NASIM HASAN SHAH, J.--The father of the respondents was allotted some land under the Horse Breeding Scheme -under the Colonization of Government Lands (Punjab) Act, 1912. On his death, the question of inheritance arose between the appellant and his step--mother. The matter was agitated before the Colonization authorities and ultimately it came before the Member, Board of- Revenue on 18-12-1963. It is alleged that the parties agreed before him that the appellant would maintain the appellant herein out of the profits of the land and this condition was inserted in the order of the Member, Board of Revenue. Respondent No. 1, however failed to pay maintenance to the appellant and the land was, therefore, resumed from him. The land in dispute was later on allotted to the appellant on 4-12-1972 by the Collector. Respondent agitated the matter before the Commissioner, who dismissed the appeal by his order, dated 29-5-1972 and thereafter before the Member, Board of Revenue who dismissed the revision on 8--9-1972. He then challenged the order of resumption in a declaratory suit which was rejected by the trial Court and the appeal filed by him was also dismissed. Pathana, Respondent No.1, later again brought a suit against Respondent No. 2 and the present appellant (who is widow of Pathana's father i.e. Her step-mother) for a declaration to the effect that he is an allottee in possession of the land in dispute under the Horse Breeding Scheme and the orders, dated 29-5-1972 and 8-9-1972 passed by the Commissioner, Multan Division, Multan and the Member (Colonies), Board of Revenue as well as the order, dated 4-12-1972 passed by the Collector, Multan are illegal, void and without jurisdiction, ineffective and inoperative qua his rights. As a consequential relief, he prayed for a perpetual injunction so as to permanently restrain the defendants (the appellant and Respondent No. 2 herein) from interfering in his tenancy rights and possession of the land in dispute. In the written statement, the appellant herein, besides repelling the allegations made in the suit further averred that a similar suit was earlier instituted by the plaintiff which was rejected under Order VII, rule 11, C.P.C. And she contended that the present suit was not maintainable. The learned trial Judge accepted this plea and, by his order, dated 27-7-1974, rejected the plaint under Order VII, rule 11, C.P.C. He further held that the plaintiff (Respondent No. 1 herein) had not come to the Court with clean hands as he had concealed the factum of filing and rejection of the earlier suit.
2. Aggrieved by this order, the plaintiff (Respondent No. 1 herein) filed an appeal in the Court of the District Judge, Multan which was heard by an Additional District Judge, Multan. This appeal was found to be without force and was, accordingly, dismissed vide his judgment and decree, dated 15- 5-1975.
3. The plaintiff (Respondent No. 1 herein) then filed a second appeal (R.S.A. No. 286 of 1975) in the Lahore High Court. The matter was heard by a learned Single Judge of the said learned Court and he was pleased to accept the same. As a result thereof, the orders of both the Courts below were set aside and the case remanded to the trial Court, with the direction that it should be decided after attending to all the legal and factual questions involved in the suit vide his judgment and decree, dated 18-1-1978. The above order and judgment of the High Court was challenged by filing a petition for leave to appeal in this Court wherein it was submitted that the case should not have been remanded to the trial Court but the High Court should itself have determined the questions arising before it, especially as the question which fell for determination was a question of law and no further evidence was necessary to determine it. The remand of the case, it was urged, was not justified. Leave to appeal was granted by this Court on 15-4-1978 to consider this matter.
4. We have heard Mr. Muhammad Hanif Niazi and Rona Abdul Rahim, learned counsel for the parties.
5. We note that the husband of the appellant, namely Saleem who is also 'the father of Respondent No.1 was allotted the land in dispute under Horse Breeding Scheme under the Colonization of Government Lands Act, 1912. On his death, the question of inheritance arose between the appellant and Respondent No. 1, Respondent No. 1 was given inheritance of tenancy on the condition that he would maintain the present appellant. This condition was inserted by the Member, Board of Revenue by mutual consent of the parties which lead to the acceptance of the revision petition of Respondent No. 1. However, the Respondent No.1 failed to pay maintenance to the appellant and the land was, therefore, resumed from him and later on allotted to the appellant on 4-12-1972 by the Collector. The respondent agitated against this allotme7it right up to the Member, Board of Revenue but without success. Thereafter, he challenged the order of resumption in a declaratory suit which was rejected by the trial Court and the appeal filed by him was also dismissed. Later on, he filed another suit without disclosing the rejection of the previous plaint. The litigation commenced with the second suit culminated into the judgment and order of the Lahore High Court, Lahore, dated 18-1-1978, referred to above
6. We further note that the high court in its order, dated 18-1-1978 has mainly held that the question whether the Board of Revenue could impose the condition in its order, dated 18-1-1963 of maintaining appellant No. l was a matter which required to be examined further and, therefore, remanded the case to the trial Court.
7. Now it has been argued before us that the case should not have been remanded on this ground and the High Court should have itself determined whether the Board of Revenue could have lawfully incorporated the condition of payment of maintenance in its order. No evidence was required to determine this question, as this question was a question of law. He has further contended that under section 36 of the Colonization Act, a Civil Court is barred from exercising jurisdiction in any matter which falls to be decided under the provisions of the said Act. In this connection it was submitted that the question about the incorporation of the condition of the maintenance arose before the Member, Board of Revenue and was decided there in accordance with the agreement between the parties and it was, therefore, not open to the civil Court to exercise jurisdiction in such a matter.
8. There is force in the first submission. In a recent judgment delivered by this Court; namely, Mst.
Sardar Begum and others v. Muhammad Saleem and others PLD 1984 SC 62, we have held that in cases which required summary disposal--and the present was clearly one such case--the High Court instead of remanding the case to the District Judge should have finally decided the same as to save the the of the parties. This is the course which should also have been followed in this case.
10. We would, accordingly, allow this appeal, set aside the judgment and decree of the High Court, dated 18-1-1978 and remand the case back to the High Court to finally decide the second appeal (R.S.A.No. 286 of 1975) filed before it by Respondent No. 1, itself, in the light of our above observations.