' This is an application under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 in the light of PLD 1972 Azad J & K 90, for setting aside the stay order issued by the learned Sub-Judge 1st Class, Muzaffarabad on 13th February, 1985, whereby he has ordered for the maintenance of status quo in suit brought by the non-applicant for enforcing his right of easement and grant of perpetual function.
2. This application arises out of the following facts :-
(i) Raja Muhammad Yusuf Khan, plaintiff instituted a declaratory suit with perpetual injunction against defendant, Sheikh Ghulam Ahmad before the learned Sub-Judge 1st Class, Muzaff'arbad on December, 1,.1984. The plaintiff, Raja Muhammad Yusuf Khan averred in his plaint that he got some land under sirvev number 993-Min, measuring one Kanal situate in Muzaffarabad jown allotted in his favour and erected a building thereon. He also stated in the plaint that towards the North-East, the defendant erected his house and that a small portion of the plaintiff's land was lying between the houses of the plaintiff but the defendant, Sheikh Ghulam Ahmad without any justification, whatsoever, wanted to convert that piece of land into his way (passage). The plaintiff's stand is that the said small portion which is at present lying vacant, falls into his allotment and therefore, it cannot be converted into a passage or way because his rights of easement would be affected thereby. The plaintiff also prayed for a perpetual injunction restraining the .Defendant from using the vacant land as a passage or demolishing the wall enclosing it from the main street side ;
(ii) The plaintiff obtained a temporary injunction after institution of the suit. The defendant filed his objections against the issuance of that temporary injunction on December 12, 1984. The defendant averred in his objections that he also got one Kanal of land from the H same survey number and built up a house thereon. He also raised the objection that the civil Court had no jurisdiction to hear the case or issue the temporary injunction, and therefore, the temporary injunction was void It appears that the written statement is yet to be filed by the defendant before the learned Sub- Judge 1st Class, Muzaffarabad :
(iii) The learned Sub-Judge 1st Class, inspected the vat and prepared a handsketch of both the houses of the parties showing the disputed piece of land, the house of Khawaja Wali Ahmad and the street towards the West. Vide the impugned order passed on January, 26, 1985 the learned Sub-Judge repelled the objections of the defendant and confirmed his order, dated December 1, 1984, whereby be had ordered for the maintenance of status quo.
3. Dissatisfied with the order of the learned Sub-Judge 1st Class, Muzaffarabad passed on January
26. 1985, the applicant, Sheikh Ghulam Ahmad has come up direct to this Court, although he could have filed an appeal before the learned District Judge, Muzaffarabad. The contention of the applicant is that he has waived his right of appeal and has come direct to the High Court for redress under section 35 of the Azad Jammu sand Kashmir Courts and Laws Code Act, 1949.
4. After hearing the arguments from both the parties, I have come to know that there are confliciirtg decisions on the point as to whether an application for relief could be moved before this Court without filing"- an appeal before the Court of the learned District Judge. According to the view of the Supreme Court of Pakistan in the case titled Municipal Committee v. Aziz Ellahi (1) no revision lies before the High Court if no appeal is preferred to the learned District Judge against the order of the learned
(1) PLD 1970 SC 505 Sub-Judge 1st Class (Civil Judge) which is appealable. On the other hand the Azad Jammu and Kashmir High Court has taken a contrary view in the case reported in PLD 197'2 Azad J & K 90, wherein the Full Bench of this Court held that although no revision lies in appealable cases, in the light of the decision of the Supreme Court of Pakistan reported in the aforesaid authority, yet the High Court would interfere in fit and proper cases under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949. The powers of the High Court for superintendence and control are very wide and, therefore, this Court is competent to revise orders passed by the trial Court, even suo mow when there is a gross error on the face of the record and erroneous order amounts to injustice or usurption of jurisdiction and set aside such an order. The High Court has got its powers of superintendence and control under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949. Sheikh Ghulam Ahmad, the applicant, placed on the file the judgment of the Azad Jammu and Kashmir Supreme Court in Civil Appeal No, 26/Muzaffarabad of 1981. This is a case titled "Ghulam Muhammad Lolabi v. Khawaja Muhammad Usman" which was decided by Mr. Justice Sher Zaman Chaudhary, J. On August 13, 1983 and announced on August 20, 1983. In that case, the learned Judge of the Supreme Court approved the principle enunciated in cases reported in PLD 1972 Azad J & K 90 and PLD 1983 SC (A J & K) 13 and found that section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 read with section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (as amended upto date), invested the High Court with the power of superintendence and control over all the Courts subordinate to it and, therefore, the High Court could take cognizance of a case, although no appeal is preferred before the learned District Judge from the judgment of a Sub-Judge, where such appeal lies.
5. It was observed in the case titled Muhammad Sabeel Khan v. Muhammad Riaz (I) by Mr. Justice Raja Muhammad Khurshid Khan, the learned Acting Chief Justice of the Azad Jammu, and Kashmir Supreme Court :- "We have here also the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 which invests the High Court with authority of superintendence and control over the Courts subordinate to it.
Section 35 of the Courts and Laws Code Act, 1949, given wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. The prerogative and privilege of the High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under section 115, C. P. C. This right imposes a corresponding duty to see that Courts subordinate to it do not invade vested rights of subject by usurping jurisdiction. This view is supported by authorities as well. In Brindaban Chander Choubey v. Gour Chandra Ray and others AIR 1920 Pat. 568, it was observed ' It is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to (1)PLD 1983 SCAJ&K 13 revise such order, or set it aside and direct such further proceedings to be taken as justice may require. Therefore, in our view, the High Court in exercise of the powers of superintendence and control over the subordinate Courts under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949, was competent to revise the order."
So, I hold that this application under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act, 1949 is competent.
6. Sheikh Gulam Ahmad, the applicant has himself argued his case and has also filed written arguments in support of his contentions on July 7, 1985. On behalf of the non-applicant, Raja Muhammad Hanif Khan Advocate has argued the case.
7. The main points of the applicant are as under :-
(i) That the dispute pertains to evacuee piece of land and as such, the jurisdiction of Civil Court is barred under section 18 of the Pakistan Rehabilitation Act, 1956 ;
(ii) that the suit, before the learned Sub-Judge, Muzaffarabad, was not maintainable under the proviso of section 42 of the Specific Relief Act because the possession of the disputed small portion of land was not with Raja Muhammad Yusuf Khan, the non-applicant ; and
(iii) that the order of civil Court, granting temporary injunction, in respect of the evacuee property, is void. According to section 41 of the Pakistan ' Administration of Evacuee Property Act, 1957, no injunction or any other order of any nature can be passed or granted by the Court. The applicant, in support of his contention, has referred to the following authorities :-
(1) PLD 1953 Lah.
293.
(2) PLD 1954 Sind 212 and
(3) PLD 1954 Lab. 640
8. On the other hand, Raja Muhammad Hanif Khan, the learned counsel for the non-applicant, has raised the following points :-
(a) That the principles of temporary injunction are mentioned in cases reported in PLD 1970 SC 139 and PLD 1973 Azad J & K 62 and in some other authorities. In the instant case, the issuance of temporary injunction was justified because the plaintiff had got a prima facie good case and the balance of convenience was also in his favour ;
(b) that it is a case of easement and not a case for possession, therefore, the proviso of section 42 of the Specific Relief Act, does not hit the suit. Moreover, section 18 of the Pakistan Administration of Evacuee Property Act, 1956 or section 41 of the Pakistan Administration of Evacuee Property Act, 1957, does not hit the suit ;
(c) that there is neither any dispute about the nature of the property nor there is a dispute about the allotment or the possession of the property. The suit is about a small strip of the land, lying between the houses of the parties and the plaintiff has sued that the defendant should not sue this piece of land as a passage (way) because the right of easement (purdadari) of the plaintiff would be badly affected. Therefore, the authorities cited from the other side, are not relevant in this case ;
(d) that this is a suit under section 9 of the Civil Procedure Code read with section 54 of the Specific Relief Act and. Therefore, there is no bar of jurisdiction in this case as the allotment of the defendant is not questioned in the suit. The suit for easement is not hit by section 18 of the Rehabilitation Act or section 41 of the Pakistan Administration of Evacuce Property Act ; and
(e) that the learned Custodian or the Rehabilitation Authorities are not competent to declare or give a finding about the right of easement of a person. In this respect, Raja Muhammad Hanif Khan, the learned counsel for the non-applicant has referred to case reported in AIR 1949 All 308 and A 1 R 1963 All 340.
9. I have heard the applicant as well as the learned counsel for the non-applicant, gone through the written arguments produced by the applicant and have also perused the record of the case minutely.
10. I am of the opinion after visiting the spot twice that it wa basically a question of demarcation of the land. Both the parties before me were allotted one Kanal of land each from the same survey number. The difficulty with Sheikh Ghulam Ahmad, the applicant, is that he failed to get his one Kanal ofland demarcated when he started building his house. He should have first got demarcated on: Kanal of his land and then started construction of his house but unfortunately, he failed to do so for one reason or the other with the result that now he feels aggrieved that he has got less than one Kanal of land. It has now become practically difficult to demarcate property because so many people have obtained allotments from this very survey number and every allottee has built up his own house in the land allotted to him. Some of the allotees were vigilant enough to get that allotted pieces of land demarcated while the others remained sleeping over the matter and failed to get their lands demarcated. I think, the applicant was one of these unfortunate persons who could not get their land demarcated well in time. Now the demarcation may disturb the allottees and some of them may, perhaps, have to demolish their houses and that would disturb so many people for the negligence or slackness on the part of other persons who were not careful and slept over their rights. Law aids the vigilant and not those who sleep over their rights.
11. This is a case in which the written statement is yet to be obtained and the issues are yet to be framed by the trial Court. Therefore, it would be premature to discuss the legal aspects of this case at this stage.
12. Generally, the law is clear that, under section 41 of the Pakistan Administration of Evacuee Property Act, 1957, no Court, Civil or Revenue or any other authority, whatsoever; shall have the jurisdiction to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any an evacuee has got in any such property. The reason is that all such questions are decided by the Custodian to whom the evacuee property is vested under law. No Civil Court is competent to grant an injunction or order in relation to any proceedings before Custodian under law. Reference, in this respect may be made to :-
(1) PLD 1962 Lab. 352 (2) P 1 D 1968 SC 215
13. Similarly, under section 18 of the Rehabilitation Act, 1956, no order passed by a Rehabilitation Authority under the Rehabilitation Act, can be called in question in any civil Court in any suit, appeal, execution application or other proceedings and no civil Court is competent to eject or dispossess a person to whom any immovable property has been allotted or to issue an injunction in respect of that property.
14. But the jurisdiction of a civil Court is not barred if the order of a Rehabilitation Authority is not in conformity with or is passed in flagrant disregard of law. Reference may be made to a case reported in PLD 1958 SC 201 (20c).
15. It is also the settled principle of law that Courts generally lean against the ouster of the jurisdiction. No doubt, in certain enactments there may be a provision, with regard to the bar of jurisdiction but whenever mala fides are alleged, civil Court have always come to the aid of an aggrieve] party in fit and proper cases and granted relief, despite the provisions with respect to the bar of jurisdiction. As the trial Court has to obtain the written statement and frame the issues, so I leave the legal questions open for determination by the trial Court because I would like to have the benefit of the verdict of the learned trial Court, on the legal points.
16. The applicant has laid a great stress on the judgment of the case reported in AIR 1938 Lah. 369 (Full Bench case) wherein the learned Judges held that the principles of adverse possession prevailed against the Masjid Shaheed Ganj. In that case, Mr. Justice Din Muhammad, Judge wrote a dissenting judgment and I think, that authority does not lay the good law because the 'learned Judges who expressed the majority view, failed to appreciate the principle "once a Waqf always a Waqf". I am sorry that I cannot agree with the view taken in that authority. Sheikh Ghulam Ahmed, applicant, appears to have cited this authority with a view to press his point that the suit, before the trial Court, was hit by section 3 of the Limitation Act, 1908. The point of limitation is yet to be decided by the trial Court and, therefore. I would not like to prejudice the trial Court by expressing my view on the point of limitation. Let the trial Court decide the point of limitation after hearing the parties and framing the issues in the suit.
17. In the instant case, Sheikh Ghulam Ahmed, the applicant, intends to use the small strip of the land lying vacant between the house of defendant and his house, as a passage but on my spot inspection. I have noted that there is a separate passage for his use from the main street and I see no reason as to why he should be given two passages for his house from the same street. He told verbally that he had several sons and, therefore, he would need separate passage for separate houses, meant for his sons. It is a far-fetched idea and I see no wisdom or reason in his demand.
However, this is again something which is to be decided by the trial Court.
18. There is a 'Purdah' wall which separates the houses of the parties. This wall is reasonably high towards the house of Khawaja Wali Ahmed's house but it is a bit low towards the street. Therefore, I direct Raja Muhammad Yusuf Khan to raise the major portion of the said wall so that it attains the height of the wall towards the house of Khawaja Wali Ahmed. This wall, when raised, would prevent the inmates of both the families to peep into the houses of each other. The construction of this wall would benefit both the parties as it would ensure the privacy of both the parties.
19. The small strip of the land which is the bone of contention between the parties, shall remain closed from the street side Sand shall not be used as a passage by Sheikh Ghulam Ahmed, applicant. This is so because this passage was closed by the appiicant and Raja Muhammad Yusuf Khan both, when Khawaja Wali Ahmed wanted to use this very piece of land as a passage.
Khawaja Wali Ahmed has now got access to his house from some other side and, therefore, there is no justification for using this strip of land as a way. This would open up the pandora'a box for Sheik Ghulam Ahmad, applicant and involve him in unnecessary self-created troubles.
20. Sheikh Ghulam Ahmed shall file his written statement in the trial Court and the trial Court shall frame issues after considering the pleadings of the parties and then shall hear the parties or their learned counsel on the legal issues including the issue of bar of jurisdiction, of civil Courts and if it comes to the conclusion that the jurisdiction of the civil Court is barred, the stay order shall automatically go down with the suit. If it comes to the conclusion that the jurisdiction of civil Court is not barred, it may continue with the stay order and proceed to decide the case before it according to law. Consequently, the case is remanded to the trial Court with the direction to proceed with it as directed earlier, frame issues, including the legal issues and decide the legal issues as well as the issue with regard to the bar of jurisdiction of the civil Court, after hearing the parties or their learned counsel. The question with respect to the legality or otherwise of the stay order shall automatically be disposed of. This application shall stand disposed of in the manner indicated-above. Keeping in view the circumstances of the case, I pass no order as to costs.