1985 PLP 1104 (MLD)

This appeal under section 100 of the Code of Civil Procedure is directed against the judgment and decree passed by lst Additional District Judge, Nawabshah in Civil Appeal No. 1 of 1971 upon reversal of the judgment of trial Court. The admitted facts may be stated as follows. Respondent Barkat Ali son of Ali Muhammad brought Civil Suit No. 10 of 1966 against the appellants for possession and mesne profits on the allegation that he is owner of land hearing No.s. 4/A, 4/13 and 5/A situated in Deh Khariro, Taluka Naushehro, District Nawabshah, having purchased the same through a registered sale-deed from its original owner Basat Ali which is in wrongful possession of the appellants. The appellants resisted the above suit and claimed that it is their ancestral property and its transfer under the provisions of Displaced Persons (Land Settlement) Act was void and illegal. The learned trial Judge framed the following issues in the suit:- "(1) Whether the suit land has been declared or treated as evacuee property ? (1-A) Whether the share of the defendants Nos. 4 to 18 is separate by private partition since 27 years ? (2) Whether the suit land has been transferred to claimant Basat Ali under Permanent Land Settlement Scheme. If' so, whether the transfer is valid? (3) Whether the plaintiff has purchased the suit land from Basat Ali? (4) Whether Shah Nawaz and Shah Bux are purchasers for value without notice ? (5) Whether the plaintiff got the possession of the land from the previous owner after he purchased it ? (6) Whether the defendant No. 1, Bacho has been in adverse possession of the suit land ? (7) Whether the Court has got jurisdiction ? (8) Whether the suit is not maintainable according to law. ? (9) Whether the court-fee stamp paid is sufficient ? (10) Whether the plaintiff is entitled to relief sought for ? (11) Whether the defendant Bacho is entitled to special costs? (12) What should the decree be ?" Out of the above Issues the issues Nos. 7, 8 end 9 were given up by the parties before the trial Court. On issue No. 1 the learned trial Judge came to the conclusion that the plaintiff has failed to prove that the property was declared as an Evacuee Property. Issue No. 1-A which was between defendants was decided in the affirmative but it was found that plaintiff was not party to the proceedings on the basis of which the issue was decided. On issue No. 2 the trial Court came to the conclusion that as the property was not declared as Evacuee Land its transfer in favour of the claimant Basat Ali was void. On issue No. 3 the trial Court held that the sale of the land in favour of the respondent was not proved. While on issue No. 5 it was held that respondent could not prove his possession on the suit land. On issue No. 6 the trial Court held that appellants were in adverse possession of the suit land. As a result of above findings by the trial Court, the suit of respondent was dismissed. On appeal the 1st Appellate Court reversed the findings of trial Court on issues Nos. 1, 2, 3 and 4 and decided the same in favour of respondent. On issue No. 5 the Ist Appellate Court came to the conclusion that respondent was entitled to sue for possession and on issue No. 6 it is held that no adverse possession could be claimed against by the appellant against custodian of evacuee properties. As a result of reversal of findings of trial Court as stated above the suit of respondent was decreed by the 1st Appellate Court. The appellants have challenged the judgment and decree of the 1st Appellate Court. Mr. Imam Bux the learned counsel for the appellant contends before me that the reversal of the judgment of trial Court by Ist Appellate Court is based on insufficient reasons and against the admitted position in case. It is contended by the learned counsel that there is sufficient evidence on record to show that the suit property was non-evacuee and, therefore, its transfer in favour of a claimant under the provisions of Displaced Persons Act was void. The learned counsel for the respondent on the other hand supported the judgment and decree of the 1st Appellate Court and urged that the civil Court could not go behind the transfer document issued by Settlement Authorities and specially in the present case where Settlement Authorities were not party to the suit. It is further contended by the learned counsel for the respondent that the property having been treated as an Evacuee Property, the only course open to appellant was to move custodian department before acquisition of the property under the compensation pool to seek a declaration that their rights and interest, in the property were not affected and in the absence of such declaration on the transfer made in favour of Basat Ali the claimant under the provisions of Displaced Persons (Land Settlement) Act, could not be disturbed by the civil Court. The contentions of the learned counsel for the respondent are not without force. It is an admitted position in the case that the lane in suit was transferred to claimant Basat Ali by the Settlement Authorities under the provisions of Displaced Persons (Land Settlement) Act, 1958. It has also come in evidence that the suit property was first proposed to be allotted under the temporary allotment scheme by the Rehabilitation Authorities in the year 1950-51 and thereafter, it was finally transferred vide Parchi Taqseem Khatoni, dated 9-4-1964 in favour of claimant Basat Ali son of Noor Muhammad and on the basis of this allotment the name of claimant Basat Ali was entered in the revenue record. The land was subsequently sold by the claimant Basat Ali through registered sale-deed to the present respondent on 1-9-1965 and his name was also entered in revenue record in place of the original transferee. The trial Court refused to accept the above evidence on the ground that the property was not declared as evacuee property. The fact that the property was treated as evacuee property by the Rehabilitation Department right from beginning and was later on transferred as acquired p property is established sufficiently on record both by the oral and documentary evidence in the case and as such the trial court was in error in holding that the property was not validly transferred to claimant Basat Ali. The trial Court could not record the above finding in the circumstance of the present case. The transfer made in favour of the claimant Basat Ali has not been set aside or cancelled so far and as such the Ist Appellate Court rightly decreed the suit on the basis of transfer documents issued to claimant Basat Ali. The fact that the respondent did not examine the attorney or the original claimant to prove the sale-deed could not change the status of the property or the sale made in favour of respondent as the transferee never challenged the sale in favour of respondent. No case for interference in appeal is, made out. The appeal is accordingly dismissed but there will be no order as to costs. A.A. Appeal dismissed.