1. This revision application unffer section 115 of the Code of Civil Procedure arises out Via judgment dated 24-4-1976 by the learned Additional District Judge, Jacobabad, whereby to disposed of the appeal of the applicants as having abated under the provisions of subsection (2) of section 11 of the Sind Public Property (Removal of Encroachment) Act, 1975.
2. The material facts for the purposes of the present revision are that the applicants sere the grantees on yearly lease basis of land admeaeuring 62-63 acres scattered to two Dehs Masuwala and Kacho Bahadranpur of Taluta Kaehmore, District Jacobabad since 1943-44. It was their case that during the continuous period of lease in their favour they had undertaken extensive improvements of the land and brought it under cultivatiol. Upon this basis the applicants claim that by the lapse of 10 years of occupancy, they were entitled to the transfer of the land by way of grant under the provisions of the Punjab Colonization of Government Lands Act, 1912, as extended to the Province of Sind. However, it was urged by the applicants that in disregard of their aforesaid rights 0 grant of land, the Government of Sind and the Colonization Officer. Guddu Barrage, Sukkur, had ear--marked the aforesaid lands in their occupation in a schedule of available lands for disposal through Public Kutcbery fixed on 28.6-73. The applicants, therefore, on 26 6-73 filed F. C.
3. Suit No. 40/73 wherein they claimed the relief of declaration and a consequential relief of permanent injunction and for mandatory injunction in the following terms I
(a) That it be declared that the plaintiffs are lawfully entitled to grant and conferment of proprietary rights in and over the suit land within the provisions of the Colorization of Government Lands Act, 1912 subject to the limits prescribed under Martial Law Regulation 115 on payment of Rs.
4. 350 per acre as per para. 11 (1) of the statement of conditions dated 20-11-1972 ; and that placing of suit land in schedule for disposal by the defendants is illegal, ultra vires and witfiout jurisdiction.
(b) That, to issue permanent injunction thereby restraining the defendants from granting or otherwise disposing of the suit land to any person other than the plaintiffs either personally or through their subordinates and not to disturb the peaceful, physical an j constructive possession of the plaintiff.
(c) That to issue Mandatory Injunction against the defendant direoting thereby them to grant and confer proprietary rights on the plaintiffs in accordance with the provisions of the Colonization of Government Lands Act, 1912. .
5. The Government of Sind and the Colonization Officer appeared and resisted the suit. They urged several legal grounds pleading bar of jurisdiction under section 36 of the Colonization of Government Lands Act, 1912 and section 11 of the Revenue Jurisdiction Act, 1876, as well as under section 56 of the Spe;ific Relief Act. On the merits the pleading of the Government was that the applicants are not entitled se a matter of right to transfer by grant of the Government land under the law applicable to the disposal of Guddu Barrage Lands. It was also pleaded that the land stood already disposed of in a Kutchery held on 28-6-73 for ICharif 73-74.
6. The suit was tied by the learned Senior Civil Judge, 1st Clan. Jacobabad, who after hearing the evidence of the parties dismissed the suit of the applicants by his judgment dated 29-11-75.
7. Aggrieved by this decision the applicants filed appeal in the Court of the District Judge, Jacobabad. The appeal was admitted to regular bearing and notices were ordered to issue to the respondents. However, on 24-4-76 when the appeal came up for regular hearing, it is alleged by the applicants that the learned Second Additional. District Judge, Jacobabad, on whose file the appeal was transferred, proceeded to announce the impugned judgmert holding that the appeal had abated under se.Petition 11 of the Sind Public Property (Removal of Encroachment) Act, 1975 (bereinaficr referred to as the Act).
8. I have heard Mr. Zabiruddin Khan learned counsel for the appellant and Mr. A. Sattar Shaikh, Assistant Advocate-General for the respondents.
9. It was first urged on behalf of the applicants that in pronouncing the order of abatement, without affording an opportunity of hearing to the appellant or his counsel, the learced Additional District Judge had violated the provisions of tre Code of Civil Procedure as well as the recognised rules of natural justice. I have perused the original record of the appeal Wore the learned Additional District Judge and it appears that the submission is fully borne out from the record. There is nothing in the order of the learned Judge showing whether any opportunity of hearing was afforded to the appellant. Further, it appears the Assistant Government Pleader appearing for the respondents on the date of hearing had filed an applica--petition for adjournment to enable him to obtain necessary papers and instructions. It is, therefore, inconceivable that the learned Additional District Judge would have given notice of the question to the parties; whether the appeal had abated in terms of the provisions invoked. On this ground alone this revision is liable to be accepted and the order act aside.
10. However. In order to curtail further proceedings, I deem it proper to examine the question of law which arijes as to the interpretation of section 11 of the Act. It would be advantageous to set out the provisions of section I 1 of the Act which are as under "l 1. Bar of ,jurirdktfon and abatement of sulta.-(1) No civil Court shall have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, or anything done or intended to be done under this Act.
(2) All suits, appeals avid applications relating to, encroachment and dispute that any property, is not a public property or, that any lease or licence in respect of such property has not been determined, for the purpose of this Act, shall abate on coming into force of this Act t Provided that a party to such suit; appeal or application may, within thirty days of the coming into force of this Act, Me a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in resp3ot of such public property has not been determined."
11. A bare perusal of the cited provision shows that suits, appeals and applications which relate to encroachm:nt and to a dispute that any property) Is not a public property or that any lease or licence In respect of such property has not been determined, for tha purposes of the Act, are the only class of proceedings which are hit by the provisions regarding abatement- I have examined the issues framed by the trial Court and I find that non of the issues raise the questions which can fall within the purview o subsection (2) of section 11. As observed earlier, the case of the applicants was that they were entitled to the grant of the Government land and.
12. Therefore, there was no dispute a9 the sibject property being the public property. The applicants concede that it is public property but claimeJ B right to transfer under the statutory provisions invoked by them in the plaint. Also there was no question of a dispute that any lease or licence in respect of the suit lands had not bean determined. It was nobody's case that the applicants were being sought to be removed by coercive proces under the provisions of the Act on the basis that the lease or licence earlier granted to them had been determined Finally, there was no questibn a any action taken or intended to be taken under the provisions of the Act as having been challenged in the suit, for the simple reason that the suit w filed prior to the coming into force of the Act. Since the appeal is continuation of the prooee3ings of the suit, similarly no such question or dispute formed part of the substance of controversy under adjudication in th appeal.
13. I had an occasion to interpret the scope of the ouster clause contained in section 11 of the Act in the cas: of Karachi Municipal Corporattoy v. AU Hmsain (1). It was observed in that judgment that the provisions of section 1 t being in the nature of an ouster of jurisdiction clause had to be strictly construed. In this context the relevant provisions of the Act were examined and in the facts of that case also it was held that since the dispute arising for adjudication in the appeal in question did not relate to any of thr r matters enumerated in subsection (2) of section 11 of the Act, there was no question of the abatement of the appeal. In my view the situation in the present appeal is also identical as explained above.
14. For the foregoing reasons, therefore, the impugned order was pained without jurisdiction and is accordingly set aside. The appeal is remanded to
(1) PLD 1976 Kar. 995 the learned first appellate Court to be disposed of on merits, The parties to bear their own costs.