' The respondents 1 to 21 filed a suit for declaration to the effect that they were occupancy tenants of land 649 Kanals 17 Marlas and that the order, dated 28-1-1967 passed by the Additional Commissioner, Sargodha, holding that they were not occupancy tenants in respect of 379 Kanals 17 Marlas is illegal, void and ultra vires and as consequential relief they prayed for a direction to the respondents Nos.22 to 29 to restrain from interfering in their possession. The appellants contested the suit. The trial Court decreed the suit vide judgment and decree, dated 1-1-1968, which was assailed through an appeal before the Lower Appellate Court. The same was accepted, additional issue No,4-A framed and suit was remanded for fresh decision. The suit was again decreed vide judgment and decree, dated 15-2-1971, which was assailed through an appeal. The same was dismissed by the then District Judge, Jhang vide judgment and decree, dated 18-1-1973. Hence present appeal.
2. The learned counsel for the appellants argued that the land was admittedly owned by the evacuees. The' same was transferred under the provisions of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter to be referred as Act of 1958) by the D.S.C. Vide order, dated 12-11- 1964 in favour of Nemat, predecessor-in-interest of respondents Nos.25 to 29, who sold it to the appellants. The plaintiffs assailed the order of transfer through an appeal, which was accepted by the Additional Settlement Commissioner vide order, dated 26-5-1966 but this order was set aside in revision by the Settlement Commissioner vide order, dated 28-1-1967. It is, therefore, maintained that the suit was barred under sections 22 and 25 of the Act of 1958 as well as under section 77 of the Punjab Tenancy Act, It is argued that as the property was evacuee it formed part of the compensation pool and vested in the Central Government, therefore, it was allotable and the action was immune from scrutiny by the Civil Courts. It is added that interest in land would also be treated as land in view of the definition of land as contained in section 2(3) of the Act of 1958. The learned counsel, in this behalf, has referred to Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 and Zafarul-Hassan v. The Republic of Pakistan (through Cabinet Secretary Government of Pakistan) PLD 1960 SC 113. It is maintained that the land in possession of the occupancy tenants was not to be transferred under the Settlement Scheme in view of the clause
(ix) of para. 31 but it has been held by the Settlement Commissioner that the plaintiffs were not the occupancy tenants, therefore, land was rightly transferred and it was within the exclusive domain of the Settlement Authorities to decide whether the land is in possession of occupancy tenants or not? In this behalf he has referred to Hamid Hussain v. Government of West Pakistan and others 1974 SCM R 356.
3. On the other hand, the learned counsel for the respondents argued that the land was not allotable and Civil. Courts were well within their legal jurisdiction to set aside an order which was not covered by the Act of 1958 or Scheme. It is maintained that the plaintiffs were occupancy tenants. The learned counsel in this behalf has referred to para. 211 of the Douie's Settlement Manual and relied on Sher Bakhsh v. Khuda Bakhsh and another (1885) 110 PR 265. It is further argued that the Settlement Courts/Authorities have very limited powers and their orders beyond the scope of the Act of 1958 are liable to be set aside by the Civil Courts, which are Courts of general and ultimate jurisdiction. In this behalf, he has referred to Mr. Muhammad Jamil Asghar v.
The Improvement Trust, Rawalpindi PLD 1965 SC 698. It is added that the power of the D.S.C. And other Officers in the settlement hierachy to allot land in possession of the occupancy tenants was excluded under clause (ix) of para. 31 of the Scheme, therefore, the orders of the D.S.C. And the Settlement Commissioner are without jurisdiction.
4. The learned counsel for the respondents also raised a preliminary objection to the maintainability of the appeal. It was argued that the valuation of the suit from which this appeal has arisen was Rs,200 as is clear from para.12 of the plaint while no second appeal was competent where value of the suit in the original Court was less than Rs,2,000. In this behalf, the learned counsel has referred to Law Reforms Ordinance, 1972. The learned counsel added that evacuees respondents Nos.22 to 24 were sued through D.S.C. Therefore, the suit was not bad for non-joinder of the parties.
5. The learned counsel for the appellants while replying to the preliminary objection submitted that the appeal is to be governed by the law in force when lis starts. It is added that the Law Reforms were not given retrospective effect, therefore, the appeal filed in this Court on 6-4-1973 was competent. In this behalf, reliance is placed on P.I.A. Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553. It is added that in any case this Court has ample powers to consider the appeal as revision to do the complete justice between the parties. In this behalf, reliance is placed on Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139.
6. On merits while summing up the arguments it was submitted that the status of land was to be decided by the D.S.C. Otherwise the purpose of the Settlement Scheme would be frustrated. It is argued that the suit was also barred under section 77(3) clause (d) of the Punjab Tenancy Act as the dispute was exclusively within the jurisdiction of Revenue Courts and the Civil Courts have no jurisdiction in the matter. It is submitted that the plaintiffs were to acquire rights of occupancy tenants only when they have complied with the terms and conditions of grant i,e, dig the wells. It is maintained that since there is no evidence as to digging of wells, therefore, the plaintiffs would not automatically acquire the status of tareddadkar. In this behalf, he has referred to para. 173 of the Douie's Manual and judgment in the case of Shahadat and 5 others v. Sarfraz Khan and 4 others 1988 CLC 1414.
7. I have given my anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedent cases. Now I take up the first argument that the jurisdiction of civil Court was barred under section 22 read with section 25 of the Act of 1958, which read as under:-- "Section 22. Finality of orders.
' Subject to the foregoing provisions of this Chapter any order made under this Act, shall be final, and save as provided in section 21, shall not be called in question in any Civil or Revenue Court."
' Section 25. Bar of jurisdiction.
' Save as otherwise provided in the Act no Civil or Revenue Court shall have jurisdiction in respect of any matter which the Central Government 'or a Provincial Government' or an officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other Authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
It is clear from section 22 that the key words are "order made under this Act", which have been underlined by me to make it clear while in section 25 the words "any matter which the Central Government or Provincial Government or an officer appointed under this Act is empowered by or under this Act to determine" hold the pivotal position. The same have also been underlined to make the point clear.
8. Now first and foremost question for determination is that whether the order, dated 12-11-1964 of D.S.C. Transferring 379 Kanals 17 Marlas of the land as an evacuee property is an order passed under the provisions of Act or the Scheme thereunder? The land in possession of the occupancy tenants is dealt under para. 31 of the Rehabilitation Settlement Scheme. The parties have referred to clause (ix) of this para of Scheme, which reads as under:- "(ix) Land held by Muslim occupancy tenants of non-Muslims evacuee landlords in West Pakistan should not be allotted and the rent due from them should be assessed and recovered in cash, in lieu of the produce rent, at the rate of six times the land revenue if the rate of batai is one half. It should, however, be recovered at the rate of 5 times the land revenues if the rate of batai is two- fifths, at the rate of four times the land revenue if the rate of batai is one-third and at the rate of three times and land revenue if the rate of batai is less than one-third. These orders will take effect from Kharif 1953. The recoveries already made from previous harvest (but not the arrears) will, however, be exempted from the application of these orders."
9. Now before proceeding to discuss the scope of clause (ix) it is relevant to find out what is the definition of "occupancy tenancy". The term has not been defined in the Act of 1958 or the Scheme but it is clear from clause (i) of para 31 of the Scheme that it carries same meaning which have assigned to it in the Punjab Tenancy Act, 1887. The Scheme has rather extended the definition as is clear from clause (iv) of para. 31, which reads as under:-- "(iv) All other rights analogous to occupancy tenancies e.g. Those of magarraridas, etc. Should be treated in the same manner as occupancy tenancies under sections 6 and 8 of the Tenancy Act."
' Sections 5 to 7 deal with the occupancy tenants on the grounds specified therein while section 8 is general in nature. It deals with right of occupancy founded on the grounds other than expressly specified in sections 5 to 7. The learned counsel for the plaintiffs contended that the case of the plaintiffs is covered by this section. Thereafter, he referred to para. 211(2) of the Douie's Settlement Manual. The same reads as under:-- "(2) any tenant who can establish a right of occupancy on any grounds other than those described in sections 5 and 6 (section 8). This refers specially to the rights which by the custom of particular parts of the country persons effecting improvements or bringing waste under cultivation acquire.
Examples are the lathband or lathmar tenant of Dera Ismail Khan and Dera Ghazi Khan who obtains his title by embanking fields and the butembar, or mundhimar, who ears it by clearing jangal. The rights of the taraddadkar tenants of the Jhang district seems to have been acquired by merely engaging to keep in cultivation the lands attached to a well-constructed by the owner.
They must be distinguished from those of the taraddadkar owner described in paragraph 173. It is very doubtful whether the right of traddadkar to sublet is limited by section 58(2) of the Tenancy Act. According to Mr. Steedman 'all taraddadkars have the power of arranging for the cultivation. It does not matter whether the traddadkar cultivates himself or by a tenant'. The mukarraridar tenant of Attock cannot be considered as falling under section 8 or any other section of the Punjab Tenancy Act, for he has by custom more unrestricted powers of alienation than an class of occupancy tenant enjoys under Act XVI of 1887, and holds his land at a fixed rent which cannot be altered during the term of settlement. It has been judicially decided that some mukarraridaris descend like owner's holdings, and are not subject to the special rules referred to in the next paragraph."
It is clear from the portion underlined that Taraddadkars have been treated as occupancy tenants.
10. It is relevant to refer here that in the present case the tenancy came into existence between the plaintiffs side and the evacuee land owners through agreement, dated 6-6-1895 Exh.P.2. On the file.
The agreement was duly registered with the Sub-Registrar and reflected in the Revenue Record by sanction of Mutation Exh.P.1 on 12-3-1899. This arrangement continued between the parties till the eve Pakistan won Independence. It is clear from section 8 of the Punjab Tenancy Act read with paras. 173 and 211 of the Douie's Settlement Manual that the plaintiffs enjoyed the status of occupancy tenants. The learned counsel rightly referred to the case of Sher Bakhsh (supra.).
11. Now coming back to para. 31 of the Scheme. It is clearly provided that the land in possession of the occupancy tenants should not be allotted, therefore, the order of the D.S.C. Transferring the land under Settlement Scheme to Nemat was without jurisdiction. The order being void and without jurisdiction were liable to be corrected by the Civil Courts, which are Courts of unlimited powers and a Court of general jurisdiction. The learned counsel rightly referred to the cases of Hamid Hussain and Mr. Muhammad Jamil Asghar (Supra). Even the cases relied by the learned counsel for the appellants reported as Mst. Ghulam Fatima and Zafar-ul-Hassan (supra) clearly lay the rule that the action and order sought to be protected should be passed strictly in accordance with the provisions of statute otherwise bar of jurisdiction would not be available.
12. Now coming to the other limb of the arguments that the suit was barred under section 77 of the Tenancy Act. The provision is not attracted to in the present dispute because the Revenue Courts are Courts of limited and specified jurisdiction and they have no power to set aside orders passed by the Settlement Authorities. Moreover, the dispute was not between the landlord and tenant, therefore, reference to section 77 is misconceived. It is clear from the record that the D.S.C. Was not even conscious of the fact that he has no power to transfer the land in possession of the occupancy tenants, therefore, there was no determination of the status of the plaintiffs before the jurisdiction was assumed by him. The learned counsel for the appellants while raising this argument did not keep in mind that this proves the orders of D.S.C. And Settlement Commissioner impugned in the civil suit were without jurisdiction. The Settlement Authorities have no jurisdiction to undertake this determination in view of section 77 of the Tenancy Act.
13. Now coming to the last argument that the plaintiffs were not Taraddadkars as they have not dug the well in the pursuance of the terms and conditions of the agreement. This was not case of the appellants either in the written statement or before the Courts below or even before the Settlement Commissioner, who accepted their revision vide order, dated 28-1-1967 Exh.D.1. It is clear from the tenor of his order that he was not at all conscious of the provisions of section 8 of the Tenancy Act and para. 211 of the Douie's Settlement Manual. He thought that Taraddadkars and occupancy tenants are two different categories. It is for this reason that he recorded the plaintiffs are only Taraddadkars. The violation of terms and conditions of tenancy is neither been alleged nor proved, therefore, it is too late in the second appeal to raise the same. This is not all. This is concurrent finding of fact recorded by the Courts below, therefore, this argument is also without any merit. The preliminary objection as to the competency of the appeal does not require any serious consideration as the appeal can be treated as revision.
14. The upshot of the above discussion is that this appeal is dismissed with no order as to costs.