' This judgment shall decide Civil Revision No,484 of 1986 as also R.S.A. No,272 of 1978 as these involve common questions and were directed to be heard together vide order, dated 24-2-1986 of this Court.
2. The plaintiffs/respondents in the said Civil Revision while the plaintiffs/ respondents in the said R.S.A., filed suits seeking a declaration that they are "Taradadkaran" having occupancy rights in the suit land and that the order passed by the Settlement Authorities transferring the land in favour of the defendants/petitioners and defendants/appellants are illegal and void. The suits were resisted by the defendants primarily on the ground that the Civil Court had no jurisdiction while the contentions on merits were also denied. Issues were framed. Evidence of the parties was recorded.
The suit of the plaintiffs/respondents in the Civil Revision was decreed by the learned trial Court on 31-5-1983 while the suit of the plaintiffs/respondents in the R.S.A. Was dismissed by the learned trial Court on 27-6-1973 but the first appeal of the said respondents was allowed by a learned Additional District Judge, Jhang on 12-12-1977. The result is that both the said suits were decreed, revision petitioner's first appeal being dismissed on 7-11-1985.
3. Syed Zainul Abiddin, Advocate for the revision petitioners argues that the Civil Court had no jurisdiction as according to the learned counsel the matter fell within the ambit of authorities appointed under the Pakistan (Administration of Evacuee Property) Act, 1957 and the Displaced Persons (Land Settlement) Act, 1958. Relies on the case of Faizuddin Ahmad v. Muhammad Yousaf and another (1988 SCMR 1289) and Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textile Mills, Faisalabad through Chairman and 4 others (2001 SCMR 209) Mr. A.K. Dogar, learned counsel for the appellants in the R.S.A., adds that the jurisdiction of the Civil Court would also be barred by virtue of section 77(3)(d) of the Punjab Tenancy Act, 1887. On merits both the learned counsel urge that in the facts and circumstances of the present cases the plaintiffs/respondents have not been proved to be Taradadgaran and as such holding rights of occupancy in the suit land. Particularly relies on the last few lines of para. 173 of the Settlement Manual. Ch. Shahbaz Khurshid, learned counsel for the respondent in C.R. No,484 of 1986 and Mr. Khizar Abbas, Advocate for the respondent in R.S.A. No,272 of 1978 support the impugned judgments and decrees relying upon the case of Karam Khan and others v. Allah Baldish and others (PLD 1995 Lahore 462). Answering the said objection of Mr. A.K. Dogar, Advocate based on the said provisions of Punjab Tenancy Act, they rely on the case of Allah Ditta and another v. Muhammad Ali and 10 others (PLD 1975 Lahore 429) to state that in the present cases since the relationship of landlord and tenant is not admitted as existing, the said provision of law would not be attracted to bar the jurisdiction of the Civil Court.
4. I have gone through the copies of the records appended with the Civil Revision and the records pertaining to the R.S.A. So far as the R.S.A., is concerned, Mr. A.K., Dogar, Advocate has not much to say about the findings of fact recorded by the learned Additional District Judge on the basis of evidence before him that the plaintiffs/respondents in the said case are Taradadgaran and that they are holding occupancy rights in the suit land.
5. Syed Zainul Abiddin, Advocate, however, with reference to the agreement dated 28-3-1882 (Exh.P.4) has tried to argue that the well already stood sunk by the landlords in the land at the time the agreement was executed and as such the provisions of para. 173 of the Land Settlement Manual would not be applicable. In order to appreciate the contention of the learned counsel I deem it proper to reproduce here the said para. 173 of the Land Settlement Manual:--
173. Adhlapi and Taraddadkar tenures-- ' The adhlapi tenure of the south Western Punjab must be noticed. A man who sinks a well in land which does not belong to him with the owner's permission becomes proprietor of half the land which it commands. He very commonly cultivates or arranges for the cultivation of the whole of the land, takes half of the proprietor's share of the produce, and pay half the land revenue. Whether he has a right of occupancy in the half of the land he does not own appears to be doubtful, and it has been held in cases of dispute, either party may enforce partition. The adhlapi tenure is very common in Dera Ghazi Khan, and there a man is some times given an eighth share of the proprietary rights in a well simply for clearing the Jangal off the land to be commanded by it. The Taraddadkar in Jhang who had sunk a well acquired by custom a similar title. When the landlord himself sunk the well it was some times worth his while to give a man a right to cultivate the land on the hereditary tenure on the condition that he would pay half the proprietor's share and pay half the revenue. Such a tenant is also known as Taraddadkar. Of course the custody incidents of any land tenure can always be defeated by the express provisions of a written contract; and new tenures are in these days generally created by deed.
6. The precise contention of the learned counsel is that since it is only a man who sinks a well in land not belonging to him NW with the permission of the owner who becomes proprietor of half the land, the well already having been sunk by the landlord, the plaintiffs/respondents would not be holding occupancy rights in that land. I have given some thought to the said contention of the learned counsel and I find myself unable to agree with him. A bare reading of the portion of the said para. Pertaining to the Traddadkaran in Jhang would show that there can be a case where a landlord who had himself sunk a well may give a man a right to cultivate the land on a hereditary tenure.
7. I may now reproduce the relevant portions of the agreement (Exh.P.4) here to show that the said document clearly spells the intention on the part of the owners to grant hereditary tenure as mentioned in the said para. 173 of the plaintiffs/respondents/their predecessor-in-interest. After describing the land and the fact that. The well has already been sunk the document proceeds:-- {{URDU TEXT}} It will thus be seen that the plaintiff/ respondents had acquired by customs a similar title to the one acquired by the tenure holder of the South Western Punjab. There is nothing in the agreement to defeat the said land tenure and its customary incidents. I, therefore, agree with the learned Courts below that the plaintiffs/respondents were Taraddadharan in the suit land.
8. Now the legal implication of the said established fact is that under the provisions of West Pakistan Rehabilitation and Settlement Scheme, 1956 there is a Complete bar on the transfer of the land, occupancy rights wherein are being held by Muslims by virtue of para 31 of the said Scheme.
Thus, the transfer of the suit land by the Settlement Authorities is wholly void and has been rightly held to be so by the learned lower Courts.
9. Coming to the said objection of the learned counsel for the revision petitioners and the said appellants, there is no dearth of authority that Civil Courts being Courts of plenary jurisdiction have the authority to determine as to whether the act of the forums appointed under the Evacuee Property Laws are with or without jurisdiction or for that matter according to the said laws or not. It was so held in the case of Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) and followed in the case of Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356). In the present case it stands established on record that the Settlement Authorities stood prohibited by the very laws under which they exercised jurisdiction from transferring the suit land to any one and their action to the contrary is without jurisdiction.
10. So far as the said objection of Mr. A.K. Dogar, Advocate passed on section 77(3)(d) of Punjab Tenancy Act, 1887 is concerned, I find that the same holds little water in the facts and circumstances of the present case. It has been consistently held by this Court that the said provision of law would be attracted to a case where the existence of relationship of landlord and tenant between the parties stands admitted. In the present case there is a dispute as to the status of the plaintiffs/respondents and similarly the plaintiffs/respondents and challenging the status of the defendants petitioners/appellants. Besides the question as to whether or not the Settlement Authorities were passed of jurisdiction to transfer the land in favour of the defendants could have been gone into only by a Civil Court.
11. I also find that all the objections of the learned counsel for the petitioner as well as the appellants pertaining to jurisdiction as well as the merits of the case stand completely answered in the said case of Karam Khan and others v. Allah Bakhsh and others (PLD 1995 Lahore 462) relied upon by Mr. Shehbaz Khurshid, Advocate.
12. For all that has been discussed above C.R. No,484 of 1986 as also R.S.A. No,272 of 1978 are dismissed leaving the parties to bear their own cost.
Revision and .