HAMID HUSAIN vs GOVERNMENT OF WEST PAKISTAN AND Other

1. MUHAMMAD GUL, J.-This appeal by special leave raises a question of law of general importance as to the limits of jurisdiction of the civil Courts to determine the validity of a transfer of land under the Displaced Persons (Land Settlement) Act, 1958 (Act XLVII of 1958).

2. Hamid Husain appellant herein who had his claim for rural land duly verified under the Registration of Claims (Displaced Persons) Act, 1956 (Act 11I of 1956), was provisionally allotted certain area of land in Deh Bozdar Kalan, Taluka Mirwah, District Khairpur, including survey No. 8, measuring 1.3 acres and survey No. 9, measuring 1 acre, under interim relief form No. 4. Later, the land was permanently settled in his favour. Throughout in the settlement proceedings, the Settlement Authorities treated survey Nos. 8 and 9 (hereinafter called the area in dispute) as agricultural land and settled it as such permanently in satisfaction of the appellant's claim. It appears however, that there were building with boundary wall over the area in dispute and is being utilized as school and, therefore, the appel--lant could not secure possession of area in dispute from the school authorities despite its permanent Settlement in his favour. Eventually, he gave notice under section 80, C. P. C. To the Provincial Government and the Education Department offering them two alternatives, namely, either to settle the rent or to deliver vacant possession of the area in dispute along with the structure. This was followed by Suit No. 32 of 1964 in the Court of Civil Judge First Class, Khairpur, to which besides the Provincial Govern--ment, the Inspector of Schools and the Headmaster, Hussain Bakhsh (respondent No. 4 herein) was also made a party defendant, on the allegation that it was at his instigation that the Education Authorities were evading either to settle the rent with the appellant or to deliver possession of the area in dispute to him, and were seeking cancellation of the area in dispute :p.m his name. The suit was contested by the defendants, mainly on the ground that the area in dispute had since 1941, been used as sikni and is being used for the purpose of school since 1949, and that its transfer as land to the appellant in satisfaction of his land claim by the Settlement Authorities, was without jurisdiction.

3. On the pleadings of the parties, a number of issues were settled by the learned Civil Judge, of which only the first issue is material for the purpose of this appeal, namely :-- "Whether survey numbers 8 and 9 of Deh Bozdar have been converted into s1kni and if so, what is its effect?"

4. "As regards the contentions of Mr. Muhammad Amir that these buildings were farm houses and not the residential buildings, I do not agree with him. I have seen the site in his presence and my inspection notes are Exh.

4. These buildings are pucea residential premises consisting of 6 and 8 rooms each between than one ordinarily finds even in towns. I am clearly that these are not farm houses. Mr. Muhammad Amir did not challenge any other finding of the lower Court before me and this shows that the finding of the lower Court that the appellant had never been put in possession of these plots was correct.

5. The position, therefore, is that these plots are sikni plots and not avail--able for transfer under the Rehabilitation Scheme, for the transfer of agricultural land to the appellant . . . . . . . . . .The alleged transfer in favour of the appellant was therefore illegal and inoperative. Hence the appellant cannot be put in possession."

6. On the above concurrent findings of fact, a Division Bench of the High Court dismissed in limine the second appeal by the appellant on the finding that the allotment and subsequent permanent settlement of the area in dispute in favour of the appellant as "land" in satisfaction of claim for rural agricultural land was "without jurisdiction".

7. Learned counsel for the appellant basing himself on paragraph 42 of the Rehabilitation Settlement Scheme argued that survey Nos. 8 and 9 were integral part of a larger area, which was admittedly agricultural land and permanently settled to the appellant in satisfaction of the claim, the buildings standing on the area in dispute should be deemed to be part of the entire agricultural land. The paragraph reads :- "42. Buildings and trees on the allotted land to go to the allottee.-When a piece of cultivable land is allotted to a certain claimant under the Rehabilitation Settlement Scheme, all trees and buildings standing on that land will go to the allottee concerned and will not be available for allotment to other persons."

8. The argument however overlooks the definition of land in subsection (3) of section 2 of 1958 Act, which for the material purpose reads :- "(3) Land.-`Land' means evacuee property consisting of land held for agricultural purposes or for purposes subservient to agriculture or for pasture including gardens, unserveyed laud and trees or buildings and other structures standing thereon and includes all rights of evacuees in such land, but does not include : . . . . . . . . . . . ."

9. The question therefore is whether the pucca structure over the area in dispute is being used for purposes "subservient to agriculture". The three Courts below have concurrently found in the negative. Therefore there cannot be the slightest doubt that the survey numbers 8 and 9 could not at any stage of the settlement proceedings be regarded as land to be available for allotment and settlement in satisfaction of claim for rural land under Act XLVII of 1958 or any Rehabilitation Scheme.

10. To get over this difficulty, as in the Courts below learned counsel for the appellant relied upon sections 22 and 25 of the Act and argued that even in spite of the finding of the Courts below that the area in dispute was sikni land and not land as defined in subsection (3) of section 2 of the Act, the civil Court because of the categorical provisions of sections 22 and 25 of the Act had no jurisdiction to pronounce upon the validity of the allotment and permanent settlement of the land made by the Settlement Authorities in satisfaction of verified land claim. To this argument, this Court's judgment In Muhammad Jamail Asghar v. Improvement Trust (PLD 1965 3 C 698 1404) is a complete answer, In that case, the appellant in this Court was transferee of a bungalow under Act XXVIII of 1958, and a P. T. O. Was issued in his favour. The Rawal--pindi Improvement Trust who was the respondent in the, appeal claimed that 6 kanals and 14 marlas out of the land included in the bungalow had been acquired by the Trust in 1954-55. This obliged the appellant to tile a suit for a declaration that the alleged acquisition of 6 kanals 14 marlas was illegal and void, and for restraining the Trust from interfering with the appellant's possession of the bungalow in that case.

11. On the 16th July 1960, the Deputy Settlement Commissioner made an order amending the order transferring the bungalow in favour of the appellant in that case so as to exclude the area of 6 kanals and 14 marlas from the property transferred to the appellant in that case. On the basis of this order a plea of lack of jurisdiction was taken. It was held in that case that a civil Court of plenary jurisdiction under section 9 of the C. P. C. Can make an inquiry as to the existence or otherwise of facts which gave exclusive jurisdiction to a tribunal of special jurisdiction. Such tribunal of special jurisdiction has no jurisdic--petition to determine any facts on the basis of which it will have the power to assume jurisdiction and make order falling within its jurisdiction. It was further observed in that case that even if a Court or tribunal of special jurisdiction is empowered to determine facts on the proof of which it has passed an order, even that will be open to scrutiny of Courts of general jurisdiction, and consequently :--- "With respect to the nature of the property . . . . . . The Settlement Authorities have no jurisdiction to record a binding determination."

12. It is a well-established principle that even where the jurisdiction of civil barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts 6 of such forums to see whether their acts are in accordance with law or are illegal or even mala fide.

13. For the foregoing reasons, there is no merit in this appeal which is hereby dismissed with costs,