On 1-9-1987, petitioners brought a suit claiming ownership of a portion of property bearing Nu.P- 145, situated in Ward No,1, Street No,6, Rail Bazar, Ghalla Mandi, Faisalabad and also sought the cancellation of the gift/sale-deeds in favour of the respondents, as illegal and inoperative against their rights. This suit was dismissed by the learned trial Court vide judgment and decree dated 12- 5-1993. Appeal filed by the petitioners, also failed on 5-4-1994.
2. Briefly stated the facts of the case are that the petitioners brought a suit mentioned above, claiming the relief, that the portion of property in question, as an evacuee property was transferred to the petitioners' predecessor namely Abdul Aziz through Order Exh.P.1, dated 6-8-1963. Passed by the Settlement Commissioner, Faisalabad. They also sought the declaration that the entries in the Revenue Record showing Khasra No,3748/1 underneath the property, in the ownership of defendants Nos.5 and 6 and the transfer by said defendants, through gift in favour of defendant No,4 and thereafter, further transfer through sale by defendant No,4 in favour of defendants Nos.2 and 3 and the mutations in this behalf, are illegal and inoperative against their right. This suit was contested by respondents and following issues were framed: ISSUES:
(1) Whether the plaintiffs are owners in possession of the disputed property and the gift of the suit property made in favour of defendant No,4 and subsequent sale-deeds in favour of defendants Nos.2 and 3. Are against the law and facts, illegal, void, ineffective. Inoperative upon the rights of the plaintiffs? OPP
(2) Whether the suit of the plaintiffs is without any cause of action? OPD
(3) Whether the suit is bad for non-joinder and misjoinder of necessary parties? OPD
(4) Whether the addresses of the defendants are not mentioned in the plaint. If so, its effect? OPD
(5) Whether the description of the suit property has not been given in the plaint? OPD
(6) Whether the suit is based on the mala fide intention and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(7) Whether the suit is time-barred? OPD
(8) Whether the plaint is not properly valued. If so, what is the proper value and with what effect?
OPD
(9) (9)Whether the suit is not maintainable under Order 2, rule 2 and Order 23 of C.P.C.? OPD
(10) Whether the plaintiffs are estopped by their words and conduct to file the present suit? OPD
(11) Whether the plaint is hit by the principle of res judicata? OPD
(12) Relief.
3. After conducting the trial, the learned Civil Judge decided Issues Nos.1, 2, and 5 against the plaintiffs and dismissed their suit on 12-5-1993. Appeal filed by the petitioners also failed on 5-4- 1994.
4. Learned counsel for the petitioners, contends that property bearing No,P-145, was an evacuee property; Abdul Aziz, predecessor-in-interest of the petitioners, Noor Muhammad, the predecessor- in-interest of respondent No,3 and one Nizam Din, were in possession of different portions of the property, which were transferred to them by the Settlement Authorities vide order dated 28-7-1961.
Noor Muhammad, filed Writ Petition No,1857-R of 1962, asserting that the property is non-divisible, which petition was partly accepted and the case was remanded with the direction to the Settlement Authorities to inspect the property and to determine about its divisibility or otherwise.
Qazi Muhammad Dastagir, Additional District Judge/acting as Settlement Commissioner, inspected the spot and vide order dated 18-9-1967 came to the conclusion, that the property is divisible; he divided the property and recommended for the allotment of the portions in favour of the above-named respectively in their possession; this order again was challenged by Noor Muhammad, through Writ Petition No,873-R of 1967, which was dismissed in limine. Against the above, leave to appeal was filed before the Honourable Supreme Court, which was disallowed.
Thereafter, PTD was issued in favour of Abdul Aziz on 6-8-1968 Exh.P.2., of his portion, and since then, the plaintiffs/petitioners are in possession thereof; the impugned transactions made by the respondents, as described in the plaint, purporting that the property was a non-evacuee Muslim property, are illegal and ineffective against their rights. It is also contended that Noor Muhammad, son of Kaloo, predecessor-in-interest of respondent No,3 had been contesting the matter before the Settlement Authorities and had also challenged the allotment in favour of Abdul Aziz up to the Honourable Supreme Court, and throughout, it has been his case that the property is an evacuee property, resultantly, now to turn round and assert the property is Muslim property, and the alleged sale by Rashid, the donee from Mst. Zubaida and Gulzar, is of no legal consequence and value qua the rights of the petitioners. It is further contended that after the death of Noor Muhammad, respondent No,3, inter alia, as his successor, got the transfer of his portion from the Settlement Authorities. He also argued that for the evacuee nature of the property, finality is attached to the PTD, admittedly issued in favour of the petitioners, therefore, the Courts below could not have gone beyond the PTD, particularly when it had never been challenged by the respondents. Insupport of his contention, he has placed reliance on Sher Bahadar Khan v. Qazi Islamuddin and another (PLD 1984 SC 213), and Ghulam Rasul and 5 others v. Jannat Bibi and 11 others (1990 SCM R 744). Without conceding, but assuming for the sake of argument, it is submitted, that as the property had been treated as an evacuee property and transferred as such, therefore, even if it was a Muslim property, now it is not available to the respondents Nos.2 and 3 to assert and claim the ownership on that basis. He also stated that the gift deed in favour of Rashid, had been effected by Mst.
Zubaida and Gulzar Ahmed on 5-6-1985, whereas sale-deeds in favour of the respondents Nos.2 and 3 are dated 10-2-1987, these are subsequently created documents, after the permanent settlement 'of the property unto the petitioners; not only the gift deed but also the sale-deeds in favour of respondents Nos.2 and 3, contemplating that the possession has been delivered to the said respondents, is factually incorrect, because part of the property, which was transferred to the petitioners' side had always been in their possession and still continues to be so. It is also argued that despite the findings by the learned Appellate Court in Paragraph No,12 of the impugned judgment, that the two properties are distinct, yet the appeal has been dismissed by upholding the erroneous view of the trial Court. Lastly, it is argued that even if, the property has been wrongly treated as an evacuee, yet it was a past and closer transaction and at this stage, the respondents cannot claim their ownership as non- evacuee. In support of his contention, he relied upon Muhammad Nawaz and others v. Abdullah and others (1988 CLC 1285), paragraphs 7 and 9, Ahmad Khan and 5 others v. Member, Board of Revenue and 3 others (1986 CLC 1677 at 1679-A) and Azizuddin v. Muhammad Ismail and others (1985 SCM R 666).
5. Conversely Mr. Ali Akbar Qureshi and Ch. Shahbaz Khurshid, Advocates, learned counsel for the respondents have argued that, the property was a Muslim property as it was purchased by Gulzar and Mst. Zubaida, since long before the partition from the Hindu owners; thereafter, they continued to be owners of the property, when it was transferred in favour of Abdul Rashid, their grandson, through gift deed and from Abdul Rashid, respondents Nos.2 and 3, had purchased the same vide registered sale-deeds dated 10-2-1987; the land underneath the property bears Khasra No,3748/1, which, according to the Revenue documents produced by the petitioners themselves, throughout has been a Muslim property since before the partition days. Thus, if it has been wrongly treated to be an e acute property and transferred to the petitioners' predecessor, that is void illegal transfer and has no effect upon the rights of the respondents.
6. They also argued that in the PTD, upon which reliance has been placed by the petitioners, the evacuee owner is Sharma Devi, and the property bearing No,P-145, is a shop, while, the disputed property is a house, which as mentioned earlier, was never transferred to the petitioners.Ch. Shahbaz Khurshid, Advocate, during the course of arguments, however, has conceded that respondent No,3 to whom he represents. Is the son of Noor Muhammad son of Kaloo, who has earlier been contesting the matter for the transfer of the property i,e, P-145 before the Settlement Authorities and also in this Court. However, he stated that earlier. Noor Muhammad was under the bona fide impression that the property is an evacuee, but when it transpired that it is a non-Muslim property, resultantly, respondent No,3 purchased the same from the Muslim owner.
7. I have heard learned counsel for the parties. According to the previous history of the case, it is clearly established on the record that property bearing No,P-145 was treated as an evacuee property and there was a contest between .Abdul Aziz the predecessor of the petitioners and Noor Muhammad, predecessor-in-interest of respondent No,3. The matter was remanded by this Court in Writ Petition No,1857-R of 1962 to the Settlement Commissioner and vide Order Exh.P.1, the Settlement Commissioner divided the portions-in occupation of the respective occupants and ultimately, transferred to them by the Settlement Authorities. The petitioners are the PTD holders of their portion, the site plan prepared by the Settlement Commissioner alongwith this order, clearly identify the property. This order was challenged in the writ petition by Noor Muhammad, which was disallowed and his CPSLA before the Honourable Supreme Court, was dismissed as being out of limitation, therefore, it is clear that the suit property, irrespective of, what is the Khasra number of the land underneath, is identified by the Property No,P-145. Though, an attempt has been made by the respondents to support the view of the Court of appeal that two properties are different, but from the perusal of the sale-deeds in favour of respondents Nos.2 and 3, this ambiguity and issues stands resolved, where the same property number is mentioned. Therefore, I have no doubt in mind that notwithstanding the error of the name of the evacuee owners appearing in the PTD of the petitioners, the parties are litigating regarding the property bearing No,P-145, which had been treated and transferred as an evacuee property, and has been purchased by respondents Nos.2 and 3 through the sale-deeds dated 10-2-1987.
8. Now the question arises, if the property, which has been treated and transferred as an evacuee and PTD has been issued to the petitioners. Can it be claimed by the respondents that it is a non- evacuee and they being the purchasers from the Muslims are the owners thereof. The answer has been completely provided by the dictums of the Honourable Supreme Court, reported as PLD 1984 SC 213, to the effect:-- "Another misconception with regard to the jurisdiction appearing on the face of the record is that the plaintiff-appellant based his entire case on the PTD and the interest derived thereunder. The PTD was the culmination of the proceedings under Displaced Persons(Compensation and Rehabilitation) Act, 1958 with regard to the disposal and transfer of properties forming the pool under the Act. The Courts dealing with the dispute omitted to take note of the fact that though they had full jurisdiction to determine the title derived from the PTD they could not go behind the PTD and interfere with the orders passed by the Settlement Authorities culminating in the PTD."
"The Civil Courts had no jurisdiction however in the process to interpret or construe the Permanent Transfer Deed in a manner to erode, modify or destroy any part of the proceedings, Order or decision of the competent Settlement Authority which consistently with the Permanent Transfer Deed formed the very basis of the Permanent Transfer Deed."
9. In Ghulam Rasool and 5 others v. Jannat Bibi and 11 others (1990 SCM R 744), it has been held that:-- "Primarily, the suit was barred by provisions of the special law governing such transfer and thus the suit property transferred to Hakim Ali and after the issuance of PTO and PTD in his name the last order passed on 24-9-1957 by the Settlement Authorities shall be deemed final. Even under section 25 of the said Act, the Civil Courts have no jurisdiction to correct the orders of the Settlement Authority which ended in finality. The suit of the plaintiffs/petitioners was incompetent and therefore, the order passed by the Appellate Court has rightly been upheld by the High Court." In another case titled Azizuddin v. Muhammad Ismail and others (1985 SCM R 666), the Honourable Supreme Court observed:-- "A dispute concerning the evacuee nature or otherwise of a property could be brought in two ways before the Custodian for his determination. One is under section 41(2) of Act XII of 1957 by a Court Or any other authority where a question arises whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in such property. In such situation, the Court or the authority shall state the question with relevant particulars and remit it to the Custodian for his decision. The other is under section 22 of the said Act, whereunder any person claiming any right or interest in any property treated by the Custodian or Rehabilitation Authority as evacuee property may prefer a claim to the Custodian. The Act bars every Civil or Revenue Court or other Authority from exercising jurisdiction to entertain or adjudicate upon any such question."
10. From the above, it stands settled that when there is a question about the evacuee nature and treatment of a property as such, the Civil Courts have no jurisdiction in the matter. In the instant case, not only that the property was treated as an evacuee property, but, the same had also been transferred an0 permanently settled in favour of the predecessor-in-interest of the petitioners, Noor Muhammad, predecessor-in-interest of respondent No,3, and Nizam Din. The Civil Courts in the suit, filed by the respondents, seeking declaration of their title on the basis of PTD, issued in their favour, had no 'jurisdiction to hold such transfer as void, because the property was non-evacuee and, therefore, its treatment and transfer to the petitioners could not be made. .
11. Anyhow, keeping in view the defence of the respondents, the evidence adduced by them and the documents produced by the petitioners, at the best, the property at the relevant time was owned by Mst. Zubaida and Gulzar, and not by respondents Nos.2 and 3. But, they never challenged the treatment and transfer of the property as evacuee to the petitioners and others, under Act XII of 1957, therefore, even if, the property had been erroneously treated and transferred as an evacuee, their right in the property, stood extinguished and they had no legitimate title, which could be passed on to Abdul Rashid by way of gift, from whom, respondents Nos.2 and 3 could acquire a lawful title, by stepping into the shoes of the original owners. My above view is supported by the judgment reported as Muhammad Nawaz and others v. Abdullah and others (1988 CLC 1285), which almost has akin facts to the present case and it has been held:-- "It is true that the documents of title held by the respondents, namely registered sale-deed as also the mutation prima facie support their contention. They looked to be purchasers of the land under the non-Muslim evacuees Dais Raj etc., but they appeared to have lost the opportunity of asserting this right in time before the competent forum. The land was treated to be evacuee property on the 26th of April, 1973, when the forum to challenge it was available under section 22 or 41 of the Pakistan Administration of Evacuee Property Act, 1957. No effort was made to seek relief from it till the laws were repealed. By this neglect on their part the respondents suffered the allotment of the land made in favour of the petitioners-defendants to become a past and closed transaction. It is correct that in those early days the Supreme Court had been pleased to lay down in Mr. Muhammad Asghar's case that any determination by the Rehabilitation Authorities of a property to be evacuee was always liable to be challenged before a Civil Court, but that rule seems to have not been adhered to in the latest pronouncement as made in the Azizuddin's case. The dictum of this case as quoted above is too clear in its import to admit any second opinion. It was followed inthe Muhammad Hasan and another's case. A Civil Court was completely barred to determine the character of property as the jurisdiction conversely lay with the Custodian."
12. In another case Ahmad Khan and 5 others v. Member, Board of Revenue and others (1986 CLC 1677), the following rule has been laid down:-- "Once a property was treated as an evacuee property, no Civil or Revenue Court or any other authority could entertain or adjudicate upon any question as to whether the property was or was not evacuee as provided in section 41 of the Pakistan Administration of Evacuee Property Act, 1957.
If any person claimed any right or interest in any property treated as evacuee property the only remedy available to him was to invoke the jurisdiction of the Custodian by an application under section 22 ibid. For declaration that the property was not evacuee. The petitioner admittedly did not avail of this remedy in spite of repeated directions given to them by the Settlement Authorities, last in the series having been issued by the Settlement Commissioner in revision on 11th of May, 1974. 'Learned counsel for the petitioner, argues that since a certified copy of the order of the Settlement Commissioner was not supplied, before the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, they could not apply to the Custodian. This argument is invalid. No such copy was required to be filed alongwith the application to the Custodian under section 22 of the Pakistan Administration of Evacuee Property Act, 1957. On account failure of the petitioners to obtain the requisite declaration from the Custodian, their title to the house if any, was extinguished. The Civil Court had no jurisdiction to question the validity of the orders passed by the Settlement Authorities even after the repeal of the Evacuee Laws."
13. On the basis of above cited law, it has been settled till now that, where the property had been treated and transferred as an evacuee property, even if erroneously, and the non-evacuee owners did not seek their remedy under the law in force at the relevant time, their title to such property stood extinguished and they could not assert their right of ownership before the Civil Court, after the repeal of the evacuee/settlement law, on account of B lack of jurisdiction. Thus, when the respondents through a suit, could not attack the transfer of the property in favour of the petitioners for the reasons given above, the Civil Courts, on the same principle, had no jurisdiction to declare the transfer of the property in favour of the petitioner as void, while considering the defence of the respondents in a suit for, declaration filed by the petitioners, because it is settled law that what cannot be done directly, Cannot be achieved indirectly.
14. In view of what has been stated above, the petitioners, on the basis of the PTD, issued to them, which could not have been declared void by the Civil Courts, in any situation, were entitled to the declaration of their title to the property and annulment of the sale-deeds in favour of respondents Nos.2 and 3 and the effect given in the Revenue Record, having reflection upon their title to the property. Resultantly, this revision petition is allowed. The judgments and decrees of the learned Courts below are set aside and the suit of the petitioners is decreed in their favour and against the respondents, declaring that the portion of the Property No,P-145, which has been transferred in favour of the petitioners is owned by them and the sale-deeds in favour of respondents Nos.2 and 3 and any entry in the Revenue Record pertaining to Khasra No,3748/1, showing them to be owners of the land underneath the property or Property No,P-145, are absolutely illegal and unlawful. Costs of the litigation throughout, is also awarded to the petitioners.