P L D 1952 Baluchistan 8 (PLP)

This is a petition under the provisions of section 115 of the Civil Procedure Code read with section 33 of the British Baluchistan Courts Regulation for the revision of an order passed by the Additional District judge in a civil appeal. The main grounds on which the order of the lower Court has been assailed are that the learned Additional District judge exercised jurisdiction not vested in him by law since he adjudicated upon a question relating to property which is not claimed by the petitioners to be evacuee property. The brief facts of the case are that respondent No. 2 Seth Jetha Nand Tek Chand, who is now an evacuee, transferred certain Hundis which he had obtained from the petitioners to respondent No. 1 Syed Akbar Shah. On behalf of the petitioners it was argued that these Hundis should be treated as evacuee. property, while on behalf of respondent, Syed Akbar Shah it is claimed that since the Hundis were in the immediate physical possession of the evacuee and are movable property they fall under the definition mentioned at section 2 (3) (b) (i) of Regulation I of 1950. The facts of the case are relatively simple for it is admitted that the evacuee transferred these Hundis to Syed Akbar Shah on 12th September 1947 that is some months after the date laid down in section 2 (3) (b)‑namely the 28th of February 1947. I have carefully considered the order passed in this respect by the learned Additional District judge and there is no doubt in my mind that he has adjudicated upon a question of the status of the property in. suit. My attention has been drawn to my order of 20th March 1951 in Civil Miscellaneous Revision No. 5 of 1950. This order dealt with the provisions of section 34 of Regulation I of 1950 and that it would be necessary when a Civil Court was in doubt that reference should be made to the Custodian. In the light of the circumstances of that particular case, I came to the con clusion that the Civil Court concerned had no doubt as to the status of the property in suit. But in this case, from the very wording of the order, doubt appears to arise in the mind of the Additional District judge for he uses the words "I am inclined to think that the Hundis in this case are covered by the provisions of section 2 clause 3 (i) of the said Regulation." If, therefore, doubt existed in the mind of the Additional District Judge he was precluded from adjudicating upon the status of the property and he was, as required by section 34 of Regulation I, bound to refer the case to the Custodian for decision. I do not propose, in this order, to express any opinion about the status of the property, but there is a considerable element of doubt whether Hundis were in possession of an evacuee and which were transferred to a non‑evacuee after 28th February 1947 can be considered as a non‑evacuee property. Since, under the provisions of section 34 of Regulation I, no Civil Court has jurisdiction to adjudicate upon any question as to whether property is or is not evacuee property, the order of the learned Additional District judge in this case is ultra vires since he has exercised jurisdiction not vested in him by law. The provisions of section 115, Civil Procedure Code are accordingly attracted. In these circumstances I accept the revision petition and direct that the order of the Lower Court will be set aside and that, in accordance with the provisions of section 34 of Regulation I, a reference will be made to the Custodian to adjudicate upon the question whether or not the Hundis in question are evacuee property. Petitioner and counsel for the respondent present. Announced. K. M. A. Revision accepted.