1. ' IBADAT YAR KHAN, J.--This revision is directed against the judgment of 1st Additional District Judge.
2. Nawabshah dismissing the I-Appeal of the applicant against the judgment and decree passed against him in Civil Suit No,61 of 1968 by the learned Civil Judge Nawabshah, dated 25th March 1971 whereby a suit filed by the applicant seeking declaration and injunction was dismissed by the learned Civil Judge.
3. 2.The dispute in these proceedings relates to agricultural land bearing S.No,612/1 to 7 and S.Nos.910, 11, 12, 13 and 14 measuring about 13-5 acres situated in Deh Lakhmir District Nawabshah. This is a Barrage land and it was allotted to one Jagjeet Singh by the Barrage Authorities in lieu of certain sums which were payable in installments. It is stated by the learned counsel for the applicant before me that under this transfer no rights could vest in the allottee until all the installments were fully paid and as the allottee Jagjeet Singh failed to pay all the installments, the allotment was cancelled and the land was resumed by the Barrage Authorities by order, dated 8th April 1948. Thus the land became available for fresh allotment from the Barrage Authority.
3. On 9th April, 1952 the resumed land was again sold by the Barrage Authority to Muhammad Nazeer. The price was to be paid in instalments as before. Muhammad Nazeer sold the rights in the land to Abdullah Shah. This transfer was approved by the Barrage Authority. The Barrage Authority by an order, dated 28th October, 1958 made a fresh grant in favour of Abdullah Shah. Abdullah Shah sold it to Taj Muhammad, the present applicant. This transfer was again approved by the Barrage Authority and by order 27th December, 1961 the land was allotted to Taj Muhammad. In consequence of this final transfer in favour of Taj Muhammad the records were mutated by the Revenue Authority and by entry, dated 3rd February, 1962 Taj Muhammad was shown as the transferee of this land. This narrative completes one chain of facts.
4. Simultaneously the Rehabilitation Authorities were treating the land as Evacuee Property belonging to Evacuee Jagjeet Singh. Perhaps they temporarily allotted it to one Abdul Majeed sometimes in 1949. As no detailed information is available regarding this allotment, it cannot be said what was the nature of interest created in favour of Abdul Majeed and what was its duration.
4. This incident is mentioned only to show that even at that early stage the Rehabilitation Authorities treated the land as Evacuee Property. But the present dispute originates from the order passed by the Rehabilitation Authorities on 28th March, 1958 transferring this land under the Settlement Scheme on permanent basis to Manzoor Hussain father and predecessor-in--interest of respondents Nos.1, 2 and 3. A final order of transfer seems to have been passed in favour of Manzoor Hussain by the Settlement Authority on 22nd August, 1959 transferring this land in lieu of the claim of Manzoor Hussain. The present applicant to whom the land had been sold by the Barrage Authorities felt agitated and challenged this order by filing an appeal before the Deputy Settlement Commissioner (Land). This appeal was dismissed by the Deputy Settlement Commissioner by an order, dated 22nd December, 1961 and thus the transfer in favour of Manzoor Hussain remained intact. A revision was filed against the order, dated 22nd December, 1961. This revision was dismissed by the Additional Settlement Commissioner vide his order, dated 7th December, 1964. A second Revision filed before the Settlement Commissioner was also dismissed by the Settlement Commissioner by his order, dated 17th February, 1968. Having exhausted his remedies under the Settlement Department the applicant now filed a suit being Suit No,61 of 1968 before the Civil Judge Nawabshah praying for the following reliefs:- "(A) Declaring that in view of the sale of suit land by the Barrage Department in favour of plaintiff, the allotment of the same by defendants Nos.4, 5 and 6 in favour of defendants Nos. 1 to 3's father is unlawful, void, ineffective without legal authority, and not binding on the plaintiff.
(B) Restraining the defendants by permanent injunction from ousting the plaintiff from the suit land and interfering with his possession in any manner, directly or through other persons."
5. ' This suit was filed against the heirs of the original transferee Manzoor Hussain, Assistant Rehabilitation, Mukhtiarkar, Deputy Commis sioner and Additional Commissioner-cum-Settlement Commissioner were also made defendants in the suit. The suit was contested by the.
3. On 9th April, 1952 the resumed land was again sold by the Barrage Authority to Muhammad Nazeer. The price was to be paid in instalments as before. Muhammad Nazeer sold the rights in the land to Abdullah Shah. This transfer was approved by the Barrage Authority. The Barrage Authority by an order, dated 28th October, 1958 made a fresh grant in favour of Abdullah Shah. Abdullah Shah sold it to Taj Muhammad, the present applicant. This transfer was again approved by the Barrage Authority and by order 27th December, 1961 the land was allotted to Taj Muhammad. In consequence of this final transfer in favour of Taj Muhammad the records were mutated by the Revenue Authority and by entry, dated 3rd February, 1962 Taj Muhammad was shown as the transferee of this land. This narrative completes one chain of facts.
4. Simultaneously the Rehabilitation Authorities were treating the land as Evacuee Property belonging to Evacuee Jagjeet Singh. Perhaps they temporarily allotted it to one Abdul Majeed sometimes in 1949. As no detailed information is available regarding this allotment, it cannot be said what was the nature of interest created in favour of Abdul Majeed and what was its duration.
6. This incident is mentioned only to show that even at that early stage the Rehabilitation Authorities treated the land as Evacuee Property. But the present dispute originates from the order passed by the Rehabilitation Authorities on 28th March, 1958 transferring this land under the Settlement Scheme on permanent basis to Manzoor Hussain father and predecessor-in-interest of respondents Nos.1, 2 and 3. A final order of transfer seems to have been passed in favour of Manzoor Hussain by the Settlement Authority on 22nd August, 1959 transferring this land in lieu of the claim of Manzoor Hussain. The present applicant to whom the land had been sold by the Barrage Authorities felt agitated and challenged this order by filing an appeal before the Deputy Settlement Commissioner (Land). This appeal was dismissed by the Deputy Settlement Commissioner by an order, dated 22nd December, 1961 and thus the transfer in favour of Manzoor Hussain remained in tact. A revision was filed against the order, dated 22nd December, 1961. This revision was dismissed by the Additional Settlement Commissioner vide his order, dated 7th December, 1964. A second Revision filed before the Settlement Commissioner was also dismissed by the Settlement Commissioner by his order, dated 17th February, 1968. Having exhausted his remedies under the Settlement Department the applicant now filed a suit being Suit No,61 of 1968 before the Civil Judge Nawabshah praying for the following reliefs:- "(A) Declaring that in view of the sale of suit land by the Barrage Department in favour of plaintiff, the allotment of the same by defendants Nos.4, 5 and 6 in favour of defendants Nos. 1 to 3's father is unlawful, void, ineffective without legal authority, and not binding on the plaintiff.
(B) Restraining the defendants by permanent injunction from ousting the plaintiff from the suit land and interfering with his possession in any manner, directly or through other persons."
7. ' This suit was filed against the heirs of the original transferee Manzoor Hussain, Assistant Rehabilitation, Mukhtiarkar, Deputy Commissioner and Additional Commissioner-cum-Settlement Commissioner were also made defendants in the suit . The suit was contested by the respondents Nos.1, 2 and 3. The learned Judge framed the following respondents Nos.1, 2 and 3. The learned Judge framed the following issues:- "(1) Whether the suit land was not treated as evacuee property till 31-12-1956?
(2) Whether the suit land was utilized by the Rehabilitation Depart ment after its alienation by the Barrage Authorities?
(3) Whether in allotting the suit land to the father of the defendants Nos. 1 to 3, instructions contained in the Notification of the Chief Settlement Commissioner, dated 19-12-1962 and authority reported under 1963 West Pakistan Revenue page 36, was ignored by the defendants Nos. 4 to 6.
(4) Whether the defendant No, 6 decided Revision filed by the plaintiff in the absence- of the plaintiff's counsel and without hearing him?
(5) Whether allotment of the suit land by the defendants Nos. 4 to 6 in favour of the father of the defendants Nos. 1 to 3 was illegal, without jurisdiction, unlawful, void and ineffective?
(6) Whether the suit is not maintainable?
(7) Whether the suit is barred by res judicial?
(8) Whether this Court has no jurisdiction?
(9) What should the decree be?"
8. ' The evidence of parties was recorded. The suit was dismissed by the learned Civil Judge Nawabshah by his judgment, dated 25th March, 1971. An appeal was filed against this judgment and decree and this appeal was dismissed by the learned first Additional District Judge by his judgment, dated 23rd August, 1976. It is against these concurrent judgments that the Applicant has filed this revision.
9. ' The learned counsel for the applicant and respondent have argued their respective sides. It appears to me that at this stage the fate of this land is to be decided on the interpretation of certain circulars and memorandums issued by the Settlement and Rehabilitation Authorities projecting the thinking within the control of the Barrage Authorities were to be disposed of by the Barrage Authorities after they were resumed on account of the migration of the previous Hindu evacuee owneRs, The situation regarding their disposal remained confused for quite some time and it is one of the cases in which complications have arisen due to dual exercise of power by the two different CON/eminent agencies. It appears that the Barrage Authorities were not inclined to treat the resumed lands as Evacuee lands for the simple reason that the evacuees concerned had not acquired any vested rights as they had not yet paid all the installments and had forfeited the rights to retain these lands when they migrated to India. Treating them as defaulters the Barrage Authorities had resumed the lands and were freely disposing of these lands according to their own rules. The Rehabilitation Authorities on the other hand were insisting that even such lands in which the former non-Muslim allotters had no matured rights should be treated to be evacuee lands and should be disposed, of as such, according to the Settlement Scheme. In this situation several memorandum and circulars were issued from time to time by Rehabilitation Authorities reminding the Barrage Authorities that whatever may be the nature of the interest of the evacuee in the land, the land should be treated as evacuee land. All these communications and circulars are neither readily available anywhere nor all have been produced. But at least two have been produced before the learned Judge and it is worth while to quote them in extensor. The first is a circular, dated 5th March, 1959 issued' by Mr.Anwar Adil the then Additional Rehabilitation Commissioner Hyderabad and Khairpur Divisions which is as follows:- "In continuation of my Circular No,44-R/48 (iv), dated the 16th October, 1958 and 28th June, 1959 on the above subject, it is clarified that the land comprised in the Hindu cancelled grants, the disposal of which Was banned on permanent basis in 1951 and which were allowed to be granted on claim also tenure are to be utilized for satisfaction of claims of the Displaced Persons under the relevant Settlement Scheme. The evacuee cancelled grants disposed of on full rate tenure under the orders of the former Government of Sind before the ban on disposal of such lands was imposed in 1951 should not be taken over for Rehabilitation purposes. Sd/ (Enver Adil) C.S.P ' Additional Rehabilitation Commissioner Hyderabad and Khairpur Divisions."
10. ' Neither this communication nor the circulars referred in it are available in the printed form but the existence and validity of this circular is not challenged by any party. The learned counsel for the respondent has urged that if the land was transferred by the Barrage Authority prior to the ban imposed in 1951 then such a transfer should not be annulled. But if any transfer is made after the ban of 1951 then in terms of the circular it would not be saved and such a transfer would remain ineffective. If this circular was all by itself, there is force in this contention. But the above circular was followed by another Circular No,8528-62/7290-R(L), dated 19th November, 1962 issued by the Chief Settlement and Rehabilitation Commissioner, Lahore. This is also reproduced for ready reference:- "No,5045. No,8528-62/7290-R(L) Office of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore, dated 19-11-1962.
11. ' From:- Mr. E.U. Muhammad P.C.S. Deputy Secretary (Rural) to the Ch.S. and R.C., Lahore.
12. ' To, All the Deputy Commissioners in Hyderabad and Khairpur Divisions.
13. ' Subject: Disposal of Barrage/Colony road comprising of Hindu cancelled grants.
14. MEMORANDUM ' It has come to the notice of the Chief Settlement Commissioner that the correct position with regard to the disposal of the Barrage grants comprising of Hindu (Evacuee) cancelled grants in the Divisions of Hyderabad and Khairpur is not properly known at some place in these Divisions. It is clarified that notwithstanding breach of condition in the lease of grant in favour of an evacuee providing for its termination or resumption with a right of re-entry by the lease, or as the case may he, this condition becomes in operative because of the provisions of subsection (1) of section 12 of the Pakistan (Administration of Evacuee Property) Ordinance 1949. As such these Hindu (Evacuee) cancelled/ resumed grants are to be treated as Evacuee property and utilized for the purpose of satisfaction of claims under the West Pakistan Settlement Scheme. In this connection attention is invited to the memorandum circular No,14-R/48(I), dated 23-5-1959 (copy enclosed) from Additional R.C. Hyderabad and Khairpur Divisions addressed to Government.
15. ' However there are certain cases in which some of such cancelled grants have been resold by the Barrage Department. In consultation with the Provincial Government it had been decided that such areas already so resold should not be utilized under the W.P. Rehabilitation Settlement Scheme.
16. ' Necessary action in the matter should therefore be taken accordingly in the matter. Sd/-Deputy Secretary (Rural) to the Chief of Settlement & R C Lahore.
17. ' It is evident that after reiterating that the Barrage land abandoned by the Hindu evacuees and resumed by the Barrage Authorities, even if the allotments of the Hindu evacuees were cancelled on account of non-payment of full price and breach of other conditions, the land should be treated and dealt with as evacuee property by force of subsection (1) of section 12 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. After making this clarification the important operative part of the circular clearly lays down:- "In consultation with the Provincial Government, it has been decided that such areas already resold should not be utilized under the West Pakistan Rehabilitation Settlement Scheme."
18. ' The impression one gathers from the direction quoted above is that all transfers made by the Barrage Authorities till the date of this memorandum Are immune from any attack on the ground of being Evacuee. This memorandum does not make any mention of the so-called ban of 1951 as has been held by the learned Judge in the impugned judgment and has now been contended by the learned counsel for the respondent. If the intention was to limit this exception only up to the so- called ban of 1951, it ought to have been clearly borne out in this memorandum by the Settlement Commissioner. in the result any transfer made till this memorandum, dated 19-11-1962 by the Barrage Authority must remain effective and rights transferred to any transferee for valuable consi deration must be honored.
19. ' It is noteworthy that this memorandum itself is based on a policy decision of the Central Government formulated in their letter No,F-8(25-259) claims, dated 15th September, 1958 from the Central Government, Ministry of Rehabilitation which runs as follows:- "(i) It has been brought to the notice of this Ministry that in certain cases the sale of the resumed land was cancelled with the result that the persons who purchased resumed lands bona fide have been put to loss without any fault of theiRs, The matter has been as reconsidered and the Central Government desire to make it clear that in cases where resumed lands had already been resold it is not necessary to cancel the sales but only to regularize the position in the manner already indicated.
20. (ii)Such regularization may he effected by acquiring under the provisions of the Land Acquisition Act the evacuee rights in the property and payment of suitable compensation for such rights. In this mariner the evacuee interest in the land would be removed and concerted into Government property making that property available for disposal according to discretion of the Government."
21. ' The above letter is quoted in a decision reported in PLD 1963 West Pakistan (Revenue)
36. In the above analysis the final position that emerges is that the Barrage land which was resumed by the Barrag B Authority and resold to new transferees remained no longer available to the Rehabilitation and Settlement Authorities.
22. ' In the present case the transfer in favour of Jagjeet Singh was cancelled on 8th April, 1948 and the land was resumed. For the purpose of the present controversy the first transfer was made in favour of Muhammad Nazeer on 9th April, 1952. The evacuee character of the land ceased to exist from this point of time and ilisubsequent transfers from Muhammad Nazeer to Abdullah Shah and from Abdullah Shah to Taj Muhammad were made in the ordinary course. If the transfer, dated 9-9-1952 can be saved then there is no difficulty in holding that the disposal of the land by the Settlement Authority on 20th March, 1958 in favour of Manzoor Hussain father of respondents Nos.1 to 3 was contrary to the Scheme laid down by the Government in its letter, dated 15th September, 1958 and followed by the memorandum, dated 19th November 1962 quoted above. In my opinion the sale dated 9-9-1952 to Muhammad Nazeer from whom the present petitioner has purchased the land is fully protected and the rights acquired by the present applicant through the original purchaser Muhammad Nazeer cannot be disturbed. The Barrage Authority having already sold the land on 9th April, 1952 there remained nothing to be transferred in favour of Manzoor Hussain by the Rehabilitation Authority on 20th March, 1958. The findings of the learned Additional District Judge in the following terms cannot be supported. The learned Judge in his impugned judgment has held the following view:- "At Exh.29 and Lxh.44 produced by P.W. Sain Dino, the Clerk of Barrage Mukhtiarkar there is certificate from Additional Rehabilitation Commissioner, Nawabshah and Khairpur Divisions which shows that in 1951 a ban was imposed for the grant on temporary basis of the Hindu cancelled grant, that before the imposition of the said ban all such grants if disposed of on full rates were not to be taken over for Rehabilitation purposes. Then at page 31 of Exh.44 there is certificate by Chief Settlement and Rehabilitation Commissioner, West Pakistan, Lahore dated 19-11-1962 on the same lines as mentioned above. The contentions of subsequent notification is that the cancelled Hindu grant which has been resold are riot to be utilized under Rehabilitation and Settlement Scheme and that has also been laid down to PLD 1963 West Pakistan (Revenue) 36 wherein it has been laid down that the sale of the resumed land is not to be cancelled and the instructions contained in Central Government, Ministry of Rehabilitation letters, dated 15-9-1958 are to be carried out, which are also on the same lines, as the two notifications mentioned above. Now so far the admitted position in respect of suit land is concerned, it was cancelled for non-payment of installments on 8-4-1948, as is evidence from At Form Exh.65. As already mentioned above ban was imposed against the permanent sale of Hindu cancelled grant on full rates in the year 1951 and then on 9-4- 1952 vide Exh.90, the suit land was reprinted to one Nazir i.e, after the imposition of above ban. The notification of Chief Settlement Commissioner, dated 19-11-1962 and the abovementioned authority reported under PLD 1963 West Pakistan (Rev.) 36 makes it clear that only those sales cannot be utilized for the Rehabilitation purposes which had taken place before the imposition of ban in 1951.
23. Thus it is clear that the respondents Nos.4 to 6 had not ignored the instruction of Chief Settlement Commissioner of 1962 and the authority reported in PLD 1963 W.P. (Revenue) 36 by allotting the suit land to father of defendants Nos.1 to 3 for the simple reason that the original grant in favour of Muhammad Nazeer had taken place before the imposition of ban of 1951. Accordingly, I concur with the learned trial Court and answer this issue in the negative."
24. ' In this view of the matter the applicant is entitled to the declaration prayed for in the plaint:- "In view of the sale suit land by the Barrage Department in favour of the plaintiff, the allotment of the same by defendants Nos. 4, 5 and 6 in favour of defendants Nos. 1, 2, 3's father is unlawful, void, ineffective without legal authority, and not binding on the plaintiff."
25. ' The applicant is also entitled to the consequential relief of the injunction as prayed for in the plaint.
26. ' The next contention of the learned counsel for the respondent was that the suit is hit by section 42 of the Specific Relief Act. This section provides that where a plaintiff has filed a suit for a declaratory relief but omitted to pray for consequential relief, no such declaration should be granted.
27. ' To quote the proviso itself: "Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than mere declaration of a title omits to do so."
28. ' What would be a consequential relief would depend on the circumstances of each case. In the present case the applicant/plaintiff has prayed for the relief of injunction as a consequential relief which in my opinion fulfils the requirements of section 42. The applicant has produced the Land Revenue receipts Exh.92 and 98 to show that he was cultivating the land either directly or through his agents/Haris and was also paying the revenue amounts. In such situation the relief for injunction may be adequate to protect his title. As such it cannot be said that the suit is not maintainable on account of the proviso of section 42.
29. ' The learned counsel for the applicant has also attacked the endings of the two Courts below on issue No,8 where under it was held the learned Additional District Judge that "the jurisdiction of Civil court is barred and the question of validity of allotment by these authorities cannot be challenged in the Civil Court unless of course ale finely allotted and proved which is not the case of the present 'Wt. Accordingly I concur with the learned trial Court and hold that he jurisdiction of civil Court is barred in the present suit." In the resent the applicant is not asking for interference with the exercise powers within the framed work of the Rehabilitation Laws.
30. ' In para.8 of the plaint the plaintiff has complained that "that he defendants Nos. 4 to 6 have, however, clearly acted in contravention material provisions of statute and case law, in allotting the suit land o defendants Nos. 1, 2, 3's father. They have even ignored the instructions contained in the notification of Chief Settlement commissioner, dated 19-11-1962 and the authority of the PLD 1963 west Pakistan Revenue 36".
31. ' The grievance raised in the suit is that the order passed and he view taken by the Rehabilitation Authority is beyond the scope of the provision of law and contrary to the requirements laid down in the Government circulars and the direction contained therein. The actions re challenged as coram non judice. Obviously the bar cannot apply to such actions. The learned counsel for the applicant has relied on 1974 C M R 356. At 359, it is held: "It is a well-established principle that even where the jurisdiction of Civil Courts is barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide."
32. ' The other case relied upon by the learned counsel for the applicant is PLD 1965 SC 698 in which the bunch of sections relating to the jurisdiction of the Civil Courts came under scrutiny and was held: "We will state now the effect of these two sections. Section 22 makes an order final and not liable to be questioned while section 25 debars the Courts from determining a matter which the Settlement Authorities are empowered to determine. Section 22 is the last section in Chapter VI of the Act, which Chapter is headed "Appeal, Revision and Review" and the intention of this section was only to attach a finality to an order and prevents its being questioned in a Court. Provisions like this are intended to cover only orders passed with jurisdiction and afford no protection to orders passed without jurisdiction which can always be challenged in a Court for an order passed without jurisdiction has no existence in the eye of law. On a superficial glance section 22 would appear to cover any order passed by a Settlement Authority. But 'a little consideration will show that it has to be limited in its application to orders which could be passed under the Act. It protects "any order passed by any officer appointed under this Act" and does not say that the order has to be one under the Act. But obviously there can be no intention to protect every order passed by a person just because he happens to be an officer appointed under the Displaced Persons (Compensation and Rehabilitation) Act and an "order passed by an Officer appointed under the Act" can only mean an order of the kind which the officers appointed under the Act are empowered to pass. At the same time section 22 only protects the order and the provisions directly relevant as to the extent of bar created by a determination is section 25. This section it will be observed "excludes the jurisdiction of Courts only in respect of matters which are to be "determined" by the Settlement Authorities though as we have stated above this would have been the implication even if clear words to that effect had not been used. When section 25 says "empowered to determine" it means the officer has authority to record a binding determination in respect ()I' the !natter. The mere fact that he is bound to reach a conclusion as to that matter in order to act does not mean that he has the power to determine it so as to bind any person. The only part of an order of a Settlement authority which could bind the Court would be one relating to a matter fur the determination of which the Settlement Authority possesses exclusive jurisdiction. The finding of the Settlement Authorities as to the nature of property does not bind the parties or the Court and does not oust the jurisdiction of Court."
33. ' No other point was argued The upshot of the whole discussion is that this revision is allowed with cost. The judgment of the learned First Additional District Judge Nawabshah and judgment and decree of the learned Civil Judge, Nawabshah are hereby set aside. The suit of the plaintiff/applicant is decreed as prayed.