KHUSHI MUHAMMAD vs MUHAMMAD DIN
This petition for leave to appeal arises out of a civil dispute regarding an ihata in Bahawalnagar claimed by the petitioner under Settlement Scheme No. VII as evacuee property formerly owned by one Kartar Singh. The petitioner challenged the transfer of the ihata to the respondent through a declaratory suit, which was dismissed by the Civil Judge, Chishtian, on 24-3-1973. Subsequent appeals to the District Judge and the Lahore High Court were likewise dismissed, with concurrent findings of fact establishing that the property was never transferred to Kartar Singh. The core legal question before the Supreme Court was whether the Civil Judge lacked jurisdiction to decide the status of the property without referring it to the Custodian under section 41 of the Administration of Evacuee Property Act, 1957. The Supreme Court dismissed the petition, holding that a question of jurisdiction not raised in the three courts below cannot be entertained for the first time in a petition for leave to appeal, in accordance with established court practice.
- Can a question of jurisdiction be raised for the first time in a petition for leave to appeal before the Supreme Court?
- Whether concurrent findings of fact by three lower courts regarding the status of property warrant interference when unchallenged on any error of law?
- Is a civil court required to refer the question of the status of an evacuee property to the Custodian under Section 41 of the Administration of Evacuee Property Act, 1957 when the point is not raised below?
- Section 41, Administration of Evacuee Property Act, 1957
ORDER
1. DORAB PATEL, J.-The dispute in this petition for leave relates to an ihata in Bahawalnagar and on the footing that it was owned by one Kartar Singh, an evacuee, the petitioner bases his claim under Settlement Scheme No. VII. But, as the ihata was transferred by the Settlement authorities to the respondent, he challenged this transfer in a declaratory suit which was filed in the Court of the Civil Judge, Chishtian. It is not surprising that this suit was dismissed on 24-3-1973. The petitioner, therefore, 'challenged this judgment of 24-3-1973 in an appeal in the District Court, which was dismissed by the learned District Judge, Bahawalnagar on 4-6-1974. The petitioner then filed a second appeal in the Lahore High Court which was dismissed in limine on 23-12-1974. Hence this petition for leave.
2. In dismissing the petitioner's second appeal the learned Judge of the High Court pointed out that the Courts below had come "to a concurrent finding of fact that the ihata in suit was never transferred to Kartar Singh, evacuee. "This concurrent finding of fact is not shown to be displaced in any manner whatsoever. The appeal is without merit and is dismissed as such, in limine.
3. Learned counsel did not attempt to, show that there was any error of law in the concurrent findings of the three Courts that the ihata had never been transferred to Kartar Singh as claimed by the petitioner. He, however, submitted that as the question was of the status of the property, the Civil Judge should have referred this question to the Custodian under section 41 of the Administration of Evacuee Property Act, 1957, and therefore, the, Civil Judge had no jurisdiction to decide this question. But, this question about the jurisdiction of the Courts is being raised for the first time in support of a petition for leave, and we cannot in accordance with our practice grant leave to examine a question which could have been but was not raised in the three Courts below.