' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 1-2- 1988 passed by a learned single Judge of the Lahore High Court in Civil Revision No, 65-D/1985 filed by the respondent against the concurrent judgments of the two Courts dated 27-7-1983 and 1-12- 1984 passed by the learned First Civil Judge, Daska and the learned Second Additional District Judge, Sialkot, in Civil Suit No, Nil of 1976 and Civil Appeal No, 105 of 1984 respectively, decreeing appellant's above suit for Declaration and Permanent Injunction, allowing the above civil revision by reversing the above concurrent judgments/decrees and dismissing the appellant's suit.
2. The brief facts are that Piran Ditta, predecessor-in-interest purchased eight Kanals and two Marlas of agricultural land through a registered sale-deed dated 5-2-1944 from Dias Raj and others out of Khasra No, 59 measuring 21 Kanals 14 Marlas. Pursuant to the above sale, Mutation Entry No, 576 was effected on 20-5-1944 in the Revenue Record. It appears that during the consolidation proceedings, the above land was assigned Khasra. Nos. 53 and 54. According to respondents on 2-11-1971, the Settlement Authorities effected partition of the above survey No, separating non-evacuee and evacuee shares and new khasra No, was assigned i,e, 53 which has been now re-numbered as. Khasra No, 69 for the evacuee share and Khasra No, 68 for the non- evacuee share. The above partition has been denied by the learned counsel for the appellants during the arguments. Be that as it may, the respondents were allotted evacuee share of the above khasra No, on 26-4-1973. After that Mutation Entry No, 1476 dated 1-2-1974 was effected by the Revenue Authorities in favour of the respondents.
3. It further seems that the appellants filed above suit in October 1976 for declaration and permanent injunction against the respondents on the basis of averments that they were the owners in possession of the portion of above original Khasra No,53 as they were given the possession by the vendor. The above suit was resisted by the respondents inasmuch as it was plead that the suit was incompetent. It was further pleaded that the Settlement Department effected partition of evacuee and non-evacuee shares in the above Khasra No, 59 on 2-11-1971 and that the respondents were the allottees/transferees of the evacuee share as per above partition.
The learned trial Court on the basis of the pleadings of the parties framed the following preliminary issue:-- "Whether the Court has not jurisdiction to try this suit? OPD."
4. After hearing the parties, the learned Civil Judge through his order dated 25-10-977 decided the above preliminary issue against the respondents. After that, he framed following seven issues:
(1) Is suit within time? OPD
(2) Is suit not properly valued? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Is description of the suit land incorrect? OPD
(5) Is the plaintiff owner in possession of the suit land? OPD
(6) Whether the allotment of the suit land in favour of the defendant is illegal, null and void and not binding upon the plaintiff?
(7) Relief.
5. After recording evidence and hearing the parties, the learned Civil Judge took up issues No, 5 and 6 together and after discussing the evidence on record concluded as follows:-- "It is also admitted between the parties that at the time of mutation of partition the plaintiff was not present. Admittedly, the suit land is 'TIBBA', Khurshid Ahmed, defendant states that he has purchsed the suit land but this fact is against the Revenue Record. It shows that it is Ghair Mumkin Land/Tibba. So, according to my above discussion, in my opinion, the allotment of the suit land in favour of the defendant is illegal and null and void and the plaintiff is not bound by the said allotment and the plaintiff is owner in possession of it. So the issues are decided in favour of plaintiff."
On issue No,1, it was held that the suit was within time, whereas issues Nos. 2, 3 and 4 were not pressed and therefore were decided against the respondents. As a result of the above findings, the learned Civil Judge under issue No,7 decreed the suit with no order as to costs.
6. Against the above judgment and decree of the learned Civil Judge, the respondents filed above civil appeal without any success. Thereupon, they filed aforesaid civil revision which was allowed by the learned Judge in Chamber through the judgment appealed against the concurrent judgments/decrees of the two courts below were set aside on the ground that the suit was barred by Section 25 of the Displaced Persons (Land Settlement) Act of 1958. The appellants, being aggrieved by the above judgment, filed a petition for leave to appeal which was granted to consider the question; "whether the rule laid down by this Court in Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) was not attracted in the facts of this case."
7. We have heard the learned counsel for the parties. The position which emerges from the record is that the appellant's predecessor-in-interest purchased 1/4th share of unpartitioned and from the evacuee though he was given possession of a portion of the above Khasra No,59 upon the execution and registration of the above sale-deed on 5-2-1944 Exh. E5. However, it is an admitted position that the partition of the land was not effected till the time 3/4th share of the above Khasra No, became evacuee. In this view of the matter, simpliciter possession of the appellants over a portion of the unpartitioned land, would not make them the owner of the portion of the land in their possession till the time, the land is partitioned by a competent forum. But the appellants were entitled to protect their possession over the above portion of the land till the time, the land was partitioned by the competent forum as has been held by this Court in the case of Mehr Dad v.
Settlement and Rehabilitation Commissioner, Lahore Division, Lahore and others (PLD 1974 SC 194).
It is the case of the respondents that the above khasra No, was partitioned by the Settlement Department on 2-11-1977 pursuant to para 15 of the Rehabilitation Settlement Scheme issued on 24-3-1956 providing as follows:-- "Partition of joint khata or joint allotments.---The competent Rehabilitation Authority will partition join joint khatas of Muslims and non-Muslims in West Pakistan in the manner prescribed below where there is no Hissadari Qabza and allot evacuee area of the partitioned land to the claimants under the Rehabilitation Settlement Scheme:--
(1) A Rehabilitation Authority may either of its own motion, or on an application made to it in this behalf, order in writing the partition of the shares of an evacuee out of joint property.
(2) A copy of the order thus passed should be sent by registered post to the other recorded co- sharers, or such of them as the Rehabilitation Authority may nominate in this behalf, and a copy of the said order should also be proclaimed in such manner as it may deen fit.
(3) Any of the recorded co-sharer referred to above or any other person directly or indirectly' interested in the proceedings may within 15 days from the date of the issue of the order or the proclamation, whichever is later, lodge in writing any objection he may have to the order passed by the Rehabilitation Authority.
(4) The Rehabilitation Authority should, after expiry of 15 days peruse the objection, if any received and may hold such further enquiry as it may deem necessary in the case. After the conclusion of the enquiry, the Rehabilitation Authority may either cancel the order made by it, or make it final with or without any modification. After the order has been made final, the Rehabilitation Authority should cause an instrument of partition to be prepared and the date on which the partition is to take effect to be recorded therein. (Former Punjab Government Letter No, 5395-R(L), dated 28th July, 1915)."
8. However, the case of the appellants (though not expressly pleaded in the plaint) is that there was no partition effected by the competent authority. The question, whether above partition was validly effected or not is pivotal for determining the controversy in issue.
9. Even though, the Trial Court has not accepted the above partition, but has not exmamined the above question properly. The first appeallate Court also failed to advert to the above issue, in the manner, which was warranted. The High Court has non-suited the appellants on the ground that the Civil Court had no jurisdiction without dilating upon the above issue thoroughly.
10. In our view, if the partition of the land was competently effected by the Settlement Department on 2-11-1971 as urged by the respondents, the Civil Court could not go behind the above order after the lapse of more than a decade. However, the Civil Court was competent to enforce the above partition as after the repeal of the Evacuee Laws w,e,f. 1st July, 1974, the Settlement Department could not have entertained any new proceedings of the nature in issue if the matter was not pending before it in terms of subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) 1975, at the time of the enforcement of the above Act. But if the partition of the above land was not validly effected by the Settlement Department on 2-11-1971, the Civil Court was competent to effect the same between the appellants and the respondents, as they could not have approached the Settlement Department for the above relief in 1976, when the above suit was filed.
11. In our view, it will be just and proper to remand the case to the learned trial Court with the direction to decide the question, whether the partition was validly effected on 2-11-1971 by the Settlement Department. If the answer to the above question is in the affirmative, the above partition is to be implemented by the trial Court. But if the answer to the above question is in the negative, the trial Court shall effect the partition of the land between the appellants and the respondents in accordance with law. We may observe that in order to implement the above direction, the trial Court shall allow the parties to amend their pleadings.
11. The above appeal stands disposed of in the above term with no order as to costs.