2016 PLP 189 (YLRN)

S. 42

Suit for declaration

Evacuee property

Civil court, jurisdiction of

Scope

Contention of plaintiff was that he was owner in possession of suit property but Settlement department had treated the same as evacuee property

Suit was dismissed concurrently

Validity

Plaintiff had failed to prove that he was owner in possession of suit property

Findings of both the courts below were based on proper appraisal of evidence available on record

Once a property was declared as evacuee property the person claiming interest in that property had to apply to the Custodian of Evacuee Property for declaration in his favour

Civil court had no jurisdiction in such matter

Present suit was not maintainable in circumstances

No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by both the courts below

Revision was dismissed in circumstances. [Paras. 6, 7 and 8 of the judgment] 1990 SCMR 951; PLD 1969 Lah. 701; 1972 SCMR 576; PLD 1971 SC 779; 1988 CLC 123; PLD 1969 Kar. 412; NLR 1981 AC 332 and 1982 CLC 1977 rel. JUDGMENT QALANDAR ALI KHAN, J.

Haji Rustam, petitioner, has moved this revision petition against the judgment and decree of learned Additional District Judge-V, Abbottabad, dated 24.06.2008, whereby judgment and decree of learned Civil Judge-V, Abbottabad, dated 23.01.2003, was upheld and suit of the petitioner/plaintiff was dismissed.

2. The petitioner/plaintiff had lodged suit for declaration to the effect that he and proforma defendants Nos.5 to 52 were owners in possession of property Nos.669, 670, 680 and 949 situated in Town Committee Nawanshehr, Tehsil and District Abbottabad, and that the order of its transfer in favour of defendants Nos.1 and 2, namely, Abdul Sattar and Noor Hassan, was void and illegal and ineffective on his rights and rights of proforma defendants Nos.5 to

52. In addition to the main prayer of declaration, the petitioner/plaintiff also prayed for possession and perpetual injunction. In his plaint, the plaintiff averred that houses Nos. 669, 670, 680 and 949 situated in Town Committee, Nawanshehr, were originally in the ownership of Alif Khan etc, who had given the suit property on rent to non-Muslims who migrated to India on partition of the sub-continent and further that the suit property was burnt during Indo-Pak partition, leaving only the land underneath the houses; but the Settlement department treated the same as evacuee property and allotted it to Malik Jehangir Khan, respondent No.5/defendant No.5, who subsequently transferred the property in favour of respondents Nos.1 and 2/defendants Nos.1 and 2, who started construction thereon, which was illegal and unauthorized.

3. The suit was resisted by respondents/defendants Nos.1, 2 and 5, who raised several legal and factual objections, including the one with regard to the effect that plots Nos.10 and 11 were purchased by respondent/defendant No.2 from respondent/defendant No.5, who was auction purchaser of the said evacuee property which was not owned by any Muslim at the time of partition. The respondents/defendants also questioned jurisdiction of Civil Court in the matter on the ground that even if there was controversy with regard to status of the property, the same was to be raised before the Administrator/Custodian of the evacuee property who alone had jurisdiction in the matter. The respondents/defendants further claimed that respondent/defendant No.2 further gifted the property to respondent/defendant No.1 and others who were owners in possession of the said plots with which the plaintiff had no concern whatsoever.

4. The pleadings of the parties were reduced to as many as thirteen issues, and parties to the suit produced evidence in support of their respective cases, where after, the learned trial Court/Civil Judge-V, Abbottabad heard arguments of learned counsel for the parties and dismissed suit of the petitioner/plaintiff. Aggrieved of the judgment and decree of the learned trial Court, the petitioner preferred appeal, which too met the same fate, and was dismissed by the learned Appellate Court/Additional District Judge-V, Abbottabad vide the impugned order dated 24.06.2008; hence the instant revision petition.

5. Arguments of learned counsel for the parties heard, and record perused.

6. The learned trial Court/Civil Judge-V, Abbottabad, dismissed suit of the plaintiff/petitioner vide judgment and decree dated 23.01.2003, which was upheld by the learned Appellate Court/Additional District Judge-V, Abbottabad, vide impugned judgment dated 24.06.2008, primarily, on the twin grounds of lack of jurisdiction and lack of proof of ownership and possession of the suit property on the part of the petitioner/plaintiff. In his suit, the petitioner/plaintiff had claimed ownership of property bearing Nos.669, 670, 680 and 949, but he later on relinquished his claim with respect to property bearing Nos.680 and 949, thereby confining his claim to the extent of property bearing Nos.669 and

670. Although the petitioner/plaintiff had not mentioned the particular place where the suit property was situated and had only mentioned its location in the Town Committee, Nawanshehr, Tehsil and District Abbottabad; but record of the Municipal Committee cleared the ambiguity by showing the suit property situated in Lambi Cham. On the other hand, the record, particularly Transfer Orders Nos.205 and 206 dated 22.03.1980 show transfer of plots Nos.10 and 11, respectively, in favour of respondent No.5. The record would further show plots Nos.10 and 11 situated in Mohallah Shoaib Zai of Nawanshehr. In any case, the petitioner/plaintiff failed to prove on record that plots Nos.10 and 11 were in fact houses Nos.669 and 670, which were burnt during partition of the sub-continent and that he was owner in possession of the land underneath either through inheritance from the so-called original owners, namely, Alif Khan etc or through transfer from them. There was, as such, proper appreciation of evidence available on record both by the learned trial Court as well as by the learned Appellate Court, whereby it was concurrently held that both the plots Nos.10 and 11 were evacuee property having been properly transferred through Transfer Orders Nos.205 and 206 dated 22.03.1980 in favour of respondent No.5, and thus further transfer of the property also in order. The petitioner/plaintiff could not prove either his ownership in respect of plots Nos.10 and 11 or the fact that plots Nos.10 and 11, situated in different location, were in fact the land underneath houses Nos.669 and 670, which, according to the petitioner/plaintiff, were burnt during the days of partition of the sub -continent. Needless to say that in such a situation the verdict of Deputy Custodian, Peshawar dated 26.05.1960, would be of no help to the case of the petitioner/plaintiff, as the authority held that the land underneath houses Nos.669, 670, 680 and 949 was not declared or treated as evacuee property by the Custodian; whereas, in the instant case, it was the Deputy Settlement Commissioner, Hazara, Abbottabad, who issued the Transfer Orders in favour of the respondent, obviously, after treating the same as evacuee property. Therefore, the findings of both the Courts below, based on proper appraisal of evidence available on record, cannot be interfered with in the revisional jurisdiction of this Court.

7. The next moot question in the case was jurisdiction of the Civil Court, which was also dealt with distinctly by both the learned trial Court as well as the learned appellate Court, and it was vividly declared in unambiguous terms that once a property was declared as an evacuee property, the person claiming interest in that property had to apply to the Custodian authority for a declaration in his favour and that the civil Courts would lack jurisdiction in such a matter. It was further held that the petitioner/plaintiff for the first time challenged status of the property in question as evacuee property through his suit under discussion lodged on 29.07.1992, which was not maintainable in view of 1990 SCMR 951 (cited by the learned trial Court) and PLD 1969 Lahore 701 (Cited by the learned appellate Court in the impugned judgment). The conclusion with regard to jurisdiction of civil Court in the matter arrived at by both the learned trial and appellate Courts is further augmented by judgments in cases reported as 1972 SCMR 576, PLD 1971 SC 779 (b), 1988 CLC 123 {Lahore), PLD 1969 Karachi 412, NLR 1981 AC 332 (a), and 1982 CLC 1977{Lahore}.

8. In short, the petitioner/plaintiff was unable to show either non-reading or misreading of material on record by the learned Courts below, calling for interference by this Court in its revisional jurisdiction. The revision petition is accordingly dismissed with costs throughout. ZC/108/P Revision dismissed.