P L D 1978 Karachi 464 (PLP)

right in the land they should have raised the objections at the appropriate time.

2. Revision filed against this order was dismissed In default of the appearance of the petitioners.

3. The petitioners thereafter on 5‑7‑1971 filed a suit in the Court of Civil Judge, First Class, Khairpur for declaration that the petitioners are owners of the said land and for a permanent injunction restraining the, respondents from interfering with the petitioners' p3sseseion. On 21‑7‑1975 the Sind Public Property (Removal of Encroachments) Ordinance, 1975 was promulgated following which an application was made by the defendants in the suit for rejection of the plaint under Order V1I, rule 11, C. P. C. This application was, however, not pursued until the said Ordinance was replaced by the Sind Public Property (Removal of Encroachments) Act, 1975 on the ground that the suit abated under its section I l and under its section 13 the Tribunal constituted thereunder had the exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property. This application was granted by the learned Civil Judge and his order was maintained in appeal by the learned District fudge. Khairpur.

4. Mr. Mohammed Ali Sayeed, the learned counsel for the petitioners submitted that though his first prayer in the Petition 1i for a declaration that the notification dated 7‑1‑1960 be held to be illegal and of no effect he will presently not press the same and the petitioners will be satisfied If their alternative prayer that the Petition be treated as a Revision under the Code )f Civil Procedure against the order of the District Judge, Khairpur referred to above and the same is disposed of on merits. Mr. Abdui Hafia Lakho, the learned Additional Advocate‑General did not appear to have any objec tion to the consideration of the alternative prayer for both the learned counsel have addressed us at length as to whether or not the Civil Court's jurisdiction is barred under the Sind Public Property (Removal of Encroachments) Act, 1975.

5. The Sind Public Property (Removal of Encroachments) Ordi. nance. 1975 was promulgated on 20‑1‑1975. It was followed by the Sind Public Property (Removal of Encroachments) Act. 1975 which was enacted on 8th April. 1975. The Ordinance and the Act cover the same field except that the Act in some matters went further than the Ordinance. The common preamble stated that it was expedient to provide measures for removal of encroachment from public property and for matters ancillary thereto. The identical section 3 provided for removal of encroachment from public property and under its Explanation‑a person holding over after the expiry of lease or licence was deemed to be responsible fpr encrosebment. The section 5 of both the enactments provided for eviction of person who failed to vacate public property after ‑ requisite notice. Under section 11 of the Ordinance the jurisdiction of the civil Courts was barred in relation to anything done or intended to be done under the Ordinance but under its proviso, civil Courts were at liberty to adjudicate upon the dispute that the property is not public property but without any power to issue injunction in such a suit. Section 11 of the Act, however, went much further for it reads as follows :‑ "

11. Bar oJJurlsdlction and abatement of suits.‑(1) No civil Court shall have jurisdiction to entertain any proceedings, grant any injunction of mate an v order in relation to a dispute that any property is not a public property, or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act, or anything done or intended to be done under this Act. (2) All suits, appeals and applications relating to, encroachment and dispute that any property is not a public property or, that any lease or licence in respect of such property has not been determined, for the purpose of this Act, shall abate on coming into force of this Act t Provided that a party to such suit, appeal or application may within thirty days of the coming into force of this Act, file a suit before a Tribunal in case of a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined."

6. Section 12 provided for establishment of a Tribunal and section 13 gives the Tribunal exclusive jurisdiction in these terms t‑ "

13. Exclusive Jtirisdlciton.‑A Tribunal atiall have exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined, for the purpose of this Act"

7. Mr. Mohammad Ali Sayeed, the learned counsel for the petitioners rightly pointed out by reference to numerous decisions of our superior Courts that an ouster clause should be very strictly construed and should not be given effect to more tha a absolutely necessary and went on to argue that sections 11 and 13 of the Act must be con,trued in accordance with these well‑established rules of interpretation. The learned counsel referred to the Ordinance as well sa the Act and contended that Its object was removal of encroachment together with structures, if any, raised on public property and the eviction of a person who refuses or fails to vacate the public property or to remove the structure raised thereon after requisite notice and if any dispute arises in the course of such proceedings, namely, removal of encroach. ment or eviction from public property, the exclusive jurisdiction is that of the Tribunal to determine such a dispute including the question whether or not the property in dispute is public property. The argument was that if the dispute did not arise out of a contemplated proceeding for removal of encroachment or eviction from public property under the Act there was no bar to the civil Courts adjudicating a dispute whether or not a particular property vested in the Government or a private individual. We are in agreement with the learned counsel in his analysis of the Ordinance as well u the Act. It is a well‑settled rule that the ouster of jurisdiction of a civ' Court in respect of a civil suit is not to be readily inferred and unless tba jurisdiction has been either expressly or impliedly, taken away, it will contin to vest in the civil Court. Subsection (1) of section 11 of the Act bars t jiWWicxion of civil Coturta from making any order in relation to a dIsD that any property is not a public property but the Important words that follow thereafter are‑ "for the purpose of this Act or anything done or intended to be done under this Act," which would go to show that the bar was not an all purpose bar but only in relation to purpose of the Act or anything done or Intended to be don thereunder. It is also significant that in subsection (2) or section 11 of the Act which provides for abatement of all suits, appeals, relating to encroach ment and dispute that any property is not a public property is also followed by the limiting words "for the purpose of this Act". It will be noticed that under the Ordinance the bar to the civil Courts' jurisdiction did not extend to adjudication by the civil Courts upon the dispute that property is not public property and to my mind subsection (2) of section 11 was intended to abate such suits allowed by the Ordinance following the proceedings for removal of encroachment or eviction under the Ordinance. Again, under section 13 of the Act the Tribunal has been given exclusive jurisdiction adjudicate upon a dispute that any property is not a public property "for the purpose of the Act" In other words the exclusive jurisdiction of th p Tribunal to determine this question would be when such a question arise in the proceedings contemplated by the Act and not independently of it. The bar to the jurisdiction of the Courts even if we were to assume that i was broadly worded must in its application be limited to the object in view before the Legislature and the subject‑matter of the enactment. Our conclu sion. therefore, is that the petitioners' suit was not barred under sections 11 C and 13 of the said Act for the question whether or not the subject land was public property arose not in relation to the Act or any proceedings thereunder but Independently of it. The petitioners' plaint was, therefore, wrongly rejected under Order VII, rule 11, C. P. C.

8. We, therefore, treat this Petition as a Revision against the order dated 12‑12‑1975 made by the District Judge, Khairpur .and set it aside with the result that the petitioners' suit will proceed on merits. Petition accepted.