SARDAR SAID MUHAMMAD KHAN, .C.J.---This appeal has been directed against the judgment and decree of the High Court dated 27-7-1996, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts of the case are that the appellant and pro forma respondents purchased land measuring 7 Kanals, 11 Marlas under survey No.688 situate in village Dheengal, Tehsil Dadyal, from one Rehmatullah; the vendor had been given proprietary rights by the Custodian under Pakistan (Administration of Evacuee Property) Act. According to the appellant, respondent No.1 forcibly occupied land measuring 1 Kanal and 3 Marlas out of the aforesaid survey number and constructed two rooms therein. The appellant, herein, filed a suit for the possession in the Court of Sub-Judge, Dadyal, which was decreed in his favour. However, on appeal to the District Judge by the respondent, the judgment and decree passed in favour of the appellant were set aside. The appeal filed by the appellant, herein, to the High Court also failed.
3. We have heard the arguments. Both the appellate Courts below dismissed the appeals of the appellant on the ground that as the land was basically evacuee property, the civil Court had no jurisdiction in the matter. The District Judge and the High Court are purported to have relied upon an unreported case of this Court entitled Fazal Karim v. Muhammad Aziz (Civil Appeal No.32 of 1986 decided on 5-12-1987).
4. Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, has argued that the ratio decidendi of the aforesaid case is not applicable to the case in hand. He has argued that in the present case neither the character. Of the property as evacuee was in dispute nor the stand taken by the plaintiff-appellant was derogatory to the interests of the Custodian. The learned counsel has argued that the property was purchased by the appellant from one Rehmatullah, who had duly obtained proprietary rights from the Custodian, and thereafter, the appellant sought possession of the land in dispute alleging that he was forcibly dispossessed by the respondent. The learned counsel has argued that the jurisdiction of the Civil Court can be ousted only by express provision of law or by necessary implication but there is no such eventuality in the present case.
The learned counsel has further submitted that the facts of Fazal Karim's case, relied upon by the Courts below, are distinguishable and dictum laid down in that case is not relevant to the present case. The dispute in the said case wasbetween the allot tees who had obtained the proprietary rights from the Custodian and the old tenant. There was an. Agreement between the parties with regard to the terms and conditions of the tenancy. The allottees-owners sought the ejectment of tenants by initiating the proceedings before the A.R.C. On the ground that the tenants had violated the terms and conditions of the tenancy, which they were bound to comply. With _ according to the agreement. Consequently, an ejectment order was passed by the A.R.C. Which was challenged before the D.R.C. And the Rehabilitation Commissioner but the order of ejectment passed by the A.R.C. Was maintained. Thereafter, the tenants invoked the writ jurisdiction of the High Court alleging that the order of their ejectment was without lawful authority because after obtaining the proprietary rights from the Custodian, the disputed land did not remain 'evacuee property' any more. Their writ petition was dismissed by the High Court. On appeal to this Court, it was observed that as the point of jurisdiction of the Rehabilitation Authorities was not agitated. Before the said authorities, the same could not be agitated for the first time by invoking the writ jurisdiction. While dismissing the appeal filed in this Court on merits an observation was made that the character of the property as evacuee property remained unchanged even after the transfer of provisional proprietary rights to the allottees. The learned counsel has argued that in the instant case neither the Constitutional jurisdiction of the High Court has been invoked for assailing the order of the Rehabilitation Authorities nor there was any dispute between the landlord and tenants. The civil suit was filed by the appellant for getting the possession from the alleged trespassers. The learned counsel has maintained that in the instant case the character of evacuee property is not at stake and the suit for possession on the basis of title was within the jurisdiction of the Court.
5. In reply, Raja Hassan Akhtar, Advocate, the learned counsel for the respondent, has controverted the arguments of the appellant. He has argued that the ratio decidendi of Fazal Karim's case, referred to above, is attracted in the case in hand and the civil Court is not competent to entertain the suit. The appellant may seek the redressal of his ' grievance from the Rehabilitation Authorities.
6. We have given due consideration to the arguments raised at the Bar. The moot point involved in this case is as to whether the civil Court had the 10jurisdiction to entertain the suit for possession filed by the appellant who hadpurchased the proprietary rights from the provisional owner through a registered sale-deed when he is not putting up any hostile title to the Custodian or challenges the evacuee character of the property.
The provisions of section 18 ofthe Rehabilitation Act which were discussed in Fazal Karim's case are reproduced as under:- Jurisdiction of Civil Courts barred.---(1) Subject to the provisions of sections 13 and 42 of the Pakistan (Administration of Evacuee Property) Act, 1956, no order passed by a Rehabilitation Authority under this Act shall be called in question in any Civil Court in any suit, appeal execution application or other proceeding. ,
(2) All lands, buildings, business or undertakings or any movable property found therein, which have been taken over by any Rehabilitation Authority under the provisions of this Act, shall be exempt from attachment or sale in execution of a decree of a Civil Court or in pursuance of an order passed by any Court.
(3)
The provisions contained in section 16 of the Pakistan (Administration of Evacuee Property) Act, which are also relevant to the case in hand is also reproduced below:- Exemption from legal process.--(1) Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force.
(2) Upon the commencement of this Act, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian.
NNNN( 3) Nothing contained in the foregoing subsection shall--
(a) prevent a Civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian; or
(b) affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property, and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government, the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give. "
7.A close perusal of the above provisions would reveal that the intentionof the Legislature was to protect the powers of the Custodian with regard to the evacuee property and make it immune from the interference by any authorities including the Courts of law; in other words, the orders of the Rehabilitation Authorities or the Custodian were protected from the scrutiny or interference by any other authority executive, quasi judicial or judicial. The Legislature never intended to oust the jurisdiction of civil Court in cases which do not fall in the exclusive jurisdiction of the Rehabilitation Authorities or the Custodian or in cases which do not interfere in an order passed by a Rehabilitation Authority or A the Custodian under the relevant law. Thus, the ouster of jurisdiction in case of evacuee property is limited only so far as it may adversely affect the powers of the Rehabilitation Authorities and the Custodian in respect of the control, supervision, management or utilisation of the evacuee property by the said authorities. Therefore, if an order is passed by a Civil Court which is not in the exclusive jurisdiction of the Rehabilitation Authorities or the Custodian, such order cannot be challenged as being violative of section 18 of the Rehabilitation Act or section 16 of Pakistan (Administration of Evacuee Property) Act, merely because it was passed in respect of evacuee property. While dealing with the question as to whether the provisions contained in section 16 of the Pakistan (Administration of Evacuee Property) Act, would oust the jurisdiction of the Civil Courts to pass a decree for possession in pre-emption suits in case of sale by (i) temporary allottee, (ii) quasi permanent allotment and (iii) permanent settlement, the Supreme Court of Pakistan in a number of cases which were disposed of by a consolidated judgment reported as Haji Sultan Muhammad v. Muhammad Sadiq (PLD 1973 SC 347), observed at page 361 as under:- "On a parity of reasoning I am of the opinion that even section 16 of the Pakistan (Administration of Evacuee Property) Act, in spite of the wide terms in which it is couched, did not intend or constitute any bar to the enforcement of the right of pre-emption by a civil suit as the relief sought in the pre- emption suit is merely the substitution of the pre-emptor for the vendee without, in any manner, subjecting the property to any legal process such as is contemplated by section 16, ibid nor does it amount to the divesting or dispossession of the Custodian from the property concerned. The corpus of the property remains evacuee and a successful pre-emption suit in a Civil Court would merely bring about a change by substituting the pre-emptor for the vendee as the holder of the rights which were sold to the vendee by the quasi-permanent allottee. The decree for pre-emption which matures for execution after the full pre-emption money is paid by the pre-emptor in Court, can be put into execution for possession of the pre-empted property by the pre-emptor the mere fact that the decree also involves possession of the property does not, in any manner, disturb the administrative control of the Custodian over that property, the preservation and protection of which, without interference by any outside agency, appears to be the sole object of section 16."
Following observation was made at page 363:- " .... As already stated above by reference to the decision of this Court in Syed Abdur Rashid, these rights constitute real property and are at par with rights of occupancy tenancy. If these rights constitute real property in the nature of an occupancy tenancy and are heritable and transferable, there is no difficulty in reaching the conclusion that they constitute a 'separate entity' by themselves, apart from the corpus of the property from out of which they have been created. After the creation of these interests, although emanating from the parent stock of the evacuee property, they are not treated or deemed to be treated as evacuee property by the relevant authorities. They assumed a distinct entity of their own which must be maintained with regard to all rights and liabilities arising in respect of them. The Custodian ceases to have any administrative control over those rights, although textually and notionally they be called in name as evacuee property being the off--shoot of the corpus of the property which undoubtedly remains evacuee until such time as it is acquired by the Government to form part of the compensation pool. "
Following the view of the Supreme Court, identical observations were made in case reported as Pirla v. Noora (PLD 1976 Lahore 6) at page 8:- "The first question raised in this appeal is that the land in dispute being evacuee property, no suit could be entertained in respect of it by the Civil Courts, it having been so held by a Full Bench of the High Court of West Pakistan at Lahore in A.I Muhammad v. Mahmoodul Hassan (PLD 1968 Lah. 329).
The need for elaborate arguments on this issue was obviated by the Supreme Court having meanwhile declared the law in Sultan Muhammad v. Muhammad Siddique (PLD 1973 SC 347), wherein it was observed at page 361 that:- 'In my view, a pre-emption suit qua the sale of rights created in favour of a confirmed allottee in evacuee property made by the latter to a stranger merely seeks the eviction of that stranger from the property and his replacement by the pre-emptor and does not involve the issuance of any legal process against the evacuee property itself to come within the mischief of section 12 of Ordinance XV of 1949 or section 16 of Act XII of 1957.'
The West Pakistan High Court ruling having been thus reversed and there being no dispute in the present case that the allotment of the land had been confirmed in favour of the vendors the dictum quoted above is on all fours with the facts of this case and there is no difficulty in holding that the objection as to the jurisdiction of the Civil Courts to entertain the suit as the property in dispute is evacuee property does not hold any water. "
8.It is evident from the above observations that the jurisdiction of the Civil Court is not ousted even if the property remains evacuee, provided the facts alleged and the relief sought are not of such a nature which are prejudicial B to the interests of the Custodian or the Rehabilitation Authorities or are hit by the mischief of any provisions of Rehabilitation laws. The bar of Civil Court would be attracted only to the case where the exercise of such jurisdiction offends against the principles indicated above.
9. So far as the observations of this Court in Fazal Karim's case, referred to above, are concerned, it may be stated that the facts of that case are distinguishable from the case in hand; in that case the question of bar to the civil Court to entertain the suit with regard to the evacuee property between the parties was not at all involved; the orders of the Rehabilitation Authorities were challenged by filing a writ petition in the High Court on the ground that as the property did not remain evacuee after the transfer of provisional proprietary rights to the allottee, the Rehabilitation Authorities had no jurisdiction to pass an order of ejectment of the old tenants. In other words, the stand was taken derogatory to the interests of the Custodian that the property was no more evacuee property whereas in view of sections 18-A and 18-B of the Administration of Evacuee Property Act, the transfer of proprietary rights was of a temporary nature and, thus, the property remained evacuee property even after the transfer.Of provisional proprietary rights to the allottees.
Thus, the observations in the aforesaid case were not only obiter dicta as the same were not directly involved in that case but were given on different facts and in different circumstances.