' The brief facts out of which the present writ petition arises are that the forefathers of the petitioners Elahi Bakhsh mortgaged with possession his agricultural land measuring 8 Kanals, 6 Marlas situated in Khata No,19 in mauza Bait Burara, Tehsil Alipur District Muzafargarh for consideration of Rs,99 in favour of respondents No,2. He also mortgaged with possession his agricultural land measuring 6 Kanals, 17 Marlas in favour of respondent No,3 situated in the same village in Khata Nos.93 and 95 through mutations Nos.325 and 324 respectively, dated 5-10-1918.
After the independence of the Country respondents Nos.2 and 3 left the Country and the property in question was transferred automatically in the name of Central Government. The land in question was allotted in favour of respondent No,4 under the Evacuee Laws who sold the same to respondents Nos.5 to 10. The petitioner submitted an application in the month of September, 1998 before the Assistant Commissioner Alipur and prayed for restitution of the land in question without compensation. He returned the application to the petitioners vide order, dated 28-9-1978. Learned counsel for the petitioners contended that petitioners have submitted application within limitation by virtue of Article 148 of the Limitation Act i,e, within 60 years as the original Mortgage was made by the forefathers of the petitioners on 5-10-1918. Petitioners application was filed before the Assistant Commissioner in September 1978. He further stated that the order, dated 28-9-1978 of the Assistant Commissioner is without lawful authority as he did not advert to the provisions of the West Pakistan Redemption and Restitution of Mortgage Lands Act, 1964, for restitution of the land in dispute being - a usufructury mortgage exceeding a period of 20 years. The Assistant Commissioner having powers of collector is the only competent Authority to decide the application of the petitioner under sections 10 and 12 of the aforesaid Act. He further stated that even if the land was mutated in the names of the Central Government even then the Assistant Commissioner has only jurisdiction by virtue of the aforesaid provisions of law. Therefore, the judgment of the Assistant Commissioner is without lawful authority. He further stated that the land in question was mortgaged with possession in favour of evacuee respondents in the year 1918. After partition the Central Government acquired only those rights which rights were enjoyed by the evacuee respondents. The Central Government allotted mortgagee rights to the allottee refugees and they had not transferred proprietary rights to the allottees. Evacuee property in displaced persons Laws were repealed by Act 14 of 1975. After repeal of the evacuee laws no application could be moved before another settlement authority or under any evacuee laws for redemption or restitution of the land mortgaged in favour of evacuee but the respondent No,1 did not consider this aspect of the case at all. He further stated that the petitioners cannot be deprived from the proprietary rights in the land in dispute coupled with the fact that by perusal of R.L. No,43 only mortgagee rights had been transferred to the allottee refugees. Respondent No,1 is the only authority to entertain the application of the petitioners and decide the same but he did not take any action on his application.
2. Learned Standing Counsel appeared on Court's call. He stated that the writ . Petition is not maintainable as the petitioners have alternative remedies before the Commissioner under section 14 of the aforesaid Act to agitate the matter before the higher authorities. He further stated that once the land has been declared evacuee then the Assistant Commissioner as well as the Civil Court has no jurisdiction to take cognizance of the matter except the evacuee authorities under the Evacuee Laws and the petitioners did not agitate the matter before the evacuee authorities.
Therefore, writ petition is not maintainable. He further stated that petitioners raised disputed questions of fact whether the land in question belonging to Central Government or not and whether the same was still existed in the name of the respondents Nos.2 and 3. All these questions cannot be resolved without recording the evidence. Therefore, the writ petition is not maintainable.
3. Learned counsel for the petitioners in rebuttal stated that where the basic order is without lawful authority in presence of the alternative remedy, the writ petition is maintainable. He relied upon the following judgments: (i)1994 CLC 457. (ii)PLD 1976 SC (iii)37. PLD 1975 (iv)SC 450. PLD (v)1972 SC 279.
' Learned counsel for the petitioners further stated that this land was never declared as evacuee only mortgagee rights were transferred in the name of the Central Government.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties. It is settled proposition of law that this Court has no jurisdiction to decide the disputed question of fact whether the land in question is still in the name of the fore-fathers or in the name of the Central Government by virtue of the Evacuee Laws whereas the land is declared evacuee then the Court has no jurisdiction to take cognizance of the matter as the principle laid down by the Hon'ble Supreme Court in the following judgments:-
(i) 1988 SCMR 988 (1259).
(ii)1989 SCMR (iii)918. 1988 PSC 402. 1982 SCMR 497.
The petitioners have admittedly alternative remedies under the aforesaid Act and the petitioners have filed the writ petition without exhausting the remedies provided under the law. My learned brother Ihsan-ulHaq Chaudhery J., has considered this aspect of the case in Writ Petition No,4174 of 1998 and laid down the following principle.
' There is recent tendency to file constitution petitions without exhausting the remedies under the Statute. This recent trend is dangerous. Hon'ble Supreme Court clearly held in the case reported as Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), The Collector Customs Karachi v. M/s. New Electronics (Pvt.) Ltd. 59 others (PLD 1994 SC 363) and Riffat Askari v. State (PLD 1997 Lahore 285) that objection be raised in the proper forum but in spite of the petitioner without exhausting the remedies of appeal before the Collector of Customs (Appeals) and the Tribunal has filed this petition.
' The Hon'ble Supreme Court has also considered this aspect of the case in Ismail's case PLD 1996 SC 246 and laid down a principle that writ petition be dismissed where the petitioner has alternative remedy. The judgments by the learned counsel for the petitioner is distinguished on facts and law and the Hon'ble Supreme Court has changed the previous practice in the recent judgments mentioned above. I am also fortified by the following judgment:--- ' PLD 1998 SC 763 (Mian Muhammad Shahbaz Sharif's Case).
Since the petitioners have alternative remedies before the competent forum therefore, the writ petition is not maintainable. The petitioner if so advised shall agitate the matter before the appellate forum under the provisions of the aforesaid Act. It is pertinent to mention here that section 3 of Redemption of Restitution of Mortgage Laws Act provides an additional remedy to mortgagor to redeem type of mortgages mentioned in section 3 through an application to Collector. It does not excludes jurisdiction of Civil Court to try regular suits of redemption if mortgagor chooses that remedy. Even otherwise order of Collector can be agitated before the Civil Court on ground of want of jurisdiction. The ultimate jurisdiction of Civil Court under provisions of section 9, C.P.C., and Transfer of Property Act to entertain suits, for redemption of mortgagee under Transfer of Property Act remain un effected as there is no express provision in Act, 1964 barring jurisdiction of Civil Court. I 'am fortified by the judgment of the Hon'ble Supreme Court judgment 1998 SCMR 1822.
' In view of what has been discussed above, this writ petition is disposed of in the above terms.
There is no order to as to costs.