Syed ALI RAZA and 4 anothers vs AURANGZEB KHAN and 5 others

' This revision-petition by Syed All Raza and others arises in the following circumstances:- ' The suit land measuring 17 kanals 15 marlas comprised in various khasra numbers, as mentioned in the heading of the plaint, originally belonged to one Natho Ram who by means of Mutation No.442 attested on 9-11-1944 mortgaged the same with Taza Gul, predecessorin-interest of respondents Aurangzeb Khan etc. Withthe migration of the non-Muslims the land in suit was treated as evacuee land and taken control of by the Central Government under the supervision of Settlement Organisation. Later on this land was transferred in favour of the petitioners by the Settlement Department subject to mortgage charge vide sale-deed Ex.P.W. 2/1 on the file. The present petitioners under some misapprehension moved an application before the Collector Kohat for redemption of the suit land on 2-9-1971. Accordingly the Collector passed an order of redemption on 9-1-1973 in favour of the present petitioners. The present respondents filed an appeal against the order of Collector dated 9-1-1973 before the Addl: Commissioner, Peshawar, Camp Kohat, who accepted the same on 7-7-1973 observing that since it is noticed that the question of evacuee property was involved in the case, the application should have been made to the Settlement Authorities and it was rightly pointed out that the proper forum for such application was the Settlement Authorities. Accordingly the present petitioners moved an application on 15-7- 1973 to the Settlement Authorities and the learned Deputy Settlement Commissioner (then A.C.

Hangu) accepted the application on 18-12-1976 and accordingly issued directions to the Settlement Authority through a letter, Ex. DW1/1 on file. No other order was passed by the A.C. Hangu regarding redemption of the land in favour of the petitioners and the other party did not file any appeal or revision against the said order. The respondents herein filed a suit No. 194/1 on 14-5-1977 in the Court of Senior Civil Judge Kohat alleging that the suit property belonged to the Central Government and was mortgaged with them and they were in its possession as owners, but the defendants, now the petitioners, colluded with each other and the A.C. Hangu passed an order of redemption with regard to the suit property under Act 19 of 1964 in favour of defendants 1 to 5, now respondents, in contravention of the orders of Additional Commissioner, Peshawar as issued by him on the appeal of the plaintiffs, now the petitioners. This suit was contested by the present petitioners and ultimately the suit of the plaintiffs was dismissed by the learned Senior Civil Judge Kohat, vide judgment and decree, dated 22-12-1979 declaring that the suit property stood redeemed in favour of defendants 1 to 5, now the petitioners, and the said amount may be received by the plaintiffs, now the respondents, as and when they wanted to do so. Dissatisfied with this judgment and decree Aurangzeb Khan and others filed an appeal in the Court of Additional District Judge, Kohat, which was accepted and the judgment and decree of the learned Senior Civil Judge, Kohat, were set aside and instead a declaratory decree and perpetual injunction were granted in favour of the present respondents vide judgment and decree dated 24-7-1980. Hence the present revision.

2. I have heard the learned counsel for the parties at length and have also gone through the material on record. Keeping in view the above facts of the case, I am of the view that the order of A.C. Hangu dated 18-12-1976 had attained finality u/s 22 of the Displaced Persons Land Settlement Act. Under section 25 of the said Act the jurisdiction of Civil Courts is specifically barred. Section 2 of Displaced Persons Land Settlement (Repealed) Act XIV of 1975 is the only section which deals with the manner of pending cases. This specific section gets support from section 10 of the General Clauses Act.

3. Now I will refer to the impugned Judgment of the learned Additional District Judge dated 24-7- 1980. In this judgment he has discussed only issues 2 and 12. The learned Addl. District Judge has also remarked in the impugned judgment that he will not agree with the positive conclusion given by the learned trial Judge under issues 8, 10 and 11. But simultaneously he says that because the present petitioners had not challenged the order of A.C. Hangu by way of appeal or cross- objections, therefore, he was helpless to set aside the findings of the lower Court on issues 8, 10 and

11. Let us see the legal aspect of the case. On the point whether without filing an appeal or cross- objections the judgment and decree of the learned trial Court could be supported by the present petitioners or not, the authority reported in Robert Cotton Association Limited v. Firm Inayatullah & Co., Gujranwala PLD 1959 (WP) Lah. 178 can be cited with advantage wherein their Lordships have observed as under:- "(b) Civil Procedure Code (V of 1908), 0. XLI, R.22--Respondent may support decree in his favour on any ground decided against him in Court below without filing any appeal or cross-objections.

' The respondent is within his rights to support the decree granted in his favour on any of the grounds decided against him in the Court below, without filing any appeal or cross-objections."

' Same is the view adopted by their Lordships in an authority reported as Sargodha Central Co- Operative Bank Ltd. And another v. New Hampshire Insurance Co. (PLD 1982 Karachi 627) with the following observations: "(d) Civil Procedure Code (V of 1908), 0. XLI, R. 22-Appeal--Respondent, held, has right to support before Court of appeal any decree granted in his favour even on any of grounds decided against him by trial Court without filing any appeal or cross-objection."

' There is also a recent authority of the Peshawar High Court reported in Collector Land. Acquisition Tarbela Dam and 2 others v. Abdur Rauf and 42 others 1987 CLC 225 wherein the following observations have been made:-- "(d) Civil Procedure Code (V of 1908), S. 96 & 0. XLI, R.23--Demarcation conducted on direction of Court by revenue functionary--Such demarcation, held, could not be brushed aside in absence of evidence to the contrary, on mere plea of beneficiary body that functionary demarcating same had measured affected area and not acquired area--Though no cross-objections have been filed by the body yet as High Court was remanding case because of lack of proper evidence for determination of market value of land, issue on demarcation was also upset by High Court in interest of justice."

' The above authorities with great respect are clear on the point that the present petitioners could support the judgment and decree of the A learned trial Judge without filing an appeal or cross- objections. The learned Additional District Judge as such, could set aside the findings on issues 8, 10 and 11 even if there was no appeal or cross-objections by the concerned party. As mentioned above, section 25 of the Displaced Persons Land Settlement Act deals with the jurisdiction of the Civil Courts and lays down that no civil or revenue Court will have jurisdiction in such like cases, therefore, I am of the view that the learned Additional District Judge was not legally correct in granting the. Impugned decree in favour of the respondents. On the other hand the order of A.C.

Hangu dated 18-12-1976 has attained finality u/s 22 of the Settlement Laws with the result that I have to accept this revision-petition and set aside the judgment and decree of the learned Additional District Judge and restore the judgment and decree of the learned Senior Civil Judge.

Keeping in view complicated nature of the case, I would leave the parties to bear their own costs.