Mst. FATIMA KHANUM Versus IBRAHIM
This Second Appeal involves a property which has chequered history. The Suit No.367 of 1963 was filed by the appellant claiming that she had beer. transferred the premises of one room adjacent to G/1 in building situated on plot No.R.S.2/16, Karachi, by P.T.O. of 28‑11‑1960 as confirmed by P.T.O. of 26‑d‑1962, but the respondent Ibrahim was claiming the same to be his property and, therefore, a declaration in her favour should be granted and Ibrahim be restrained from making the claim. Respondent Ibrahim filed written statement claiming that the Settlement Department had transferred the same premises to him on 10‑8‑1960 by P.T.O. and thereafter issued P.T.D. to him on 15‑4‑1963 on the basis of Earmarking.
2. Issues were framed and Hakim Muhammad Ahmed, husband of the appellant, examined himself in support of the plaintiff while Ibrahim, Adam Bhoy and Ahmed Bhoy were examined m support of the defendant. The 1st Civil Judge, Karachi, decreed the suit on 27‑2‑1968, but unfortunately he treated the defence as having been closed and further committed the mistake of mentioning that no evidence of any witness in defence has been produced. He, therefore, decided the suit almost as an ex parte suit and believed the case of the plaintiff.
3. The respondent filed Civil Appeal No.90 of 1968, which was allowed on 30th November, 1968 on the ground that Civil Court had no jurisdiction to deal with this matter as it could be dealt with exclusively by the Settlement Authority. This IInd Appeal was thereafter filed by the appellant and it was admitted on 26‑10‑1970.
4. What has happened, in the meanwhile, is that, the matter was dealt with at the hands of the Additional Settlement Commissioner and thereafter by the Settlement Commissioner, who decided the dispute in favour of the present appellant. Thereafter, in 1968, the respondent filed Petition No.165 of 1968, but it was dismissed by a Single Judge on the ground that the appellant had demolished the premises in dispute and, therefore, its identity was lost. Ibrahim did not feel satisfied and filed L.PA. No.158 of 1970, which was decided in his favour on 7‑11‑1979 and the matter was remanded back to the Single Judge for decision of Petition No.165 of 1968 on merits. However, on the petition for special leave to appeal filed by the applicant Fatima in the Supreme Court, it was ordered by consent that L.P.A. No.158 of 1970 should be decided by the High Court D.B. on merits instead of remand of Petition No.165 of 1968 to the Single Judge Ultimately on 30th April, 1987 L.PA. No.158 of 1970 was decided by a D.B. or: merits and it has been held that Ibrahim, respondent, was the transferee of the tenement No.G‑10, which was adjacent to G‑1 Mst.Fatma has filed petition for leave to appeal in the Supreme Court, which is pending.
5. Since this matter has been adjudicated upon by the Settlement Authorities twice even after the filing of the present litigation by means of a suit, therefore, it is apt and proper that the same should be dealt with in that forum. Even according to section 25 of the Displaced Persons (Compensation and Rehabilitation) Act of 1958, there is a bar for Civil Court to adjudicate in respect of any action taken or to be taken in exercise of any power conferred by or under the said Act. The question whether G‑10 was adjacent to G‑1 and further the question whether the same could be claimed by the applicant or the respondent on the basis of various rights claimed by them was a matter which was within the competence of the Settlement Authorities as they had the jurisdiction to transfer the evacuee property and the premises in dispute was initially an evacuee property. It is again the Settlement Department, which could determine as to whether the premises had been given a separate number or whether it was merely a tenement existing without a number, which could be transferred separately.
6. Since the Settlement Authorities had given two P.T.Os. followed by P.T.O. and P.T.D. in favour of two different persons in respect of the same tenement, therefore, it was apt and proper that the controversy should be resolved by them. Consequently, 1 have no doubt in my mind that at least in the present case the matter should have been allowed to be resolved by the Settlement Authorities and they had in fact resolved the same out of which the writ petitions and the L.P.As. and petition for special leave to appeal have arisen and the matter is now pending at the stage of the Supreme Court.
7. Consequently, I hold that since the matter has received adjudication at the level of the D.B. of this High Court in L.P.A. No.158 of 1970, therefore, this IInd Appeal is almost infructuous and even otherwise the judgment of the A.D.J. that the Civil Court had no jurisdiction in this matter is correct and hence this 2nd Appeal is dismissed.
A.A./F‑49/K Appeal dismissed.