1995 PLP 1406 (CLC)

On 26‑7‑1966 the present appellants filed a suit for declaration of ownership of House No. 313/B‑IV situate in Ghas Mandi Montgomery (now Sahiwal city) and for cancellation of order, dated 13‑12‑1960 passed by the Deputy Settlement Commissioner whereby the house was transferred to the respondents under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, as evacuee property. The appellants also prayed for possession as consequential relief. The suit was resisted which gave rise to the following three issues:‑‑ (1) Whether this Court is competent to try this suit? (2) Whether the suit is maintainable in its present form? (3) Whether this suit is brought within time? The parties led evidence to the issues and vide its judgment, dated 25‑3‑1970, the trial Court returned the plaint to the appellants for being presented to the competent forum. This was done under Order VII, rule 10, C.P.C., after finding under issue No.1 that the Civil Court lacked the jurisdiction to try the suit. Under issue No.2, the trial Court held that the suit was maintainable in its present form while under issue No.3 the suit was held to be beyond time.

2. The appellants filed an appeal which was found without merit and was, therefore, dismissed on 8‑7‑1970 by Additional District Judge, Sahiwal. The appellate Court mainly concerned itself with issue No.1 and not only affirmed the finding that the civil Court had no jurisdiction but went further and relying on ~ section 3‑A of Pakistan (Administration of Evacuee Property) Act, 1957, held that even a Custodian could not give a declaration that the property was not evacuee. In other words the order of return of plaint was substituted with the rejection/dismissal of suit.

3. In support of the appeal, learned counsel has drawn my attention to Exh‑P.3, Jamabandi for the year 1934‑35 which shows Allah Ditta father of the present appellants as the owner of the land over which the house stands constructed. He also referred to Exh.‑P.4 which is copy of Jamabandi for the year 1942‑43 and Exh‑P.5 which is inheritance mutation in favour of present appellants entered after the death of father of the appellants. From these documents the learned counsel built the argument that the property being Muslim could not have been transferred under the settlement law to the respondents by the Deputy Settlement Commissioner on 13‑12‑1960 vide Exh p.l. It was as such claimed that the impugned order Exh‑P.1 was void because under the law the Deputy Settlement Commissioner could only transfer evacuee property and not a Muslim property. The finding of the trial Court under issue No.3 (limitation) has also been challenged on the ground that these are based on disregard of the evidence of P.W.

1. P.W. 1 is one of the plaintiffs who deposed that at the time of Partition all the plaintiffs were minors and were residing in the district of then Lyallpur‑and that as soon as they learnt of the order of the Deputy Settlement Commissioner they filed a revision which was dismissed by Additional Settlement Commissioner on 29‑7‑1965 (Vide Exh.P.6) and thereafter the appellants did not lose any time in filing the present suit.

4. Learned counsel appearing for the respondents has of course supported the two judgments and has prayed for maintaining the dismissal of the suit on the grounds already stated by the two Courts.

5. The extent of the powers of the civil Court in such matters has been determined by the Supreme Court of Pakistan in the well‑known case of Mr. Muhammad Jamil Asghar versus Improvement Trust Rawalpindi (PLD 1965 SC 698). It has been laid down that the special judicial tribunals (such as Deputy Settlement Commissioner/Additional Settlement Commissioner) are not Judges of facts which are foundation of their jurisdiction and that the civil Court can always examine whether the jurisdiction of the special tribunal has been correctly assumed. Applying the above test to the facts of the present case the conclusion is irresistible at the assumption by the Deputy Settlement Commissioner that the suit property was evacuee is wrong and, therefore, the order, dated 13‑12‑1960 transferring the property to the respondents is also void. It is appropriate to pause here and state that there is no rebuttal to the evidence of ownership as furnished by the documents Exhs.P3, P.4 and P.5. All that has been shown is that at the time of Partition some non‑Muslim were occupying the property as tenants under Allah Ditta and that after the evacuees left for India the property was allotted to the respondents herein in 1950 and as stated was transferred to them under the settlement law in 1960. It may also be noticed at this juncture that there is no adjudication at all by the Custodian or any of his subordinates regarding nature of the property being evacuee. This is important since the learned appellate Court has invoked the provision of section 3‑A of the Pakistan (Administration of Evacuee Property) Act, 1957, to non suit the appellants. In PLD 1964 SC 865 it has been held that the determination of nature of property is a judicial question and has to be determined after application of full procedure, giving full opportunity to the parties to lead evidence and to argue their case. Admittedly no such determination took place either on the Custodian side or on the settlement side. In these circumstances, it is wrong to say that the property was "treated" as evacuee. 'treatment of necessity involves concious determination of the nature of property, Further, the determination of the nature of property is not the function of the settlement officers but falls within the purview of the Custodian and his subordinates. In the absence of any conscious application of mind by the Custodian, mere transfer of property by the Deputy Settlement Commissioner in 1960 is not enough to oust the jurisdiction of the civil Court. The findings of both the Courts below under issue No.1 are, therefore, reversed and it is held that the civil Court has the jurisdiction to grant the declaration and to decide the suit. In so far as the question of limitation is concerned the learned trial Court has not proceeded on correct assumption. It has totally disregarded the statement of P.W. 1 which has to be believed as no serious challenge has been thrown to the testimony of this witness. The suit brought in 1966 to call in question the order of Deputy Settlement Commissioner, dated 13‑12‑1960, is held to be within time. The finding of the trial Court under issue No.3 is reversed and it is held that the suit is within time.

6. Since there is ample evidence of parties to give finding on merits and about 30 years have passed since filing of suit, I do not find it properly to remand the case. I would, therefore, allow this appeal, set aside the impugned decree and acting under Order 41, Rule 33, C.P.C., grant a decree to the plaintiff/appellant, in the terms prayed for in the plaint. The parties are left to bear their own costs in this Court as well as in Courts below. AA/A‑811/L Appeal accepted.