1. MUHAMMAD NAWAZ ABBASI, J.-- This judgment will dispose of above-mentioned Civil Appeal No. 145 of 1995 which arises out of the judgment dated 18.5.1993 of Lahore High Court, Multan Bench, through which Civil Revision No. 74-D of 1983 was allowed.
2. The dispute involved in the civil revision related to evacuee land measuring 12 Kanals, in Khasra Nos. 2 and 9/1 of Square No. 48, situated in Chak No. 453, EB, Tehsil Burewala, District Vehari (hereinafter to be referred to as the 'suit land'). The respondents in the present appeal filed a, suit seeking declaration that the suit land was being regularly used by the evacuee owners for residential purposes as Abadi-Deh since long and after the partition of Sub-Continent in 1947 the displaced persons, including the respondents, were in possession of the land. The respondents pleaded in the suit that the land was allotted to one Jan Muhammad in 1960 who vide mutation dated 19.9.1963 alienated the same by way of gift to be used in village Abadi and that respondents being in uninterrupted possession of the land were its owners. The respondents challenged the allotment of land in favour of the appellants on the sole ground that it being part of Abadi-Deh, neither could be treated as agricultural land nor was available for transfer. The facts in the background were that the suit land being an evacuee property was allotted to Jan Muhammad by the concerned Rehabilitation Authorities vide mutation dated 19.9.1963 which was challenged by Mst. Halima, predecessor-in-interest of the present appellants, through an appeal before the D.S.C.
2. Who vide order dated 1.12.1964 allowed the appeal and remanded the case to the Chairman Allotment Committee with a direction that the land be allotted to Mst. Halima. Muhammad Ali, respondent No. 1 herein, and others challenged the order of allotment made by Chairman, Allotment Committee on 27.1.1965 passed in favour of Mst. Halima through an appeal which was disposed of by the D.S.C. On 17.6.1965 and case was once again remanded back to the Chairman, Allotment Committee for decision afresh in terms of the order of D.S.C. Dated 1.12.1964. The respondents while challenging the orders dated 1.12.1 964 and 27.1.1 965 passed by D.S.C. And the Chairman, Allotment Committee respectively and also the order dated 30.12.1976 passed by D.S.C.
3. In appeal, sought declaration in the civil suit that the suit land was permanent part of Abadi-Deh since prior to the partition of Sub- Continent and was not available for transfer as agricultural land.
3. The written statement was filed on behalf of Mst. Halima, predecessor-in-interest of the appellants and she, in addition to the preliminary objection regarding jurisdiction of the Civil Court to adjudicate upon the dispute relating to the evacuee land also pleaded that the suit land being of agricultural character was rightly allotted to her against her verified claim by the Chairman, Allotment Committee and that the appellants-plaintiffs were neither entitled to claim any right in the property nor had any cause of action to file the suit. The learned Civil Judge, in light of the pleadings of the parties framed the following issues:- "(1) Whether the plaintiffs are owners-in-possession of the suit land?
(2) Whether the orders of the Chairman, Allotment Committee dated 27.1.1965 and order of Deputy Settlement Commissioner dated 1.12.1964 and also the orders of Deputy Settlement Commissioner (Lands) dated 30.12.1976 are illegal and void and ineffective being without authority against the rights of the plaintiffs?
(3) Whether this Court has no jurisdiction to try the suit?
(4) Whether the plaintiffs are estopped to conduct the present suit?
(5) Whether the suit is bad for non-joinder of necessary party?
(6) Whether the suit has been improperly valued for Purposes of Court-fee and jurisdiction. If so, what is the real value?
(7) Relief,"
4. The learned Civil Judge, having recorded findings on the above 'issues held under Issue No, 3 that Civil Court had no jurisdiction to adjudicate upon the matter and dismissed the suit. The appeal preferred by the respondents against the judgment and decree in the civil suit was dismissed by the learned Additional District Judge, Vehari, vide judgment dated 18.10.1982 with the following findings on the issue relating to jurisdiction of Civil Court:- "The Land Settlement Act and other Settlement Laws oust the jurisdiction of the Civil Court and make provision for the adjudication of the matter arising under the law. The Civil Court can only intervene if the authority appointed under the Settlement Law usurped powers, exceeded the jurisdiction or had violated the judicial principle. No such lacuna has been found in the impugned orders. I, therefore, agree with the learned Trial Court that the Civil Court has no jurisdiction to try the matter."
5. The case of respondents in the civil revision before the High Court was that the land was actually being used for residential purpose, therefore, the same was not available for allotment as agricultural land and they being in possession of the suit land were its exclusive owners. The respondents-plaintiffs while placing reliance on the Jamabandi for the year 1967-68 (Exh. P.7) pleaded that Jan Muhammad being allottee of the land surrendered the same for village Abadi and it was not available for allotment. The- learned Judge in the High Court allowed the revision petition with the following observations:- "7. This revision petition must succeed. It is a case of nonreading of documentary evidence. It is really sad that the to Courts below had not bothered to go through the documents mentioned therein-before, and with the exception of one or the other, and pronounced against the petitioner.
6. It is not possible for this Court to appraise the evidence and decide the case finally, in that this exercise should have been carried out by the learned Trial Court and the result/conclusion arising therefrom scrutinized by the lower Appellate Court. The crucial questions have either not been touched or dealt with in a proper manner, rendering the to judgments impugned herein liable to be set aside. It is in context of the appraisement of evidence available on record that the question of jurisdiction and maintainability of the suit could be properly attended to.
8. Resultantly, the revision petition is accepted, the judgments and decrees with of the Courts below are set aside and the case is remanded to the Trial Court to decide the same afresh, after hearing the parties, and taking into consideration the evidence/material available on record. No costs."
7. Learned counsel for the appellants has raised the following contentions:-
(a) That there was/no order of allotment in favour of Jan Muhammad and mere fact that his name appeared in Jamabandi for the year 1967-68 on the basis of order dated 1.12.1964 which was subsequently set aside in appeal, would not confer title of ownership in him to transfer the land in the name of village Abadi;
(b) that there was bundle of oral and documentary evidence in support of the claim of the appellants that it was an agricultural land and was not part of Abadi Deh.
(c) that at the time of repeal of evacuee laws, the appeal preferred by the respondents against the allotment of land in favour of Mst. Halima was pending before D.S.C., and therefore, the Civil Court had no jurisdiction to adjudicate upon the matter due to bar contained in Section 22 read with Section 25 of Displaced Persons (Land Settlement) Act, 1958;
(d) that the High Court was not justified in setting aside the concurrent findings of facts of the to Courts below in exercise of revisional jurisdiction through appraisal of evidence;
(e) that the High Court without deciding the question relating to the jurisdiction of the Civil Court allowed revision petition on merits which was not proper.
8. Learned counsel representing the respondents, on the other had, contended (a) that the disputed property was surrendered by Jan Muhammad, allottee, for the use of Abadi-Deh and the appellants being in possession, were its owners; (b) that the property was being shown in the Revenue Record as Ghair Mumkin Abadi, and therefore, actual use to which it was being put would determine its character as part of the Abadi-Deh and not agricultural land to be available for allotment (c) that the finding of facts arrived at by the Trial Court and the Appellate Court vis-a- vis, character of the land being result of misreading and nonreading of evidence, was rightly reversed by the High Court in its revisional jurisdiction.
9. Leave was granted in the present appeal to consider the following points:- "(i) That the order treating the land as agricultural land had attained finality under the Settlement Laws and was not open to challenge in the Civil Courts; and
(ii) that the learned Judge in the High Court was not right in remanding the case to the Appellate Court on the ground that the Appellate Court's judgment and decree were vitiated by non-reading of documentary evidence without indicating which particular documentary evidence had not been read."
10. The pivotal questions for determination in the present case were firstly, whether the declaratory suit filed by the respondents in the Civil Court was maintainable and the dispute relating to the title of property could be adjudicated by the Civil Court despite bar of jurisdiction under Section 22 read with Section 25 of the ibid Act and secondly whether the property in dispute was of agricultural character as defined under Section 2(3) of Displaced Persons (Land Settlement) Act, 1958 or not.
11. Learned Judge in the High Court without taking pain to go into the question relating to the jurisdiction of Civil Court in the matter, confined himself only to the extent of determining the character of suit property. The conclusion drawn by the High Court, in the light of evidence produced by the parties, was that the suit property was not an agricultural land to be available for allotment.
12. There is no cavil to the proposition that the use of land would actually determine the nature of property and guidance can be sought from the following case-law cited by the learned counsel for the parties for determination of the character of land as 'agricultural' or 'Abadi-Deh'.
(1) Abdul Hakim v. Mst. Zahira (PLD 1969 Quetta 60);
(2) Shaukat Hussain v. Yar Muhammad (PLD 1974 SC 276);
(3) Director, Intelligence Bureau v. Sikandar and 12 others (1998 SCMR 2164).
(4) Ghulam Hussain v. Inayat Hussain (1986 MLD 2285 .
13. The term "land" has been defined in Section 2(3) of Displaced Persons (Land Settlement) Act, 1958, as follows:- "(3) 'Land': "Land" means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unsurveyed land and trees for buildings and other structures standing thereon and includes all rights of evidence in such land, but does not include:-
(a) property as defined in sub-clause (b) of clause (2) of Section 2 of the Registration of Claims (Displaced Persons) Act, 1956 (III of 1956); or in sub-clause (d) thereof; or
(b) such evacuee land as may be declared by the Chief Settlement Commissioner as a building site."
14. Under West Pakistan Rehabilitation (Land Settlement) Scheme the Special Jamabandi prepared in this behalf would be relevant to determine the character of the land and subsequent entries in the Revenue Record would neither help in this regard nor would affect the jurisdiction of Settlement Authorities to deal with the land under Displaced Persons (Land Settlement) Act, 1958.
15. We having heard the learned counsel for the parties, find that the legal questions regarding to the jurisdiction of the Civil Court to adjudicate upon the. Dispute relating to the land which has been' dealt with by the Settlement Authorities. Under Displaced Persons (Land Settlement) Act, 1958 under which jurisdiction of the Civil Court was barred and the character of the suit property, whether was ' land' as defined under Section 2(3) of ibid Act or it was part of Abadi-Deh as per Special Jamabandi for the relevant period would need determination to decide the fate of the suit.
16. It is an established law that an order passed by Settlement Authorities under Displaced Persons (Land Settlement) Act, 1958 would attain finality if it is not challenged in the same hierarchy and the Civil Court would have no jurisdiction either to determine the character of property under said law or entitlement of a person for allotment due to the statutory bar. In the present case, the High Court without keeping in view the scope of the jurisdiction of Civil Court only attended second question relating to the nature of property on the assumption that the suit was maintainable before the Civil Court whereas the to Courts concurrently, under Issue No. 3 held that the suit was not maintainable due to bar of jurisdiction. A somewhat similar question cropped up in the following cases:-
(1) Abdul Hakim v. Muhammad Azam Khan (1991 SCMR 1976);
(2) Faizuddin Ahmad v. Muhammad Yousaf (1988 SCMR 1289);
(3) Qamar Zaman v. Ejazi Begum (1997 MLD 2408); and
(4) Zafarui Hassan v. Muhammad Kalim (1993 SCMR 2028).
17. The view taken in the above-referred judgments was that the Civil Court would not be competent to entertain the suit involving disputes of title relating to the evacuee property. The allotment in the present case, was made in favour of Mst. Halima before the repeal of the evacuee laws i.e. The promulgation of Act XIV of 1975 (Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975) and the appal against the said order was finally disposed of by the notified officer under the said Act as a pending matter on 30.12.1976, therefore, it was essential for the High Court to first decide the question relating to the bar of jurisdiction of Civil Court under Section 22 read with Section 25 of Displaced Persons (Land Settlement) Act, 1958. We are of the view that without deciding this important issue relating to the jurisdiction of the Civil Court to entertain the suit and adjudicate the matter, the decision of civil revision by the High Court on merits was not proper. The High Court has omitted to attend the Issue No. 3 framed in the civil suit relating to the question as to whether the protection under Section 25 of Displaced Persons (Land Settlement) Act, 1958 provided to the orders passed by the Settlement Authorities, was no more valuable in the present case, after the repeal of evacuee laws in 1974 and thus committed a jurisdictional error.
18. We, having examined the controversy relating to the questions involved in the case, are of the view that it will be proper to send ' this case back to the 'High Court for decision of the revision petition afresh after attending the pivotal issue relating to the maintainability of civil suit and the jurisdiction of the Civil Court. Consequently, we without going into the merits of the case, allow this appeal, set aside the impugned judgment and remand the case to the High Court for decision afresh of the matter including the question of jurisdiction without being influenced by any of the observations made hereinabove. There will, however, be no order as to costs.