1989 PLP 257 (MLD)

5. The defendant contested the suit by filing a written statement denying that the property in dispute was evacuee property. According to him, the property in dispute had been purchased by his ancestor Jiwan, on 30‑3‑1891, and he had built a Haveli thereon. He also pleaded that the property in dispute was situated within the limits of the Town Committee and was Urban Property and that the plaintiff had obtained its allotment by wrongly representing that it was "land".

6. On the parties' pleading, the learned Civil Judge formulated the following issues:‑‑ (1) Whether the suit is time‑barred? OPD (2) Whether the plaintiff has no cause of action? OPD (3) Whether the valuation of the suit for the purposes of court‑fee and jurisdiction is incorrect, so, what is the correct valuation? OPD. (4) Whether the allotment in favour of the plaintiff is illegal, if so, what is its effects? OPD (5) Whether the suit land was undivided shamlat land or if any partition was effected it has been nulled? OPD (6) Whether the form of the suit is incorrect, if so, its effect? OPD (7) Whether the defendants have made any improvements over the suit land and is he entitled to compensation, if so, its extent? OPD (8) Whether the suit of the plaintiff is frivolous vexatious, if so, is defendant entitled to any special cost? OPP (9) Whether the plaintiff is the owner of the suit land? OPP (10) Whether the plaintiff is entitled to the decree prayed for? OPP (11) Relief.

7. Before the learned Civil Judge, the plaintiff produced copy of the RL‑11 (Exh. P.2), by which land, including Khasra No‑5937, was allotted to the plaintiff. On the basis of this document, the learned Civil Judge held that the plaintiff was the owner of the land and that if the defendant had any objection to raise to his allotment, he "must have approached the relevant authority under section 22 of the, Land Settlement Act and got cancellation of the allotment in favour of the plaintiff and because defendant has not done so, hence the ownership of the plaintiff cannot be attacked at this stage". On this ground, the learned Civil Judge decided issue No. 4 which was whether the allotment in favour of the plaintiff was illegal also against the defendant. The learned Additional District Judge was also of the anew that the defendant had a right "to move competent authorities to challenge allotment in favour of the plaintiff.

8. Learned counsel for the petitioner argued that the question raised by him, namely;, that the property in dispute had wrongly been treated as `land' and its allotment to the plaintiff was ineffective in law was a question of jurisdiction and for its determination, it was necessary that an issue of fact was framed and decided. He referred to the entries of the RL‑I1 to point out that Khasra No. 5937 was described as Ghair Mumkin Gora‑Deh and was not "land" as that expression was defined in section 2, subsection (3) of the Displaced Persons (Land Settlement) Act, 1958. According to him, as the property in dispute was not "land", it could not have been dealt with and allotted to the plaintiff under the Displaced Persons (Land Settlement) Act, 1958 and, therefore, the very allotment in the plaintiffs favour was without jurisdiction. Learned counsel for the respondent on the other hand contended that as this question was not raised before the learned Courts below, this cannot be raised for the first time here. In any case, according to him the property in dispute was rightly treated as land and allotted accordingly.

9. It appears that the learned Courts below were wholly unaware of the real significance of the defendant's objection, namely, that the property in dispute had wrongly been treated as `land'. There .is no question that if the property in dispute was not `land' within the meaning of Displaced Persons (Land Settlement) Act, 1958, then it could not have been dealt with and allotted to the plaintiff under that Act. It logically follows, therefore, that the authorities under the Displaced Persons (Land Settlement) Act, 1958 had if the property iii dispute was not "land", no jurisdiction to allot it to the plaintiff as they did. The question is covered by authority. In Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356), certain land was permanently settled upon Hamid Hussain as agricultural land. On that land stood a building with a boundary wall and the building was being used as a school. Hamid Hussain sued for possession and the suit was contested on the ground that the area in dispute had since 1941 been used as Sikni and had been used for the purpose of school since 1949 and, therefore, its transfer as land was without jurisdiction. The Courts found that the property was Sikni and the suit was dismissed; it was held that the property "could got at any stage of the settlement proceedings be regarded as land to be available order Act XLVII of 1958 or any Rehabilitation scheme". It was argued that sections 22 and 25 of the Act barred the jurisdiction of the Civil Court to pronounce upon the validity of the allotment and its permanent settlement. The argument was repelled and it was held that the Courts can make an inquiry as to he existence or otherwise of facts which give exclusive jurisdiction to a tribunal of special jurisdiction. "Such tribunal of special jurisdiction has no jurisdiction to determine any facts on the basis of which it will have the power to assume jurisdiction and make order falling within its jurisdiction". In this connection, reference may also be made to Syed Shaukat Hussain Rizvi v. Dr. Yar Muhammad Khan and another PLD 1974 Supreme Court 276, where it was held Eat under the Settlement Law, the use to which the land was actually put would determine the nature of its property on the 15th August, 1947. Reference may in this behalf also be made to Amina Begum v. Sh. Muhammad Nazir etc. PLD 1985 SC 260.

10. In the RL‑11 (Exh. P.2) Khasra No. 5937 was described as Gora‑Deh. Learned counsel for the petitioner referred to Rattigan's Customary Law; there in para. 243 the expression gora‑deh is defined as "vacant space reserved for extension for the village dwellings, and adjoining village site". The question, therefore, is whether the property in dispute was at the relevant date `land' within the meaning of the Displaced Persons (Land Settlement) Act, 1458, under which Act, admittedly, it was allotted to the plaintiff. It will not in my view be fair to the parties, particularly to the plaintiff to decide this mixed question of fact and law on the present record. The fair course to adopt in the facts of the case will, in my opinion, be to frame an issue whether the property in dispute was land within the meaning of Displaced Persons (Land Settlement) Act, 1958, allow opportunity to the parties to lead evidence and to decide the suit afresh. As observed above, the learned Courts below had proceeded on the view, and in my view wrongly, that the defendant should have approached the authorities under the Displaced Persons Land Settlement) Act, 1958 and as he had not, the question of plaintiffs title had attained finality. The correct approach, as has been seen above, was to go into the question whether the property in dispute was or was not land and to decide the suit accordingly.

11. For these reasons, I would accept the revision petition, set aside the judgments and decrees of the Courts below and send the case back to the learned Civil Judge with the direction that he shall frame an issue whether the property in dispute was or was not land within the meaning of the Displaced Persons (Land Settlement) Act, 1958, and decide the suit afresh in the light of his finding on that issue. The parties are left to bear their own costs. They shall appear before the learned Civil Judge, Chunian, on 30‑1‑1989. M.Y.H./A‑495/L Revision accepted.