Asim Hafeez, J: - This Civil Revision is directed against Judgment and Decree dated 01.08.2012 (impugned Judgment) by learned Additional District Judge Rahimyarkhan, whereby appeal of the respondents No.1 to 6 (respondents) against judgment and Decree dated 22.10.2011 of learned Senior Civil Judge Rahimyarkhan, was accepted and order of dismissal of the suit for partition of the respondents was set-aside. And appellate court proceeded to pass preliminary decree and remanded the matter to the learned Civil Judge for passing of final decree.
2. The facts, necessary for the adjudication of the lis at hand, are that petitioner - Civil Aviation Authority - through letter dated 25.02.1957 requested then Deputy Commissioner , Bahawalpur for acquisition of land 1000 x 700 feet (16-Acres 1 Kanal) for installation of NBD Station. The acquisition involved 14-Acres 02-Kanals 07-Marlas of 'non- evacuee land' and 1-Acre 06-Kanals 13-Marlas of 'evacuee land' . Subsequently , non-evacuee land was acquired through an award and price determined was paid accordingly, whereafter it vested in the petitioner. Possession of entire piece of land, comprising of non-evacuee and evacuee land, was delivered to the petitioner on 01.04.1957, acknowledged and not disputed. Since the transfer of ownership of evacuee land required procedural requirements, one, and most important, of which was determination of price of evacuee land in terms of Section 2 (8) of the Displaced persons (Compensation and Rehabilitation) Act, 1958. It is not disputed that despite being actively pursued, price was not determined before and even after the promulgation of Displaced Persons Laws (Repeal) Act 1975. As appeared from the record, piece of land measuring 4 Kanals 16 Marlas ('land in question') was allotted to the predecessors of the respondents - deceased Ghulam Ghous Samdani and Saira Begum. The land in question formed part of land measuring 9 Kanals 12 Marlas, falling in rectangle No.514/13 and 834/1, Killa No. 15-Alif, 10/Alif and 11 in Khata No.645/701. The allotment made by the Additional Settlement Commissioner, as recorded in the RL-II register was subject to certain terms and conditions (conditional allotment), in terms of order dated 28.01.1970, which is evident from Exhibit-D/1 document. In terms of order dated 28.01.1970, the allottee was not entitled to sell the land but only entitled to receive compensation. The possession was already with the petitioner. The controversy triggered, when the respondents claimed possession of land in question and also demanded payment of rent w.e.f 28.01.1970 from the petitioner. Petitioner initially sought proof of allotment, which prompted the respondents to approach Wafaqi Mohtasib. In terms of order dated 29.09.1993, Wafaqi Mohtasib, suggested that since question of ownership was involved therefore, such question has to be resolved by approaching the Civil Court. In February, 2005 the respondents filed suit for partition and, in the alternate, for compensation. The petitioner contested the suit. It is expedient to reproduce few of the relevant issues framed, which are as under;
1. Whether the plaintif fs are entitled to get decree for partition of the suit property mentioned in the head note of the plaint, on the grounds mentioned in the plaint? OPP .
2. Whether the defendants have got the possession of the land of the plaintif fs and they are entitled to get back the possession of their land/ OPP 2-A. Whether the plaintif f, in alternate are entitled to get the price of their land according to the market value if so to what extent? OPP
3. Parties led evidence. Learned Civil Judge upon conclusion of the trial, dismissed the suit of the respondents vide judgment and decree dated 22.10.201 1, which was impugned through appeal by the respondents and they succeeded. The Appellate Court set-aside the judgment of the trial court and proceeded to pass preliminary decree of partition and referred the matter for passing of final decree. Hence, this Civil Revision by the petitioner .
4. Before dilating upon the submissions made by the learned counsels, it is appropriate to identify contentious issues requiring adjudication by this court, which are summarized as under;
1. Whether the suit of the respondents for partition and in the alternate compensation is maintainable in view of the peculiar / special nature of the allotment in terms of order dated 28.01.1970;
2. Whether the claim of compensation can be awarded by the court of competent jurisdiction when the price of the land was not determined by the Custodian / Chief Settlement Commissioner or its successor Notified Officer after Promulgation of Repeal, Act 1975;
3. Whether Civil Court has the jurisdiction to determine and fix the price of evacuee land and / or proceed to adjudicate upon and decide the dispute inter-se the parties relating to the terms of conditional allotment of evacuee land;
4. Whether the judgments passed by the Appellate Court and by the trial court are legally sustainable, when the courts lacked subject matter jurisdiction and jurisdiction over the parties in view of the nature of the controversy and evacuee character of the land in question;
5. Learned counsel for the petitioner submits that petitioner was in exclusive possession of the land, inclusive of land in question since 1957. The respondents have no right to seek partition or possession of land in question in view of conditional nature of allotment, which entitle them to claim compensation only. Reference was made to order dated 28.01.1970, as evident from Exhibit D/1; emphasized that the respondents during the cross-examination had admitted factum of possession of the petitioner. Adds that, the learned appellate court has acted contrary to the law and facts.
Learned counsel supported the judgment of the trial court, wherein suit of respondents was dismissed on merits and question of limitation.
6. Learned counsel appearing for respondents submits that allotment of land in question was an admitted fact, which allotment was never challenged or reversed. When asked to refer to document to establish allotment of land, learned counsel referred to Exhibit-D/1, Register of RL-II. Learned counsel appea ring for respondents supported the judgment and decree passed by the Appellate Court.
7. Arguments heard; record perused.
8. Before dilating upon the controversial issues, requiring adjudication, it is essential to highlight few admitted facts.
Evacuee character of land in question is admitted. The possession of the petitioners since 1957 is not seriously contested. Order dated 28.01.1970 was part of Exhibit D/1,- Register of RL-II- which is an admitted document, produced and relied upon by the petitioner. Respondents failed to dispute conditional nature of the allotment, as no other document was referred or relied to show that allotment of land in question was absolute. The petitioner, while submitting written statement, admitted conditional nature of allotment, which entitle allottee to claim compensation.
Petitioner admitted that price of the land was not determined by the Custodian / Chief Settlement Commissioner or its successor , Notified Officer. The determination of price of land would precede payment of compensation regarding adjustment of claim of the respondents.
9. In view of the submissions made and perusal of the record, the primary and elemental question is that whether civil court has the jurisdiction to adjudicate upon the controversy raised, adjudge terms of conditional allotment of evacuee land and determine the price of the land in question. The question of determination of price was not conclusively settled, which matter is undecided at the time of promulgation of Repeal Act, 1975. The issue of determination of price of evacuee land and question of enforcement of conditional allotment of evacuee land are nub of the controversy, which is beyond the jurisdiction of the Civil Court. I am fortified in my view in wake of the ratio of the judgments reported as "Member BOR Punjab and another Vs. Mst. Siddiqan through L.Rs and others" (2015 SCMR 1721) and "Muhammad Din and 8 others Vs. Province of the Punjab through Collector and others" (PLD 2003 Lahore 441). "Nasir Fahimuddin and others Vs. Charles Philips Mills and others" (2017 SCMR 468). Relevant portion is reproduced hereunder; "It is settled law once a property is treated to be an evacuee property even erroneously, then the same cannot be held to be otherwise and the Civil Court in this behalf would have no jurisdiction."
10. In view of the ratio of the judgments, it is clear that Civil Court has no jurisdiction to proceed to decide claim of partition and compensation, in the altern ative. It is clear from the perusal of the settlement laws - as applicable before promulgation of Repeal Act, 1975 - and the Repeal Act, 1975 that authority to decide the price of the evacuee land is vested in the Custodian / Chief Land Commissioner or its successor , i.e. Notified Officer.
Reference is made to the ratio of law laid down in judgments reported as "Government of Punjab, Colonies Department, Lahore and others Vs. Muhammad Yaqoob) (PLD 2002 S.C 5). Relevant portion is reproduced here under; "The terms "pending proceedings" as used in these laws would mean that an initial step taken as contemplated under the settlement laws for allotment of land against verified claim of the claimants but the same did not finalize before the repeal of the same, therefore, it was with reference to such cases that it was provided that those would be taken forward and concluded under the repealed settlement laws as if they had not been repealed for the said limited purpose and in order to pass final order in such cases a provision was made to appoint a Notified Officer to deal with such cases."
"Aligarh Muslim University Old Boys Cooperative Housing Society Ltd Vs. Muham mad Hisamuddin Ansari and 4 others" ( 1993 SCMR 1062 ). Relevant portion is reproduced hereunder; "It was also urged by the appellant in its written arguments that respondent No.1' s case was not pending in terms of section 2(2) of the Repealing Act. In our view, since respondent No.1' s claim against the garden land was not satisfied, it cannot be said that his case was not pending."
"Nawabzada Zafar Ali Khan and others Vs. Chief Settlement Commissioner/Member , Board of Revenue, Punjab, Lahore and others" ( 1999 SCMR 1719 ). Relevant portion is reproduced hereunder; "Bare perusal of above provisions would disclose that only such matters which were either actively pending consideration before Authorities for final disposal or had been remanded by the High Court or Supreme Court were to be finalized by the "Notified Officers".
"Nawab Din Vs. Member Board of Revenue (Settlement & Rehabilitation) Punjab, Lahore and 4 others" (PLD 1979 S.C 846 ). Relevant portion is reproduced hereunder; "At this place we would like to observe that connotation of word "proceedings" is to be understood with reference to the text, the law, the subject-matter, and the intention of the Legislature discernible from the overall examination of the aims and objects of the relevant enactment under scrutiny. In our view, subsections (2) and (3) of section 2 leave no room for doubt, that their intention was to allow the cases of old applicants for allotment of land which were pending on the relevant date of repeal, to continue so as to be disposed of in accordance with the provisions of the Act repealed to which the proceedings related. There is no ambiguity in this case that the application of Rehmatullah for claiming the land in dispute was under Act XLVII of 1958 and as such it was to continue under the same Act despite its repeal. When the words used in the statute are "all proceedings" it is not justified to diminish the totality of those proceedings by introducing jurisprudential concepts, for example of judicial proceedings, quasi-judicial proceedings, executive proceedings, administrative proceedings, penal proceedings, fiscal proceedings, and proceedings before a Court etc. the focus should remain on the words deployed in the statute and so long as the proceedings are under the Act repealed; before the competent authorities, and are of the kind and for the purpose indicated in that Act, for the enforcement of rights mentioned therein on the applicants concerned, they are the proceedings which are saved so as to continue under the relevant law repealed. The provision made is of the kind which is contained in section 6 of the General Clauses Act X of 1897 where it has never been doubted that legal proceedings for enforcement of substantive rights are such proceedings which can continue after the repeal of the enactment under which may they were initiated and were pending at the relevant time."
11. In view of the consensus of the parties on Exhibit-D/1, containing order dated 28.01.1970, no decree for partition by way of possession can be passed in wake of conditional nature of the allotment, wherein no right was conveyed to the respondents to claim possession or to sell land in question but to claim compensation. It is not the case of the respondents that such limitation / condition was ever waived or revoked, as no document was presented to show any absolute allotment in favour of their predecessors. The question of want of jurisdiction of the Civil Court is further fortified from the fact that respondents for all intent and purposes are claimants, whose, claim was not conclusively adjusted. The question of adjustment of claim in terms of conditional allotment, in the absence of settlement of price and payment of compensation, is neither a past and closed transaction nor conclusively settled, which can effectively be construed as proceedings pending. Since the petitioner has admitted the claim of conditional allotment, subject to the enforcement of order dated 25.01.1970, therefore, it is not a case of overlapping / duplication of allotment qua land in question. The petitioner admitted that the same has been pursuing the matter regarding determination of the price of land, inclusive of land in question, but the matter was not settled or decided till and after the promulgation of Repeal Act, 1975. Notwithstanding, the pendency of claim of the respondents for compensation, until and unless the price is determined and same is paid by the petitioner, no absolute rights regarding ownership can be claimed by it.
Mere lapse of time would not perfect petitioner's title over the evacuee piece of land and their status, to the extent of evacuee land, would be deemed as a mere "occupant". The issues of determination of price and adjustment of claim of the respondents of compensation, in lieu of conditional allotment, are intertwined and cannot be divorced. In these circumstances, the Civil Court has no jurisdiction to adjudicate upon and decide the lis.
12. The objection of the petitioner qua the time barred nature of the claim of the respondents and its determination by the trial court is misconceived and same is repelled. This Court is of the opinion that the suit filed by the respondents before the learned Civil Judge, based on conditional allotment, is not maintainable.
13. In these circumstances, the judgment and decree dated 01.08.2012 passed by the learned Additional District Judge and judgment and decree by the learned Civil Judge dated 22.10.2011 are illegal, unlawful and of no legal effect. The courts below have misconstrued the controversy and committed material irregularities in exercise of jurisdiction with respect to evacuee property, claim with respect to which is pending adjustment, along with other interlinked / connected issues / matters. This court in the exercise of supervisory jurisdiction in terms of section 115 of the Code of Civil Procedure 1908 holds that Courts below lacked jurisdiction. Hence, the plaint is rejected in exercise of powers under Order VII Rule 11 of Code of Civil Procedure, 1908.
14. In view of above, this Civil Revision is allowed, the judgments and decrees dated 22.10.2 011 and 01.08.2012, passed by the courts below are set-aside. The parties may, if advised approach appropriate authorities, having jurisdiction to determine and decide the rights, claims and respective obligations, which shall not be prejudiced in view of this judgment.