-in-ihterest of the petitioners, which admittedly had never been questioned before the Settlement Authorities or any Court of law so far by anyone including respondent/defendant No,
1. These documents have strong presumption of truth. It is also admitted by the learned counsel for the present parties that the petitioners are in occupation of the full house and no portion thereof is under possession of respondent No, 1 .
11. The petitioners have assailed the order dated 20-9-1976 (Exh.P-5) in favour of respondent No,1 issued by the respondent No,2. The order pertains to the year 1976. It is an admitted fact that the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XLVIII of 1958) was repealed by the promulgation of EVACUEE PROPERTY AND DISPLACED PERSONS LAWS REPEAL) ACT, 1975 (ACT XIV OF 1975) on 28-1-1975. There is much force in the arguments addressed by Mr. Sher Zaman Khan, Advocate learned counsel for the petitioners that respondent No,2 as an entity has ceased to exist.
I find that after the repeal of said Laws the respondent No,2 possessed no jurisdiction to dispose of any of the properties. By virtue of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance XV of 1974 and later under section 2 of the. Evacuee Property and Displaced Persons Law (Repeal) Act, 1975; several Acts including the said Displaced Persons (Compensation and Rehabilitation) Act, 1958 were repealed. Subsection (2) of section 2 of the said Act 1975 provides that upon the repeal of the aforesaid Acts and Regulations, all proceedings, which immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid.
12. Only such .Matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High or Supreme Court were to be finalized by the "Notified Officers". The Settlement or Rehabilitation Authorities by express positive assertion had no jurisdiction to entertain any fresh petition or representation. In the present case undisputedly question of entitlement concerning property had neither been remanded by Supreme. Court nor were any such directions made by the High Court whereby notified officer on its strength could commence proceedings. As such, any petition or representation filed with regard to matter, which otherwise stood finalized long back or even where aggrieved person may believe to have legitimate claim, the same could not be entertained by Deputy Settlement Commissioner or notified officer or any other Settlement Authority by virtue of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Thus, the proceedings drawn by Deputy Settlement Commissioner, which culminated in passing of order were devoid of lawful authority and deemed to have no legal effect. On the touchstone of the established principle of law entire edifice constructed over it shall automatically crumble and fall to the ground. After finalization of claim and grant or house to the claimant, matter connected with disposal of property had been finalized and closed. On promulgation of "The Repealing Act" entire rural and urban evacuee property vested in Provincial Government by operation of law. Therefore, except to the extent of sending matters specified in above enactment, said property was not available to Settlement or Rehabilitation Authorities for disposal in any manner.
13. It is an admitted fact that neither the disputed property allegedly bearing No,1263 was pending for disposal nor was the matter regarding such property remanded by the superior court to the respondent No,2. I am, therefore, in complete agreement with the learned counsel for the petitioners that there was no such entity as Deputy Settlement Commissioner under any of the statutory laws in force after repeal of the said Act 1958. It is also worth-mentioning that under section 3 of the said Act, 1975, all properties which were available for disposal immediately before the repeal of the said Act or which become available for disposal after such repeal as a result of final order to be passed under section 2(3) of the. Said Act, 1975 stood transferred to Provincial Government for disposal, in case of urban property, by the Provincial Government under the scheme to be prepared by it in this behalf.
14. The order dated 20-9-1976 does not disclose that .Respondent No,2 in which capacity had decided the matter after the repeal of the said enactment. Nauman Maqbool, Senior Clerk, present before the Court today with record of the disputed Property No,1260/A states that there is no record of alleged Property No,1263. He with the assistance of his counsel has shown the available record to the Court wherein Property No,1263 was never transferred to any person through an auction. The record which he has brought before this Court is silent about the issuance of Transfer Order in favour of Shamas Din respondent No,1 or the order dated 20-9-1976 passed by respondent No,2, copies of which were brought on record as Exh.P-5 and Exh.D-3. On the basis of said order, which is not available on the record produced by the clerk of Settlement Department the issuance of transfer order in favour of respondent?
' No,1 is declared to be illegal and ineffective qua the rights of the petitioners. Further respondent No,1 has not produced in his evidence the Record-keeper of the Settlement to prove the genuineness of documents Exh.D-2 and Exh.D3. He has withheld the best evidence, if any, for the reasons best known to him. This Court has no option but to derive an inference against the respondent No,
1. The findings of both the courts below on issues Nos.1 to 3 are based on the document Exh.D-1 which is an extract from the survey plan prepared by the office of Cantonment Board. The said document reflects that House No,1260/A is a different property than the Property bearing No,1263. However, the said document Exh.D-1 is neither based on any settlement record nor has solid proof regarding the transfer of the properties to the aggrieved persons.
15. Be that as it may, since I have already held that Deputy Settlement Commissioner was neither authorized nor was an entity muchless legally entitled after the repeal of the settlement laws therefore he was not competent to pass the impugned order dated 20-9-1976 and issue Transfer Order dated 10-12-1976. So, the findings on issues Nos.1 to 3 of both the learned courts below are set aside and are answered in favour of the petitioners. Findings of both the court below on issues Nos.4 and 6 are also reversed as after the repeal of Settlement Laws the ultimate jurisdiction only vests with Civil Court and petitioners had rightly challenged the impugned order and transfer order before the Civil Court having been passed by respondent No,2 without any jurisdiction and the suit filed by, the predecessor-in-interest was not only competent but the Civil Court had also the jurisdiction.
16. Sequel of the above discussion is that the instant Civil Revision is allowed, the impugned judgments and decrees passed by both the Courts below are hereby set aside and the suit filed by the predecessorin-interest of the petitioners before the learned trial Court stands decreed in favour of the petitioners and against the respondents. However, there is no order as to costs.