1. ' MUHAMMAD HUSSAIN ADIL KHATRI, J.---The above petition has been filed assailing the order, dated 6-2-1990, passed by District Judge, Sanghar, in Civil Revision Application No,23 of 1989, holding that the suit filed by the predecessor of the petitioners challenging the transfer of evacuee property in favour of respondent No,2 was not maintainable and that the remedy of the petitioners lay before the Authorised Officer under the provisions of Evacuee Property and Displaced Persons Laws (Repealed) Act, (XIV of 1975) (hereinafter referred to as the 'said Act'). The said Act replaces Ordinance XV of 1974, having the same nomenclature. The said 'Act came into effect from 1-7-1974.
2. ' This case has a chequered history. The facts in so far as relevant for the purpose of this petition are that Haji Islamuddin, the father of the petitioners, had purchased evacuee property, bearing Custodian No,II-A-243, corresponding to City Survey Nos.B/139 and 144, situated in Shandadpur, in open auction from the Settlement Department on 22-2-1960. The said property was described as shop comprising two rooms and one store room and was shown in possession of Imam Bux, the father of respondent No,2, who being a local was not entitled to transfer of the shop, in terms of the Scheme framed under and the Schedule to the Displaced Persons (Compensation & Rehabilitation) Act, 1958 (hereinafter referred to as the Act of 1958). The said Imam Bux accordingly when applied for the transfer, of the shop, his application was rejected on 6-9-1959. The matter was not agitated any further by him. On 16-11-1973, i,e, more than fourteen years thereafter, respondent No,2 filed "0" Form for the transfer of the store room under Settlement Scheme No,VIII. It was rejected on 10-4-1974. On 18-4-1974, respondent No,2 applied for re-survey of the store room in his possession. Respondent No,4 assigned Custodian No,II-C-178/A to the store room, showing it as corresponding to City Survey No,141 and transferred the same to respondent No,2 by order dated 22-44974 and PTD was issued to him on 20-6-1974. The above survey and the transfer proceedings welt conducted behind the back of the predecessor of the petitioners. The petitioners' predecessor, on coming to know about the aforesaid transfer, filed an application on 26-9-1975 before respondent No,4, who dismissed the same on 31-1-1976 for want of jurisdiction as the Act of 1958 had stood repealed, by the said Act. The order was, however, assailed by the deceased in revision which was also dismissed by the Settlement Commissioner, Sindh for want of jurisdiction for the same reason.
3. ' The petitioners' predecessor then filed the aforesaid suit for declaration that the transfer and issuance of permanent transfer deed in favour of respondent No,2 was illegal, mala fide, fraudulent and without any lawful authority and also for injunction. Respondent No,2 in the written statement filed by him raised legal pleas and accordingly the learned Senior Civil Judge framed two issues, the first being whether the suit was time-barred and the second, whether the suit was hit by the provisions of section 42 of the Specific Relief Act. Both the above issues were answered in favour of the petitioners in the order, dated 6-11-1989. The above order was assailed by respondent No,2 in Civil Revision Application No,23 of 1989, before the District Judge, Sanghar. The learned District Judge allowed the Revision Application holding that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of the said Act as according to him, the dispute fell within the definition of pending case and should be decided under the said Act.
4. ' We have heard the learned counsel Mr. Hasan Mahmood Baig for the petitioners and Mr. Jhamat Jethanand for respondent No,2.
5. The learned counsel for the petitioners has contended that the order of transfer of a portion of the property purchased by petitioners' predecessor, to respondent No, 2 came to the knowledge of the said predecessor after 1-7-1974 and as the case on the aforesaid crucial date was not pending before the Settlement Authorities, they had no jurisdiction to entertain the application. It was further contended that the learned District Judge has not applied his mind to the fact that the predecessor of the petitioners in the first instance had invoked the jurisdiction before the Officer notified under the said Act, but his application was dismissed for want of jurisdiction as the matter did not fall within the definition of the term 'pending case' and so also the Revision Application for the same reason and as such the learned District Judge, before whom the above orders were not assailed, acted beyond the scope of the dispute pending before him and more so as no such issue was raised by respondent No,2.
6. ' On the other hand, the learned counsel for the respondent No,2 contended that no exception can be taken to the impugned judgment as the dispute between the parties is to be construed as pending on 1-7-1974, on which date the said Act came into force. The above conclusion is drawn by him from the premises that the order of transfer of the property was passed on 20-6-1974. The right of revision under the Act of 1958 continued to be available even after 1-7-1974, as limitation period prescribed therefor had not expired on the said crucial date. To put it in other words the right of revision having survived the date of repeal of the Act of 1958, the dispute is to be treated as pending. Consequently, the dispute is to be agitated before the special Tribunal created under the said Act and the jurisdiction of the Civil Courts was barred under section 25 of the said Act of 1958.
7. ' The above submission is evolved from the wording of subsection (2) of section 2 of the said Act, which reads as under:--- "(2) Upon the repeal of the aforesaid Acts and Regulations, all proceedings which, immediately before such repeal, may be pending before the authorities appointed thereunder shall stand transferred for final disposal to such officers as may be notified by the Provincial Government in the official Gazette and all cases decided by the Supreme Court or a High Court after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified as aforesaid."
8. ' The plain reading of the above provisions shows that only such proceedings as were pending before the authorities appointed under the Act of 1958 on 1-7-1974, shall stand transferred for final disposal to the Notified Officer, i,e, to say such proceedings as were not so pending, cannot be initiated before the Notified Officer. The above provisions came up for interpretation before the Supreme Court in the case of Muhammad Younus and 2 others v Muhammad Younus Khan and others 1981 SCM R 899, wherein Justice Naseem Hasan Shah (now the Chief Justice of Pakistan) speaking for the Court has observed as under:--- "We heard Mr. A.H. Najafi on behalf of the petitioner but he was not able to show that proceedings before the Settlement authorities regarding transfer of the disputed land were pending before the target date as mentioned in the Ordinance, 1974 i,e, 1-7-1974. Consequently, we are clear that the order of the Settlement. Commissioner holding that the revision petition of Ahmad was not maintainable is unexceptionable and that the High Court has rightly refused to interfere with the said order.
9. ' The above provision again came up for interpretation before the Supreme Court in the case of Head Master, Muslim High School No,1, Rawalpindi and another v. Mst. Asghari Khanam and 2 others 1984 SCM R 332. In the said case the Deputy Settlement Commissioner, Rawalpindi had passed order on 25-6-1974. Feeling aggrieved by the above order, the appellant preferred a revision petition in the Court of Settlement Commissioner, Rawalpindi, who, in exercise of the revisional jurisdiction, passed an order suspending the operation of the impugned order, dated 25-6-1974, passed by the Deputy Settlement Commissioner. The assumption of the jurisdiction by the Settlement and Rehabilitation Commissioner was challenged in the High Court in writ petition. The above order passed by the Settlement Commissioner was quashed holding that after the coming into effect of the said Act, the rights and remedies provided under the Act of 1958, including those contained in section 20 of the said Act (providing for revisional jurisdiction) were no longer available and, therefore, the Settlement Commissioner had no jurisdiction to entertain the revision.
10. The argument similar to the one, now raised before this Court by the learned counsel for the respondent that the period of limitation for filing revision having not expired, such revision could be entertained under the said provision was also repelled. Their Lordships referred to the judgment of one of the learned Judges comprising the said Bench, delivered by him as a Judge of the Sindh High Court on the above proposition and so also the aforesaid case of Muhammad Younus (supra) and yet another case titled Mst. Jaleesa Begum v. Iqbal Ahmed Qureshi PLD 1982 SC 396.
11. ' Similarly following observations in the case of Sher Afzal Khan and others v. Haji Razi Abdullah and others 1984 SCM R 228 are also relevant. Same view was expressed by the Supreme Court in the above-referred case in the following words:--- "We do not see how, after the repeal of these laws, the authorities under the new dispensation that came into being under the repealing statute and under the new scheme promulgated in 1976, could undertake an enquiry in orde to review and reopen such past and closed transactions. Even a case of fraud could be enquired into or adjudicated upon provided jurisdiction to exercise such power survives the repeal. No such provision was pointed out by the learned counsel. The exercise of jurisdiction was, therefore, palpably coram non judice and wholly incompetent."
12. ' The facts of the case clearly show that on 1-7-1974, no dispute was pending before the Settlement authorities. It was because of the above fact that the authorised officers when approached, although expressed the view about the illegality of the transfer order passed in favour of respondent No,2, refused to grant relief to the petitioners' predecessor for want of jurisdiction. Even though it be a case of fraudulent transfer, it could be enquired into or adjudicated upon only if the jurisdiction survives the repeal.
13. ' It was next contended that the suit filed by the petitioners' predecessor was barred under section 25 of the Act of 1958. The reliance was placed on the case of Syed Abdul Hakim v. Muhammad Azam Khan and others 1991 SCM R 1976. The said case is distinguishable. In the said case the rights of the parties were determined by the High Court in the Constitution petition. The suit was filed to reopen the case. The suit thus filed was held to be barred, as the order passed by the High Court had attained finality vis-a-vis the dispute between the parties.
14. ' In the case in hand the dispute with regard to validity of the transfer in favour of respondent No,2 has not been determined. In case the tenement transferred to respondent No,2, was in fact transferred to the petitioners' predecessor earlier, it had ceased to be part of compensation pool and the Settlement authorities had no jurisdiction to transfer the same. Resultantly, the said respondent is to be treated as statutory tenant with other heirs of the deceased Imam Bux Soomro.
15. The petitioners cannot seek eviction of the said statutory tenants under the rent laws, so long as, the transfer in favour of respondent No,2 remains in the field. In short, the title of the petitioners to the said tenement is clouded. It needs to be cleared. The conflicting claims between the contestants of the title are to be determined. No other forum being available to the petitioners, they had to invoke the plenary jurisdiction of the Civil Court by filing the suit.
16. ' The impugned order passed by the learned District Judge, Sanghar is set aside. As the learned District Judge has not decided the fate of the above-stated two issues, the revision is remanded for disposal accordingly.
17. ' The petition is allowed as above with cost.