1980 PLP 1514 (CLC)

Against this decision of the trial Judge an appeal was made to the Division Bench who upheld the trial Judge on the preliminary point raised by the defendants with regard to the jurisdiction of the Court for entertainment of the suit but remanded the case with the direr points contended by the parties viz-a-viz whether the appellants constitute two separate families and not one family as allowed by the defendants. According to the latter, they formed one family and had wrongly obtained two separate allotments of the land in dispute against the provisions of the Multiple Allotment Act. In other words, it was alleged that the father being the head of the family, obtained an allotment in his own name as well as in the name of his son depending upon him. The learned Judges while remanding the case remarked that "this was, according to the allegation, a case of multiple allotment obtained by a person in his own name and in the name of his relative (son) depends upon him." On remand of the case following issues were framed by the leaned trial Judge :- (2) Whether the learned Multiple Allotment Judge exceeded the power conferred on him by the Multiple Allotment Act if so how and to what extent? O. P. P (3) Whether the plaintiffs constitute two separate families and if so what would be the effect on the suit? O. P. P. (4) Have the plaintiffs made any improvement in shape of construction of houses or other improvements in the land in question if so what would be its effect ? O.P.P While deciding issue No. 1, i.e. preliminary one, it is held by the learned Single Judge that the learned Multiple Allotment Judge travelled beyond his powers so far the declaration of destitution of the appellants is concerned and to that extent,. this finding has already been confirmed by a Division Bench of this Court though the learned Judge comprising that Bench remanded the case as earlier stated and now it has again come before this Bench. We are also of the same view and approve the finding given by the learned Judges that the Multiple Allotment Judge had acted beyond his powers to cancel the allotments of the plaintiffs on the ground of destitution because it was evidently not within the scope of they Multiple Allotments Act. And also, wee have already expressed our selves in this respect and further application may be made while taking up Issue No.

3. Before we take Issue No. 3, let us first decide Issue No.

4. No material to prove this issue could be brought on record by the plaintiffs though they made an effort to do so but failed for want of chance and in the circumstances it was not even necessary concerning the houses to do so when we find that the sites of the houses constructed over them do not appear to have been taken away from them. The point of compensation of the houses was duly decided by the learned Multiple Allotment Judge and so it was for the Rehabilitation authorities to assess the compensation of houses constructed by the plaintiffs in case they were to be ejected by those authorities. But the question of their ejectment would not arise in view of the decision given by the trial Court because the site of the houses remains with the plaintiffs. Thus, in the circumstances It was not proper for the learned trial Judge to hold that the plaintiffs were not entitled to compensation of the houses in question and as such setting aside the finding of the learned trial Judge in this behalf, the question of their right to compensation of the houses is left open for the issue being partly redundant here in this case. Thus, this issue is determined accordingly. Now we revert to a delicate point to be dealt with under Issue No.

3. The learned trial Judge while determining Issue No. 3, observed that it was not within the competence of the trial Court to reopen the issue as it was within the exclusive jurisdiction of the learned Multiple Allot ment Judge to decide whether the plaintiffs formed one family or two separate families for the purpose of allotment of the land in dispute. For the determination of the point in issue we must look into the provisions of Multiple Allotment Act relating to allotment of evacuee property. The term `allotment for the purpose, it is used in the Multiple Allotment Act, is contained in section 2 of the Act under the heading of definitions. Section 2 of the Act alongwith its clauses (a) and (c) reads as under: "

2. Definitions.-1n this Act unless there is anything repugnant in the subject or context the expression (a) `allotment' includes allotment obtained by a person in his or her own name or in the name of any relative dependant upon him or upon her, of evacuee property in Pakistan or in the Azad Jammu & Kashmir Territory ; .. (c) 'Multiple allotment means the allotment as defined in. clause (a) of this section to one person, of more than one piece of evacuee property and any person who obtains the allotment as defined in clause (a) of this section, or more than one such piece for his place of business obtains a multiple allotment: Provided that

(i) a person who obtains the allotment of one piece of evacuee property for his residence and another for his place of business shall be deemed not to have obtained a multiple allotment ; (ii) in the case of agricultural land a person who obtains allotment of such land over and above the scale prescribed or approved by the Government from time to time shall be deemed to have obtained a multiple allotment." . A critical reading of the section noted above shows that in the Multiple Allotment Act, the term `family' has intentionally not been used and it was done so with a purpose to be served. Literally speaking, a son may be a member of a family of his father but clause (a) of section 2 referred so above makes it clear that a son who is not dependant upon his father, his allotment if any, shall not be included in the allotment obtained by his father and as such he is excluded from being a member of the family of his father for the purpose of allotment of evacuee property. This aspect of the case touching the provision of Multiple Allotments Act its relation to the allotment of Shah Zaman plaintiff was totally ignored by the learned Multiple Allotment Judge, and so was done by the learned trial Judge Thus it can safely be held that the learned Multiple Allot ment Judge traversed beyond his jurisdiction in canceling the allotment of Shah Zaman, the plaintiff. By a simple declaration that the father and the son formed one family as they were found living together, the Multiple Allotment Judge cannot be deemed to have acted within the bounds of Multiple Allotments Act because a son not dependant upon his father was exempted from the operation of Multiple Allotment Act under clause (a) of section 2 of the said Act. Impliedly, it was also pointed out by the learned Judges while remand ing the case that the dependence of the son is one of the ingredients consti tuting a family but it was left out of consideration by the learned trial Judge. Furthermore, the appreciation of the evidence of the parties also does not appear to have been properly made. Kh. Ali Mohammad defendant is a Sub-Inspector of Police who moved the Enforcement Staff against the plaintiffs with a view to obtain the allotment of the land in dispute. He being a. person in position could procure only two witnesses, namely Abdul Karim and Qutab fin to depose in his favour. D. W. Qutab Din appears to us to 1-1a\e fought the case against the plaintiffs himself He was the person who brought a copy D. M. from Abbottabad to show that Miskeen appellant had also owned some land in Pakistan which was produced by We defendant in the Court, He was thus very much inter ested in the' case against the plaintiffs. Now there remains a solitary statement. of Abdul Karim which in the presence of the statements of a large number of plaintiffs-witnesses cannot be relied upon that Shah Zaman and Miskeen lived together and as such formed one family for the purpose of allotment. Out of the witnesses produced by the plaintiffs Shah Zaman is a Lambardar of the village and Maulvi Mohammad Saeed is Imam off the village who had unequivocally said that the plaintiffs live separately and for their being respectable men of the locality, there is no reason to disbelieve them in this behalf. Shah Zaman plaintiff is a grown-up man at the age of 50 years having a large number of daughters and sons out of whom two i.e. a son and a daughter are married ; and he is even the grand-father of a child. About a person at such a stage of his age having a large number of children, it cannot be apprehended that he is Mill. a joint-member of the family of his father and is also maintained by him. E He is himself found an earning hand for his subsistence as well as for the maintenance of his children and is in no way depending upon his father. Again, a perusal of the judgment of the learned Multiple Allotment Judge will show that he without any evidence on record held that Miskeen appellant obtained allotment in the name of his son. Such being the case, it cannot be said that the Multiple Allotment Judge was within his powers to cancel the allotment from the name of Shah Zaman appellant. His allotment was not beyond the scale prescribed for allotment of evacuee property in favour of a person according to spirit of law contained in the Multiple Allotment Act. Therefore, for the reasons above, we do not fall in with the trial judge to hold that section 3 (2) of the Multiple Allotments Act was a bar to the trial of the instant suit by a Court in case of Shah Zaman plaintiff-appellant However, we uphold the finding of the learned trial Judge with regard to the case of Miskeen appellant in relation to his allotment beyond a prescribed scale. In the result the appeal is accepted in case of Shah Zaman plaintiff and a declaratory decree' is also granted to him to the effect that the impugned order dated 24th March. 1971 by the learned Multiple Allot ment Judge cancelling his allotment is without jurisdiction and is of no It al effect and as such inoperative. Miskeen's appeal with regard to the cancelled part of his allotment stands dismissed. In view of the circum stances of the case, the parties are left to bear their own costs throughout. K. M A. Order accordingly.