NAZEER AHMAD Versus GHULAM MEHDI

1. USMAN ALI SHAH, J.‑‑ This appeal, by leave of the Court, is directed against the judgment of a learned single Judge of the Sind High Court, dated 27‑11‑1983, dismissing C . R . A . No.123 of 1980 of the appellants.

2. Briefly the facts are that Barkat Ali, the predecessor‑in- Interest of the appellants, filed a suit for declaration and injunction that he purchased 1440 square feet of Government land in Deh Jhol, Taluka Sinjhoro known as "Khairwah Bhadda Land", (i.e. land of abandoned canal) and after payment of Malikana, he constructed a house and three shops thereon and the property was entered in the record‑of‑rights of the village as No.ll/55. The Settlement Department made a survey of the property in suit which was declared as Evacuee property, left by Parshotamdass and, therefore, auctioned the same. This action of the Settlement Department was challenged before the Custodian of Evacuee Property, West Pakistan (Mr. Justice Changez), who by his order, dated 10‑6‑1963 declared the land of Khairwah Bhadda as Government land and not an Evacuee Property. This judgment is on the record which does not give the detail or description of the property therein. There is also a conflicting judgment of another Custodian of Evacuee Property Sind, Hyderabad, (Mr. Azizullah M. Memon) , who vide his order dated 29‑3‑1974 in appeal affirmed the order of the Additional Custodian of Evacuee Property, dated 2‑3‑1973 and rejected the plea of Barkat Ali that the suit property is not an Evacuee Property.

3. It is a matter of record that suit No.44 of 1967, for possession was filed against Barkat Ali and was decreed against him on 9‑9‑1968, but on appeal by Barkat Ali the suit of the respondents was dismissed on a technical ground. There is another Suit No.141 of 1970 decided against the said Barkat Ali on 14‑2‑1972.

4. The present Suit No.3 of 1977 instituted on 2‑4‑1977 is to the effect that the suit property is not an Evacuee Property but is part and parcel of Khairwah Bhadda land and the plaintiffs were owners in possession thereof. And a further declaration is also sought that the orders passed by the Custodian of Evacuee Property, Sind, and Deputy Custodian of Evacuee Property, Sind, are mala fide and without jurisdiction. The Courts after hearing the learned counsel held that they have no jurisdiction and rejected the plaint under Order VII Rule 11 of the C . P. C . The appeal and the revision petition preferred by the appellants were dismissed on 14‑4‑1980 and 27‑11‑1983.

5. Leave was granted in this case to consider whether the trial Court erred in rejecting the plaint under Order VII Rule 11 of the C.P.C.

6. We have heard the learned counsel for the parties. The learned counsel for the appellants has contended that the earlier order of the Custodian dated, 10‑6‑1963 declaring the status of the property not to be an evacuee property, could not be reviewed by the Custodian subsequently so as to declare the same property as evacuee property. It is not denied that the present Suit No.32/77, dated 2‑4‑1977 was filed after the repeal of the Evacuee Laws on 1‑7‑1974 and we do not feel it necessary to examine the technicality which the learned counsel has raised. As the law is very clear, under section 6 of the General Clauses Acts so far as the cases decided before the repeal came into force are concerned, the validity of those decisions is final and cannot be re‑opened and thus the defendant respondents cannot be deprived of their rights.

7. Section 41 of the Pakistan (Administration of Evacuee Property) Act 1957, explicitly bars the jurisdiction of the Civil Court in clear and unambiguous terms and as such no Civil Court can give declaration about the status of a person or property being evacuee or non‑evacuee.

8. The order of the Custodian dated, 10th June, 1963, on which reliance is placed for challenging the validity of the subsequent order of the Custodian, dated 29th March, 1974, has not been shown to relate to the disputed property, therefore, the very basis of the claim set up in the suit appears to us to be groundless. Additionally this appears to be a new case set up in the suit, in that the appellants did not rely upon the previous order of the Custodian passed in 1963, when they themselves moved the Custodian subsequently to obtain declaration with regard to the status of the property now in dispute. The reason appears to be obvious that the previous order did not relate to the property now the subject matter of dispute.

9. In the light of the foregoing, the claim of the appellants in the suit substantially was to call in question the subsequent order of the Custodian which did relate to the disputed property but was protected from challenge in the civil Court under the existing law by virtue of section 41 of the Act of 1957 and as stated above, the repeal of the said Act did not have the effect of removing the bar contained in the repealed provision which was preserved by section 6 of the General Clauses Act so far as the orders passed during the operation of the repealed law. The argument that with the repeal of the Act of 1957, the bar contained in section 41 on the jurisdiction of the civil Court was also wiped off is untenable. This being the position, upsetting the order of the Court below merely for the reason that the Court was not competent to look outside the averments made in the plaint would amount to merely pressing a technicality.

10. We thus, find no ground to interfere with the orders passed by the Courts below and dismiss the appeal with costs.

11. M Y . H . /N‑57/S Appeal dismissed.