1. NASIMHASAN SHAH, J.--This appeal by leave of this Court is directed against the judgment of a learned Single Judge of the Lahore High Court dated 29-10-1976 in R. S. A. No. 217 of 1971.
2. The facts, which form the background stated briefly are as follows :- One Ch. Nabi Bakhsh, father of Ch. Rehmat A.I, the appellant herein, was a displaced person and a right-holder. On migration to Pakistan, he obtained an allotment of evacuee agricultural land in Chak No. 133 S. B., Tebsil & District Sargodha in lieu of the landed property abandoned by him in India. The allotment was confirmed in his favour sometime in 1952. He died on 24-2-1955 and on 8- 5-1956 a mutation of inheritance with respect to his property was sanctioned initially in favour of his son, the appellant herein, Ch. Rehmat A.I-(he has since died and is represented before us by his legal representatives). Since Ch. Nabi Bakhsh, in addition to his son Ch. Rehmat A.I, had also left behind a daughter, Mst. Rehmat Bibi, the mutation sanctioned on 8-6-1956 was reviewed and a fresh mutation (No. 60) was sanctioned by the Rehabilitation authorities viz. A. R. C. (L), on 24-11- 1958, in favour of both his children, to the extent of 2/3rd in favour of his son Ch. Rehmant A.I and to the extent of 1/3rd in favour of his daughter Mst. Rehmat Bibi.
3. Feeling aggrieved, Ch. Rehmat A.I filed an appeal against this decision before the Deputy Rehabilitation Commissioner (Land), wherein be contended that his sister Mst. Rehmat Bibi was a mental case and was missing at the time of the death of Ch. Nabi Bakhsh for over seven years and, therefore, consistent with the provisions of section 108 of the Evidence Act, she must be presumed to have died before the death of Ch. Nabi Bakhsh and was not entitled to any share in his property.
4. However, the heirs of Mst. Rehmat Bibi, on the other hand, when the mutation was sanctioned, contended that Mst. Rehmat Bibi was missing for a period of even less than three years and, therefore, she could not be presumed to have been dead at the time when her father died. The learned Deputy Rehabilitation Commissioner (Land) in his order observed that "a sifting of the evidence does not fulfil the conditions of seven years (of absence) from the date of the death of Nabi Bakhsh". He, therefore, held that Mst. Rehmat Bibi could not be presumed to have died before the death of her father. Consequently, the appeal was dismissed by him vide his order dated 15-1- 1959.
5. Aggrieved by the above order of the Deputy Rehabilitation Commissioner (Lands), Ch. Rehmat A.I fileda revision against it before the Rehabilitation Commissioner, Rawalpindi Division, who also did not find any ground for interference and dismissed the same, vide his order dated 26-3-1979. He then filed a writ petition before the High Court of West Pakistan, Lahore (W. P. No. 391-R of 1959). This too was dismissed by a learned Single Judge of the High Court vide his order dated 13-10-1960. In view of the importance of this order in this case it is reproduced hereunder, in extenso -- "This case can be decided on the short ground that a recent Full Bench judgment reported in PLD 1960 Lab. 834 Khan Draz A.I v. Khurshid A.I has held that in para. 46 of Part 11 of Rehabilitation Settlement Scheme is operative notwithstanding the provisions of the Muslim Law. The petitioner has been allowed two-third of the property left by his father Nabi Bakhsh, and Rehmat Bibi who was not been heard of from some years has been given one-third. Rehmat Bibi has children of whom respondent No. 3 Hashmat A.I Naseem is one, the other respondent is the husband. The challenge is to allowing Rehmat Bibi a share, who the counsel contends, should be taken to have died under section 108 of the Evidence Act. The point is material for showing that she predeceased her father.
6. Now para. 46 of the Scheme as found in the Full Bench remains operative. The learned counsel for the respondent says that a mutation in favour of the heirs of Rehmat Bibi has been duly sanctioned on 17th September, 1960 (in fact on 7th September, 1960) which is conceded by the learned counsel for the petitioner, as well.
7. The impugned order is just and in order. The petition is, therefore, dismissed with costs."
8. Dissatisfied, the appellant filed a Letters Patent Appeal (L. P. A. No. 1 of 1961) which was heard by a Division Bench of the High Court on 24-1-1961 and dismissed in limine. A review petition was filed against the said order which was also dismissed, with costs, by the same Division Bench on 2-5- 1961.
9. Having failed before the Rehabilitation authorities the appellant then instituted a suit on 1-6-1967 before the Senior Civil Judge, Sargodha, seeking a declaration to the effect that he was the sole heir and owner in possession of the land in suit left by Ch. Nabi Bakhsh deceased and that the Rehabili--tation & Settlement authorities were incompetent to attest Mutation No. 60 dated 24-11- 1958, as also Mutation No. 277 dated 7-9-1960. This suit was contested by the respondents herein on various pleas including the plea that the civil Court had no jurisdiction to try the suit. The learned Civil Judge, however, decreed the suit on the finding that Mst. Rehmat Bibi could be presumed, under section 108 of the Evidence Act, to have died before the death of her father, as she was not heard of for more than seven years when the matter was taken up in 1958.
10. Accordingly, at the time of the death of Ch. Nabi Bakhsh his only child, who was still alive. Was Ch. Rehmat A.I and being the sole heir of Ch. Nabi Bakbsh was entitled to be declared as the sole owner of the suit land. It was further held that the Rehabilitation & Settlement authorities had no jurisdiction to attest Mutation No. 60 dated 24-11-1958 or Mutation No. 277 dated 7-9-1960 on the ground that after confirmation in 1952, the land in favour of Ch. Nabi Bakhsh ceased to be evacuee property and all evacuee interest therein was extinguished and the inheritance mutation could be sanctioned only by the revenue authorities. Accordingly, the inheritance mutations which were sanctioned by the Rehabilitation authorities could not legally have been attested by them, hence the civil Court had the jurisdiction to entertain the suit. As a result of these findings, Ch. Rehmat A.I was declared to be the sole heir of Ch. Nabi Bakhsh deceased and the sole-owner bf the suit land and his suit was decreed on 9-10-1970. The respondents appealed against the said judgment and decree before the Additional District Judge, Sargodha but the same was dismissed on 5-2-1971 Aggrieved by these decisions, they then moved the Lahore High Court in second appeal (R. S. A. No. 217 of 1971). The appeal, which was heard by a learned Single Judge, was allowed by him by a well- considered order. The learned Judge came to the conclusion that notwithstanding the fact that the allotment in favour of Ch. Nabi Bakhsh had been confirmed, but it still remained a mere allotment and did not amount to a permanent transfer of the land in his favour. Accordingly, when he died in 1955, the property had not lost its evacuee character. The Central Government had not yet acquired finally all evacuee properties. Hence the property in question had not yet lost its evacuee nature. Consequently, the rehabilitation authorities had the exclusive jurisdiction, in the circumstances, to decide the question of inheritance of the deceased allottee. Reliance was placed for the above view on the judgments of this Court in the case of Syed Abdul Rashid v. Pakistan through the Secretary Ministry of Refugees & Rehabilitation, Karachi and others (P L D1962 SC 42) and Ahmad Din v. Muhammad Shafi and others (P L D1971 SC 762), wherein it was held that the question of inheritance in the case of allottees fell to be decided under the Rehabilitation & Settlement Scheme and that such matters were exclusively within the jurisdiction of the Rehabilitation authorities and these matters could not be allowed to be agitated in the civil Court.
11. On account of this reverse suffered by the appellant before the High Court, he moved this Court for grant of leave to appeal and. In this connection, relied upon a recent judgment of this Court in the case of Mst. Ghulam Fatima v. Muhammad Hussain and others (PLD 1976 SC 729), wherein it was observed that the question of succession of the estate of a confirmed allottee was beyond the purview of the Settlement Scheme and was, therefore, not a matter which was to be determined under the Displaced Persons Act (Act XLVII of 1958) within the meaning of section 25. On this view of the matter, it was held that a civil suit could be filed in such cases.
12. The learned Bench hearing the petition for leave to appeal was of the opinion that the above view, as was expressed in the judgment was in conflict with the views expressed by this Court in its earlier judgments vie. Syed Abdur Rashia v. Pakistan through the Secretary, Ministry of Refugees & Rehabilitation, Karachi and others and Ahmad Din v. Muhammad Shafi and others on which authorities the High Court bad largely based its judgment ; and that it was, therefore, desirable that the conflict be resolved by an authoritative pronouncement. Accordingly, leave was granted for this purpose.
13. We have heard learned counsel for both the parties at some length. It appears to us that the case of Mst. Ghulam Fatima is distinguishable from the facts and circumstances of the present case because in the said case, the confirmed allottee died in 1964 and it was common ground between the parties that the land in dispute had by then been acquired by the Central Government under section 4 of the said Act by notification issued on 15th April, 1959, with the result that the property had ceased to be evacuee ; whereas in the present case, the confirmed allottee died on 24-12-1955 when the property, which was granted to the allottees, who were even holding confirmed allotments, had not yet vested in the Central Government a circumstance, which was duly noted by the learned Judge in the High Court in the judg--ment impugned before us.
14. But apart from the above, we are clearly of the view that the suit filed by the appellant for getting the Mutations Nos. 60 & 277 dated 24-11-1958 and 7-9-1960 respectively set aside in the civil Courts was barred by the principle of res judicata. It will be recalled that the question before the High Court, in the writ petition filed by the appellant was whether Mutation No. Dated 24-11-1958, sanctioned by the Rehabilitation authorities, whereby Mst. Rehmat Bibi was held entitled to 1/3rd share in the property of the lat Ch. Nabi Bakhsh, was correct and in accordance with law. The learned Judge in the High Court in his judgment dated 13-10-1960 not only found that the said mutation was legal and proper and, therefore, not liable to any interference but also held that the mutation in favour of heirs of Mst. Rehmat Bibi, which had been sanctioned in the meanwhile, namely, Mutation No. 277 dated 7-9-1960 was also valid. In the civil suit filed by the appellant both the self same mutations, namely Mutation No. 6 dated 24-11-1958 and Mutation No. 277 dated 7-9- 1960 were sought to b questioned, no doubt, on somewhat different grounds. Such a course could not be permitted as the suit which was subsequently filed by the appellant stood barred by the principles of res judicata.
15. The law is now well-established that where the validity of certain orders passed by a statutory or quasi-judicial authority are questioned through 11 constitutional petition before the High Court but this attack fails and the High Court finds that the orders impugned before it are valid and not liable to be interfered with, any subsequent attempt to again impugn the same orders and to question their validity by filing a civil suit before the ordinary civil Courts will be barred on the general principles of res judicata. See Muhammad Shafi and another v. Muhammad Bakhsh and another (PLD 1971 Lah. 148), Muhammad Chiraghud Din Bhatti v. The Province of West Pakistan (1971 SC M B 447), Abdul Majid and others v. Abdul Ghafoor Khan, etc. (P h D 1982 SC 146) and Asif Jan Siddiq v.
16. Government of Sind, etc. (PLD 1983 SC 46 It may be added that the judgment of the High Court in the appellant's writ petition (W. P. No. 391- R/1959), wherein the validity of the impugned mutations was upheld, was, indeed, a decision rendered by the High Court on a point of law and, as such, this finding was binding on the subordinate Courts. (See Article 201 of the 1973 Constitution which makes a decision of the High Court binding on subordinate Courts. Such being the legal position, the learned civil Court could not have, in the present case, held the same orders to be illegal and ultra vires, when the High Court had already found them to be legal and valid. The judgment of the High Court which was passed in exercise of its Constitutional jurisdiction on 13-10-1960 had not left the question in issue undecided. It had, on the other hand. After applying its mind to the question in issue, given a clear decision on it, for the reasons stated in the said judgment and proceeded to uphold the mutations sanctioned by the Rehabilitation and Settlement authorities. It is obvious that before the civil Courts, in the subsequent suit, the same issue was reagitated and sought to be retried all over again. This they were precluded from doing both on the general principles of res judicata, as also on the ground that a decision of the High Court deciding a question of law is binding on all Courts subordinate to it. On this view of the matter, since the civil Courts were bound by the earlier decision of the High Court dated 13-10-1960 about the impugned mutation being valid, the learned Single Judge in the High Court was, therefore, clearly justified in accepting the appeal of the respondents directed against the judgment of the civil Court and the Additional District Judge which held to the contrary.
17. The over .All conclusion is that the judgment of the High Court dated 29-10-1976 passed in R. S. A.
18. No. 217 of 1971, whereby it reversed the judgment and decree passed by the learned Civil Judge, Sargodha dated 19-13-1970 and upheld by the learned Additional District Judge, Sargodha, dated 25-2-1971 and allowed the second appeal of the respondents against these judgments and decrees does not require any interference and is upheld, though for different reasons.
19. The present appeal must, therefore, fail and is, accordingly, hereby dismissed with costs.