MUHAMMAD SADIQ (decd.) through L.Rs, and others vs MUSHTAQ and others

' ANWAR ZAHEER JAMALI, J.---In a suit for declaration and permanent injunction, precisely seeking the relief that the land detailed in para No, 1 of the plaint was not an evacuee property, but muslim non-evacuee ancestral property of the petitioners, an application under Order VII, Rule 11, C.P.C.

Dated 2-1-2002, moved on behalf of defendants Nos. 1 to 10 was dismissed by Civil Judge 1st Class Gujranwala, vide his order dated 8-6-2002, for the reason that whether the suit land was an evacuee property under the provisions of Pakistan Administration of Evacuee Property Act, 1957 (in short Act, 1957), or a muslim non-evacuee property of petitioners' ancestors could only be decided after recording of evidence in the suit. This order of the Civil Judge was successfully challenged by the respondents before the Court of Additional District Judge, Gujranwala, who, vide his order dated 20-12-2002, passed in Civil Revision No, 5 of 2002, allowed the Civil Revision, set aside the order of Civil Judge 1st Class, granted the application under Order VII, rule 1, C.P.C. And consequently, rejected plaint in the suit for the following reasons:- "9. Admittedly, the order regarding property in dispute was passed by the Custodian during the operation of the repealed Act and the land in dispute was allotted to the predecessor-in-interest of the petitioners/defendants in the year 1952-53 and was thereafter confirmed in their name after the promulgation of the Displaced Persons (Land Settlement) Act, 1957. Since then, not suit or application before the Custodian was submitted by the respondents/plaintiffs to challenge the allotment. The finding of learned Trial Court in the impugned order dated 8-6-2002 that it was a mixed question of law and facts is incorrect because it is only a question of law and facts is incorrect because it is only a question of law whether Civil Court has jurisdiction to entertain this suit or not. The plaintiffs/respondents did not move the application against the allotment of disputed land to the predecessor of the petitioners/defendants after the allotment and after about 55 years of allotment the respondents/plaintiffs instituted the present suit. It was held in 1998 SCMR page 341 that the suit after sixteen years of auction of land was barred by time when especially; it was not challenged before the Custodian regarding legal status of the disputed property as an Evacuee Property. It was further held by the august Supreme Court of Pakistan that plaint by the Court below under Order VII, Rule 11, C.P.C. And Article 120 of the Limitation Act, was rightly rejected by the trial Court.

10. Under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the only Authority which could determine the status and entitlement of the parties was appointed under the Act and none else. Admittedly, the allotment was not challenged before the Custodian, the relief from back door by invoking the jurisdiction of Civil Court cannot be obtained by the respondents/plaintiffs, after more than 50 years of the allotment. It will be pertinent to note here that present suit was instituted on 21-11-2001 which is clearly barred by time also."

2. The order of the revisional Court challenged by the petitioners in Writ Petition No, 3280 of 2003, preferred before the Lahore High Court, which was dismissed for the reason that the conclusion recorded by revisional Court that the suit instituted by the petitioners on 21-11-2001 was barred under the provisions of Settlement and Rehabilitation laws, was correct.

3. Learned counsel for the petitioners, while arguing this petition for leave to appeal, vehemently contended that after the repeal of settlement laws with effect from 1-7-1974, the only remedy available to the petitioners against such illegal action of treating their ancestral non-evacuee land as evacuee was through a declaratory suit before the Civil Court, therefore, order of rejection of plaint, passed by the revisional Court of Additional District Judge, Gujranwala and the order of the learned Single Judge in the High Court dated 21-5-2007, in Writ Petition No, 3280 of 2003, are based on wrong legal notion, thus liable to be set aside. Learned counsel, when confronted with the 'undisputed material facts of the case about the declaration and resumption of suit property as evacuee land, as back as in early fifties, and its subsequent disposal under the. Settlement laws, and inaction in this regard on the part of petitioners, has no plausible explanation to offer, except that the petitioners promptly followed remedy before the Civil Court, when they came to know about this illegality. In order to verify the factum of knowledge of the petitioners, learned counsel was called upon to read the contents of the plaint to show when and in what manner the petitioners, after a gap of almost fifty years, suddenly acquired the knowledge about their alleged claim in the suit land through their ancestors, could not show anything from the record of the case.

There is no denial of the fact that the remedy before the Civil Court availed by the petitioners was clearly barred under section 41 of the Act, 1957 as well as under the provisions of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958. Not only this, but the suit instituted by the petitioners was also hopelessly time-barred, as the suit land was provisionally allotted to the respondents/their ancestors in the years 1952/53, and thereafter the whole process of such transfer in their favour was completed much before the repeal of the Settlement laws.

5. This being the correct factual and legal position, the order of rejection of plaint passed by the revisional Court was based on proper application of relevant provisions of law, and thus unexceptionable. The High Court in exercise of its jurisdiction under Article 199 of the Constitution, while examining the grievance of the petitioners, has rightly upheld the findings of the revisional Court against the petitioners regarding rejection of plaint in the suit, being barred under above- referred provisions of Act XII of 1957 and Act XLVII of 1958.

6. This being the position this petition for leave to appeal is dismissed. Leave refused.