' This appeal arises out of the judgment dated 26-4-1978 of the learned Additional District Judge, Sialkot, whereby he decided the question of limitation in a suit for possession filed by the plaintiff/ respondents and remanded the case for decision on other issues on merits in accordance with law.
2. Sole grievance of the appellant is that learned Additional District Judge, while deciding issue No,1, on the question of limitation, has also recorded findings on other issues on merits which could not have been done without recording evidence of the parties. Maulvi Etisan-al-Hay learned counsel for the respondents has frankly conceded that question of limitation is closely inter-connected with other issues on merits. I am also inclined to hold that all the issues should be decided together by the trial Court.
3. Mr.Munir A. Sheikh learned counsel for the appellant also submitted that the suit pending before the trial Court has abated by operation of law in view of the proclamation of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. This objection B should in the first instance be raised before the trial Court.
' For the foregoing reasons, the impugned order dated 26-4-1978 of the learned Additional District Judge is set aside and the case is remanded to the trial Court for decision on merits on all the issues. To this extent the appeal is accepted with no order as to costs.
Appeal accepted.
1984 M L C 503 [Lahore Before Abaid Ullah Khan, J ILAM DIN and 7 others--Appellants versus MUHAMMAD BASHIR and 7 others--Respondents Regular Second Appeal No,517 of 1978, decided on 14th February, 1984 Pakistan Administration of Evacuee Property Act (XII of 1957)-- ---Ss.20, 22 & 41--Civil Procedure Code (V of 1908), S.100--Declaration of evacuee character of property--Jurisdiction of civil Court--Possessory rights claimed by plaintiffs over land on ground that their predecessor having unauthorisedly sold such land which subsequently became evacuee and suit decreed in favour of plaintiffs with provisions that plaintiffs would be entitled to claim possession on death of their predecessor after paying stipulated amount of property--Subsequent allottees of such land after Independence, held, ..pot allotment of only what constituted evacuee's rights and evacuee's rights were restricted to holding of possession of land in dispute till death of predecessor and payment of stipulated amount--On death of predecessor and payment of amount to allottees, allottees ceased to have any right in disputed property--No declaration from custodian was, therefore, called for to dispossess them from such property--Since allottees had been deprived of disputed land, it was incumbent upon Government to allot them some other evacuee land in lieu thereof. (p. 5051 A . Muhammad Swaleh v.. United Grain and Fodder Agencies PLD 1964 SC 97; Mansab All v; Amir PLD 1971 SC 124 and Rashid Ahmad v. State PLD 1972 SC 271 distinguished. Muhammad Alam Khan v. Muhammad Ahmad 1974 SCM R 92 and Ahmad v.
Muhammad Shaft 1982 SCM R 68 rel. Muhammad Zafar Yasin for Appellants.
Sh.Muzaffar Ahmad Zafar for Respondents Nos. 1 to 6.
Mst. Sakina Bibi: Ex parte. Date of hearing: 14th February, 1984.
' This appeal against the appellate decree of the learned Additional District Judge, Faisalabad, dated the 6th June, 1978, endorsing the decree of the learned Civil Judge, Lyallpur (now Faisalabad), dated the 13th December, 1976, whereby the respondent's suit for possession of the land in dispute measuring 119 Kanals 19 Marlas situated in the area of Chak No,157/1211, Tehsil and District Faisalabad, on payment of Rs,7,874 was decreed, arises out of the following circumstances.
Nawab, the predecessor-in-interest of the respondents, sold the land in question to Sawal Singh, Gurdit Singh, Kehr Singh and Mehr Singh by means of registered deed of sale on the 28th February, 1928. Nawab's sons challenged the validity of the sale for want of consideration and legal necessity under custom. The litigation was concluded by the judgment of this Court dated the 27th November, 1934, declaring the sale to be ineffectual on the reversionary rights of the descendants of Nawab after his death and that they would be entitled to recover possession of the land on payment of Rs,7,874.
2. After independence the vendees left for India as evacuees. The Rehabilitation Department allotted the land in dispute as evacuee property to the appellants in 1947, its transfer in their favour was confirmed on the 1st February, 1954.
3. Nawab died on the 15th August, 1972. The respondents, who are his heirs, instituted suit to recover possession of the land on payment of Rs,7,874 against the appellants. The suit was decreed and the appellants' appeal against the decree of the learned trial Court was dismissed by the District Court. Hence this appeal.
4. The learned counsel for the appellants contended that it was obligatory upon the respondents to have secured a declaration from the Custodian of Evacuee Property under sections 20 and 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, touching non-evacuee character of the land in question and their failure to do so would not entitle them to its possession because the land had been transferred to the appellants free from all encumbrances. Citing Muhammad Swaleh versus United Grain and Fodder Agencies PLD 1964 SC 97; Mansab All v. Amir PLD 1971 SC 124 and Rashid Ahmad v. State PLD 1972 SC 271, which deal with situations different from the one obtaining in the instant case, he contended that section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, debarred the civil Court from taking cognizance of the suit regarding the land in dispute which was evacuee property. Again referring to what has been laid down in Muhammad Alam Khan v. Muhammad Ahmad 1974 SCMR 92 he maintained that when the land in dispute had gone into the evacuee property pool it could not be taken out therefrom.
5. The learned counsel for the respondents argued that the decision of the Supreme Court reported as Ahmad v. Muhammad Shafi 1982 SCMR 68 furnished, and in actuality it is, a complete answer to the arguments of the learned counsel for the appellants. As observed by the Supreme Court, the appellants got allotment of only of what constituted evacuees' rights and the evacuees' rights were restricted to holding of possession of the land in dispute till the death of Nawab and payment of Rs,7,874. Therefore, the moment Nawab died and the aforesaid amount was paid to them the appellants ceased to have any right in the property in dispute and no declaration from the Custodian was called for to dispossess them from it. The appeal consequently is found to be without any force and is dismissed. The parties are left to bear their own costs.
6. As was observed by the Supreme Court in the last mentioned case, the Government will do well to allot and transfer some other evacuee land to the appellants commensurate with their entitlement as they have been deprived of the land in dispute for no fault of their.