' The dispute, in this Regular Second Appeal, relates to agricultural land measuring 35 Kanals 15 Marlas situated in Rectangles No,141, Killas Nos.3 and 4 and Rectangle No,142, Killas Nos.1 to 4. In Chak No,49/T.D.A. Tehsil and District Bhakkar.
2. All the facts, material to this appeal, are fortunately not in dispute. Fateh Sher/Seller was the owner of agricultural land measuring 494 Kanals 16 Marlas in Chak No,49/T.DA., Tehsil and District Bhakkar. Out of it, 393 Kanals 16 Marlas was acquired by Thal Development Authority (shortly stated as TDA). Before passing order of return of land of Fateh Sher by competent authority, he made the sale of suit land to one Fateh Sher son of Noor/vendee vide Mutation No,1573 sanctioned on 11-4- 1953. Fraza, the predecessor-ininterest of appellants successfully pre-empted the above sale. His pre-emption suit was decreed on 3-2-1955. Pursuant to the decree of the Court, Fraza deposited the pre-emption money and secured possession of suit land through process of Court. This was, however, not the end of his agonies. The Collector, in exercise of authority under section 21 of the Thal Development Authority Act (XV of 1949) passed an order of return of land measuring 339 Kanals 16 Marlas in favour of Fateh Sher/seller. The land so returned to Fateh Sher included the suit land. Resultantly, Fateh Sher started interfering in the possession of Fraza over the suit land.
Compelled by these circumstances, Fraza brought a suit for grant of permanent injunction, restraining Fateh Sher from interfering in his possession over the suit land. Fateh Sher, in defense, pleaded that the order of return passed by the concerned officer of T.DA. Was not open to challenge in view of bar contained in section 74-A of the Thal Development Act, 1949. The learned trial Judge, after recording the evidence of the parties, held that Fraza had become absolute owner of the suit land under a decree of competent Court and that the Civil Court had jurisdiction to decide the competing claims of the parties regarding title. On these conclusions, the learned trial Judge decreed the suit. Feeling dissatisfied with this decision, Fateh Sher filed appeal which was accepted by the learned First Court of appeal on the premises that the order of return passed by Thal Development Authority was beyond jurisdiction of the Civil Court. This is how this regular second appeal has come to this Court.
3. Learned counsel for the appellant in support of this appeal, raised two points:-- ' Firstly, that Fateh Sher had made the sale of the suit land which had been successfully pre- empted by Fraza and so the appellants had become owners of the suit land by the principle of estoppel by feeding contained in section 43 of the Transfer of Property Act. Reliance was placed on Mumtaz Sultana v. Settlement and Rehabilitation Commissioner PLD 1964 (W.P.) Lah. 388 and S. Sibtain Fazli v. Star Film Distributors PLD 1964 SC 337.
' Secondly, that the suit filed by Fraza pertained to title and it had no nexus with the order of return passed by the concerned Authority under Thal Development Authority Act, 1949. On this premises, it was urged that the suit filed by Fraza was competent under section 9 of the Code of Civil Procedure.
' The learned counsel for respondents, on the other hand supported the impugned decision.
4. From the above narration, following questions emerge for determination:--
(i) Whether on the facts and circumstances of the case, the Civil Court had jurisdiction under section 9 of the Code of Civil Procedure to decide the suit filed by Fraza?
(ii) Whether on the facts and circumstances of the case, Fraza had become absolute owner of the suit land.
5. Having penned down the facts, and circumstances of the case I will now take up question No,(i) first. No doubt the Civil Court has a jurisdiction under section 9, C.P.C. To try all the suits of civil nature except those the trial of which expressly or impliedly is barred. The question as to whether an act of executive administrative officer or tribunal is without jurisdiction or is mala fide, is a matter of civil nature and is determinable by the Civil Court. Reference be made to Abdul Rauf v.
Abdul Hamid Khan PLD 1965 SC 671 and Barkat Ali v. Administrator, Thal Development, Bhakkar PLD 1978 Lah.
867. In Sirajuddin v. Fakhruzzaman 1983 SCM R 525, it was held that determination of competing claims regarding title in land was within the exclusive jurisdiction of the Civil Court. This view was followed in a case pertaining to dispute relating to Thal Development Authority in Barkat Ali's case (supra), Hameed Akbar v. Thal Development Authority 1979 CLC 456 and Feroze v. Administrator, Thal Bhakkar 1987 M LD 405. Guided by the above-stated principles I have no difficulty in reaching the conclusion that the dispute relating to title of suit land between Faraza and Fateh Sher was essentially of civil nature and the Civil Court had the jurisdiction to decide that suit. Section 74-A of Thal Development Act, 1949 does not oust the jurisdiction of the Civil Court, to decide the suit filed by Faraza. This being the legal position, the decision rendered by the learned first Court of Appeal cannot be sustained and is accordingly set aside.
6. Having determined the first question, I now, pass on to second question. This question is free from difficulty. It is not disputed that Fateh Sher/seller who had made the sale of suit land in favour of Fateh Sher/first vendee, had received the entire consideration from him and delivered its possession to him. It is also not in contest that Fraza successfully pre-empted the above sale; paid the entire pre-emption money in Court and obtained the possession of the suit land from the first vendee through the process of the Court. The question is whether on the admitted -facts of the case Fateh Sher could take the plea that at the time of making the sale in favour of first vendee, the suit land vested in the Thai Development Authority and he was not competent to make sale in favour of first vendee. The answer to this question is free from difficulty and is fully answered by section 43 of the Transfer of Property Act. This provision lays down that if a grantor/seller/ lessor/transferor, transfers an interest in some property of which he was not the owner at the time of making the sale, or his title on account of some circumstances, was defective and subsequently acquires the legal title in that property, he is precluded to challenge the title of the transferee. This principle is known as principle of estoppel by feeding. This rule was followed as back as in 1924, in Aisha Bibi v. Mahfuz-un-Nisar Bibi ILR 1924 Vol. XLVI page 310. The benefit of this section was also extended by his Lordships Mr. Justice Jamil Hussain Rizvi (as he then was) in Mumtaz Sultana v.
Settlement and Rehabilitation Commissioner PLD 1964 (W.P.) Lah.
388.
7. Applying this principle to the facts and circumstances of this case, it is quite clear that Fateh Sher had made the sale of the suit land to first vendee, that Faraza had pre-empted the above sale successfully and his suit for preemption was decreed; that Faraza had deposited the pre-emption money in the Court in pursuance of the decree of the Court and had obtained the possession of the suit land by means of warrant of possession issued by the Executing Court. There is no doubt that when Fateh Sher had made the sale in favour of first vendee/Fateh Sher, the suit land vested in the Thal Development Authority for purpose of mere return. It is also not in dispute that the suit land was returned to Fateh Sher by Thal Development Authority. The principle of estoppel, by feeding is clearly applicable to the facts of the case. Fateh Sher/seller is now estopped to challenge the title of Faraza who was substituted for Fateh Sher/first vendee. It can be safely said that clog on the powers of dispossession of Fateh Sher, at the time of making the sale of first vendee, was transitory in nature. It was merely temporary eclipse. After its removal Fateh Sher/seller was estopped to challenge the title of Faraza/his successor-in-interest in any manner. On this view, I have no doubt in my mind that Faraza had become owner of the suit land on the day he deposited the pre- emption money within the framework of Order XX, Rule 14, C.P.C.
8. As a result of above discussion, this R.S.A. Is bound to succeed. I, accordingly accept this appeal, set aside the judgment and decree rendered by the learned District Judge, Bhakkar, dated 29-5- 1971 and restore the judgment and decree passed by the learned Senior Civil Judge, Mianwali, dated 29-1-1971. There shall be no order as to costs.