Rasaal Hasan Syed, J. This judgment will decide civil revision which impugns judgment and decree dated 16.3.2010 of the learned Civil Judge Lodhran and judgment and decree dated 02.11.2010 of learned Addl.
District Judge, Lodhran whereby suit of the petitioner was dismissed and appeal against the same was declined.
2. Relevant facts for analysis of the dispute are that the petitioner filed a suit for declaration, claiming ownership of property comprised of shops, on the basis of alleged purchase through auction from the Settlement Department, and also claimed injunctive relief to restrain the respondent from interfering in the property or reflecting the property as latter's ownership in the record. The suit was strenuously resisted, raising objections to the jurisdiction of civil court, maintainability of the suit and denying the claim of the petitioner. Evidence of the parties was recorded whereafter the suit was finally dismissed vide judgment and decree dated 16.3.2010. The judgment of the learned Civil Judge was affirmed in appeal, in result, the two judgments have been assailed in the instant petition.
3. Arguments heard.
4. On deeper examination and scrutiny of record annexed with this petition, it is discernible that the petitioner 's claim qua the property was that it was purchased through auction allegedly held by the Settlement Department; a Transfer Order was issued in his favour on 30.1.1976 and that the petitioner was allegedly occupying the shops through his two sons, namely , Qamar Hussain and Muhammad Hussain. The property was sealed by the respondent-department. W.P. No. 12348 was filed on 21.11.2000 which was dispo sed of on 28.11.2000, directing the petitioner to move an application before respondent No.1 who was required to decide the application within fifteen days. Petitioner claimed that the application was not decided though the department vehemently refuted the plea and stated that the application was dismissed by the competent authority on 09.12.2000 while the appeal against it was pending before the Administrator Evacuee Trust Properties, Multan. It appears that during the pendency of the suit an application seeking amendment in the plaint to challenge notice dated 28.7.2004 issued by the Deputy Administrator , Evacuee Trust Properties, was moved. This application was allowed and the plaint was amended so as to challenge the validity of the notice. Amended issue No. 5-A was framed on 08.2.2005 after which the parties led their evidence. Petitioner appeared as P.W. 1 and produced copy of Transfer Order dated 30.1.1976 as Ex.P.1 while conditions of auction and notice dated 28.7.2004 were tendered as Mark-A and Ex.P.2 respectively .
Respondents on the other hand produced Muhammad Naveed Hasnain, Inspector of Department, as D.W. 1 and adduced in documentary evidence, copy of the order dated 20.3.2001 as Ex.D.1 and copy of the order dated 14.6.2007 as Ex.D.2.
5. The suit was initially dismissed by the learned Civil Judge, vide judgment dated 15.6.2009 but in appeal the case was remanded for re-writing of the judgment. In post-remand proceedings the learned Civil Judge, after providing opportunity of addressing arguments to the parties, dismissed the suit vide judgment and decree dated 16.3.2010.
The findings recorded were to the effect that the jurisdiction of civil court was barre d by the provisions of sections 8 and 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975) (the "Act"). And that the property was declared to be Evacuee Trust Property by the Authorities under the Act; the application moved by the petitioner was also dismissed vide order dated 20.3.2001. And further that the petitioner could not prove the description of the property or its actual number was 721/722 or that he was the owner thereof. In appeal, the learned Addl. District Judge affirmed the findings of the learned trial court as to the bar of jurisdiction of civil court and in result interference in the judgment was declined.
6. Due consideration of the record annexed with this petition unequivocally reveals that the Chairman Evacuee Trust Property Board declared the property as Trust Property vide order dated 14.6.2003. Initially when the property was sealed, the petitioner filed a Constitutional petition in this Court which was disposed of with the direction that the petitioner should approach respondent No.1 with an application to present his viewpoint for a decision by the Chairman Evacuee Trust Property Board who was the Competent Authority under the law while the Authority was required to dispose of the application, if filed, within 15 days. The petitioner moved an application which was dismissed by the authorities. Ex.D.1, copy of the order passed by the Administrator Evacuee Trust Property, Government of Pakistan, Multan tendered in evidence by respondents, reveals that the petitioner was heard in appeal, his contentions were duly considered, after which the findings were recorded to the effect that the property was a part of Hindu Dharam Shallah and a Trust Property; Settlement Department did not have any jurisdiction in the matter; the alleged document issued by the Settlement Authority was of no legal consequence; the document was in respect of property No. 721/722 in Ward No. 2/7, Karoor Pacca, District Lodhran while the departmental property, which was sealed by the District Office Multan, bearing No. 493 and was situated at Ward No. 7, Chandni Chowk, Karoor Pacca, District Lodhran. It was observed that the petitioner wanted to grab the property of department, ejectment order had already been passed against him by the Deputy Administrator, Evacuee Trust Properties, Multan on 18.4.1994 and that the appellant violated the rules by illegally de-sealing the property. The appeal was dismissed and the ejectment proceedings, which were later carried out on 08.11.2000, were affirmed. The document Ex.D.2, copy of the order of the Chairman Evacuee Trust Property Board, Government of Pakistan, was also tendered in evidence, which order was passed on a petition under sections 8 and 10 of the Act in respect of property No. 493/W -7, Chandni Chowk Mauza Sarai, Tehsil Karoor Pacca, District Lodhran, wherein the findings recorded were that the property was Evacuee Trust Property which was declared as such and ordered to be notified under the law while the alleged PTD issued by the Settlement Department in 1971 was declared to be a result of connivance with the transferee and mala fide, validation thereof was declined and the PTD dated 25.2.1971 was ordered to be cancelled. In this backdrop, the D.W. 1 in his statement deposed that the number of the property was 493 which was located in Ward No. 7, Karoor Pacca, Chandni Chowk. It was part of Hindu Dharam Shallah and that the petitioner was an illegal occupant, against whom legal proceedings were held, his applicati on was dismissed, the appeal of the petitioner was also declined and that the property being Trust Property could not be transferred and that the alleged document of T.O claimed by the petitioner was of no legal value. It is evident from the statement of P.W. 1 in the suit that the petitioner did not mention the number of the property in his statement nor gave any description thereof and only produced a copy of the T.O. In this backdrop the learned Civil Judge rightly observed that the petitioner was unable to prove that the property was bearing No. 721/722 or that he had any valid claim of ownership. The learned Addl. District Judge did not discuss the other issues and only confined his discussion to the question of jurisdiction and by recording well- reasoned findings, held that the jurisdiction of civil court was barred.
7. As is evident from the facts noted that the petitioner was seeking a declaration of ownership of property and also an injunctive relief to restrain the respondent from treating or claiming the property to be Evacuee Trust Property . In other words, the petitioner was seeking determination as to whether the property was a Trust Property or not.
Section 8 of the Act mandates that if a question arises as to whether a prope rty was evacuee property and attached to the charitable religious or educational trust or institution or not, the same shall be decided by the Chairman, whose decision shall be final. For due appreciation of the effect of section 8 supra , it will be beneficial to reproduce the same which is as follows: - "8. Declaration of property as evacuee trust property (1) If a question arises whether an evacuee property is attached to a charitable, religious or education trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under sub section (1) is that an evacuee prope rty is evacuee trust property , he shall, by notification in the of ficial Gazette, declare such property to be evacuee trust property .
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof; Provided that no declaration under sub-section (2) or order under sub-section (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard."
The provision of section 14 of the Act bars the jurisdiction of civil court to determine such questions as above, which are left for the exclusive determination of Chairman Evacuee Trust Property Board, which provision of law reads as under:- "14. Bar of jurisdiction. Save as otherwise provided in this Act, no civil court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act"
Likewise, section 10 of the Act deals with the validation of certain transfers in the rural as well as urban areas by the Settlement Authorities under the impression of the property being an evacuee property . Section 10(2) of the Act contemplates that if a question arises as to whether the transaction referred to in the section was bona fide or not it shall be decided by the Chairman, whose decision shall be final and shall not be called in question in any Court.
8. The provisions of law referred supra were deliberated, discussed and interpreted in the various cases. In "Evacuee Trust Property Board v. Mst. Zakia Begum and others" (1992 SCMR 1313 ) after considering the provisions of sections 8, 9, 10 and 14 of the Act it was ruled by the honourable Supreme Court to the effect that the civil courts did not have the jurisdiction in the matter and that the parties could have recourse to the Chairman under section 8 of the Act and that one could apply under section 10 of the Act for the relief and also that the proceedings before the civil court for determination of the questions falling exclusively within the domain of Chairman Evacuee Trust Property Board shall be corum non judice. In view of this rule the decrees of the courts below under challenge in the said case were set aside. In "Evacuee Trust Property Board and others v. Ahmed and others" (2004 SCMR 440) the honourable Supreme Court observed to the effect that it is now well-settled that ouster of jurisdiction under the statute has to be interpreted strictly and it can only operate if it is shown and proved on the record that certain proceedings are without jurisdiction or corum non judice or the action was tainted with mala fide. Relying on the case of Mst. Zakia Begum supra the honourable Supreme Court held to the effect that the entire ex parte proceedings initiated in the civil court and the decree passed by it were corum non judice because in view of the ouster clause contained in section 14 of the Act, the civil court had no jurisdiction to proceed in the matter and that the Chairman Evacuee Trust Property Board could determine the status of the disputed property before whom the parties were always at liberty to produce evidence to substantiate their stance. Similar view was also taken in "Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others"
9. The provisions of sections 8 and 14 of Act were also examined in the case of "Evacuee Trust Property Board through Deputy/Assistant Administrator , Evacuee Trust Property , Peshawar v. Ali Bahadur" (PLD 2011 SC 126) wherein the honourable Supreme Court observed as follows:- "4 ... Analyzing section 14 ibid, it is unambiguous that the jurisdiction of the civil courts have been barred with respect to any matter ... which an officer appointed under the Act is empowered to determine: such jurisdiction is also ousted to grant and issue an injunction, process or order in respect of any action taken or to be taken by such officer in exercise of any power conferred by or under the Act. Undoubtedly , the Chairman of the Evacuee Trust Property Board is an officer within the contemplation of the section. Therefore, in order to settle the question about the ouster of jurisdiction it seems expedient to examine, what was the proposition involved in the suit and whether such a question was determinable by the Chairman or not: In this respect, it is foundational to evaluate the claim of the respondent in his suit/plaint; on the perusal thereof it is vivid that the respond ent is seeking a declaration that the suit property is his exclusive ownership and is not an evacuee trust property , consequently the appellant should be precluded from interfering into his ownership rights and apprentices thereto; the appellant in defence joined issue with the respondent on these factual aspects and claimed the suit property being an evacuee trust property and it is on this account that the jurisdiction of the court was challenged. Therefore , the key issue before the court would be whether the property is an evac uee trust property or otherwise? Now when the provisions of section 8 of the Act are adverted to, it specially ment ions "if a question arises whether an evacuee property is attached to a charitable, religious or educational trust, or not it shall be decided by the Chairman" meaning thereby that notwithstanding whether a declaration in terms of section 8 has been made or not by the Chairman, yet even if a question has arisen at any point of time about the status of the property it shall be the Chairman alone who under the Act shall be competent and empowered to determine and decide the question and the Court in view of the bar contained in section 14 shall have no jurisdiction in the matter .
5. Whether the question of the above nature was/is involved in the matter is clear from the pleadings of the parties and from the findings of all the Courts below on Issue No. 5 i.e. whether the plaintif f is entitled to decree as prayed for? As the Courts while considering and appreciating the evidence of the parties on the record have come to the conclusion that the property is not established by the appellant to be attached to any charitable, religious trust, etc., thus is not an evacuee trust property . This determination, in our considered view, was within the exclusive domain of the Chairman and the adjudication thereof by the Courts is an encroachment and circumvention on his empowerment. Therefore, the bar of section 14 ibid was duly attracted".
Bare reading of the pleadings as also the evidence led by the petitioner in the instant case also clearly shows that the petitioner seeks declaration of title in the property , expects the court to declare that it is not an Evacuee Trust Property and prays for a restraint against the respondent to claim the property as an Evacuee Trust Property or to reflect it as such in its record. A declaration for the annulment of the notice issued by the authorities wherein on declaring the property as an Evacuee Trust Property , action was taken against the petitioner for illegal interference therein. The petitioner challenges notice with the plea that the property is not Evacuee Trust Property . In this scenario, the fundamental issue raised for determination in the suit is the determination of question as to whether the property is Evacuee Trust Property or not; and whether exclusive jurisdiction vests in the Chairman Evacuee Trust Property Board under section 8 of the Act while section 14 thereof bars the jurisdiction of the civil court to determine questions that vest in the exclusive jurisdiction of the Chairman Evacuee Trust Property Board. The rule laid down by the honourable Supreme Court in the pronouncements referred supra unambiguously declares that the jurisdiction of civil court to entertain or determine the status of the property as Evacuee Trust Property or not, has been specifically barred by law and the proceedings as also the decree passed in such cases stands nullified being corum non judice . It has been consistently observed that if a party intends to seek clarification, they shall have to approach the forum prescribed by law, produce available evidence in support of their viewpoint and seek determination from the forum competent under the statute. And that such issue or dispute cannot be brought to the civil court nor the civil court could assume jurisdiction to entertain the same let alone to adjudicate such questions.
10. The argument that the civil court being the court of plenary jurisdiction always has the jurisdiction to determine the matter cannot be pressed into service for the simple reason that the jurisdiction to entertain and determine the status of the property as Evacuee Trust Property has been left to the competence of the Chairman by the Act which mandates non-interference by the civil court and bars the jurisdiction of any other court including the civil court to entertain or decide such questions. Sectio n 9, C.P.C., clearly envisages that the civil court can entertain the suits if the jurisdiction is not expressly or impliedly barred by law and in this case the jurisdiction was expressly barred by law. The order of the Chairman even otherwise could not be questioned in the civil court; instead it could be challenged in the hierarchy of jurisdiction i.e. in revisional jurisdiction before the Secretary , Federal Government in terms of the provisions of the Act and if still not satisfied the matter could be brought to this Court from the orders passed by the authority in hierarchy of jurisdiction but nevertheless the civil suit could not entertain such suit let alone grant decree. In "Khurshid Ahmad and others v. Rana Mumtaz Ahmad and others" (2016 SCMR 679) this aspect of the matter was considered by the honourable Supreme Court and it was observed as under: - "10 ... The surprising part of the litigation is that the respondent himself invoked the jurisdiction of the Evacuee Trust Board for its verdict about the nature of the property but when the verdict given by the Board turned against him, he turned the table on the Board and proceeded to question its verdict through a revision petition. Somehow he withdrew it and instituted a civil suit questioning the verdict of the Chairman Evacuee Trust Board notwithstanding such verdict being amenable to the revisional jurisdiction of the Federal Government in the hierarchy established under the Act and then Constitutional jurisdiction of the High Court, could not have been challenged in the Civil Court especially when its jurisdiction was barred by Section 14 of the Evacuee Trust Properties (Management and Disposal) Act 1975.
11. Now the question arises where jurisdiction of the Civil Court is expressly barred and the Court exercising jurisdiction under section 8 of the Evacuee Trust Properties (Management and Disposal) Act is a Court of Plenary Jurisdiction in view of the provision contained in section 21 of the Act, for the purposes of deciding the question, whether an evacuee institution, how could a Civil Court sit in judgment over the judgment of the Chairman Trust Board when the law has blessed it with finality and made it immune from being questioned in any court. In the case of Evaucee Trust Property Board vs. Mst. Zakia Begum and others (supra) this court after analyzing the relevant provision of the Evacuee Trust Properties (Management and Disposal) Act, held that the Chairman Evacuee Trust Property under section 8 of the Act alone is competent to decide whenever any question arises as to whether an evacuee property is attached to charitable, religious or educational trust or institution or otherwise and that proceedings before the civil court shall be corum non judice ... "
11. Considering the facts of the present case, the petitioner in the first instance approached this Court in the Constitutional jurisdiction and, as admitted by him in the plaint, he was directed by this Court to move appropriate application before respondent No.1; which the said respondent No.1 was required to decide within 15 days. The petitioner incorrectly asserted in the plaint that his application was not disposed of but in response it was apprised that the application was dismissed after giving hearing to the appellant while his appeal was pending. Copy of the order passed by the Administrator Evacuee Trust Property , Government of the Pakistan, Multan was produced as Ex.D.1 which reveals that appeal No. 106/2000 filed by the petitioner to challenge the order of Deputy Administrator Evacuee Trust Property , Multan was dism issed vide order dated 20.3.2001; the property was declared as Evacuee Trust Property under the orders of Chairman Evacuee Trust Property Board. The record is silent if the petitioner ever filed any revision petition in the hierarchy of jurisdiction. Even otherwise it is not claimed that the order was ever challenged or that the matter was ever impugned in the Constitutional petition thereafter . Instead the petitioner opted to file civil suit, wherein both the courts have declared that the jurisdiction is barred by law. The property being declared to be part of Hindhu Dharam Shallah and vesting in Evacuee Trust Board, the petitioner having not challenged the declaration in the hierarchy of jurisdiction, he cannot now be permitted in law to open an avenue through the civil suit when the jurisdiction of civil court is expressly barred by the specific provision of sections 8 and 14 of the Act. The view taken by the courts below and the findings recorded in this regard do not suffer from any error of law or jurisdiction or of misreading of the record.
12. For the reasons above, there is no substance in this petition which is accordingly dismissed .