1. 173 kanals 5 marlas of land in Walipur Boora, Tehsil Shakargarh, Dictrict Sialkot, was confirmed to Rahim Dad on Khata No. 18 of RL. II of that village on 13th December 1952 vide Exh. P.
2. The allottee Rahim Dad died on 21st June 1963 and it appears from copy of the mutation No. 243&, (Exh. P. 1) that the name of Rahim Dad was shown in the revenue record in the ownership column which means that he must have paid all the rehabilitation fee and other dues and had either become vested with the property or at least was a confirmed allottee of the land allotted to him.
2. After the death of Rahim Dad, mutation No. 2438 was attested on 30th September 1963 by an Assistant Collector II Grade and half of the property was mutated in the name of the petitioner as a residuary of the deceased, he being a brother's-- son, and the rest half was mutated to the name of the respondent who is daughter of the deceased. The respondent filed an appeal against this order on the ground that Rahim Dad, deceased, was a Shia and according to Shia Law the daughter was entitled to the whole of the property. The Collector accepted this apdeal: and held the respondent only to be entitled to inherit the property of her father who was found to be a Shia.
3. The Revision petition filed by the petitioner before the Commissioner was dismissed on 12th December 1964. Ultimately a civil suit was filed on the 27th February 1965 by the petitioner for joint possession of the land to the extent of 86 kanals 17 marlas, in. Which the orders of the Revenue Officers were also challenged. This suit was contested by the respondent, inter alia, on the ground that the land being evacuee the civil Court was not competent to decide the validity or correctness of the mutation--. This plea gave rise to the following issue:- "Whether the civil Court has no jurisdiction to try the suit"?
4. Relying upon PLD 1965 Lah. 35, the learned trial Court held that the property allotted to displaced persons under the --Displaced Persons (Land Settlement) Act, 1958, continues to be evacuee property even after its acquisition under section 4 of the above Act and that decision of the mutation of inheritance of a deceased allottee to whom the permanent rights relating to the land allotted to him have not been given, is within the: exclusive jurisdiction of the Settlement Authorities and con--sequently the civil Courts had no jurisdiction to try the suit.. The learned trial Court returned the plaint to the petitioner under Order VII, rule 10, C P. C. For its presentation to the proper Court, on 30th of June 1965. An appeal against this order filed by the petitioner was dismissed on 4th May 1966 by the learned District Judge, Sialkot, who held that even in the year 1963 the deceased should be deemed to be only a right-bolder and his-- inheritance could be decided by the Settlement Authorities.
5. The learned counsel for the petitioner has urged that the property in dispute had been confirmed in the name of the deceased during his lifetime and neither paragraph 46 nor paragraph 67 of the Rehabilitation Settlement Scheme was applicable and the Settlement Authorities had no jurisdiction to decide the matter relating to his inheritance. He further contended that the order of mutation and the subsequent orders in appeal and revision were all passed by the Revenue Officers and not by any settlement authority and for this reason also the jurisdiction of the civil Court was not ousted, on the other hand jurisdiction to consider the question of title in the circumstances of the case was vested only in the civil Court.
6. I find that the evidence in the case has not been considered by either of the two Courts. The evidence in the case consists of some material documentary evidence. The respondent has relied upon the copy of RL. II which has been exhibited as D. 1 while at the instance of the petitioner the copy of mutation No. 2438 (Exh. P. 1) has been relied upon. The copy of the RL. Il proves that the land in dispute was allotted to the deceased on the 13th of December 1952. Mutation No. 2438 is on the form of mutation used by the revenue authorities as distinguished from the Rehabilitation or Settlement authorities who have their own forms for this purpose. This mutation was attested not by a rehabilitation or settlement authority, but again by a revenue authority, i.e. The Assistant Collector ll Grade and the further proceedings have been decided by the Collector and Commissioner respectively who are also Revenue Officers. One important factor to be taken into consideration is that in column No. 3 of this mutation which relates to the name of the owner the name of Rahim Dad Khan deceased is entered and not the name of the evacuee or the Central Government or even the Rehabilitation Commissioner. This shows that the allotment had not only become a confirmed allotment but on the date of death of the deceased, the property was shown in the revenue record as absolutely vested in the deceased. The case of Muhammad Hasan v. Syed Mumtaz Hussain relied upon by the learned trial Court and the learned appellate Court did not apply to the facts of the present case, as the property being vested in the deceased the mutation could be, and was really, attested only by the revenue authorities and not by the rehabilita--tion or settlement authorities.
7. Both the Courts appear to be of the view that an allottee could not be vested with permanent rights before 24th December 1964. This view finds support from rule 7 of the Displaced Persons (Land Settlement) Rules, 1959, as amended in 1964 which provided that a displaced person to whom any land has been allotted under a scheme shall, subject to the proviso to sub--section (3) of section 15, be deemed to have been permanently settled on the land so allotted to him with effect from the 24th December 1954, or the date of final confirmation of allotment, whichever is later. But this amended rule was not applicable to the present case in which the allottee was shown as absolute owner much before 24th December 1964 presumably under rule 7 as it existed prior to amendment of 1964, which is reproduced below:- "7. In pursuance of the provisions of subsection (3) of section 15 a displaced person to whom any land has been. Allotted by Rehabilitation Authority under a scheme as defined in clause (7) of section 2 or by a Settlement Authority under sub-section (1) of section 15, shall be permanently settled on that land in the manner subject to the following terms and conditions and payment of settlement fees prescribed in rule 10:-
(i) After the acquisition of the land under section 4 and the constitution of the Compensation Pool under section 5, the Assistant Settlement Commissioner of the area concerned, shall, except in the case of categories of land specified in proviso to subsection (3) of section 15
(a) cause a mutation of extinction of all evacuee rights and interests in the entire estate to be entered and disposed of and tae Central Government stall be substituted for the evacuee holders of rights in the estate; and
(b) then cause separate mutations to be entered incorporating the conferment of permanent rights on each person holding an allotment on the basis of the entries in register RL. II. And mutation, of inheritance or transfer connected therewith if any and pass an order giving the details of the area and the particulars of the person concerned.
(ii) Settlement under section 15 or an allotment under any provision of the Displaced Persons (Land Settlement) Act, 1958 (XLVII of 1958) shall, in respect of any agricultural land be subject to the condition that the person in whose favour such settlement or allotment is made shall fulfil all the terms and conditions of, and take over all the liabilities of the mortgagee under any unredeemed mortgage subsisting in favour of the Agricultural Development Finance Corporation for a loan authorized by the Custodian of Evacuee Property under section 27 of the Pakistan (Administration of Evacuee Property) Act, 1957 (XII of 1951).
(iii) The Assistant Settlement Commissioner, while passing an order on the mutations referred to above, shall ensure that the rights of any-non-evacuee in the land are not effected and the permanent settlement is made only to the extent of the rights or interest abandoned by the evacuee.
(iv) Such mutations shall be entered and disposed of within a period of six months from the date of publication of these rules or three months from the date of allotment, whichever is later, or within such further period as the Chief Settlement Commissioner may allow.
(v) If the land settled permanently is subsequently found to have been obtained by fraud, misrepresentation or in excess of the entitlement of the displaced person to whom an allotment .Of the same had been made, the land so settled shall, without prejudice to any other penalty to which such person may be liable, be liable to be withdrawn and the displaced person concerned or his successor-in-interest shall be liable to pay the entire profits received or accrued in respect of the land so withdrawn from the date of allotment till such withdrawal.
(vi) Any transfer by sale, exchange, gift, will, mortgage or otherwise by the displaced person on whom the land has been permanently settled or by his successor-in-interest, shall be deemed to be void if the allotment forming the basis of such permanent settlement is subsequently found to have been obtained by fraud, misrepresentation or in excess of entitle--ment."
8. The rule reproduced above and not the amended rule was in force at the time of death of the deceased and it appears that it is under clause (b) of this rule that the deceased was conferred permanent rights and was shown as an owner in the revenue record. In Taza Gul v. Said Gulam (PLD 1967 Pesh. 157), a Full Bench of the High Court of West Pakistan considered rule 7, both in its amended and un-amended form as well as section 16 of the Displaced Persons (Land Settlement)
9. Act as it stood before the 28th of December 1964 and after the above date when it was amended by Displaced Parsons Laws Amendment Ordinance, 1964 (Ordinance XIII of 1964), and held that the un-amended section 16, conferred full proprietary rights on the displaced persons. This also appears to be the view of the Supreme Court regarding the effect of un-amended rule 7 (vide Saee Muhammad v. Talib Hussain Shah (1970 SCMR 641). In that case the sale of the allotted property was effected on the 30th of July 1960 and the plaintiffs suit for pre-emption went up to the Supreme Court mainly on the ground that the pre-emptor bad waived his right of pre-emption.
10. Special leave to appeal was granted to consider the plea that as the land sold was evacuee property, civil Court did not have the jurisdiction to entertain the suit. In the jamabandi for the year 1956-57, in the ownership column, the Rehabilitation Commissioner of West Pakistan was shown as owner through the vendor as allottee of land. It was held that this did not make out that the land allotted to the vendor had not been permanently settled on him tinder section 15(3) of the Land Settlement Act, 1958 before the sale was effected and the plea that the land sold was included in the Compensation Pool and was immune from being proceeded against under section 6 of the Land Settlement Act did not therefore hold good. The above finding that it could not be said that the land was included in the Compensation Pool shows drat their Lordships were of the opinion that the property had vested absolutely in the allottee. The question that permanent rights could be vested in an allottee only on the 24th of December 1964 and not earlier is also answered in the negative by this authority according to which even on 30th July 1960, an allottee could be vested with permanent rights in the land allotted to him.
11. There are no words in the amended rule 7, to denote the it is retrospective in character. Otherwise also according to the well-established principle an amendment in the rule cannot be given retrospective effect and in any case such au amendment cannot take away the rights already vested therefore the amendment came into force. The amended rule was published in the Gazette of Pakistan, Extraordinary dated 24th December 1964 and was enforced from that date. It could not, therefore, apply to a case where permanent rights had already been conferred upon the allottee much before this amendment came into force.
12. Even if it is assumed that permanent rights in the land in dispute could not be conferred upon the deceased before the 24th of December 1964, there could be no doubt that the allotment in favour of the deceased was a confirmed allotment and all the prescribed fees must have been paid by him. Under section 15, sub-section (3) an allottee can be settled permanently only on payment of such fees as may be prescribed by the Central Government. The fact that the deceased had been shown as an owner of the property in dispute at least proves that all the fees prescribed by the Government must have been paid and there is nothing to the contrary on the present record.
13. Section 25 of the Displaced Persons (Land Settlement) Act, 1958, which is the only material section to be considered in the present case, bars the jurisdiction of the civil Court in respect of any matter which the Central Government or an officer appointed under the Act is empowered by or under the Act, to determine, and it further provides that no injunction or process or order shall be granted by any Court in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. It has already been seen that no order on the question of inheritance of tae deceased has been passed by any Settlement or Rehabilitation authority. The Act does not make any provision regarding any decision on question of inheritance of an allottee. In the Rehabilitation Settlement Scheme paragraph 46 does certainly provide for the manner in which cases of inheritance may be decided. Another provision in the scheme is paragraph 67. These two paras.
14. Are applicable to succession of deceased right-holders and not of confirmed allottees. This view is also supported by Abdur Rashid v. Pakistan (PLD 1962 SC 42). On consideration of these two paragraphs i.e. Nos. 46 and 67 in the case of Abdur Rashid v. Pakistan, it was held by their Lordships that the rule of succession given in paragraphs 46 and 46-A was applicable only to a case of deceased right-holder and when a confirmed allottee dies "he dies" with `real property' which is capable of being inherited and will be inherited by persons who would, according to the general law of the land governing inheritance from such a person be entitled to inherit". It was, however, held that no allotment can be considered to be finally confirmed unless the Rehabilitation fee has been paid in full. There being no other provision under the scheme enabling the Rehabilitation or Settlement Authorities to decide questions of mutation of inheritance of a deceased confirmed allottee, section 25 of the Land Settlement Act or even section 18 of the Rehabilitation Act which is part materia with section 25, cannot be considered to bar the jurisdiction of a civil Court to decide that question.
15. On the other hard, under section 34 of the Punjab Land Revenue Act, 1887, as amended by the Punjab Land Revenue Amendment Act, 1954 (IV of 1954), the acquisition of right of inheritance from an allottee of evacuee land under the law for the tune being in force is to be reported to the Patwari and a Revenue Officer has been given the power to inquire into the correctness of the entries. As held by the Supreme Court in Abdur Rashid's case, this amendment in section 34 of the Land Revenue Act appears also to indicate that the allotment of evacuee land under the scheme created an interest in land which had to be recorded in the record-of-rights by the Revenue authorities in the same manner as the acquisition of rights in non-evacuee lands by inheritance, purchase. Mortgage, gift etc. In Hassan Din v. Muhammad Azam and others-W. P. 476 of 1960 decided by a Division Bench of High Court of West Pakistan on 22nd April 1966, a summary of which is published in (1967 Law Notes (NUC) Lah. 30), it was held that the cases of inheritance of allottees of evacuee land for the time being in force have to be reported to the Patwari of the estate and in this manner jurisdic--tion is conferred on the revenue authorities to decide such mutations while paragraph 67 of the Rehabilitation Settlement Scheme deals with the cases of right-holders only.
16. Under section 45 of the Land Revenue Act, 1887, a civil suit is com--petent to challenge the mutation entries made by Revenue Officers.
17. The proposition that even after acquisition the property carries the Label of "evacuee property", as held in Muhammad Hassan v. Syed Mumtaz Hussain (PLD 1965 Lah. 35), which is the basis of the decision in this case is no longer good law in view of A. R. Niazi v. Pakistan (PLD 1968 SC 119), where it was held that "the property, after acquisition by the Central Government by notification under section 3 of the Act, had vested in it for all purposes and all evacuee interest In it had been extinguished, by operation of law, with effect from the date of that notification". This authority has been relied upon for the same proposition in Sher Muhammad and others v. Azmatullah (PLD 1968 Lah. 1171), Ruknud Din v. Ghulam Mustafa and another (PLD 1970 Lah. 797) and Mehra v. Zahoor Ahmad (PLD 1971 Lah. 834). It is, therefore, clear that the civil Court had jurisdiction to decide the case. The order of the learned trial Court amounts` to refusal to exercise jurisdiction vested in it by law. The revision petition is, therefore, accepted. The impugned orders of the Appellate Court and the trial Court dated 4th May 1966 and 30th June 1965, respectively are set aside and the learned trial Court Is directed to decide the case on merits. There will be no order as to costs.