' This judgment will govern 17 Revision Petitions No,601 to 614 (14 in numbers) of 1992 and No,2171 of 1989, 2262 of 1990 and 2263 of 1990 (3 in numbers). Revision Petitions Nos. 601 to 614 of 1992, have been filed by the National Cooperative Transport Society Ltd., in order to challenge the consolidated decision of Mr. Zia-ur-Rahmaa, Additional District Judge, Lahore, dated 4-12-1991, whereby he accepted 14 appeals filed by Muhammad Ramzan and six others, set aside the decision of Mr. Abdul Qadir Shad, Civil Judge, Ist Class, Lahore dated 5-3-1988, decreed seven suits filed by Muhammad Ramzan and six others and dismissed the seven suits filed by the National Cooperative Transport Society Ltd., Revision Petition No,2171 of 1989, has been filed by M/s. A.J.
Chaudhary and Ch. Muhammad Khalil and calls in question the decision of Mr. Ausaf All Khan, the then District Judge, Lahore dated 16-10-1989, whereby he set aside the decision of Syed Shahbaz Hassan Gardezi, Civil Judge, Lahore, rejecting the plaint filed by the National Cooperative Transport Society Ltd., under Order VII, Rule 11, C.P.C. And remanded the case back to the trial Court for decision afresh on merits. M/s. A.J. Chaudhry and Ch. Muhammad Khalil, have filed Civil Revisions Nos. 2262 and 2263 of 1990 assailing the decision of Pirzada Ata Mohyuddin, Additional District Judge, Lahore, dated 15-9-1990.
Factual Back Wound of C.R. No,601 to 614 of 1992.
2. The bone of contention, in these petitions, is seven urban evacuee plots situated in Khasra No,2807, comprising of 7 Kanals 8 Marlas in Qila Gujjar Singh, Lahore. These measure 16 Marlas and 20 sq. Ft in toto. The abovementioned Khasra number was owned by a non-Mulsim before Partition.
These evacuee plots shall be hereinafter described as 'plots'. The dispute, is, between National Cooperative Transport Society and Muhammad Ramzan and six others. The former shall be hereinafter referred to as 'Society' while the latters shall be described as 'transferees'.
3. The case of the Society, as contained in seven plaints, is, that it was a Company registered under the Indian Companies Act, 1922, 'was doing business of plying buses at Amritsar before Partition. At the emergence of Pakistan, it came to Lahore and established its Bus-stand and a Workshop on a piece of land situated in Khasra No,2807, with the concurrence of Regional Transport Authority, Lahore. The Lahore Improvement Trust, before Partition of India, had formulated a Scheme known as 'Approaches to Railway Station Development Scheme' and had acquired urban immovable property including Khasra No,2807 for the above purpose. This was done through Notification dated 17-8-1946 issued by the Governor of Punjab, under section 41 of the Punjab Town Improvement Act, 1922. Pursuant to this notification, the Land Acquisition Collector, Local Area, Improvement Trust, Lahore, announced the Award on 28-8-1949 and so the Trust paid the price of acquired land to the Custodian Evacuee Property. The Lahore Development Act, by means of an agreement of sale, dated 22-11.-1978, alienated 2 Kanals 2 Macias situated in Khasra No,2807 in favour of the Society, received the consideration, delivered its possession to the Society, which became its absolute owner. It was in the plaints that the transferees, by means of practising fraud upon the Settlement Authorities, obtained the transfer of disputed plots vide orders dated 27-21982, by which the Deputy Settlement Commissioner, transferred the disputed plots in possession of the transferees in following manner:{{TABLE}} (1)Muhammad Ramzan 3 Marlas7 Sq. ft.
(2)Muhammad Yousaf 0 126 (3)Riaz Ahmad 0 164 (4)Mirza Muhammad Sharif2 " 135 (5)Ghulam Hussain 0 73 (6)Shams-ul-Hassan 0 100 (7)Muhammad Bashir 0 100 Total 16 Marlas82 Sq. ft. {{TABLE}} ' On coming to know of these Transfer-orders, the Society moved seven applications to the Residual Authorities for cancellation of the transfer-orders as well as PTD, issued to the transferees, but in vain. In this factual back-ground the Society instituted seven suits against the transferees, seeking declaration that all the transfer orders dated 27-2-1982 passed by the Deputy Settlement Commissioner, in favour of the transferees were illegal, without jurisdiction and of no lawful consequence upon its rights. The Society as a consequential relief prayed for grant of perpetual injunction restraining the transferees from claiming ownership of the plots.
4. The case of the transferees, as embodied in seven plaints in brief, is that they had been in possession of the plots since partition, had constructed their shops over the plots in their respective possession, that the plots were part of compensation pool and were not acquired by the Lahore Improvement Trust for the purpose of Scheme known as "Approaches to Railway Station Development Scheme'; that on 14-1-1971, they had filed seven separate forms under the Settlement Scheme No,VIII to the Settlement Authorities for the transfer of plots in their respective possession. It was further pleaded that these forms remained pending with the Settlement Authorities and ultimately the Deputy Settlement Commissioner/Deputy Administrator (R.P.) allowed the forms and transferred the plots to the transferees in accordance with their possession. The detail of the transfer of plots to transferees is mentioned in Paragraph No,2 of the petition. The Settlement Authorities received the price of the plots from the concerned transferees and issued them Permanent Transfer Deeds, that the transferees had become owners of the plots so transferred to them. It was prayed that declaration be granted that they were owners in possession of the plots; that these plots were never acquired by the Lahore Improvement Trust; that the Society had no connection whatsoever with them. The transferees, as a consequential relief, claimed the grant of perpetual injunction restraining the Society and the Lahore Development Authority (successor in interest of Lahore Improvement Trust) from interfering with their possession over the plots in any manner.
5. Having completed the factual narrative of 14 Civil Revisions Nos. 601 to 614 of 1992, I don't feel necessary to detail the facts and circumstances of Civil Revision No,2171 of 1989, 2262 and 2263 of 1990. Suffice it to say that the dispute in these petitions relates to 18 Marlas 217 Sq. Ft. Situated in the same Khasra number and the same locality. This dispute is between National Cooperative Transport Society Ltd. And M/s. A.J. Chaudhry and another. The matters directly and substantially in issue in these revisions are practically the same which are in the abovementioned fourteen civil revisions. The claim of M/s. A.J. Chaudhry and another, is that the property in dispute in these petitions, is evacuee property and was transferred to them correctly the Settlement Authorities under Settlement Scheme No,VIII. The claim of the Society is that this property forms the part of Khasr, was acquired by the Lahore Improvement Trust dated 17-8-1946 and was sold to the Society by means sale, dated 22-12-1978. These petitions were argued fourteen revision petitions by the learned counsel for therefore, are being disposed of alongwith above petitions. r No, 2807 which vide Notification of agreement of alongwith above the parties and, referred revision
6. All the suits were contested. The learned trial Court while conducting proceedings in seven suits, filed by the transferees and the seven suits filed by the Society consolidated them and recorded proceedings in the suit titled "Muhammad Ramzan v. National Cooperative Transport Society Ltd.", wherein the transferees were treated as 'plaintiffs' and the Society was described as 'Defendants'.
Necessary issues were framed. Evidence was led by the parties. Upon the consideration of the same, Mr. Abdul Qadir Shad, Civil Judge, Lahore, found that the plots were acquired by the Lahore Improvement Trust in 1946; that Award was rendered by the Land Acquisition Collector, Lahore, on 28-8-1949; that the Lahore Improvement Trust had paid the price of Khasra Number 2807 including the plots; that Lahore Development Authority had alienated these plots in favour of transferees. On this conclusion, the learned trial Court vide consolidated decision dated 5-3-1988, dismissed the suits filed by the transferees and decreed the suits filed by the Society. On appeal, the learned appellate Court did not agree with the conclusion reached by the Court below and held that the disputed Khasra number was acquired by the Lahore Improvement Trust and that the Civil Court had no jurisdiction to decide the controversy embodied in the suit; that the plots were not available for the purpose of transfer under Settlement Scheme No,VIII. On this conclusion the learned appellate Court decreed the suits filed by the transferees and dismissed the suits of the Society.
This decision led to filing of fourteen revision petitions by the Society.
7. Revision Petition No,2171 of 1989 is against the decision of Mr. Ausaf All Khan, the then District Judge, Lahore dated 16-10-1989 whereby he set aside the decision of Syed Shahbaz Hassan Gardezi, Civil Judge, Lahore, rejecting the plaint filed by the Society. Revision Petitions Nos.2262 and 2263 of 1990 are brought by M/s. A.J. Ch. And another against the decision of Pirzada Ata Mohyuddin, Additional District Judge, Lahore dated 15-9-1990. This is how these 17 revision petitions have come to this Court:
8. The arguments advanced by Ch. Khurshid Ahmad, Senior Advocate, Supreme Court of Pakistan, appearing on behalf of the Society, can be conveniently summarised as below: ' Firstly; that the Deputy Settlement Commissioner, passed seven impugned orders of transfer in favour of the transferees without affording opportunity of hearing to the Society. On the strength of this circumstance, it was contended that the impugned orders were in patent defiance of principle of natural justice, that nobody should be condemned unheard and, therefore, were coram non judice and void ab initio. Reliance was placed on Muhammad Jamil Asghar v. L.I.T. PLD 1965 SC 698 and Muhammad All Shah v. Additional Settlement Commissioner 1986 SCMR 863.
' Secondly: that the learned appellate Court had erred in law in holding that the Civil Court had no jurisdiction to adjudicate upon the suits filed by the Society. It was stressed that the suits did not involve the question as to whether the plots were evacuee or not, but related to the question as to whether the Society was its absolute owner in pursuance of agreement of sale, dated 22-11-1978.
On these premises, it was suggested that the suits, in fact, related to the determination of question of title between the parties and so the Civil Court' had jurisdiction to adjudicate upon the suits.
Additionally it was submitted that the transferees themselves had filed the suit for seeking declaration of their title on the basis of impugned orders of transfer passed by the Settlement Authorities and so had themselves submitted to the jurisdiction of the Civil Court. It was emphasised that the Civil Court had the jurisdiction to adjudicate upon the dispute between the parties. Reliance was placed on Allah Bachayo v. Province of Balochistan PLD 1976 Quetta 104, Allah Ditta v. Muhammad Latif 1980 CLC 1361 and Haji Panooh v. Province of Sindh 1985 CLC 932.
' Thirdly; that the Governor of the Punjab, vide notification dated 17-8-1946, had acquired the plots for the purpose of Scheme known as "Approaches to Railway Station Development Scheme"; that the Land Acquisition Collector had rendered the award; that the Lahore Improvement Trust had paid the price of the plots to the Custodian, Evacuee Property and so the Lahore Improvement Trust, had become the absolute owner of the plots. On these circumstances, it was suggested that the property had ceased to be evacuee and did not form the part of compensation pool in 1947.
According to the learned counsel, the plots belonged to Lahore Development Authority and were transferred to the 'Society by the L.DA. (successor-ininterest of Lahore Improvement Trust) under.
Agreement of sale dated 22-11-1978. Thus, the Deputy Settlement Commissioner, had no jurisdiction to transfer the plots to the transferees under Settlement Scheme No,VIII.
' Fourthly; that the transferees had in fact not filed any form before the Settlement Authorities in year 1971; that the transferees, in collaboration with the Settlement staff, had manoeuvred to insert forms in order to make a case for transfer of plots in their favour. In order to prove this contention, it was contended that had these forms been filed before the competent authorities the transferees would have positively made mentioned of them in previous litigation between the Society and them.
9. On the contrary Syed Jamshed Ali, the learned counsel for the transferees, raised the following points in reply:
(i) that the notification dated 17-8-1946 contained neither Khasra No,2807 nor the plots. According to him, the perusal of the notification clearly indicated that the abovementioned Khasra number was not acquired and, therefore, plots were evacuee in nature and were transferred correctly to the transferees.
(ii) that the perusal of the award dated 28-8-1949 showed that it was in excess of notification dated 18-8-1947 and was, therefore, of no lawful consequence. Reliance was placed on Wall Muhammad v. Gyan Prakash AIR 1954 Pat. 399, State of Punjab v. Madan Gopal AIR 1961 Pb. 507, F.K.
Abbasi v. M.I. Malik 1985 CLC 1603, Sardar Begum v. Lahore Improvement Trust PLD 1972 Lah. 458 and State of Bihar v. Dr. G.H. Grant AIR 1960 Pat.
382.
(iii) That the plots were transferred to the transferees vide orders dated 27-2-1982; that the transfer-documents were issued in their favour on 4-4-1982; on these facts, it was suggested that the Civil Court had no jurisdiction to adjudicate upon this question. Reliance was placed on Ahmad Khan v. Member, Board of Revenue 1986 CLC 1677, Wazir Muhammad etc. v. Settlement Commissioner (Land) and others 1986 MLD 2074, Muhammad Hassan v. Settlement Commissioner
(Land) PLD 1983 Kar. 353 and Faiz-ud-Din Ahmad v. Muhammad Yousaf 1988 SCMR 1289.
(iv) On the question of estoppel it was stressed that the Society, in its written statement had took up the plea that the transferees were not tenant of Society but were unauthorised occupants of the plots. In view of this, it was not open to the Society to now urge that the transferees were their tenants and were precluded by conduct to approach the Settlement Authorities for transfer of disputed plots. Reliance was placed on Muhammad Din v. Rahim Bakhsh and others 1988 Law Note 1273, Krishna Prasad v. Baraboni Coal Concern AIR 1937 PC 251, Muhammad Hussain v. Abdul Ghafoor AIR 1945 Mad. 321 and Province of Punjab v. Abdul Ghani PLD 1985 SC 1.
(v) That the suits filed by the Society were not competent under the provisions of section 42 of the Specific Relief Act. According to the learned counsel undisputedly the Society was not in possession of plots and so could not sue for declaration simpliciter. Reliance was placed on Sanat Kumar v.
H.E.M. Chandra AIR 1961 Cal. 411, Rashid Lal Chakraborty v. Hingul Khan PLD 1967 Dacca 741, A.K.U.M.
Vidyalaya v. State AIR 1972 All. 123, Muhammad Yagoob v. Ghulam Muhammad 1981 CLC 654, Muhammad Nawaz v. Muhammad Anwar Abbasi PLD 1982 BJ 33, Faqir Muhammad v. Maj. Amir Muhammad and others 1982 SCMR 1178 and Muhammad Naeem v. Tasleem Jan 1980 CLC 1483.
10. The learned counsel appearing on behalf of the petitioners, in reply, contended that so far as the vires of the notification dated 17-8-1946 and the Award dated 28-8-1949, were concerned, these were never issue between the parties before the trial Court and so no evidence was led by the parties on these issues. It was contended that the learned counsel for the respondents, was, therefore, precluded to raise this question, for the first time, in revisional jurisdiction.
11. From the foregoing narration the following questions emerge for consideration:
(1) Whether Khasra No,2807 comprising disputed plots, was acquired by the Governor of Punjab vide notification 17-8-1946, for the purpose of Scheme known as "Approaches to Railway Station Development Scheme" at the initiative of defunct-Lahore Improvement Trust; whether the Lahore Improvement Trust had paid the price of Khasra Number to the Custodian and so had became its owner in 1947?
(2) Whether Lahore Development Authority/Successor-in-interest of Lahore Improvement Trust, had made the sale of plots to the Society vide agreement of sale, dated 22-11-1978 and so the Society had become absolute owner of the plots?
(3) Whether Khasra No,2807 did not form part of Compensation pool and so the Settlement Authorities had no power to transfer plots under Settlement Scheme No,VIII?
(4) Whether the transferees are precluded, on the doctrine of estoppel by conduct to claim ownership of plots?
12. Having penned down the facts of the case, the arguments put forth by the learned counsel for the parties and the points for determination, I am inclined to find that first three questions are interconnected and are of fundamental significance. These questions go to the root of the controversy between the parties. I, therefore, take up these questions first .
13. With the emergence of Pakistan, there were organised riots at massive scale in India designed to push its Muslim population into the territories of newly-formed Muslim State with intention to deliver it a crippling blow. The millions of Muslims were uprooted from India and came to Pakistan as Displaced Persons leaving behind their hearth, home and properties. In reprisal, of communal disturbances erupted in Pakistan resulting into exodus of non-Muslims from Pakistan. So this newly-born Muslim State was confronted with the task of protecting, preserving and administering the properties abandoned by non-Muslim evacuees, and further was to settle the Displaced Persons in Socio-economic stream of the country. Number of legislative measures were taken to achieve this purpose. The Pakistan Administration of Evacuee Properties Act (XII of 1957), was the latest in the series of Statutes to achieve the above-stated purpose. It created special agency headed by Custodian of Evacuee Property. Under Section 7 of the Act, all evacuee properties were invested in the Custodian. Displaced Persons (Compensation and Rehabilitation) Act, 1958 and Displaced Persons (Land Settlement) Act, were enacted to settle the claims of Displaced persons on rural as well as urban immovable properties. Act of 1957 created a comprehensive machinery for determining the nature of the property abandoned by the non-Muslims. Section 22 of the Act prescribes that if any person has any right or interest in any property treated by Custodian or Rehabilitation Authorities as evacuee property, had a right to file a petition before the Custodian for seeking confirmation of his right. Subsection (2) of section 41 of the Act, expressly prescribed that Civil Court, will have no jurisdiction to adjudicate upon such questions. It further said that if and whenever any such dispute was brought before him, the Civil Court was required to formulate the question with necessary particulars and remit it to the Custodian for decision and shall adjourn the proceedings in which the question has arisen till the decision of Custodian was received. It further lays down that the decision of the Custodian on that question was to be conclusive and binding upon the Civil Court. This principle was laid down in Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698, S. Muhammad Hashim and 9 others v. Dr. S. Muhammad Asghar and another PLD 1970 SC 326 and Begum Darab Sultana v. Custodian PLD 1982 SC 330 and Nazir Ahmad v. Ghulam Mehdi 1988 SCMR 824. In Nazir Ahmad's case (supra) the question came up for consideration was as to whether the property in dispute was evacuee or not and dealing with the relevant laws it was held: "Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, explicitly bars the jurisdiction of the Civil Court in clear and unambiguous terms and as such no Civil Court can give declaration about the status of a person or property being evacuee or non-evacuee. The order of the Custodian dated, 10th June, 1963, on which reliance is placed for challenging the validity of the subsequent order of the Custodian dated 29th March, 1974, has not been shown to relate to the disputed property, therefore, the very basis of the claim set up in the suit appears to us to be groundless. Additionally this appears to be a new case set up in the suit, in that the appellants did not rely upon the previous order of the Custodian passed in 1963, when they themselves moved the Custodian subsequently to obtain declaration with regard to the status of the property now in dispute. The reason appears to be obvious that the previous order did not relate to the property now the subject-matter of dispute."
' This question was again considered by the Supreme Court in Shaukat Hayat Jumani v. Province of Sindh 1991 SCMR 580. In this case, agricultural land bearing Survey Nos.467, 458, 469 and 470 measuring 6.27 Acres situated in Deh Theri Taluka Khairpur, belonged to one Kanderomal who sold it to non-Muslims, namely, Bhai Prem and Newand. Ancestors of Shaukat Hayat (appellant in the Supreme Court) filed pre-emption suit in 1938. The suit was decreed. The ancestors of the appellant obtained the possession of pre-empted land in consequence of execution of the decree. It may be mentioned that above Khasra numbers were the part of decreed pre-empted land. The land described above was allotted to respondent No,2. In 1966 respondent No,2 served a notice upon the appellant calling him to hand over the possession of the land to respondent/allottees. Notice was given on 20-10-1966. Thereupon the appellant and respondents Nos.4 to 7 filed appeal under section lb before the Deputy Settlement Commissioner, Khairpur, who accepted the same and set aside the allotment in favour of respondent No,3. Respondent No,3 filed revision which was accepted and order passed by the Deputy Settlement Commissioner was set aside. Against this decision the appellant filed a declaratory suit but without success. In this senioro the controversy reached the Supreme Court. After taking into consideration the circumstances of the case the Supreme Court, accepted the appeal and remanded the case to the learned trial Judge with direction to state the question in terms of subsection (2) of section 41 of the Act of 1957, to the Notified Officer concerned under subsection (2) of section 2 of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) for decision. While rendering the opinion, his Lordship Mr. Justice Ajmal Mian, said: "However, Act of 1957 provided two modes of adjudicating upon the question whether any person or property was an evacuee or was evacuee property or not, namely (i) either by filing an application under section 22 by the person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authority as an evacuee property within the period prescribed under subsection (1) of section 22 or (ii) upon a reference to be made by a Court or authority to the Custodian, if the question arose before it, whether any person was or was not evacuee or whether any property was or was not evacuee property or what right, or interest, if any, an evacuee had in any such property. In the instant case it is true that the appellant and espondents Nos.4 to 7 had not invoked section 22 of the Act of 1957 by filing of an application but opted to file an appeal before the Deputy Collector/Deputy Settlement Commissioner (Lands) and then a suit, an appeal and a revision in the Civil Court but, in our view, the facts and circumstances of the present case demanded that the learned Civil Judge should have stated the question with relevant particulars under subsections (2) of section 41 of the Act of 1957 for adjudication by. The Custodian as the question arose when the above provision was still operative as the latter was replaced in 1975.
Since the present proceedings can be treated as in continuation of the proceedings in the suit, which was instituted in 1968, we are inclined to hold that the case can be remanded to the learned Civil Judge with the direction to state the question in terms of the above provisions of the Act of 1957 for adjudication by the Notified Officer concerned under subsection (2) of section 2 of the Act XIV of 1975.
' The learned Judge went on saying: "We would, therefore, allow the above appeal and set aside the judgments/decrees passed by the Courts below and would remand the case to the learned Civil Judge with the direction to state the question in terms of subsection (2) of section 41 of the Act of 1957 to the notified officer concerned under subsection (2) of section 2 of Act XIV of 1975 for adjudication, and upon receipt of such a decision to decide the suit in accordance with law."
14. Applying the principle laid down in Nazir Ahmad's case (supra), to the facts and circumstances of this case, it is crystal clear that the Civil Court had no jurisdiction to decide the question as to whether Khasra No,2807 containing the plots was part of compensation pool or not; whether this Khasra number was acquired by means of notification dated 18-8-1947 issued by the Governor of Punjab under section 42 of the Punjab Town Improvement Act; whether the plots were not evacuee property; whether the transferees had submitted forms for the transfer of the plots in their possession to the Settlement Authorities under Settlement Scheme No,VIII. All these questions, in my humble view, are wholly outside the domain of the Civil Court. In view of this the impugned decision rendered by the Court of first instance as well as the appellate Court, are wholly without jurisdiction and were rendered with patent illegality. These decision, therefore, cannot be sustained.
15. As a result of foregoing discussion I would, allow these all seventeen revision petitions, set aside the judgments/decrees/orders, passed by the Courts below and remand the cases to the Senior Civil Judge, Lahore, with direction to formulate the questions in terms of subsection (2) of section 41 of the Act of 1957 and send them to the Notified Officer concerned under subsection (2) of section 2 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, for adjudication and upon receipt of such decision to decide the suits of parties, in accordance with law. There shall be no order as to costs.
' While parting with the decision, I find it necessary to observe that I have purposely refrained from dealing with the merits of the petitions, lest it may prejudice the learned Senior Civil Judge, while framing the questions to be referred to the Notified Officer. All these revision petitions stand disposed of in above terms.