1. CH. IJAZ AHMAD, J. -- I intend to decide the Civil Revisions Nos. 2491/94 and 2492/94 by one consolidated judgment having similar facts arising out of the same judgment.
2. The brief facts out of which these revision petitions arise are that the evacuee property consisting of three numbers was available for transfer. Prdperty No, S-52-R-42 was owned by Moole Raj. The said property was transferred to late Kh. Amir-udDin, predecessor-in-interest of respondents/plaintiffs. The said property was transferred to Kh. Amir-ud-Din by the order of the Deputy Settlement Commissioner on 21.12.1963. The said property remained under litigation which ended with a compromise effected between the litigants before this Court in I.C.A. No. -207/81. In terms of the compromise arrived at between the parties, major portion of the said property came to the respondents/plaintiffs, predecessor-in-interest of late Kh. Amir-udDin and remaining minor - portion to some other persons. The transfer order was issued in favour of the respondents/plaintiffs qua the said property. Adjacent to the aforesaid property there exists property No. S-52-R-42-A.
2. There was litigation between predecessor-in-interest of the petitioners Muhammad Sharif and Sabir son of Abaidullah and some other persons. The litigation ended upto the apex Courts of this country and the matter was finally decided by the apex Courts in its judgment dated 2.7.1983.
3. According to the judgment of the Hon'ble Supreme Court, upper portion of the property No. S-52-R- 42-A went to Sabir Ali son of Abaidullah and the lower portion to Late Muhammad Sharif, predecessor-in-interest of the petitioners. After the final settlement of the respective titles about the aforesaid two properties a fresh round of litigation started when predecessor-in-interest of the petitioners Muhammad Sharif applied to the Deputy Settlement Commissioner Circle III for the demarcation of the property No: S52-R-424k who without any notice to the respondents/plaintiffs prepared the demarcation report on 28.11.1983 and on the basis of demarcation report Transfer Order was issued in favour of the predecesor-in-interest of the petitioners on 9.5.1984. The respondents/plaintiffs being aggrieved by the aforesaid demarcation report on the ground that site measuring 1 kanal, 3 marlas and 153 ft.
4. From the respondents/plaintiffs property was given to the present petitioners' predecessor-in- interest. Predecessor-in-interest of the petitioners filed a suit for permanent injunction before the Civil Judge 1st Class, Lahore on 8.9.1985 whereas the respondents/plaintiffs filed a suit for declaration for setting aside the demarcation report dated 28.11.1983 and transfer order dated 9.5.1984, on the ground that the demarcation report was prepared in absence of the respondents/plaintiffs and Deputy Settlement Commissioner included the area of the property of the respondents/plaintiffs which was given to them by virtue of Order of this Court in I.C.A. No..
5. 207/81 and which was Supreme Court the possession of Muhammad Din and sons and was to be handed over to the respondents/plaintiffs in compliance of the order of this Court. Both the suits were consolidated of the order dated 6.12.1986. Out of the pleadings of the parties following issues were framed:-
(1) Whether the instant Court lacks jurisdiction to try the suit? OPD-1
(2) Whether the instant suit is not maintainable in its present form? OPD
(3) Whether the plaintiffs have got no locus standi to file the instant suit? OPD
(4) Whether the suit is filed with male fide intention? OPD
(5) Whether the plaintiffs have got no cause of action against the defendant No. 2? OPD
(6) Whether the plaintiffs are entitled to get the decree as prayed for? OPP
(7) Whether the suit No. 156 instituted by Muhammad Sharif is not maintainable in its present form?
OPD
(8) Whether Muhammad Sharif is entitled. To get the decree as prayed for in the suit No. 156? OPP
(9) Relief.
6. The learned Civil Judge 1st Class, Lahore dismissed the suit of the petitioners' predecessor-in- interest and decreed the suit of the respondents/plaintiffs vide the impugned judgment and decree dated g.7.1990. The petitioner being aggrieved filed two appeals before the Additional District Judge, Lahore who dismissed the same vide consolidated judgment dated 2.3.1994, hence, the present revision petitions.
3. The learned counsel of the petitioners submits that P.T.D. In favour of the predecessor-in-interest of the petitioners was issued in pursuance of the judgment of the Honourable Supreme Court dated 2.7.1983, therefore, the same could not be legally cancelled by any Court in the country. He further submits that there is a gross mis-reading of evidence. He further submits that both the Courts below wrongly decided the case in favour of the respondents on the principle of natural justice as the rule of natural justice was not attracted in the proceedings qua demarcation. He further submits that respondents have no right or locus standi to challenge the demarcation report in favour of the petitioners as the respondents/plaintiffs had already sold the entire property in their ownership. He further submits that the Civil Courts lacks jurisdiction to touch the transfer order issued by the Settlement Department/authority on the basis of the order passed by the higher Courts of the country. He further submits that Civil Courts have nb jurisdiction to entertain the suits qua the validity of the transfer order issued by the Settlement Department. In support of his contention, he relied upon the following judgments:- Ghulam Rasool and others Vs. Jannat Bibi (1990 SCMR 744)
7. Lady Dr. S.K. Qureshi and others Vs. Khalid Rauf and another (1987 SCMR 1664)
8. Ghulam Mohi-ud-Din Vs. Sh. Muhammad Mushtaq (1988 CLC 2304).
9. The learned counsel of the respondents submits that the demarcation report was prepared in the absence of the respondents/plaintiffs and Deputy Settlement Commissioner passed the transfer order in favour of the predecessor-in-interest of the petitioners on the basis of the demarcation report and the property of the respondents was transferred to the petitioners' predecessor-in- interest on the basis of the said demarcation report. He further submits that when the basic order is without lawful authority the super structure must have to be fallen on the ground automatically. He further submits that the Deputy Settlement Commissioner transferred the property of the respondents, to predecessor-in-interest of the petitioners in violation of the principle of natural justice, therefore, Civil Court has jurisdiction to entertain the suit. He further urges that substantial justice has been done between the parties as no adverse order has been passed by both the Courts below except the case was remanded to the Settlement authority to demarcate the property first and then transfer order be passed in favour of the predecessor-ininterest of the petitioners. He further urges that both the Courts below have given concurrent findings of facts against the petitioners and therefore, revision petitions are not maintainable and are liable to be dismissed.
4. I have given my anxious consideration-to the contentions of the learned counsel of the parties and perused the record myself.
5. I would like to decide the question of jurisdiction first raised by the learned counsel of the petitioners that Courts below have no jurisdiction to take the cognizance of the matter as the transfer order passed in favour of the predecessor-in-interest of the petitioners had attained finality under the provisions of Settlement Laws. As Honourable Supreme Court in Hamid Hussain's case (1974 SCMR 356) has held that Civil Court has jurisdiction to take cognizance of the matte.
10. The relevant observation is as under:- "It is well-established principle that even where the jurisdiction of Civil Court is barred and conferred upon special Tribunal Civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see there cause are in accordance with law or illegal or even ma/a fide."
11. The aforesaid proposition of law is also supported by the following judgments:- The Province of East Pakistan Vs. Kshiti Dhar Roy and others (PLD 1964 S.C. 636)
12. Devachand Muljimal Vs. The D.S. & R.C. And others (PLD 1965 S.C. 356)
13. Mr. Muhammad Jamil Asghar Vs. The Improvement Trust, Rawalpindi (PLD 1965 S.C. 698)
14. Zafar-ul-Ahsan Vs. The Republic of Pakistan (PLD 1960 S.C. (Pak) 113)
15. "The order of Deputy Settlement Commissioner dated 5th February, 1972 with regard to demarcation of area for the reasons given above being void ab initio and a nullity the subsequent orders resting on the same also are of no effect as held by the learned Settlement Commissioner (Headquarters) in the impugned order dated 20th June, 1974."
16. It is settled principle of law that when the basic order is without lawful authority the super structure must have to be fallen on the ground automatically. In arriving to this conclusion, I am fortified by the following judgments:- Crescent Sugar Mills & Distillery Ltd., Faisalabad Vs. Central Board of Revenue, Islamabad and 2 others (PLD 1982 Lahore 1)
17. Yousuf All Vs. Muhammad Aslam Zia and 2 others (PLD 1958 S.C. (Pak) 104)
18. The aforesaid proposition of law qua the jurisdiction of the Civil Court was considered by Sardar Muhammad Iqbal, J. (as he then was) in Syed Ali Moazzam Vs. M.A. Effandi and others (PLD 1965 (W.P.) Lahore 193) and laid down the following principle:- "In fact both the parties claim their respective rights based on the orders passed by the Settlement Authorities, and do not in any way question the finality attached to them under the Act. No objection under the circumstances can be taken under Section 22 of the Act to the jurisdiction of the Civil Courts to hear and determine this suit."
19. Persons Compensation and Rehabilitation Act, 1958 whereas Evacuee Property and Displaced Persons Repealed Act, 1975 did not contain any provisions to oust the jurisdiction of Civil Court. In this view of the matter, both the Courts below rightly assumed the jurisdiction. It is admitted fact that demarcation report was prepared in the absence of the respondents/plaintiffs on 28.11.1983, therefore, same is not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in the following judgments:- The University of Dacca Vs. Zakir Ahmed (PLD 1965 S.C. 90)
20. Pakistan and others Vs. Public at Large and others (PLD 1987 S.C. 304)
21. As mentioned above, that the basic order is without lawful authority, the super structure shall have to fall on the ground automatically. Both the Courts below have given concurrent findings of facts against the petitioners. It is well-settled law that interference in concurrent finding of fact can be made by the High Court when the evidence is mis-read and finding is based on surmises and conjectures or based on inadmissible evidence or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. It is also established proposition of law that findings of question of facts or of law, howsoever, erroneous the same may be recorded by the ,Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction under Section 115 of C.P.C. Unless such findings suffer from jurisdictional defect, illegality or material irregularity. In N.S. Venkatagiri Ayyangar and another Vs. The Hindu Religious Endowments Board, Madras (PLD 1949 Privy Council 26), the relevant observation is as follows:- "This section empowers the High Court to satisfy itself upon three matters:-
(a) that the order of the subordinate Court is within its jurisdiction;
(b) that the case is one in which the Court ought to exercise jurisdiction; and
(c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provisions of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law.
22. No jurisdictional defect has, of course, been pointed out in this case and, similarly, no legal infirmity in the impugned judgment has been ,alleged."
23. The learned counsel of the petitioners fails to point out any illegality or infirmity in the impugned judgments of the Courts below, therefore, the revision petitions have no force, the same are dismissed, however, in the interest of justice and fairplay the competent authority is directed to finalize the process of demarcation within three months after receiving the order of this Court.
24. Parties are directed to appear before the Deputy Settlement Commissioner/Notified Officer on 18.10.2001 who is directed to do the needful within the prescribed period.
25. With these observations, the revision petitions are disposed of.