This constitutional petition is directed against the order dated 19th July, 1969 of the learned Settlement Commissioner, Sargodha whereby he dismissed the petitioner's revision petition holding the same as incompetent.
2. The relevant facts of the case are that the house bearing Khasra No. 166/168 situated in village Noorpur Thai, District Sargodha was in possession of Muhammad Aslam Khan father of Sarfraz Khan respondent No. 4. The petitioner claimed that he had purchased the same vide sale-- deed dated 25th September, 1942 froze Topan Das, an evacuee owner who had migrated to India at partition of the sub-continent. In 1956 the petitioner instituted a suit for possession of the house against Muhammad Aslam but the same was dismissed by the Civil Court. Sarfraz Khan respondent No. 4 herein tiled. L.H. Form seeking, transfer of the aforemen--tioned property under Settlement Scheme No. VIII. Transferred on 20th February, 1960 in his favour vide P. T. O. No. 047487.
Thereafter on 11th March, 1961 petitioner instituted another suit in the civil Court for declaration to the effect that he was owner in possession of the house in dispute. In the suit he did not implead Sarfraz Khan as respondent and obtained on 29th November, 1961 ex parte decree in his favour.
Sarfraz Khan having learnt about the ex parte decree instituted a suit for cancellation of the decree. The suit was decreed on 27th September, 1967 in his favour and ex parte decree obtained by the petitioner was set aside. The petitioner assailed the aforementioned judgment and decree in appeal but his appeal was dismissed on 4th September, 1968 by the learned Additional District Judge, Sargodha. The petitioner further challenged that judgment and decree in R. S. A. No. 36 of 1969 in this Court which has been dismissed vide a separate judgment by this Court today.
3. On the strength of ex parte decree dated 29th November, 1961 referred above, the petitioner got the L. H. Form submitted by Sarfraz Khan cancelled but on revision petition filed by the latter the case was remanded to the Deputy Settlement Commissioner for fresh decision. The Deputy Settlement Commissioner heard the parties and vide his order dated 10th May, 1966 upheld the transfer of the disputed property in favour of Sarfraz Khan respondent. He, however, observed that the remedy for petitioner was to seek declaration regarding the status of the property from the Deputy Custodian' Evacuee Property. The petitioner then challenged that order in appeal but his appeal was dismissed on 6th November, 1968 by the Additional Settlement Commissioner on the ground that the property in dispute could not be declared non-evacuee by any Court except the Custodian, Evacuee Property. The petitioner challenged that order in revision. The learned Settlement Commissioner vide his order dated 19th July, 1969 dismissed the revision petition holding that he was not competent to declare nature of the property being evacuee or otherwise and dismissed the revision being incompetent.
4. The petitioner by means of this constitutional petition seeks declaration that the orders passed by respondents Nos. 1 to 3 are illegal and that he is owner of the property in dispute.
5. Learned counsel for the petitioner contended that no doubt the Settlement Authorities bad no jurisdiction to accord declaration with regard to the status of the property whether evacuee or otherwise but could have referred the matter to the Custodian, Evacuee Property for determination of the question. Learned counsel, however could not controvert this position that he did not approach the Custodian, Evacuee Property when for the first time the learned Civil Judge decreed the suit of Sarfraz Khan on 27th September, 1967 observing that the Civil Court had no jurisdiction to accord declaration about the status of the property and that he should have filed a suit before the Custodian of Evacuee Property.
6. Learned counsel appearing on behalf of respondents Nos. 1 to 3 submitted that neither the Settlement Authorities nor the Civil Court had the jurisdiction to entertain a suit or a petition seeking declaration that the property in dispute was an evacuee or otherwise. It was for the petitioner to have approached the Custodian, Evacuee Property when he became aware of the fact that neither the Settlement Authorities nor the Civil Court bad the jurisdiction in the matter.
7. Learned counsel for respondent No. 4 stated that the petitioner sought a declaration from the Settlement Authorities that the property in dispute was non-evacuee instead of approaching the Custodian as provided under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957. Neither Settlement Authorities nor the Civil Court had the jurisdiction to accord declaration because only Custodian Evacuee Properties had the exclusive jurisdiction in the matter. '
8. I have considered the arguments advanced by the learned counsel for the parties and find that the orders passed by the Settlement Authorities impugned in this petition are not liable to interference in constitutional jurisdiction of this Court particularly for the reason that it is only the Custodian, Evacuee Property who had the jurisdiction to accord declara--tion with regard to the status of a property whether evacuee or otherwise. The Settlement Authorities had rightly rejected the petitioner's appeal and revision seeking declaration about the nature of the disputed property being beyond the scope of their jurisdiction. The petitioner after having learnt on 27th September, 1967 through the judgment of Civil Court and through the order of the Settlement Authorities should have approached the Custodian, Evacuee Property for declaration about the status of the property instead of wasting time before Courts and authorities having n jurisdiction to grant him the desired relief.
9. There is no merit in this petition and the same is, therefore, dismissed with costs.