2008 PLP 521 (SCMR)

MIAN HAMID FAROOQ, J.

Muhammad Nazir Khan, the petitioner/defendant No.3, through the present petition seeks leave to appeal against the judgment, dated 27-2-2007, whereby, the learned Single Judge of Lahore High Court, Lahore dismissed petitioner's revision petition (Civil Revision No.852 of 2002) and maintained the judgment and decree, dated 20-2-2002 passed by the learned Additional District Judge, Jhang.

2. Ahmad, respondent No.1/plaintiff, instituted the suit, against the petitioner and respondents Nos.2 and 3, seeking a decree for declaration inter alia pleading that the suit-land, described in the plaint, was barren; he made improvements over the suit-land; it was allotted to him under 15 years Lease Scheme; he fulfilled all the terms and conditions of the lease; he was entitled to its proprietary rights under Notification No.11-3215-79/3339/C-II, dated 15-5-1979 and that the action of the defendants including the disputed land in the schedule of land earmarked for rehabilitation of Jammu and Kashmir Refugees and resumption of land from him was illegal and without notice. The respondents resisted the suit through separate written statements. Respondents Nos.2 and 3 contended that the Civil Court had no jurisdiction to try the suit; the petitioner was in illegal occupation of the suit property and thus, has no right to claim its proprietary rights. The petitioner asserted in his written statement that the suit-land was reserved for Azad Jammu and Kashmir Refugees Scheme, it was lawfully allotted to him on 14-7-1987 under the said permanent scheme and the possession was handed over to him on 20-4-1987. The learned trial Court out of the divergent pleadings of the parties framed necessary issues, recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree, dated 27-11-1993. Respondent No.1 filed the appeal, which was allowed on 18-1-1996 and the matter was remanded to the learned trial Court for fresh decision. In the post-remand proceedings the learned trial Court decided Issues Nos.1, 2, 4 and 5 against the respondent No.1, however, Issue No.3 (regarding jurisdiction of Civil Court) was decided in his favour holding that the Civil Court, under the circumstances, had the jurisdiction to embark upon the suit and consequently dismissed the suit vide judgment and decree, dated 26-9-2000. Respondent No.1 challenged the said judgment and decree before the Appellate Court and the learned Additional District Judge, Jhang reversed the findings on Issues Nos.1, 2 4 and 5, set aside the judgment and decree of learned trial Court and proceeded to decree respondent No.1's suit, vide judgment and decree, dated 20-2-2002. Petitioner's revision petition (Civil Revision No.852 of 2002) was dismissed by the learned Single Judge of Lahore High Court, Lahore on 27-2-2007, hence the present petition.

3. We have heard the learned counsel and examined the available record. The principal contention raised by the learned counsel that the Civil Court had no jurisdiction to entertain respondent No.1's suit in view of clear bar contained in section 36 of the Colonization of Government Lands (Punjab) Act, 1912, has no substance on more than one counts. Firstly, the trial Court framed Issue No.3 on the said controversy and in the post-remand proceedings came to the conclusion that the Civil Court has the jurisdiction to adjudicate upon the suit and thus, decided the said issue against the petitioner, who did not challenge the said findings either through appeal or cross-objections, thus, the findings on Issue No.3 qua the petitioner has attained finality. Learned counsel on query raised by"' the Court had acknowledged that the petitioner did not file the appeal or cross-objections challenging the findings on Issue No.3; Secondly, we have examined the judgment, dated 20-2-2002 rendered by the learned Additional District Judge and find that the learned counsel for the petitioner although agitated some other contentions yet no plea regarding" lack of jurisdiction was raised at the time of arguing the appeal before the learned Additional District Judge; thus, the petitioner acquiesced over the matter and is now precluded and estopped from raising plea of jurisdiction at this belated stage, moreso when the said findings have attained finality; Thirdly, the learned Single Judge after properly adverting to the principles of law laid down by this Court in the case of Alam Sher through Legal heirs v. Muhammad Sharif and 2 others 1998 SCMR 468 and taking into consideration the facts of the instant case held that the action of respondents Nos.2 and 3 is without jurisdiction and void, therefore, respondent No.1 was within his 'rights to maintain the suit before the Civil Courts, the bar of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 does not apply and the Civil Court could competently proceed to adjudicate and entertain the suit; Lastly, this Court in a case reported as Hamid, Hussain v. Government of West Pakistan and others 1974 SCMR 356 while relying upon an earlier judgment of this Court in the case of Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 has held as under: "(b) Jurisdiction

Jurisdiction of Civil Courts even if barred and conferred upon special Tribunals, Civil Courts being Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide."

4. As regards the findings recorded by both the Courts on the rest of the crucial issues. Admittedly, respondent No.1 in the year 1968 was initially granted said land on lease for a period of three years and on its expiry he was again granted lease of the same land in the year 1971 for a period of fifteen years, which expired around the end of the year 1986. There is no evidence/document on record, which could show that before resuming the land from the name of respondent No.1 any notice was given to him or he was heard by the Collector at any point of time. Learned counsel could not point out any such document from the present record or even from his brief. Even if, there was no requirement for issuance of statutory or mandatory notice, we feel that respondent No.1 was at least entitled to a notice and personal hearing in view of the principle of natural justice. After the allotment of the land favouring the said respondent certain rights accrued in his favour and he could not be deprived of those rights without affording opportunity of hearing. It may be noted that learned counsel, representing the petitioner before the High Court admitted that there was nothing on record to show that the notice of resumption of land or termination of lease of respondent No.1 was ever served or acted upon in terms of the law by respondents Nos.2 and 3 before proceeding to allot the land in question on 14-7-1987 to the petitioner. To our mind the learned First Appellate Court as well as the High Court have rightly concluded that respondent No.1 before resumption of land was entitled for a notice and he has been condemned unheard.

5. In the above perspective, we have deeply examined the impugned judgment rendered by learned Single Judge of the Lahore High Court, Lahore and find that the said judgment does not suffer from any legal infirmity. The matter was decided not only on the basis of evidence available on record but also in consonance with the law on the subject. We are not persuaded to interfere in the concurrent findings arrived at by the learned Additional District Judge and the High Court.

6. In view of the above, the instant petition being devoid of any merit is hereby dismissed and leave to appeal refused. M.H./M-131/SC Petition dismissed.