MUHAMMAD NAWAZ Versus ABDULLAH

This civil revision impugns the validity of the judgment /decree, dated the 1st of December, 1984, of the learned Additional District Judge, Sialkot, whereby the finding recorded by the trial Court that the land in dispute was not evacuee property, was upheld.

2. The suit in brief brought by the respondents‑plaintiffs was that the land in question measuring 8 Kanals 2 Marlas comprised in Khasra No.59 of the Jamabandi, 1939‑40, belonged to evacuees Dais Raj etc. It was purchased by their father Piran Ditta vide a registered sale‑deed, dated the 5th of February, 1944, and ‑ Mutation No.576, dated the 20th of May, 1944, for a sum of Rs.750, and that ever-since they were occupying it as owners. They maintained that due to consolidation proceedings it was signified by new Khasra Numbers, namely, 53 and 54 in the Jamabandi for the year 1950 and later by No.68 in the course of settlement (Bandobast) vide Jamabandi for the year 1971‑72. Their grievance was that it had been transferred in favour of the petitioners‑defendants as evacuee property despite the fact that the non‑Muslim owners had sold it away to their father much before Partition of the country. They prayed for a declaration that they were occupying it as owners and that the afore-mentioned transfer treating it as evacuee property was bad in law and ineffective against their ownership.

3. The suit was resisted maintaining that the land, in fact, belonged to Punjab Singh rather than Dais Raj etc. that the Civil Court had no jurisdiction to hold it otherwise; and that the suit was barred by limitation. The respondents‑plaintiffs' possession was denied.

4. The trial Court framed appropriate issues on these pleadings and ultimately decreed the suit. It repelled the contention that the property belonged to Punjab Singh and found that its owners Dais Raj etc. had sold it away on the 5th of February, 1944, in favour of the respondents' father. In appeal, the learned Additional District Judge affirmed those findings holding that allotment of any land from joint Khata to refugees without partition was illegal. He sought support for this view from Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore Division; Lahore and another P L D 1974 SC 193 and dismissed the petitioners' appeal.

5. The facts concurrently found were that the property in dispute did not belong to Punjab Singh and that instead it belonged to Dais Raj etc., that they had sold it away in favour of Piran Ditta on the 5th of February, 1944; and further that it was treated as evacuee property for the first time on the 26th of April, 1973, when it was allotted to the respondents. Ch. Mushtaq Ahmad Khan for the petitioners contended that on the date of allotment the Evacuee Laws still being in force, the Civil Court had no jurisdiction to determine whether or not the property was evacuee. He relied upon Azizuddin v. Muhammad Ismail and others 1985 S C M R 666 wherein it was observed:‑

"A dispute concerning the evacuee nature or otherwise of a property could be brought in two ways before the Custodian for his determination The Act bars every Civil or Revenue Court or other Authority from exercising jurisdiction to entertain or adjudicate upon any such question."

Likewise, he sought support from Muhammad Hassan and another v . Settlement Commissioner (Lands) Khairpur and 4 others P L D, 1983 Kar. 353 wnere it was held that evacuee property settled permanently in a Settlement Scheme could not subsequently, be treated by a Settlement Commissioner as non‑evacuee. Referring to the rule laid down in Mr. Muhammad Jamill Asghar v. The Improvement Trust, Rawalpindi P L D 1965 SC 698 that treating a property evacuee or otherwise was always liable to challenge in Civil Courts, he maintained that the later view of the Supreme Court as expressed in the Azizuddin's case would be preferred and that the same totally excluded the jurisdiction of Civil Courts from determining the nature of property. Replying the opposite contention that the property could not have been treated as evacuee on the 26th of April, 1973, as it was much beyond the deadline fixed in section 3 of the Pakistan Administration of Evacuee Property Act, 1957, he adverted attention to clause (b) of subsection (2) thereof which, to his reading, authorised such a determination even beyond the 1st of January, 1957 in cases where the property was occupied, supervised, or managed by a person whose authority or right so to do after the twenty‑eighth day of February, 1947, was not accepted or approved by the Custodian. He explained that this was the provision which related to hidden or concealed evacuee property and added that it was open to authorities to determine its true nature even after the deadline. Still further, he urged that against the allotment of the disputed property by order, dated the 26th of April, 1973, remedies in the special hierarchy were available to the respondents‑plaintiffs but they admittedly did not have recourse to them and could not straightaway bring the suit as per the rule enunciated in P L D 1971 Pesh. 153 as also P L D 1978 Lah. 441.

6. On the other hand, Ch. Khurshid Ahmad for the respondents submitted that the suit was based upon title supported by documents of unimpeachable authenticity and that the Civil Court being a Court of ultimate jurisdiction was quite competent to entertain it. He cited Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356 in this behalf. He added that the so‑called partition of the non‑Mulsims' share in order to transfer it to the Central Government was effected by the concerned Authorities without application of mind, as also behind the back of the respondents and was, therefore, as per rule laid down in the Mehr Dad's case, quite ineffective. He stressed that after repeal of the laws, Civil Courts alone were competent to decide such matters and for that referred to Hasan Muhammad v. Settlement Commissioner (Land) and 4 others 1983 CLC 2935 (2939).

7. I think there is considerable substance in the arguments advanced in support of the revision petition. 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 Jamil 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 in the 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. Thus, the decision made in Mr. Muhammad Jamil Asghar's case may not render any assistance to the respondents.

3. The objection that without availing the special remedy provided by the Pakistan Administration of Evacuee Property Act, 1957, or the Displaced Persons (Land Settlement) Act, 1958, the respondents could not come to Civil Court, appeared to be indefensible. It happened to be a dispute of special nature for which exclusive forum and special remedies were created by the law. The very idea of arranging special forums and remedies took out the matter from the plenary jurisdiction of Civil Courts. The rule laid down in the precedents supra applied with full efficacy here and the suit was not maintainable even though apparently it was based upon the respondents' title created by otherwise a solemn document. It is a consequence of the respondents' own failure to be vigilant and they have to blame themselves.

9. The contention that the so‑called partition of the non‑Muslims' Khata was made without necessary application of mind on the part of the Rehabilitation ,Authorities cannot be heard, for, the same too could be challenged in the special hierarchy. It was made under a Settlement Scheme and being a proceeding conducted by the Rehabilitation Authorities in their exclusive jurisdiction could not be assailed in a civil suit. Section 25 of the Displaced Persons (Land Settlement) Act, 1958, bars the jurisdiction of Civil Court to call it in question. Repeal of evacuee laws does not mean to confer jurisdiction on Civil Courts to undo what has been already done under those laws. Sections 2 and 4 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, clearly mean fait accompli of those matters, inasmuch as these provided for disposal of only the 'proceedings which, immediately before such repeal, may be pending'. The necessary corollary was not to allow Civil Courts to re‑open the Pandora's box which the law in its sagacity treated as transactions past and closed. Such a prohibition is also provided by section 6(b) of the General Clauses Act. The Courts below were in apparent error on this point and their view cannot be sustained in law.

10. For the foregoing reasons, the revision petition is accepted, the impugned judgment and decree are set aside and the respondents/ plaintiffs' suit is dismissed leaving the parties to bear their own costs throughout.

S . Q. / M‑658/ L Petition accepted