Petitioners have assailed the judgment and decree dated 22-11-1981 of the learned Additional District Judge, Sheikhupura whereby the judgment and decree of the learned Civil Judge, Sheikhupura dated 17-6-1981, was maintained.
2. Brief facts of the case are that one Ghulam Hussain son of Turo Khan resident of Deenaywali, Tehsil Trantaran died prior to the partition of India. He had two wives namely Noor Nishan and Fateh Bibi. Noor Nishan died during the lifetime of Ghulam Hussain. On the demise of Ghulam Hussain, his estate partly devolved on his two sons Ibrahim and Abdul Khan. According to the averments of the petitioners they were their predecessor-in-interest to the extent of 1/2 share whereas the remaining 1/2 share went to Mst. Fateh Bibi his surviving widow. It is also alleged that 1/2 share which fell to Fateh Bibi was held by her as limited owner under the custom and she could hold the same till her death or re-marriage. Since Fateh Bibi also died in the year 1946, thereafter, the petitioner/plaintiff No.2 after migrating to 'Pakistan filed his claim in respect of land owned by Mst. Fateh Bibi. The same was verified and the land was confirmed in lieu of estate left in India on 23-12-1958. The mutation of inheritance of the said land was sanctioned to the extent of 1/2 share in favour of the petitioners and the remaining 1 /2 share was mutated in favour of Mst. Niamat Bibi daughter of Mst. Fateh Bibi. After the death of Niamat Bibi the land was inherited by the respondents, son and daughter of Mst. Niamat Bibi deceased. Petitioners challenged the mutation dated 23-12-1958 hereby 1/2 share was mutated in favour of Niamat Bibi predecessor-in-interest of respondents through a declaratory suit that they are owners in possession of the suit land to the exclusion of the respondents and that the entries in the Revenue Record pursuance to the said mutation were illegal and ultra vires. As a consequential relief they also prayed for a permanent injunction.
3. The suit was resisted by respondent No.2. Averments in the plaint were refuted and legal objection regarding maintainability of suit arid bar ofjurisdiction were raised. On the divergent pleadings of the parties, the learned a trial Court framed the following issues:-- (1)Whether the Civil Court has no jurisdiction to try this suit?
OPD.
(2)Whether the suit is time-barred? OPD.
(3)Whether this suit is in proper form? OPP.
(4)Whether the plaintiffs are in possession of the suit land? OPP.
(5)Whether Fateh Bibi deceased was alive at the time of partition of Sub-- continent and its effect?
OPD.
(6)Whether Ghulam Hussain deceased was . Governed by agricultural custom and what was that custom? OPD.
(7)Whether the plaintiffs are exclusive owners of the suit land?OPD.
(8)Relief.
4. After recording the evidence of the parties the learned Civil Judge dismissed the suit as barred by time as well as for lack of jurisdiction vide judgment and decree dated 17-6-1981. The appeal of the petitioners also met the same fate vide impugned judgment dated 22-11-1981.
5. Learned counsel for the petitioners submits that Courts below were bound to decree the suit to the extent of Fazal Khan respondent No.1, who admitted the claim of the petitioners in his written statement. He further submits that the Courts below have erroneously dismissed the suit and the appeal of the petitioners on aforementioned grounds.
6.Learned counsel for the respondents on the other hand submits that the validity of mutation dated 23-12-1958 was challenged by the petitioners in the 9 suit filed on 29-1-1975. The suit was hopelessly barred by time and the learned Civil Judge was justified in dismissing the suit as barred by limitation. He also submits that the Civil Court has no jurisdiction to entertain any objection with regard to the entries of the right holders adjudicated under paras. 46 and 46-A of the Rehabilitation and Settlement Scheme. The jurisdiction of the Civil Court is barred under section 25 of the Displaced Persons (Land Settlement) Act, 1958.
7.1 have heard the learned counsel for the parties at length and gone through the relevant record.
Learned trial Court has correctly relied upon Ahmad Din v. Muhammad Shafi and others (PLD 1971 Supreme Court 762) holding that the dispute relating to inheritance of refugee rightholders do not fall P within the jurisdiction of Civil Court. Legislature has conferred special powers on the Settlement Authority to determine such disputes. Section 25 of the Land Settlement Act clearly barred the jurisdiction of the Civil Court in relation to the dispute which falls within the jurisdiction of the Settlement Authority for its determination. Learned Courts below have correctly held that the Civil Court had no jurisdiction to adjudicate upon the dispute raised in the instant proceedings. '
8. The case of the Supreme Court reported as Ghulam Fatima v. Muhammad Hussain and 5 others (PLD 1976 Supreme Court 729) and Lal Khan and another v. Sham Din and others (PLJ 1991 Supreme Court 263) referred by the learned counsel for the petitioners are not applicable to the present case. Case of Mst. Ghulam Fatima indirectly supports the contention of respondents in relation to matter which falls within exclusive jurisdiction of Rehabilitation Authorities, cannot be adjudicated upon by Civil Court. Moreover, the abovesaid case related to succession to estate of a confirmed allottee. Ahmad Din's case was not referred in the abovesaid judgment which is applicable with full force to the facts of case in hand.
9. Now taking case of Lal Khan referred above suffice to observe that scope of section 25 of the Land Settlement Act, 1958 was not considered at all in the said case. This citation is absolutely irrelevant for the purposes of the present case. The judgment of the Supreme Court relied upon by the trial Court in Ahmad Din v. Muhammad Shafi and others (PLD 1971 Supreme Court 762) is fully applicable to the facts of the present case. Relevant portion of the same is as under:-- "Learned counsel appearing in support of this appeal has contended that the jurisdiction of the Civil Court to entertain a suit of this kind had not been taken away either by section 13 or section 18 of the Pakistan Rehabilitation Act, 1956 or by section 25 of the Land Settlement Act, 1958, for, no question relating to the evacuee nature of the property fell to be decided in this case. All that was sought was a declaration that the appellant was the sole heir of Allah Bakhsh with a consequential relief of an injunction for restraining the respondents from interfering with his possession.
This contention is, however, now not tenable in view of the decision of this Court in the case of Mst.
Zainab v. Mst. Raji (PLD 1960 SC 229) where it has been pointed out that the Rehabilitation Authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme, Punjab.
Reference was also made by this Court in this connection to the instructions contained in paras. 46 and 46-A of the Rehabilitation Manual to show that since the question of inheritance to right- holders, as Allah Bakhsh was in the present case, was also to be decided by the Rehabilitation Authorities, the matter was in their exclusive jurisdiction and, as such, a similar question could not be allowed to be agitated in the Civil Courts."
10. As far as claim of the petitioners about the passing of the decree in his favour to the extent of Fazal Khan's share is concerned it has been opposed by the learned counsel for the respondents, who represents both Fazal Khan as well as Mst. Sughran Bibi. Fazal Khan submitted an application under Order VI, Rule 17, C.P.C. For amendment of written-statement wherein he claimed that he has not made any admission in favour of the petitioners in the trial Court. Although the said application was dismissed by this Court on 29-3-1992 but he was allowed to make application under section 12(2), C.P.C. The written statement on behalf of Fazal Khan submitted in the trial Court indicates that he admitted the claim of the petitioners which is being disputed by him in this Court. The perusal of the judgment of the lower Courts indicate that this point was not specifically, stressed. Moreover, the learned Civil Judge came to the conclusion that he has no jurisdiction to adjudicate upon the dispute, therefore, the admission of respondent No. l was of no consequence. Since the Civil Judge on both the legal issues of bar of limitation and jurisdiction dismissed the suit he could not decree the suit in favour of the petitioners to the extent of respondent 8 No.1. The impugned judgment is perfectly in accordance with the evidence on record calling for no interference in exercise of revisional jurisdiction.
11. The question of limitation has also been correctly dealt with by the Courts below. Muhammad Aslam one of the petitioners was present at the time mutation Exh.P.3 was entered. It cannot be said that disputed mutation was not in the knowledge of the petitioners. Institution of the suit by C the petitioners in the year 1975 is hopelessly barred by time. It is also manifest that the parties have acted upon the said mutation and occupied their respective shares as is evident from Exh.P.6 (Khasra Girdawari) of the disputed. Land.
12. For the reasons stated above this petition is dismissed with no order as to costs.