' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment, dated 2-12- 1993, passed by the High Court of Sindh, Circuit Bench, Hyderabad, whereby it dismissed the Civil Revision Application filed by the appellants.
2. The facts, in brief, are that the appellants had filed a suit for declaration and injunction in the Court of Senior Civil Judge, Hyderabad, claiming to be the owners of land bearing Survey No,75/B, measuring about 2-39 acres, situated in Deh Tando Allahyar, Taluka Tando Tallahyar, District Hyderabad, and that the allotment of the land in question by Settlement Authorities to Mst. Saghir Fatima, respondent No,3 herein, was illegal, void, mala fide and without jurisdiction. According to the appellants, the property in dispute originally belonged to one Abdul Hakim Patoli, who had sold the same to one Hansi Narwan, through a sale-deed dated 23-4-1945, which was registered on 16- 4-1945 and its possession was handed over to the said vendee. Thereafter, Hansi Narwan sold the same land to one Beejal Kolhi, father of the appellants by registered agreement of sale dated 17-4- 1945 and possession of the land was delivered to him. Since then, Beejhal and after his death his heirs i.e, the appellants have remained in actual possession and enjoyment of the land in question and have been cultivating the same and paying land revenue up to the date of filing of the suit.
Mutation was also entered in the Record of Rights in favour of Beejhal on 2-8-1970. When the appellants came to know that the suit land had been allotted to Mst. Saghir Fatima respondent, as evacuee land, by the Assistant Settlement Commissioner vide order, dated 5-5-1972, they filed the suit.
3. Respondent No,3 contested the suit and challenged the jurisdiction of the Court leading to the framing of the following issues:--
(i) Whether this Court has no jurisdiction to try the suit?
(ii) Whether the suit is maintainable in view of provisions of section 22 of Displaced Persons (Land Settlement) Act, 1958?
4. The case was decided on the pleadings of the parties without recording any evidence, and the suit was dismissed by the learned trial Court on the ground that the Court lacked jurisdiction, which was maintained in appeal and revision application. The learned trial Court dismissed the suit for the following reasons:-- "The record of rights shows that the suit land was given by Hansi Narwan to Beejal as a lessee under registered lease deed No,314 dated 17-4-1945 and this is the best case of the plaintiffs that Beejal was sold that suit land by Hansi Narwan through registered sale agreement but the agreement of sale does not create any right, title or interest in an immovable property. Thus, as rightly submitted by the learned counsel for the defendant No,3, the disputed property was treated as concealed evacuee property by the Custodian and Beejal and his survivors had acquired no vested rights to remain in its occupation. Even as lessees, the plaintiffs were required to get the lease deed confirmed by the Custodian which admittedly was not done and now they pray for a declaration, inter alia, that they are the owners of the suit land. Therefore, the Custodian was the competent Authority to determine and deal as such with the property in dispute. The question of evacuee land and their mutation as well is incidental question in respect of the same vests exclusively with the Rehabilitation Authorities and Civil Court is not competent either directly or indirectly to adjudicate upon the matter, as its jurisdiction has been expressly barred under the Settlement Laws. The case-law cited by the learned counsel for the plaintiffs is distinguishable and section 53-A of the Transfer of Property Act has no application in the matter. I, therefore, decide these two issues against the plaintiffs."
5. Leave to appeal was granted vide order, dated 16-3-1994, the relevant paragraph whereof is as under:-- "The learned counsel for the petitioners contended that as the preliminary issue on point of jurisdiction required recording of evidence, it was necessary that the petitioners should have been allowed to lead evidence and as such an opportunity was denied, the judgment based only on pleadings is illegal and without jurisdiction.
' Leave is granted to consider this question. Both the parties shall maintain status quo till further orders."
6. Learned counsel for the appellants contends that the learned Courts below could not assume the functions of the Custodian and declare the property in dispute as an evacuee after the prescribed date of 1-1-1957, that the learned Civil Court erred by deciding the matter on preliminary issue without recording evidence on the controversial issues in respect of the nature of transaction, nature of property and the fact of death of non-evacuee as also the nature of possession of the appellants and as to whether the property could be treated as a concealed evacuee property.
7. The appellants claimed to be in possession of the suit land on 5-5-1972 when it was allotted to Mst. Saghir Fatima, respondent No,3 herein. There is nothing on the record to indicate that the Settlement Authorities had provided an opportunity of hearing to them before the property in their occupation was declared to be hidden evacuee property. No written statement in this respect was filed by them. No finding was given by the learned Trial Court with regard to the nature of the transaction claimed by the appellants arising out of the registered agreement of sale dated 17-4- 1945 allegedly made by Hansi Narwan in favour of their father, nor was the effect of mutation in the record of rights made in their favour looked into.
8. For proper adjudication of the above questions, it was imperative for the Civil Court to have framed issues on the maintainability of the suit as also on the factual aspect of the matter. We, therefore, accept the appeal, set aside the impugned judgments and decrees of the Courts below and remand the case to the learned trial Court with the direction to decide preliminary issue as to the maintainability of the suit which, prima facie, depends on the factual inquiry as well as the other issues arising out of the pleadings of the parties.
' Since the matter is under litigation for the last about 25 years, the learned trial Court is directed to dispose of the matter within six months.