JUDGMENT ABDUL SHAKOOR PARACHA, This revision, petition is directed against the judgment and decree dated 7.4,1994 passed by the District Judge, Sialkot, dismissing the appeal of Sajjad Hussain, petitioner-plaintiff, filed against the judgment and decree dated 18.9,1988 of the Civil Judge, Sialkot whereby the suit of the petitioner for possession of Plot No. 298, situated in Zafarwal, Sialkot, was dismissed.
2. This is the third round of litigation between the parties. The dispute relates to the property No. 298, situated in Zafarwal/Galla Mandi, Sialkot, which is claimed by both the parties to have been purchased by them in auction being available property under the Settlement Laws. The respondent's predecessor Himmat Khan purchased property No. 297/98, owned by Giyan Chand, evacuee owner, through an auction on 10.5.1960, whereas Sajjad Hussain claimed to have purchased property No. 297, which is entered as shop in the survey register Exh.P.I, which was owned by one evacuee owner, namely, Amanat Ram, and it was allegedly purchased on the basis of auction dated 22.5.1962. -
3. Sajjad Hussain petitioner moved an application to the Deputy Settlement Commissioner, Sialkot for the demarcation as evacuee plot No. 298. Subsequently the House No. 297 purchased by Himmat Khan was transferred by way of sale-deed dated 19.6.1978 by Muhammad Ibrahim' son of Himmat Khan in favour of Muhammad Sharif, respondent. On the application of! Petitioner Sajjad Hussain some proceedings remained pending in the Settlement Department. Finally, vide order dated 24.4.1978 the Additional Settlement Commissioner came to the conclusion that due to the repeal of the Evacuee Laws he could not review or revise the order and the aggrieved party should go to the Court concerned. Thereafter Muhammad Sharif filed a suit for declaration that the disposal of the plot in favour of Sajjad Hussain is illegal as the same was not available for transfer to him by the Settlement Department. The suit filed by Muhammad Sharif etc. Was dismissed by the Civil judge on 22.7.1986 but the learned District Judge, Sialkot vide order dated 14.2.1988 observed:-- "So far as issue No. 1 is concerned, the Trial Court on a reference made by this Court has returned its finding in favour of the plaintiff-appellant but in view of the confusion pointed out during the course of discussion on issue No. 1 above, it is not possible to record any definite finding on this issue and after setting aside the finding of the Court below thereon, I would prefer to leave it undecided.
10. In view of my finding on issue No. 1, it is directed that the plaint should be returned to the plaintiff-appellant or their counsel for presentation to the report forum, if any."
Thereafter the instant suit was filed by Sajjad Hussain for possession of the property No. 298, allegedly purchased by him in the auction, against the respondent. The suit Was resisted by the respondents-defendants, who controverted the contents of the plaint.
4. From the divergent pleadings of the parties, following issues were framed by the Trial Court:-
(1) Whether the plaintiff has no cause of action to file this suit? OPD.
(2) Whether the valuation of suit for the purpose of Court-fee and jurisdiction is incorrect? If so its correct valuation and with what effect? OPD.
(3) Whether the plaintiff has not come to the Court with clean hands? If so, with what effect? OPD.
(4) Whether the defendants Nos. 6 and 8 are unnecessary parties? OPD. '
(5) Whether the Civil Court lacks jurisdiction to entertain this suit? OPD.
(6) Whether the suit is frivolous and the defendants are entitled to special costs? If so to what amount? OPD.
(7) Whether the defendant No. 2 has become owner of suit property by adverse possession? OPD.
(8) Whether the form of the suit is incorrect? If so correct form and with what effect? OPD.
(9) Whether the plaintiff is; the owner of the suit property? OPP. ,
(10) Whether the suit is time-barred? OPD.
(11) Relief.
5. Both the parties adduced their evidence before the Trial Court. Vide judgment and decree dated 18.9.1988 the learned Civil Judge, Sialkot dismissed the suit of the plaintiff- petitioner in view of his finding on issues Nos. 7 and 10. Against that decree petitioner Sajjad Hussain filed an appeal, whereas the respondents also filed cross-objections to assail the findings of the learned Trial Court on issues Nos. 1 and 3. The objection of the petitioner before the Learned District Judge regarding cross-objections, filed by the respondent, was- that the same were time-barred. However, the learned District Judge on the basis of the provisions, of Order 41, Rule 33 read with Section 107(2), CPC entertained the' cross- objections on merit. However, dismissed the appeal of the petitioner vide judgment and decree dated 7.4.1994..
6. In the earlier round of litigation on the suit filed by Muhammad Sharif and in the present suit both the Courts below have recorded a finding that the Civil Court had no jurisdiction to decide the controversy because this is a case of double allotment of the same property and only the Settlement Authority is the competent forum to resolve the dispute between the parties. Since both the parties are claiming the property on the basis of purchase through different auctions held on 10.5.1960 and 22.5.1962, therefore, to my mind, there was nothing pending on 31.7.1975 when the Displaced Persons (Compensation and Rehabilitation) Act, 1958 was repealed by the Evacuee Property an^ Displaced Persons Laws (Repeal) Act (XIV of 1975). After the repeal of the Act, there was no question of transfer of the property to any party and it was a case of identity of the property. The Learned District judge relied on 1987 SCMR page 999 in which the Hon'ble Supreme Court observed that:-- "Normally the authority who transfers a property to a person is the proper authority to identify what property it is transferring to him. The Civil Courts, moreover, can only ascertain and declare the rights conferred in the property to the contestant under the PTDs but cannot themselves embark upon the task of first identifying the property in regard to which the rights of the contestants are to be declared. Thus, unless it is certain as to what property has actually been transferred to a party, the Civil Court will not be in a position to proceed with the task of adjudicating upon the further question with regard to the extent and limits of the rights acquired by a party when it is not certain as to what property has been transferred to him--This is exactly the situation in the present case because it was still being disputed as to whether the house occupied by Aziz-ur-Rehman was transferred to Muhammad Bashir (appellant) under No. G/117 or to respondent No. 1 under No. G/119 or whether it was still lying undisposed of and was still available for transfer, being House No. G/l 16- A, as claimed by Aziz-ur-Rehman. Such a dispute could not appropriately be settled by the Civil Court but only by the Settlement Department-the authority passing the orders of transfer in favour of the appellant and respondent No. 1-"
In this case, the above-referred judgment is fully applicable. Firstly, there is no dispute about the boundaries of the property and, secondly there is no dispute about the title of the property itself.
The case of both the parties is. That property Nos. 297 and 298 and purchased by them in separate auction proceedings, which were owned by different evacuee owners. The dispute was regarding the question whether the disputed property was owned by Giyan Chand, evacuee owner, bearing No. 297-98 and was a house which was purchased by Himmat Khan or it was a shop owned by Anant Ram, evacuee, purchased by the petitioner in auction on 22.5.1962. Had it been the purchase of different properties from the Settlement Department owned by different evacuee owners or dispute of title between the parties, it could have been said that the Civil Court had no jurisdiction to deal with the case. The law after promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975) is clear and consistent that the Settlement Authorities will not embark upon any question of title of the property and entertainment of any proceeding by the Settlement Authorities by way of application, appeal or revision petition are not warranted under the law. In case reported as Headmaster, Muslim High School No. 1 and others v. Mst. Asghari Ehanum (1984 SCMR 332) the Hon'ble Supreme Court dismissed the appeal against the order of the High Court passed in writ jurisdiction quashing the proceedings which were initiated by the Deputy Settlement Commissioner by way of revision petition in case in which PTD had already been issued as neither the property was available for transfer, nor the case was pending nor the case was remanded by the High Court or the Supreme Court within the meaning of pending proceeding' as envisaged under Section 3(2) of the Evacuee Property and Displaced Persons (Repeal) Act (XIV of 1975)'The Civil Court to draw distinction in cases, while assuming jurisdiction under Section 9 of the CPC, 1908, in which there is dispute of title between the parties, .And therefore can only ascertain and declare the rights conferred in the property to be consistent under the PTD and the Settlement Authority shall not initiate any proceedings after repeal of the Act. Similarly, the Settlement Authority has to exercise the jurisdiction regarding residual properties pending cases and cases remanded by the High Court and the Hon'ble Supreme Court, by the notified officer unless it is certain as to what property has been actually transferred to a party the Civil Court will not be in a position to proceed with the task of adjudication upon and further the question with regard to the extent and limits of the rights acquired by a party.
Both the parties in the present suits have not challenged the auctions dated 10.5.1960 in favour of respondent Himmat Khan and dated 22.5.1962 in favour of Sajjad Hussain or permanent deeds of each other. In this view of the matter, nothing was pending regarding the rights arising out of the title of the parties and therefore following the case reported in 1987 SGMR 999, I hold that the Civil Court lacks jurisdiction to entertain the suit and finding on issue No. 5 regarding jurisdiction has been correctly reversed by the first Appellate Court.
Now I will advert to the question whether the petitioner- plaintiff was successful to discharge the onus of proving issue No. 9 regarding his ownership of the suit property. Apart from the fact that in the earlier round of litigation the Civil Court had held that it is a case of confusion of Number or it is a case of double allotment, I have perused the evidence on the record produced by the parties.
There are three documents of survey register Exh.P.I to Exh. P.3 on the record. In Exh. P.1, the survey register for Zafarwal Sialkot, the property No. 297 has been shown to be owned by evacuee owner Anant Ram and in column No. 4 it is shown as shop which was demolished. It is allegedly purchased by the petitioner Sajjad Hussain. Shop No. 298 is again shown as a separate property owned by Anant Ram as open site. Exh. P.2 is the survey register in which * property No. 297-98 were shown as owned by Giyan Chand, evacuee owner as a house. There are three lists published by the Settlement Department, Exh. D/19, dated 30.4.1960, Exh. D-20, dated 22.3.1962 and Exh. D/21, dated January, 1962. Plot No. 297-98 has been shown at serial No. 29 in Galla Mandi which was vacant and was owned by Haps Raj measuring 61/z Marlas. This property allegedly has been purchased by the respondent's predecessor, namely, Himmat Khan. No shop No. 297 owned by Anant Ram, evacuee, has been put to auction according to list Exh. D-19. In the list Exh. D/20 at serial No. 246 property No. 298 has been shown as open plot owned by Anant Ram. Irufirth. D/21 there are property Nos. 144-A, 144-C at serial No. 401 and 503 measuring about 10 Marlas each owned by Anant Ram. There is a shop shown at serial No. 389 owned by Anant Ram and it is stated " was So if the respondent has purchased the shop on the plot in accordance with auction list Exh. D-20 and 21, then shop/house No. 297-98 was not available for transfer as it had already gone out of compensation pool, which was purchased by Himmat Khan on the basis of auction on 10.5.1960 and for which T.O. Exh. D-4 dated 28.3.1961 was issued in his favour and his son transferred the same vide sale-deed in favour of the respondent.
The matter remained pending before the Settlement Authorities and on the application of Sajjad Hussain petitioner for demarcation of his evacuee plot No. 298, the Additional Settlement Commissioner deputed Muhammad Saleem, Inspector for carrying out demarcation and after complying with his directions he (Inspector) submitted his detailed report dated 7.6.1976 Exh. D-7, wherein he concluded:- jjy'Jj ? 297/^ljX jlf J L ji Disposal J//. '
19.1.62 298, 297j^^^^^Jt-> Double/298 Jit ' Jj-Disposal {{Urdu Text}} The Learned Addl. Commissioner on the basis of the above-stated report concluded that all the properties have been separately disposed of and they had no connection and concern with each other. Their disposal does not therefore constitute any double disposal. The learned Deputy Settlement Commissioner, Sialkot was directed to give demarcation to Ghulam Haider, Sajjad Hussain and Ibrahim son of Hamat Khan deceased on the spot in presence of the parties. However, subsequently the parties were directed to approach the Civil Court.
Therefore, I conclude that the petitioner was not able to. Prove that he was owner of the property in possession of the respondent which he has purchased on the basis of auction dated 22.5.1962 and for which T.O. Dated 14.6.1978 has been issued in his favour.
The petitioner has been non-suited by the two Courts of competent jurisdiction by recording a finding of fact that he has failed to prove that the property in possession and purchased by the respondent was in fact purchase by the petitioner on the basis of evidence on record, which cannot be interfered with by this Court in exercise of revisional jurisdiction of this Court as held in case reported as Azizullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647).
Resultantly, this revision petition fails and the same is dismissed. Parties to bear their on costs.