1988 PLP 123 (CLC)

Material facts necessary for the decision of this second appeal may be stated. 2 kanals 14 marlas of land, present Khasra No.3078 of which previous number was 1945 situate at Mauza Kahuta belonged to Muslim owners, occupancy rights wherein were held by one Lekhraj non‑Muslim. On the migration of non‑Muslim occupancy tenant, rights held by him in Khasra No.3078 were treated as evacuee property, and, were later allotted and confirmed to Haji Imam Din, father of Muhammad Amin, Muhammad Yameen, defendants Nos.2 and 3 in the suit, on 6‑7‑1962, vide copy of RLII Ex.D‑

2. Muhammad Sadiq plaintiff claimed that he was owner in possession of the aforesaid piece of land and that the non‑Muslim occupancy tenant had, without sufficient cause, ceased to cultivate his tenancy and to arrange for payment of rent thereof. Consequently his right of occupancy stood extinguished in 1940 and the ownership rights in the land vested in him free from the encumbrance of the occupancy tenancy. It was further claimed that settlement of land on defendants Nos.l and 2 was illegal and without authority, and that they had no right to lay claim to this property. On the basis of these averments, he brought a suit for declaration of his title to the land and perpetual injunction restraining the defendants Nos.2 and 3 from causing interference with his possession over the land in suit and claiming share of produce from him. Alongwith the allottees, Pakistan was also impleaded as defendant No.l in the suit. Suit was instituted on 15‑5‑1965, in the Court of Administrative Civil Judge, Rawalpindi. Defendants Nos.2 and 3 resisted the suit and put up a joint defence. It was alleged that after migration of non‑Muslim occupancy tenant, his rights vested in Custodian of Evacuee Property and were rightly settled upon them. Allegations in regard to abandonment and extinguishment of the tenancy rights were also traversed. In para 10 of the written statement, it was alleged that Sections 16, 22 and 41 of Pakistan (Administration of Evacuee Property) Act, 1957, Sections 13, 18 of Pakistan Rehabilitation Act 1956 and Sections 22, 25 of Displaced Persons (Land Settlement) Act 1958 barred the jurisdiction of the Civil Court to entertain the suit. It was further alleged that the Custodian of Evacuee Property alone had jurisdiction in the matter. On 15‑10‑1965; learned trial Court framed following issues for determination of the suit:‑ (1) Whether the occupancy rights of the non‑Muslim in the suit land had extinguished in the year 1940? (2) If issue No.l is found in the affirmative, what is the effect thereof on the rights of defendants Nos.2 and 3 in the suit land? (3) Whether the Civil Court has jurisdiction to entertain the present suit? (4) Relief. At the trial, plaintiff, apart from his own testimony, was supported by Sawar Khan P.W.1. In addition to the oral evidence, reliance was placed by the plaintiff on copies of Jamabandi for 1901‑02 Ex . P .1, 1945‑46 Ex.P.2, 1950‑51 EX.P.3, 1962‑63 Ex.P.4. As against this evidence defence felt contented with sole statement of Muhammad Amin defendant and copy of Parcha Khatuni EX.D.1, copy of Register RLII‑Ex. D.2 and Jamabandi for the year 1956‑57 Ex.D.3. On 15‑4‑1966, plaintiff's suit was dismissed by the original Court. It was held that occupancy rights were neither abandoned nor extinguished, and that those were competently transferred to defendants Nos.2 and

3. Possession of the plaintiff over the land in suit was held to be in the capacity of a tenant. Issue No.l was therefore not held proved. No separate finding was however recorded on Issue No.2 by the Court. In regard to Issue No.3, which touched on the jurisdiction of the Civil Court, the learned Civil Judge observed:‑ "The main question for determination in this case is, whether the occupancy rights of the non‑Muslim in the suit land had extinguished in the year 1940 or not, and this Court has definitely got the jurisdiction to determine the same. Issue is decided accordingly." On appeal (Civil Appeal No.60 of 1966) decision of the original Court in regard to Issue No.2 was affirmed. But in regard to its jurisdiction over the subject‑matter of dispute, learned Additional District Judge, in para 3 of his judgment dated 15‑12‑1966, had this to say:‑ "In appeal before me, the learned counsel for respondents besides supporting the decision of the lower Court on merits, has challenged the finding about the jurisdiction of the Court also. It is contended that the matter was not within the jurisdiction of the Civil Court as it amounted to giving a decision, whether certain evacuee had or had no interest in a particular land. There is much force in this argument. Civil Court cannot, in any circumstances, give a finding regarding any particular property about its status of being evacuee property. Whenever such a question arises the matter has to be referred to the Custodian for decision. I am, therefore, of the view that the Civil Court was not competent to decide the question in dispute." Despite this express finding about want of jurisdiction in the Civil Court, learned Additional District Judge proceeded to examine the case on merits, and found that the occupancy tenancy held by non Muslim was not extinguished. Aggrieved of the decisions, plaintiff preferred second appeal to this Court. It was admitted to hearing on 21‑7‑1967 to examine, whether Section 41 of the Pakistan (Administration of Evacuee Property) Act 1957 barred the jurisdiction of the Civil Court and whether the reference to the Custodian on the question of evacuee rights in the land in suit was necessary. Mr. Khalid Iqbal Qazi, learned counsel for unsuccessful plaintiff, refers to Section 41 of Pakistan (Administration of Evacuee Property) Act 1957, and argues that on its plain reading reference to the Custodian of Evacuee Property to determine the extent or nature of evacuee interest in the property in suit was necessary, and that in the absence of a reference and decision by the Custodian, Civil Court was not competent to record a binding determination on the rights of the parties in the disputed land. Urged that decision of the Courts below on merits holding that extinguishment of occupancy rights was not` established, therefore, was incorrect and cannot be maintained. He also referred to the evidence placed on record to contend that it sufficiently proves that non‑Muslim occupancy tenant had, much before, he became evacuee, had served his connection with the land. He neither cultivated it nor made any arrangement for the payment of rent to the landlords. As against these arguments. Mr. Bashir Ahmad Ansari, Advocate, learned counsel for respondents Nos.2 and 3 submitted that the plaintiff himself having invoked the jurisdiction of the Civil Court and invited its decision was disentitled by conduct to urge this point in appeal. Also urged that after decision on merits by the two Courts and repeal of Evacuee Laws, in a suit for declaration of title, which relief is purely discretionary, plaintiff cannot be permitted to rely on this objection at this late stage of the proceedings to have the entire controversy re‑opened for his own benefit. Learned counsel submitted that it was open to the plaintiff to seek declaration of his rights under Section 22 of Act XII of 1957 within the period of limitation prescribed by law and having not done so, he cannot by a reference to the Custodian under Section 41 of Act XII of 1957 have the benefit of agitating the same issue. I have heard the learned counsel for the parties at some length and have also examined the records carefully. Khasra 3078, of which previous number was 1945, belonged to several Muslim owners and was held by non‑Muslim occupancy tenant. It is not recorded in Exs.P.l to P.3 and Ex.D.3. Copy of Special Jamabandi prepared at the time of Partition, however, was not brought on record. From the copies of revenue papers, it is clear that much after Partition and even to the date of allotment of land to Haji Imam Din, revenue papers recorded non‑Muslim as occupancy tenant of the Khasra in dispute, whereas, ownership rights were shown vested in the Muslim owners. Muhammad Sadiq, who was one of the co‑owners, claimed that entries in the revenue papers indicating non‑Muslim as occupancy tenant were incorrect, and, that after abandonment of the rights in 1940, revenue papers could not justifiably carry their names. In the circumstances, question, which really arose for consideration was, whether the case set up by the plaintiff was correct or not. Precisely, the question raised was as to what right or interest the evacuees had in the land in suit. It was not denied that on the date of suit and thereafter, revenue papers recorded the name of evacuee as occupancy tenant of the land. The rights and interests whatever their nature may be, had before the date of suit, already vested in the Custodian of Evacuee Property. Whole question in regard to the jurisdicticoi of the Civil Court turns on Section 41 of Pakistan (Administration of Evacuee Property) Act 1957. Section 41 reads:‑ "

41. Jurisdiction of Courts barred.‑ (1) Save as expressly provided in this Act, no civil or revenue Court or any other authority shall have jurisdiction‑ (a) to entertain or adjudicate upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; (b) to question the legality of anything done under this Act by or at the instance of the custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arise until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. (3) No decision, decree or order of any Court or authority in respect of any evacuee or evacuee property passed between the first day of March 1947, and the fifteenth day of October 1949, shall be binding on the Custodian or affect any right or interest of an evacuee in any property affected by such decision, decree or order unless it is accepted or approved by the Custodian. (4) No Court or other authority shall be competent to grant an injunction or other order in relation to any proceeding before the Custodian under this Act, or anything done or intended to be done by or at the instance of the Custodian under this Act. (5) Nothing in the foregoing subsection shall prevent the adjudication by a civil Court of a dispute between evacuees relating to a right in evacuee property upon a reference made to it by the Custodian or with the Custodian's previous approval." Subsection (2) expressly provides that whenever a question as was referred to in clause (a) arises in any Court or authority, the Court or authority as the case may be, was obliged to state the question with relevant particulars for decision of the Custodian of Evacuee Property. It also states that till the decision of the Custodian, proceedings, in which the question arose, shall remain stayed, and that the decision of the Custodian on the question referred to shall be conclusive. A dispute concerning the evacuee nature or otherwise of property could be brought in two ways before the Custodian for his determination. One is under Section 41 (2) of Act XII of 1957 by a Court or any other authority, where a question arose, whether any property is or is not an evacuee property or what right of interest, if any, an evacuee has in such property. In such situation, the Court or the authority shall state the question with relevant particulars and remit it to the Custodian for his decision. The other is under Section 22 of the said Act where-under any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property, may prefer a claim to the Custodian. The Act bars every civil or revenue Court or other authority from exercising jurisdiction to entertain or adjudicate upon any such question. See Aziz‑ud‑Din v. Muhammad Ismail and others (1985 SCMR 666). It cannot be gainsaid that the plaintiff in the suit brought before the Civil Court claimed that the entry of occupancy tenancy in the name of non‑Muslim was incorrect. Before the entry could be scored out and held to be erroneous, the Court had to record a decision that the evacuee had abandoned his rights in 1940 prior to partition of sub‑continent as was the case set up in the plaint. Therefore, the question raised‑ in the plaint clearly pertained to the nature or interest of the evacuee rights in the property. Section 41, Act XII 1957, in its plain language, appears to be compulsory and imperative. It bars the jurisdiction of the Civil Court to record, binding determination in regard to the right or interest of the evacuee‑ in the particular property. From the plaint, written statement and the evidence adduced, such a question did arise. View taken in regard to its jurisdiction by the original Court was, therefore, plainly incorrect. Learned Additional District Judge was correct in saying that the Civil Court had no jurisdiction, and that it was obliged to refer the question to the Custodian for his decision. It is true that the plaintiff had invoked the jurisdiction of the Civil Court for declaration of his title to the property. It is also true that decision on merits had gone against him, but does it prevent the Court from looking into the jurisdiction of the Civil Court and give effect to the imperative provisions of Section 41 of Act XII of 1957. It is a pure question of law, and can be examined on the facts either proved or admitted. Term 'Jurisdiction', which refers to the legal authority and competence of the Court to administer justice, is conferred by law only. Jurisdiction can neither be conferred nor ousted by consent. Nor submission shall confer jurisdiction on the Court, when it does not exist. It is common ground that the Court had jurisdiction to entertain the plaint till such time that a question arose as to the nature or interest of evacuees in the property in, suit. When this point came to the notice of the Court, it was enjoined to act as was provided in Section 41 and refer the question to the Custodian for his decision, and could not itself proceed to decide the case on merits. It is settled statement of law that decision given without jurisdiction is a total nullity. After the learned Additional District Judge had expressed on jurisdiction, proper and legal course open for him was to set aside the decision of the original Court, remand the case for statement of the question to the Custodian as required by Section 41 of the aforesaid Act. In disregard to the plain and imperative provisions of law, parties have no doubt suffered delay in the decision of their controversy, but, it cannot be helped because the law must take its course. It is in this view of the matter that I have not expressed on the merits of the case. For the foregoing, I would allow the appeal, set aside the impugned judgments and remand the case to the original Court with direction to state the question with regard to what right or interest the evacuee had in the property in suit and remit the said question to the Custodian/ notified officer for decision and then decide the suit in accordance with law. It shall be open to the parties to assist the original Court in formulating the questions for reference to and decision by the Custodian or the notified officer as the case may. Costs to be borne as incurred. Records be sent down. As the controversy originated in 1965 and has already suffered enough delay, learned trial Judge shall endeavour to expedite the trial of the suit. A.A./M‑422/L Case remanded.