2012 PLP 643 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

In the instant petition, leave to appeal has been sought against the impugned judgment dated 9-6-2009 passed by Lahore High Court, Multan Bench, whereby petitioner has been non-suited in view of the bar under section 22 read with section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 [hereinafter referred to as "the Act, 1958"].

2. Dispute between the parties relates to property No.48 entering into Khasra No.1875/2/1, Khewat No.143, Khatoni No.41, situated in Ward No.9, Muslim Tariq Road, Multan. Petitioner's claim is that he is the owner of the property as per the Will Deed dated 17th March, 1945 but the Settlement Department out of this property, had transferred one half in the names of respondents Nos.1 to 3 on 26th June, 1970. Although it was a Muslim property but fraudulently rights in the property owned by him had been transferred in the names of respondents and subsequently transfer of the same was made by the original allotees in favour of remaining respondents i.e. respondents Nos.2 to 3, which is contrary to law. The suit was instituted way back on 31st December, 1985, which remained pending before the Senior Civil Judge, Multan who dismissed the same on 22nd December, 1992. In appeal this order was reversed by the Additional District Judge, Multan on 12-2-1996. Subsequent thereto a Civil Revision was filed by the respondent which was dismissed for non-prosecution on 20th October, 1999. Request for restoration of the Civil Revision was declined on 28th October, 1999 as such the matter came up before this Court in Civil Petition No.2148-L of 1999 which was accepted and the case was remanded to the Additional District Judge/First Appellate Court to decide the appeal after getting report of Local Commissioner. On remand, the First Appellate Court dismissed the Appeal without deciding the objection petition of the petitioner. Thus again High Court was approached by filing Civil Revision No.73-D of 2008, which has been dismissed, as a consequence whereof suit filed by him has also been dismissed for want of jurisdiction.

3. It is to be noted that the High Court for the first time on its own had taken up the question of jurisdiction and concluded that in view of the bar under section 22 read with section 25 of the Act, 1958 a civil suit against the order passed by the Settlement Authority for transfer of the property was not competent.

4. Learned counsel for the petitioner has inter alia contended that objection was taken for the first time before the High Court and without affording him proper opportunity to substantiate that the Court had jurisdiction, as his case is not covered by the Act, 1958, which now has been repealed from 1st of July, 1975, he has not directly challenged the order of the authority except saying that it was Muslim property which was transferred on his name by means of Will Deed, executed as back as in the year 1945. Therefore, how one half of the property can be treated as evacuee property? He has further stated that in such like matters the Court should have referred the case to the trial Court for taking into consideration the evidence in order to determine the status of the property and in absence of evidence it is not possible to ascertain whether it is evacuee property or otherwise because according to his claim, Muslim property cannot be declared as evacuee property.

5. On the other hand, learned counsel for the respondents contended that as this property was evacuee property, therefore, order passed by the Settlement Authority had attained the finality. However, when confronted with the arguments put forwarded by the learned counsel for the petitioner and the material available on record, particularly report of the Commission, he and petitioner's counsel both agreed that impugned judgment be set aside and case be remanded to the High Court for disposal of the Revision Petition after providing opportunity of hearing to both the sides on the question of jurisdiction as well as on merits and if the Court comes the conclusion that in the instant case section 22 read with section 25 of the Act, 1958 is not an impediment in the way of the petitioner, the High Court is competent to decide the matter on merits taking into consideration the report of the Commission as well as evidence on record, if need send the matter back to the trial Court for recording additional evidence and then decide the case on merits. In view of the above, the impugned judgment is set aside. Petition is converted into appeal and remanded to the High Court. However, we restrain ourselves to touch the merits of the case, lest it should prejudice the case of either of the parties. M.W.A./M-13/SC Appeal allowed.