P L D 1954 Lahore 98 (PLP)

S. A. RAHMAN, J.‑The petitioners, Mst. Amir Begum, and Mst. Nazir Begum, are defendants in a suit brought by their brothers, Sheikhul Islam, Abu Abdullah and Muhammad Zubairullah, sons of Munshi Zahur Ullah deceased, for a declaration of their rights in the property of their deceased father and for an injunction restraining the defendants peti tioners from interfering with the plaintiffs' possession of lands allotted to them by the Rehabilitation Department in lieu of their father's property which had been abandoned in the Indian Dominion. Inter alia the plaintiffs wanted it to be declared that a certain mutation of inheritance sanctioned by a revenue officer, by which the defendants petitioners were declared to be co‑sharers in their father's property along with the plaintiffs, was null and void and of no effect. The suit was contested by the petitioners, among others, on the ground that the Civil Courts had no jurisdiction to try the suit. The trial Court has negatived this plea and the petitioners have moved this Court oil the revisional side. It seems necessary at the outset to summarize the main pleas of the plaintiffs in this suit. In the first paragraph of the plaint, the parties' relationship is described. They are all children of Munshi Zahur Ullah deceased who died after the Partition but before he could migrate to Pakistan. In the second and the third paragraphs it is mentioned that Munshi Zahur Ullah left a lot of landed property in India, on the basis of which the plaintiffs had put in claim forms before the revenue authorities in this country in order to obtain allotment of evacuee lands here. In consequence, certain lands situate in village Zakhira Grashkori Tehsil Okara District Montgomery, and village Burhanpur, Tehsil Lodhran, District Multan, had been allotted to the plaintiffs (presum ably on a temporary basis) and they were in possession thereof. In paragraph No. 4 it is averred that the parties to the suit followed custom in matters of inheritance and consequently married daughters were not entitled to any share in their father's property. Paragraph No. 5 recites that in the absence of the plaintiffs, the Naib Tahsildar, Okara, had sanctioned mutation No. 9 on the 1st of February 1952, in respect of the inheritance to the late Munshi Zahur Ullah and had accorded the sharai share in the deceased's property to the defendants. The plaintiffs appealed to the learned Additional Deputy Commissioner, Montgomery, but they were unsuccessful. That officer directed them to seek their remedy in the civil Courts. In paragraph No. 6 it is stated that the Shariat Act came into force in March 1948 whereas Munshi Zahur Ullah had died in November 1947 and, there fore, the Shariat Act had no application to the case, entailing the inference that mutation No. 9 was illegally sanctioned. In the remaining paragraphs it is alleged that the defendants were insistent on obtaining their sharai shares in the allotted lands mentioned above, although they were not entitled to any share in Munshi Zahur Ullah's property. The prayer clause finally winds up the plaint and asks for a declaratory decree to the effect that the parties followed agricultural custom, according to which the defendants were not entitled to any share in the lands left by their father or in the allotted lands situate in Zakhira Gashkori and Burhanpur villages as described in paragraph No. 3 and that mutation No. 9 sanctioned in their favour was illegal and null and void. It further prays for a permanent injunction restraining the defendants from ever taking possession of any part of these lands. The trial Court has answered the question of jurisdiction in affirmative mainly on the ground that section 16 of the Pakistan Rehabilitation Ordinance (XIX of 1948) was not attracted to the case as the mutation challenged was sanctioned by a revenue officer and not by a rehabilitation authority as such. Mr. Karam Ilahi Chohan on behalf of the appellants has assailad this finding as erroneous. Section 7 of the Pakistan Rehabilitation Ordinance (XIX of 1948) (hereinafter referred to as the Rehabilitation Ordi nance) empowers the Central Government to authorise a Rehabilitation Commissioner to pool such evacuee property as may be specified and to allot the same to persons resident in Pakistan, whether refugees or not, and upon the requisite order being made by the Government, it is declared by this section that the Rehabilitation Commissioner shall have all powers, not inconsistent with the provisions of the Ordinance, as may be necessary to enable him to prepare a scheme for pooling such property and allotting it as aforesaid. It is not denied by either party that such a scheme of pooling has been duly inaugurated by the Rehabilitation Commissioner (Lands) under the authority of an order passed by the Central Government. I have seen a copy of this scheme with Mr. Karam Ilahi Chohan Clause 23 of the scheme, authorises the Rehabilitation Commis sioner (Lands) to pass such orders and issue such instructions as may be found necessary in order to implement the scheme. Instructions issued under this provision are printed as Part II, with the scheme in question. Para. 46 of those instructions deals with cases of inheritance and the direction is given that they, should be decided according to 'Shariat Law." Para 67 lays down that cases relating to succession to deceased right‑ holders from the prescribed territory in India, would be decided by the revenue officer who will pass orders on the mutation of succession, in the form prescribed for the purpose and printed in Appendix VI to the Scheme. The impugned muta tion in this case is in that very prescribed form and it seems to be fairly clear that the mutation has been sanctioned by a revenue officer in pursuance of a decision by the rehabilitation authorities under the scheme and the instructions issued by the Rehabilitation Commissioner (Lands) appended thereto. It concerns inheritence to property abandoned to the prescribed territory in India. To challenge the validity of the mutation, therefore, would amount to assailing the orders of the rehabili tation authority on which it is based. In my opinion, the n mutation in question is immune from such attack by virtue of the provisions of section 16 of the Rehabilitation Ordinance. This section provides that no order passed by a rehabilitation authority under the Ordinance, shall be called in question in any Civil Court in any suit, appeal, execution application or other proceedings. This section is subject to the provisions of section 14 of the Pakistan (Protection of Evacuee Property) Ordinance, 1948, which has since beer. replaced by the Pakistan (Administration of Evacuee Property) Ordinance (XV of 1949) hereinafter described as the Evacuee Property Ordinance. That aspect of the matter is not material for our purpose in this case. It is further obvious that the sanctioned mutation in the present case is to form the basis of allotment of evacuee lands in what has come to be known as a Provisional‑permanent allotment Scheme, the completion of which will entail the termination of all temporary allotments. Any order passed by a Civil Court in respect of such a mutation, consequently, in so far as it seeks to restrain a party from seeking possession of evacuee lands, to be allotted under such a scheme, would also appear to fall within the mischief of subsection (1) of section 12 of the Evacuee Property Ordinance, which reads as follows :‑ "Property which has vested in, or of which possession has been taken by, the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any, officer of a Court or any other authority and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority. The words of this subsection are very wide and preclude a Civil Court from passing any order whether by way of an injunction or otherwise, in respect of evacuee property. The prayer with regard to an injunction to restrain the petitioners from taking possession of any part of the lands allotted to the plaintiffs, would at first sight appear to be inno cuous in character. Mr. Siraj‑ud‑din Ahmed explained that the object of the plaintiffs was to ask for an injunction restraning the defendants‑petitioners from getting any part of the alloted lands, so long as they were not armed with an order passed by a rehabilitation authority in their favour. In other words, the injunction was claimed against the‑ defendants on the assump tion that they were intending to occupy these lands, without any semblance of right, as mere trespassers, The intention behind section 12 of the Evacuee Property Ordinance appears to be to avoid interference by Civil Court and other authorities with the orders passed by the Custodian or by the rehabilita tion authorities in respect of evacuee lands. It is also true that any trespasser who occupies any evacuee property can be summarily. ejected by the Custodian or by the rehabilitation authorities, by virtue of powers vested in them by the Evacuee Property Ordinance and the Rehabilitation Ordinance, as amen ded from time to time. But apparently there is no provision in these Ordinances for dealing with intending trespassers who have not yet effected entry into evacuee property. In such a case, it is argued, the allottee who is in possession of the evacuee lands in question, should have the right to approach a Civil Court in order to restrain an intending trespasser from interference with his possession. Such an order, it is contended, would not have the tendency of interfering with the orders of the relevant authorities functioning under the two Ordinances but would, on the contrary, aid and assist them. The language of section 12 (1) of the Evacuee Property Ordinance, however is all embracing and uncompromising and, in my opinion, even I such an order is taken out of the purview of the Civil Courts' jurisdiction as it would clearly be an order in respect of evacuee property. Section 4 of that Ordinance declares that the provisions of the Ordinance would have effect notwith standing anything to the contrary, contained in any other law for the time being in force. The declaration asked for to the effect that the defendants have no share in the allotted lands in the plaintiffs' possession is either a redundancy or, if it is understood in the other sense that the defendants are not entitled to a share in those lands in lieu of their father's property, would be hit by section 12 of the Evacuee Property Ordinance and would, therefore, be taken out of the Civil Courts' jurisdiction. Mr. Karam Ilahi Chohan concedes that a suit for a declaration regarding the rights of the parties in their father's property, would be entertainable as such by a Civil Court, subject only to the objection that in the present case, the position was complicated by the fact that the property left by the deceased father of the parties was situate in a foreign country. What the effect of that circumstance may be on the declaratory suit, would be a question for determination in the case. Such a declaration, if granted, may or may not be acted upon by the rehabilitation authorities but that is an aspect of the matter, on which I need not speculate. The result of the above discussion is that in the present suit the plaintiffs‑respondents cannot canvass the validity of mutation No. 9. they cannot ask for a declaration that the defendants can have no share in the allotted lands and further an injunction cannot be granted to them to restrain the defendants‑petitioners from seeking possession of any evacuee lands which may be the subject of a temporary allot ment in the plaintiffs favour. Shorn of these excesses or redundancies the suit would appear to be cognizable by the Civil Court. In the light of the above observations, the plaint will have to be suitably amended so that no prayer is included which is beyond the jurisdiction of the Civil Court. The petition, therefore, partly succeeds but in substance fails and is hereby dismissed. In view of the circumstances, I make no order as to costs in this Court. A temporary injunc tion was issued by the trial Court against the defendants at the instance of the plaintiffs and that will be deemed to have been vacated. A. H. Order accordingly.