' Initially, Bal Miki Sabha, plaintiff/respondent, through Sham Lal s/o Jailal, aged about 35 years, caste Balmiki Hindu, resident of Quarter No,1-B/4, Miani Line, Murree Road, Abbottabad instituted the present suit, against Haji Abdul Ghafoor s/o Abdul Rauf, resident of Mohallah Noor-ud-Din, Abbottabad, for permanent injunction and prayed that the defendant/petitioner be restrained from taking the possession of the ouit property, a Hindu Mandar, and from interfering with the worship of the Hindus. In addition, the plaintiff also prayed that a decree for the possession of the "Balmiki Hindu Mandar", the suit property, fully detailed in the heading of the plaint, be granted to him against the defendant.
2. The brief facts, as disclosed in the plaint, are that the Mandar (temple) in suit was being used by the Balmiki Hindus much before the partition of this sub-continent and that even after the partition it was used for the said purpose for a considerable long time, that few years before the institution of the suit in hand, the father of the defendant took the possession of the Mandar in question forcibly and started using it for his personal use, that as a result of that the plaintiff I,e,. Balmiki Sabha (Hindu community) raised lot of hue and cry and also approached the Government and in this respect lodged strong protest. Resultantly the father of the defendant vacated the suit premises. That after his death, his son, defendant (Haji Abdul Ghafoor) once again entered into forcible possession of the temple and therefore, the plaintiff/respondent approached the District Administration, Abbottabad for the redress of their grievance. The District Administration, vide Deputy Commissioner's Letter No, 34/20-Poll: 2731/AG dated 29-5-1982, however, directed the plaintiff/respondent to approach the Civil Court for the redress of his grievance. Consequently the present suit was set on foot.
3. Haji Abdul Ghafoor contested the suit and raised quite a few legal as well as factual objections in his written statement that the suit property was in the possession of defendant's father for a period of more than 80 years and that the "Bal Mild Sabha" did not exist in Abbottabad and that they had nothing to do with the property in question.
It was further alleged that the present suit was instituted by the plaintiff because of some personal grudge.
4. The trial Court reduced the pleadings of the parties to the following issues:--
(1) Whether plaintiff has got any cause of action?
(2) Whether suit is not competent in its present form as instituted by an unauthorised person?
(3) Whether suit is within time?
(4) Whether suit is hit by the principle of res judicata?
(5) Whether the Court has got jurisdiction?
(6) Whether the suit is maintainable in its present form?
(7) Whether suit is correctly valued for the purpose of court-fee and jurisdiction?
(8) Whether defendant has matured his title over the suit property through adverse possession for more than 12 years?
(9) Whether suit is bad for non-joinder of necessary parties?
(10)Whether plaintiff has got no locus standi?
(11)Whether suit is mala fide, hence in case of its dismissal defendant would be entitled to the special compensatory costs?
(12)Whether plaintiff is entitled to the grant of permanent injunction restraining the defendant from interference with the suit property?
(13)Whether plaintiff is entitled to possession of suit property?
(14)Relief.
5. It may be stated here that defendant Haji Abdul Ghafoor died and his heirs i,e,, (1) Mst. Anwar Jan widow, (2) Col. Zahur-ul-Haq Usmani, (3) U. Col. Mukhtiar Ahmad Usmani sons and (4) Mst. Rashida Ghafoor daughter, were impleaded as defendants vide the trial Court order dated 8-11-1989.
6. The parties produced evidence for and against in support of their respective cases. However, the case was not decided on merits because the respondent/plaintiff (No,1) offered the petitioner- defendant (Lt.-Col. Mukhtiar Ahmad Usmani) to take oath and to state on the Holy Qur'an that the suit property was not a Hindu Temple (a place for the worship of Balmiki Hindu Sabha) and secondly that Haji Abdul Ghafur defendant (since dead) had not obtained its possession forcibly, that if the needful was done by Lt.-Col. Mukhtiar Ahmad Usmani then, in that case, the suit of the respondent-plaintiff be dismissed. Defendant-petitioner, Lt.-Col. Mukhtiar Ahmad Usmani, who is also the attorney of the other heirs of Haji Abdul Ghafur, accepted the said offer and stated that he was ready and prepared to take oath on the Holy Qur'an, as suggested by Sham Lal, on behalf of the plaintiff/respondent.
7. However, later, on the same date i,e,, 26-9-1987, Sham Lal resiled from his offer and in this respect submitted an application before the trial Court. The trial Court directed the defendant/petitioner to submit replication which was done. The trial Court, therefore heard both the parties and by his order dated 30-6-1990 came to the conclusion that the respondent/plaintiff could not resile from the offer. He, therefore, recorded the statement of the defendant/petitioner (Lt.-Col. Mukhtiar Ahmad Usmani) on oath, who controverted both the contentions raised by the defendant/petitioner, and only on this score dismissed the suit of the respondent/plaintiff.
8. Not contented with the order of the trial Court, the plaintiff/respondent filed an appeal before the District Judge. The Additional District Judge vide his order dated 8-6-1992 accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case to the trial Court to proceed with the case and decide the same on merits after issuing a proper notice to the Hindu community, through the newspapers. He also directed the parties to appear before the trial Court on 25-6-1992. This order has been impugned by the defendant/petitioner in this revision petition.
9. Mailk Fazal Hussain, Advocate learned counsel for the petitioner, Malik Manzoor Hussain, Advocate learned counsel for respondent No,1 and Mr. Muhammad Sarfaraz Khan, Advocate learned counsel for respondent No,2 present and heard. I have gone through the record of the case with some degree of care.
10.. It appears that it has escaped the notice of the parties as well as the two Courts below that any dispute in respect of the property, like the suit property, would be governed by Act XIII of 1975 i,e,, Evacuees Trust Properties (Management and Disposal) Act, 1975. For the sake of convenience section 8 of the Act is reproduced:-- "Declaration of property as evacuee trust property.--(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court."
11. It is, therefore, clear that as and when question arises as to whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
12. Similarly the jurisdiction of the Civil Court is barred under section 14 of the said Act, which is to the following effect:-- "S.
14. Bar of jurisdiction.--Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued 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."
13. In the circumstances, I am of the view that the Civil Court (trial Court) had no jurisdiction to entertain the suit in hand and that therefore, the question of deciding the case either on oath or on merits, does not arise at all. Similarly the subsequent order of the lower Appellate Court vide: which he has remanded the case to the trial Court, for taking further proceedings, in r accordance with his order dated 8-6-1992, is also coram non judice.
14. Since, in my opinion, the order of the trial Court as well as the Appellate Court are without jurisdiction, this revision petition is accepted. The orders of both the lower Courts are set aside and the plaint is returned to the plaintiff/respondent for presenting the same before a proper forum for the redress of his grievance. Cost to follow the events.