1. SHAFIUR RAHMAN, J.-Leave to appeal was gronted to one of the plaintiffs to examine whether the High Court of Peshawar (judgment dated 29-11-1971) A in affirming the order of the two Courts below of returning the plaint for filing it in appropriate forum on the finding that the civil Court had no jurisdiction to examine the legality of the partition of joint khata having evacuee share had correctly interpreted and applied the law as contained in para 15 Part. II Chapter I of the West Pakistan Rehabilitation Settlement Scheme as supplemented by the circular of the Chief Settlement and Rehabilitation Commissioner, dated 20th of April, 1965.
2. ' Ismail Khan, the appellant, alongwith four others, all co-sharers of a joint khata comprising 36 Khasra numbers measuring 233 Kanals 6 Marlas in village Holian, Tebsil Haripur, District Hazara, instituted a civil suit challenging the partition of the joint Khata by attestation of mutation of partition No, 2790 on 14-9-1965. They admitted in the plaint that the evacuee had 1/4th share in this joint Khata and that share stood allotted to Shahzad Hussain, respondent No,
1. It is alleged that erroneously acting on a circular of the Chief Settlement and Rehabilitation Commissioner dated 20th April, 1965 the revenue authorities proceeded to partition the evacuee interest in the joint Khata and in the process not only failed to observe the procedural requirements of the law for effecting partition of such joint Khatas but also ignored the jurisdictional requirement that where the co-sharers were in Hissadari possession such a partition of evacuee interest could not be effected within the purview of para 15, Part 11 Chapter I of the Rehabilitation Scheme. It was also contended that after the allotment of the evacuee share, that is. 1/4th in the joint Khata to respondent No, 1 in 1960-61 there was left no evacuee interest at all and the partition of the joint Khata with a view to separate what was said to be evacuee interest was completely outside the jurisdiction of the Rehabilitation and Revenue Authorities. The mutation of partition was effected collusively, secretly and without notice to any of the co-sharers. In partitioning the joint Khata due regard was paid to the Hissadari possession of the plaintiffs or to the improvements effected on the land, thereby depriving the plaintiffs of the fruits of their effort and investments. After such a partition nad been effected the respondent No, 1 started selling portions of the property coming to his share in partition. The plaintiffs, therefore, challenged the fact of partition as well as the alienations made by respondent No, 1 of specific Khasra numbers in favour of others including the contesting respondent.
3. ' The suit was contested and numerous objections were taken to its competence and maintainability. In all, twelve issues were framed on the pleadings of the parties but the one on which the decision took place was the preliminary issue "whether this Court had got jurisdiction' to entertain this suit.
4. ' The trial Court held that the title was not in dispute nor the share of the evacuee in the joint Khata.
5. It was also held that what the respondent No, 1 had been allotted is the evacuee interest in the Khata and nothing more. As regards the fact of partition, it was held that it was within the exclusive competence of the Rehabilitation Settlement Authorities to undertake it and it was not open to the plaintiffs to challenge the same in the civil Court under section 25 of the Displaced Persons (Lan 1 Settlement) Act. The plaint along with other documents was returned for presentation in proper forum.
6. ' The plaintiffs appealed against the decision. The first appellate Court maintained the finding and the order of the trial Court. It held as follows :- "The Settlement Authorities, while acting on foot of this letter, were within their competence to effect partition mutation in dispute which is the subject of dispute between the parties. In other words, the mutation fell within the domain of the exclusive jurisdiction of the Settlement Authorities. Now under section 25 of the Displaced Persons (Land Settlement) Act, 1958, no Civil or Revenue Court has jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine, and no process or order shall be granted 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. The action of the Settlement Authorities bringing about the partition mutation cannot, therefore, be questioned by a civil Court and the proper forum for an aggrieved party is to move the Settlement Authorities. The plaintiff/ appellants cannot seek their redress by way of this suit which is clearly barred by means of section 25, quoted above. Since the validity of the partition cannot be questioned in the civil Court, the other mutation following the same and attested in favour of defendants 2, 61 and 80 cannot be equally challenged. The plaintiffs-appellants are bound by all these mutations unless they are set aside by competent authorities."
7. ' A revision petition was then filed by the plaintiffs but it also failed.
8. ' This appeal was once heard on 2-10-1983, when Mr. Abdul Samad Khan alone appeared.
9. Subsequently an application was moved by the learned counsel for the appellant explaining his absence whereopon the appeal was fixed for rehearing. When it came up for hearing today, Mr. Abdul Samad was absent and by a written request wanted to be relieved, on the ground that he had intimated his clients a number of times and they did not contact him and left him with no instructions. We have heard this appeal in the absence of the learned counsel for the respondents.
10. ' The case of the appellant is based on two assumptions of facts the first is that the respondent No, 1 had not only obtained the allotment of the evacuee 1/4th share but that land had been permanently settled on him in terms of rule 7 of the Displaced Persons (Land Settlement) Rules, 1959. The land having been permanently settled the Settlement Authorities had lost jurisdiction over the same and the partition mutation had to be initiated and attested in accordance with the Land Revenue Act.
11. ' The other assumption on which the learned counsel for the appellant has proceeded is that it was not a case where the co-sharers were not in Hissadari possession. His contention is that they were in Hissadari possession and on that account para. 5, Part II of the Rehabilitation Scheme was not in terms applicable and conferred no authority on the Rehabilitation Settlement Officer to partition the joint Khata. Finally the learned ,counsel for the appellant has objected to the manner in which the partition was effected, the absence of notice to all concerned and the allocation of land in Hissadari possession of the appellant to others. This actually concerns the merits of the scheme of partition.
12. ' So far as the two assumptions of facts on which the learned counsel for the appellant has proceeded are concerned we do not find any material to support it. From the mere fact that in the jamaband the Central Government is not recorded as a co-sharer but instead respondent No, 1 has come to be recorded it cannot be assumed that the land was permanently settled on him. The order of the first appellate Court reproduced shows that in the first instance 1/4th evacuee share was allotted to respondent No, 1 and thereafter partition of the joint Khata was taken up. Para. 16 Part II of the Rehabilitation Scheme enjoins that a specific portion of land has to be allotted and not merely a share in the joint Khata as such. The P. I. Us. Of the area abandoned in India have to be related to the P. I. Us. Of the area to allotted. The record submitted by the appellant itself shows that the joint Khata comprised different types of land like Ghair Mumkin, Maira, Bangar Qadeem and Charri. If the evacuee had been in Hissadari possession of the land, which no part of the record bears out, nor such a finding recorded b any Court dealing with the matter specific land could in fact be allotted as the land in evacuee's Hissadari possession could be converted into P. I. Us. And adjusted. Respondent No, 1 was not, it appears, at any stage previous to the partition allotted any specific area. The instructions of the Chief Settlement Commissioner in para. 15 that such of the evacuee share was to be partitioned where the evacuee sharer was not in hissadari possession bears it out that allotment had to be made of the specific land comparable in value to the value of the land abandoned in India. There is nothing on the record to indicate that the evacuee was in Hissadari possession of the land or that specific Khasra number, as distinguished from 1/4th evacuee share, was allotted to respondent No,
1. In the absence of proof of these two facts it cannot be said that the Rehabilitation and Settlement Authorities bad no jurisdiction in the matter to partition the joint Khata or that the land stood permanently settled on respondent No, 1.
13. ' We do not find any merit in this appeal and the same is dismissed.