Fazal Muhammad Khan, predecessor-in-interest of the appellants filed a suit against his sister Mst.
Biro respondent and others for a declaration that he was the sole owner of the suit land, Mst. Biro had no concern with it and the sale-deed executed by her in favour of the other defendants/respondents on 11-4-1963 for a consideration of Rs.8,700 vas without any authority, illegal and so ineffective against his rights. The suit was dismissed by the learned Civil Judge, Faisalabad vide judgment dated 23-2-1965 and his first appeal before the learned District Judge, Lyallpur/Faisalabad met the same fate on 27-9-1965.
2. The case of the appellants in the plaint precisely was that their father died in District Hoshiarpur (East Punjab) in May, 1947 and on migration to Pakistan he (Fazal Muhammad Khan) filed claim for their land left in East Punjab and the suit land was allotted and confirmed in his name to the extent of 2/3rd and 1/3rd in the name of Mst. Biro on 11-11-1952. His appeal against this confirmation of 1/3rd share in the name of Mst. Biro was accepted on 14-12-1959. He thus became the sole and full owner of the whole of the suit land. However, in the Revenue Record the decision given in his favour in appeal could not be incorporated. As he continued to be in possession and enjoyment, he did not much care. Though Mst. Biro had been left with no right in the suit land, taking advantage of the revenue entries showing 1/3rd of the land in her name, she sold the same to the other defendants vide the registered deed. Preliminary objection was raised in the written statement that the suit land was evacuee property which had been allotted by the Rehabilitation Department, so the Civil Court had no jurisdiction. The learned Civil Judge settled the following preliminary issue:-- "Has the Civil Court jurisdiction to entertain and try the suit? OPP.
Both the Courts below concluded finding upon the preliminary issue in favour of the respondent.
The finding is challenged in the present Second Appeal.
3. Before the legal position is appreciated, the facts admitted on the record need be stated. Fazal Muhammad Khan, predecessor-in-interest of the appellants and Mst. Biro respondent were real brother and sister. Their father Alam Khan died in District Hoshiarpur iri East Punjab before the family migrated to Faisalabad (Pakistan) in 1947. The claim for the land left by their father was filed by the deceased appellant. Vide order dated 11-11-1952 incorporated in Mutation No. 54 of the said date (Exh. D. 1) A.R.C. allotted 2/3rd of the suit land in favour of the said appellant and 1/3rd in favour of the respondent Mst. Biro. On appeal the whole of the land was given to Fazal Muhammad Khan by the D.R.C. According to the written statement Fazal Muhammad Khan had got the appeal accepted on the basis of some wrong letter which order (in appeal) became ineffective vide Letter No.1809/60/18600, dated 5-5-1960. Under this subsequent letter the mutation originally sanctioned in her favour to the extent of 1/3rd was maintained vide mutation dated 2-5-1961. From Exh. D. 1 it is clear that the A.R.C. on 2-5-1961 passed the order that in appeal the matter was dealt with under custom as at that time the custom was in force but according to Letter No. 1809/60/18600, dated 5-5-1960 the decision was to be in accordance with the Rehabilitation Scheme framed under para. 46-A according to which the order dated 11-11-1952 was correct, so the same was maintained. The order of the D.R.C. in appeal has not been brought on record. However, it appears that the appeal of the appellant (Fazal Muhammad Khan) was accepted by D.R.C. and the land given to him under custom.
4.Learned counsel for the appellants contended that Fazal Muhammad Khan was not challenging the order of any Rehabilitation Authority in the suit and so the reliance of the learned Courts below on section 18 of Act XVII of 1956 and sections 16 and 41 of Act XII of 1957, was misplaced. He tried to fortify his argument by referring to Muhammad Hussain v. Muhammad Bashir and 4 others (PLD 1974 Lahore 446) by further contending that he was only seeking a declaration with respect to his rights and not calling in question the orders of the Rehabilitation Authorities. On the other hand,, learned counsel for the respondents pointed out that the land was originally allotted to Fazal Muhammad Khan and Mst. Biro respondent by A.R.C. under the then Act XVII of 1956 and when in appeal the land was given to the appellant (Fazal Muhammad Khan) by the D.R.C. and the matter again came up for implementation before the A.R.C. he acting upon para. 46-A of the Scheme framed under the Rehabilitation laws acted upon the original order of confirmation dated 11-11- 1952. Further argued that it was theEnforcement/implementation of the orders of the Rehabilitation Authorities which could only be corrected finally by the hierarchy of the authorities under the Rehabilitation Laws and the jurisdiction of the Civil Court -was barred, I entirely agree with him. The matter related to the allotment of the land inPakistan in lieu of the land left by the father of the parties in East Punjab and so clearly fell under the Rehabilitation Laws. The Civil Court had no jurisdiction.
5. The result is that the appeal fails and is hereby dismissed leaving the parties to bear their own costs throughout.