ALI HUSSAIN QAZILBASH, J.-- This appeal arises from the judgment of a learned Single Judge of the Lahore High Court, dated 15-6-1976, whereby he accepted the second appeal of respondent No.2, set aside the judgments and decrees of the Administrative Civil Judge, Rawalpindi, dated 28-1- 1974, and that of the learned District Judge, Rawalpindi, dated 13-3-1974, and remanded the suit for decision on merits .
2. The facts are that the Cantonment Board, Rawalpindi, plaintiff (now respondent No.2), on 2-6- 1972 filed a suit against the Government of Pakistan in the Court of the Administrative Civil Judge, Rawalpindi, for a declaration to the effect that the properties mentioned in Annexure 'A' to the plaint have been sold to it by the Central Government under section 10 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) over ten years ago and proceedings under the Land Acquisition Act were also taken in respect of certain properties; that prices in respect of certain properties have been paid in full as determined by the Department but in case of other properties the prices have not been paid on the ground that a large amount of money was due to respondent No.2 on account of taxes due on the evacuee properties; that now the local Deputy Rehabilitation Commissioner purporting to act on the direction of the Central Government has included for auction to be held on 6th and 7th June, 1972 the properties which have been sold to it; that the above act of the defendant to dispose of the properties by auction is illegal, without jurisdiction, arbitrary and ineffective on the ground that.--
(a) the properties mentioned in Annexure 'A' to the plaint on sale to the respondent are no more part of the compensation pool;
(b) that after the sale of the properties, the defendant did not possess any locus standi to cancel the sale or to deal with the said properties as evacuee properties;
(c) that on the sale of the properties to respondent No.2, they did not remain evacuee properties subject to the jurisdiction of the defendant;
(d) that the defendant is not empowered under any provision of law to cancel the sale made as aforesaid in favour of respondent, No. 2 and even if any such power existed it could not be exercised without issuing notice;
(e) that admittedly no notice was issued to respondent No.2 and thus the act of the defendant is bad on being opposed to principles of natural justice;
(f) that the properties came to vest in respondent No.2 absolutely and it cannot be divested of the said properties; etc. Etc. A prayer for perpetual injunction restraining the defendant from interfering with the right of ownership, possession and user of respondent No.2 over the said properties and from disposing of the said properties in any manner was also made.
3.The suit was contested by the Government of Pakistan, defendant (now respondent No.1) and a written statement was filed on 29-9-1972 When the proceedings were in progress, two applications under Order I , rule 10 read with section 151, C . P. C . Were made on 29-9-1972 and 17-4-1973, one by Muhammad Hussain claiming to be the transferee of Bungalow No.214-E, Willoughby Road, Lalkurti, Rawalpindi, and the other by Sh. Fazal-ur-Rehman claiming to be the transferee of property No.34, Lawrence (now Haider) Road, Rawalpindi, for being impleaded as parties in the suit. These applications were contested by respondent No.2 but were allowed by the Court and respondent No.2 was directed to file amended plaint which it accordingly did and an amended plaint containing almost the same facts and grounds was filed on 18-7-1973. Respondent No.1, defendant No.2 (now appellant) and respondents 3 and 4 submitted their written statements on 29-9-1972, 24-11-1973 ,19-9-1973 and November 1973.
4. In the written statement filed by the Government of Pakistan, the claim of the Cantonment Board was refuted on the grounds, amongst others:
(a) that the properties having been transferred to various person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, the Civil Court has no jurisdiction to adjudicate upon the matter; and
(b) that the so-called approval for sale of the properties given by the Government of Pakistan in favour of the Ministry of Defence has already been withdrawn, therefore, respondent No.2 has no locus standi to file the suit.
The appellant and respondents 3 and 4 in their written statements claimed to be the transferees of the properties under the various provisions of the Displaced Persons (Compensation and Rehabilitation) Act. They denied the sale of the properties transferred to them to respondent No.2 and also took a stand that the suit was barred under the provision of section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
5. The pleadings of the parties resulted in the framing of the following preliminary issue: "Whether the suit is not maintainable under section 25 of Act XXVIII of 1958?"
It seems that the parties did not adduce evidence in support or otherwise of this issue and confined themselves to verbal arguments only. The learned Trial Court after considering the same dismissed the suit of respondent No.2 vide its judgment dated 28-1-1974 holding that the suit was not maintainable under Act XXVIII of 1958. The appeal of respondent No.2 before the learned District Judge also met with the same fate vide judgment dated 13-3-1974. Respondent No.2 then filed a Regular Second Appeal in the High Court which was allowed by a learned Single Judge of the Lahore High Court vide his judgment dated 15-6-1976.
6. The suit before the Courts below was with regard to the alleged sale of a large number of properties in Rawalpindi by the Government of Pakistan in favour of respondent No.2 but in this appeal we are solely concerned with the appeal regarding the disposal of bungalow No. 34, Haider Road, Rawalpindi.
7. Mr. S.M. Zafar in support of the appeal and Mr. Bashir Ahmad Ansari in defence of the impugned judgment of the High Court have been heard in detail. Mr. S. M. Zafar after taking us through the record of the case made two-fold submission. Firstly, he urged that the learned Single Judge in Chambers has erred in holding that in the absence of evidence from either party, the matter as to the question of the jurisdiction of the Civil Court could not be decided on the basis of the pleadings of the parties but on the averments made in the plaint only and secondly that the learned Single Judge was wrong in coming to the conclusion that since the bungalow in dispute had already been sold to respondent No.2 under section 10 of Act XXVIII of 1958 it had gone out of the Compensation Pool and it was not at all open to the Settlement authorities to transfer it under the Displaced Persons (Compensation and Rehabilitation) Act, therefore, the only Court which was competent to adjudicate upon the matter was the Civil Court.
8. As against the above, Mr. Bashir Ahmad Ansari, the learned counsel for respondent No.2, fully supported the findings of the High Court. He submitted that respondent No.2 had become the lawful owner for a valid consideration, the property in question no longer formed part of the Compensation Pool, therefore, the provisions of section 25 did not create any bar qua the jurisdiction of the Civil Court.
9. After careful consideration, of the elaborate arguments of the learned counsel for the parties and the perusal of the record, we came to the conclusion that the contentions of the learned counsel for the appellant must prevail. The perusal of the record shows that for the first time on 29- 12-1959 through a Letter bearing No. F. 16 (38)/ 59-PII/SI, the Ministry of Rehabilitation, Government of Pakistan, addressed to the Chief Settlement Commissioner, Lahore and copy to the Director, Military Lands and Cantonments, Rawalpindi, conveyed the approval of sale of Bungalow No.34 Lawrence (now Haider) Road, Rawalpindi. Under section 10 of Act XXVIII of 1958 on the payment of the prevailing market value on the condition, amongst others, that the property in question was not transferable to any person under the provisions of the Schedule to Act XXVIII of 1958. It seems, however, that before the approval of sale could be conveyed, the bungalow in question was put to earmarking under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act and was transferred to one Mst. Mamuna Bibi, a claimant displaced person, the predecessor-in-interest of the appellant, on 24-12-1959, i.e., five days prior to the letter of the Central Government. Appendix II was issued to the claimant who later on surrendered her entire rights in favour of the appellant which was approved and accepted by the relevant Settlement authorities. During the proceedings before the Civil Court, the fact that the property in dispute stood transferred to the appellant was not only highlighted by the written statement filed by respondent No.1 on 29-9-1972 but also in the application filed by the appellant on 17-4-1973 for impleading him as a party. The fact that the approval of sale has been rescinded by the Central Government was also taken up by respondent No.1 but these facts were neither disputed nor denied by respondent No.2 while submitting its amended plaint. Then in the written statement filed by the appellant on 24-11-1973, the appellant put forth his case in a more elaborate manner, which too, had gone unchallenged. Thus, the perusal of the original as well as the amended plaint would show that respondent No.2 not only did not lay the true facts before the Court but rather concealed very material and important facts. The perusal of the amended plaint would further show that respondent No.2 fully knew (para. 5 of the amended plaint refers) that the Deputy Settlement Commissioner, Rawalpindi, was contemplating to put the properties, allegedly sold to it, to auction on 6th, 7th and 8th of June, 1972 and were in fact disposed of as such, yet no order restraining the Deputy Settlement Commissioner to proceed with the auction was obtained nor was he impleaded as a party in the plaint. Still further it was the parties themselves who did not produce evidence on the preliminary issue and confined themselves to arguments only. Thus, under the circumstances a plaint which did not conform to the very basic principles of pleadings, which was vague and bald of true facts, could not alone be relied upon in deciding the question of jurisdiction. We have taken note of the authorities reported in Baru and others v. Nadir and others AIR 1942 Lah. 217; Muhammad Yusuf v. Nek Muhammad PLD 1955 Lah. 183 and Allah Ditta and others v. Muhammad A.I and others PLD 1975 Lah. 429, referred to in the impugned judgment, but we hold that in view of the circumstances indicated above, the determination of the question of jurisdiction was to be based on the pleadings of the parties and not on the averments made in the plaint alone.
10. As to the question of bar of jurisdiction of the Civil Court as contemplated under section 25 of Act XXVIII of 1958, this too has been examined by us in the light of the arguments of the learned counsel for the parties. Both the appellant and respondent No.2 claim to be the transferee and vendee, respectively of the suit bungalow under the provisions of Act XXVIII of 1958. The perusal of the record shows that the bungalow in question admittedly stoo6 transferred to the predecessor- in-interest of the appellant under the Earmarking Scheme about a week ,prior to the issuance of letter (dated 29-12-1959) conveying only the approval of the sale of the suit house in. The name of respondent No.2. Thus, the bungalow was not at all available for disposal in any manner and since the transfer of the bungalow in question in the name of the appellant was not questioned by respondent No.2 in the manner provided for under the provisions of the Act, this transfer attained finality and its validity could obviously be not questioned in the Civil Court, more so, when there was no allegation of fraud, misrepresentation or mala fides on the part of the Settlement Department and also when the nature of the property in question was not in dispute, The record further shows that the letter of Government of Pakistan, Ministry of Rehabilitation (dated 29-12- 1959) conveying the approval of sale was subject to a very important condition and that was that the property in question was not transferable to any person under the provisions of the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act. This manifestly shows that firstly the transaction itself was not a complete sale and the property was still part of the Compensation Pool and was thus subject to the provisions of the Act and secondly the very question of its transferability had to be determined under the Act. So, therefore, the only authority which could determine and decide the entitlement of the parties was the authority appointed under the Act and none else. Therefore, the learned Single Judge has erred in holding that the property after its sale in the name of respondent No.2 no longer remained in the Compensation Pool and the question as to which of the parties is the transferee of the property cannot be determined under any of the provisions of the Act or by any of the authorities under the Act but this case be decided by the Civil Court.
11. The view that we take of the matter is that the appeal must succeed and the judgment of the High Court to the extent of Bungalow No.34, Haider Road, Rawalpindi, is set aside with no orders as to costs.