P L D 1960 Supreme Court (Pak (PLP)

S. A. RAHMAN, J.-This civil appeal by special leave raises the question whether a declaratory suit to establish title to evacuee lands abandoned in India, can be brought in Pakistan Courts, by a refugee claiming to own such lands. The question has arisen in the following circumstances. One Allah Diya, a resident of village Humanyoonpur, Tehsil Sarhind, District Bassi, Patiala State, died in India in the year 1946. He was survived by four sons, Mehdi Hussan, Faqir Muhammad, Hasan Muhammad and Ahmad Hasan, two sisters, Mst. Raji. and Mst. Kariman, and a daughter, Mst. Zainab, who is the appellant in the present case. It appears that a mutation was entered in 1947 in favour of the sons by a Revenue Officer in India, but it was rejected two years later, as by that time, the parties were supposed to have migrated to Pakistan. The appellant's case is that her brothers did not succeed in reaching Pakistan, having been killed in the way. Mst. Kariman, one of the sisters of the deceased Allah Diya, also died prior to the date of this suit. She left behind three sons, Babu, Ali Muhammad and Jan. Muhammad and a daughter, Mst. Ghafuri, Mst. Raji, the surviving sister of Allah Diya, and the children of Mst. Kariman deceased are the respondents to the present appeal. On arrival in Pakistan, the family settled in Chak No. 42 S. B., District Sargodha. In consideration of the land abandoned by the family in India, the Rehabilitation authorities allotted to them certain evacuee lands. Half the allotted lands were given to Mst. Zainab and the other half to Allah Diya's sister. An appeal taken to the Deputy Rehabilitation Commissioner (Lands), against the order of the Assistant Rehabilitation Commissioner by Mst. Zainab, was dismissed on the 12th of September 1956. On the 12th of November 1956, Mst. Zainab filed a suit against Mst. Raji and the children of Mst: Kariman, for a declaration that she was the sole heir of leer deceased brothers and that as such, she alone was entitled to receive whatever compensation was being paid or may be paid in Pakistan, in respect of the holding of her deceased father, Allah Diya. She also asked for a permanent injunction, restrain ing the respondents from interfering with her rights and from approaching the Rehabilitation authorities to claim compensation for their alleged rights in the property of Allah Diya. The suit was contested by the respondents and three preliminary issues were settled by the trial Judge, reading as follows :

(1) Whether the suit in the present form is maintainable ? (2) Whether the Civil Court is debarred (sic) to exercise jurisdiction in the suit ? (3) Whether the prayer of permanent injunction to the effect that the defendants should not claim any compensation from the Rehabilitation Department is untenable? On the first issue, the finding was recorded that the plaintiff was not entitled to possession or compensation and that, therefore, the suit was correctly framed. Issue No. 2 was answered in favour of the plaintiff on the authority of a judgment of the Lahore High Court, reported as Heman v. Fazal (P L D 1955 Lab, 280). Issue No. 3 was decided against the plaintiff on the ground that the relief of injunction was hit by cl. (d) of section 56 of the Specific Relief Act and section 18 (3) of Act XLII of 1956. The suit was then ordered to be proceeded with on the merits. The respondents who were defendants in the suit, sought revision of the order from the High Court of West Pakistan. A learned single Judge of that Court held that a decree for a declaration simplicitor would be entirely infructuous, as an order of allotment of evacuee lands passed by the Rehabilitation authorities could not be called in question in a Civil Court. It was pointed out that the plaintiff's object in bringing the present suit was to obtain or at least pave the way to obtaining a share of Allah Diya's property, at present under allotment to Mst. Kariman and Mst. Raji. He was, therefore, of the opinion that the trial Court had acted in exercise of its jurisdiction with material irregularity in ordering the suit to proceed on the merits. The revision petition, in consequence, was allowed and the suit dismissed with costs throughout. Leave to appeal was given in this case to consider the questions whether the declaratory decree could have been described as entirely ineffective in the circumstances of the case, and if so, whether the High Court acted in accordance with correct principles in interfering in revision with the discretion exercised by the trial Court. Mr. Mahmud Shah, on behalf of the appellant, has sought support for his client's position in the decision of the Lahore High Court, published as Heman v. Fazal. In that case, the facts were that one, Shadi, who was governed by agricultural custom of the Punjab, had made a sale of 53 kanals and 2 marlas of his land situate in East Punjab, in 1930, to his wife, Mst. Began. The collaterals of the alienor were successful in obtaining a decree that the alienation would not affect their reversionary rights after the death of Shadi. The alienor died sonless some 4 years later and his property was mutated in the name of his widow. Due to disturbances, follow ing the Partition of India, the reversioners as well as the widow migrated to Pakistan, where Mst. Began died on the 6th of December 1947. There was a dispute between the reversioners of Shadi on one side and Fazal, the son of Mst. Began from her first husband on the other, as to who should receive land in allotment, in lieu of the family's land abandoned in India. The collaterals of Fazal sued for a declaration that they were entitled to the whole of the land left by Shadi deceased. Fazal conceded the claim of the plaintiffs, except in regard to 53 kanals and 2 marlas which had been alienated by the deceased Shadi in favour of his wife, Mst. Began. His plea was that as the plaintiffs had failed to sue for possession of that part of the land within three years of the death of Mst. Began, as required by Article 2 of the Schedule to the Punjab Limitation (Custom) Act of 1920, their claim was now barred by time. It was held by a learned Judge of the High Court that Art. 2 of the Schedule to the Punjab Limitation (Custom) Act was not applicable to the case, the disputed land being in the possession of the Custodian of Evacuee Property, East Punjab. It way further held that the Pakistan Courts had jurisdiction to deal with the question as to who was owner of the lands abandoned in East Punjab and to determine the parties' right to allotment of land in Pakistan in lieu of the abandoned land. The learned Judge, who decided that case, took the view that section 16 of the Civil Procedure Code applied merely to property in Pakistan and had, therefore, no relevancy to the case. He placed reliance on section 20 of the Civil Procedure Code for finding in favour of the jurisdiction of the Pakistan Courts on the ground that the defendant to the suit resided in Pakistan within the jurisdiction of the Court and, at the same time, the cause of action, namely, the denial by the defendant, of the plaintiffs' rights, also arose within that jurisdiction. The learned Judge then referred to rule 20 of Dicey's Conflict of Laws, which lays down that the Court has no jurisdiction to entertain an action for the determination of the title to, or the right to the possession of, an immovable, situate in foreign territory, subject to certain exceptions which are not material in the instant case. The learned Judge pointed out that Dicey had tried to justify the rule on the basis of the principle of effective ness. He came to the conclusion that a declaratory decree in such a suit could be made the basis of the relevant parties' claim for allotment and so the decree would not be futile. In his opinion, the decree would affect a person or property within the jurisdiction of the Court, and, therefore, the test of jurisdiction was satisfied. It seems to us that the learned Judge did not take into account the effect of the various Rehabilitation laws, enacted from time to time in this country, on a suit of this character. The Rehabilitation Resettlement Scheme, Punjab, under which allotments on a permanent or semi-permanent basis, of evacuee lands in this area, are being made by the Rehabilitation authorities, was framed by the Rehabilitation Commissioner, Punjab, by virtue of powers derived from section 7 (I) of the Pakistan Rehabilitation Ordinance XIX of 1948, as amended by the Pakistan Economic Rehabilitation (Amendment) Ordinance XVI of 1949. In Act XLII of 1956, the corresponding provision which authorises the framing of such a Scheme is section

6. This is an exhaustive Scheme, covering pages 385 to 464 of the Evacuee and Rehabilitation Laws Manual, 1957. The Correction Slips, issued in respect of this Scheme, are printed at pages 480 to 506 of this Manual. This Scheme read with the parent legislation, provides a complete Code for allot ment of evacuee lands to refugees or other persons and contains elaborate provisions for dealing with the claims made by refugees in respect of lands abandoned in India. Section 4 (2) of Act VII of 1956 declares that every order purporting to be made, or signed by the Rehabilitation authority, in lawful exercise of any power conferred by or under .the Act, shall be presumed to have been so made by such an authority and no such order shall be called in question in any Court. Section 11 of the Act comprises of self-contained provisions in respect of appeals from orders of Rehabilitation officers to higher officers in the Depart ment. Section 12 of the Act contains provisions for revision of certain orders by Government. Section 13 lays down that an order passed by the Rehabilitation Commissioner or Additional Deputy or Assistant Rehabilitation Commissioner shall be final, subject to the provisions of sections 11 and 12 and shall not be called in question in any judicial proceedings in any Court. Section 17 bars suits, prosecutions and other legal proceedings against the Central Government or any Rehabilitation authority or any person acting under the direction of that Government or authority, for anything which, in good faith, is done, purports or is intended to be done in pursuance of the Act. Section 18 expressly enacts that the jurisdiction of Civil Courts to question an order passed by a Rehabilitation authority under the Act, is barred and subsection (3) thereof declares that no such Civil Court shall be competent to adjudicate on the rights of or dispossess a person to whom any immovable property has been allotted or leased, by a Rehabilitation authority or by a Custodian or to issue an injunction or other order, in relation to any act done, or intended to be done, by a Rehabilitation authority, under the provisions of the Act. These provisions are of very wide import and it appears to us that, by necessary intendment, these provisions bar the jurisdiction of Civil Courts to entertain a declaratory suit of the kind under consideration. A declaratory decree, even if passed in such a suit, can be ignored by the Rehabilitation authorities and any order passed by such authorities contrary to a declaratory decree of this kind, would be immune from attack in a judicial proceeding. The Rehabilitation authorities possess the necessary powers to hold enquiries into claims made by refugees and to decide all questions of inheritance, in accordance with the instructions issued by the Rehabilitation Commissioner (Lands) under the Rehabilitation Resettlement Scheme Punjab. Reference in this connection may be made to instructions 46 and 46-A at pp. 408 and 409 of the Rehabilitation Manual. It would amount to encroachment on that special and exclusive jurisdiction, vested in the Rehabilitation authorities, if similar question were allowed to be agitated in the Civil, Courts. The object of the Rehabilitation laws being to settle the refugees on lands and give them certain rights, in as expeditious a manner as possible, such an exclusion of the ordinary Courts' jurisdiction is easily understandable. We are, therefore, unable to agree with the opinion of the learned Judge, who decided Heman v. Fazal that a declaratory decree in such a suit could affect any property in Pakistan. It would amount to no more than a pious resolution and would be a mere essay in futility. Assuming therefore, though not conceding the view taken by the learned Judge in Heman v. Fazal that section 16 of the Civil Procedure Code has no relevancy to the case and that section 20, Civil Procedure Code, might have enabled a Pakistan Court, prima facie to entertain a suit relating to title in lands in India in the absence of a legal bar, since no effective decree can at all be passed by Civil Court and the provisions of the Rehabilitation laws, by necessary intendment, exclude such jurisdiction; the Civil Courts' jurisdiction to entertain declaratory suits of the kind under consideration, must be held to be barred. We, therefore, find no force in the appeal and hereby dismiss it with costs. K.M. A. Appeal dismissed.