1984 PLP 849 (MLD)

This revision arises out of judgment, dated 14-4-19110 passed by the learned Additional District Judge, Sanghar in Appeal No.25 of 1979 dismissing the appeal of the applicants. The brief facts which give rise to this revision are as under:- That Barkat Ali the father of the applicants Nos. 1 to 5 and husband of the applicant No.6 was granted the Government land in Deh Jhol Taluka Sinjhoro known as "Khairwah-Bhada-Land" abandoned canal which was converted into Sikni and made available for sale to the public after dividing the same into several plots for residential purposes by the orders passed by the then Collector Mr.Anwar Adil on 9-3-1964. The said Barkat Ali in all purchased the plot measuring 1,440 sq. feet and paid the Malkano and was issued Ijazatnama. He constructed house and three shops on the plot. Afterwards the Settlement Department prepared survey cards by showing the houses and shops of the applicants and other prospective purchasers, constructed over the plot as property of one evacuee Parshotamdas. The suit property was numbered as II.A.55 and II.A.56 by the Settlement authority. That after the said survey the Custodian auctioned the said property to others but Custodian finally determined that it was a Government land and it was rightly sold by the revenue authorities. The defendants/ respondent managed the Settlement documents from the Settlement Department fraudulently without any notice to the applicants/predecessors in life. The said respondent filed suit No.44 of 1967 for ejectment of the applicants which was decreed and subsequently the said decree was set aside in appeal No.73 of 1968. The father of the applicants wrongly approached the Settlement authority to cancel the entitlement documents but the Custodian, Evacuee Properties of Sind took a wrong and illegal view without realising that custodian has already decided on 1-6-1963 that the property in question was Government Land. The two orders passed by the Additional Custodian, dated 2-3-1973 and by the Custodian on 29-3-1974 were challenged by the suit with a further demand that the property was non-evacuee and cannot be treated as evacuee by the subsequent illegal order. Applicants filed Suit No.32 of 1977 in the Court of. Senior Civil Judge Sanghar for declaration that the property shown in sketch attached with the plaint is not evacuee property. It was further averred that the orders passed by the Custodian Evacuee Property, Sind at Hyderabad, and the Deputy Custodian Evacuee Property, Sind at Hyderabad are illegal, mala fide and without jurisdiction and obtained by misrepresentation of facts and fraud. The respondents Nos.l to 3 and 4 to 8 filed their written statements and denied the contentions and assertions of the plaintiffs /applicants. According to them the survey carried by the Settlement Department was proper and correct and that Bhada-land is different from the land in the suit and the same had got nothing to do with the suit land. They also averred that the Court has got no jurisdiction to try and adjudicate upon the suit. After hearing the learned counsel for the parties the Senior Civil Judge, Sanghar, by his order, dated 17-7-1979 held that the Court is not competent to question the legality of the orders passed by the respondent No.10 and the Court cannot adjudicate upon the question as to whether the suit property is or is not evacuee property as such he rejected the suit under Order VII, rule 11(4), C.P.C. The applicants being aggrieved by the order dated 17-7-1979 preferred an appeal before the Additional District Judge, Sanghar, being civil Appeal No.25 of 1979. After hearing the arguments of the learned counsel for the parties the learned Additional District Judge dismissed the appeal by his judgment, dated 1-4-1980 and affirmed the order of the learned Senior Civil Judge, Sanghar. The applicants being aggrieved by the judgment, dated 1-4-1980 have preferred this revision on the grounds mentioned in the memo. of revision . Mr.S.M.Abbas, learned counsel for the applicant has contended that the suit is maintainable and is not barred by law. On the other hand, Mr.Abdul Mateen, learned counsel for the respondents Nos.1 to 7 has urged that suit is not maintainable in law and is barred by section 41 of the Pakistan Administration of Evacuee Property Act, 1967. I have perused the record of the lower Courts and have also gone through the judgment and order of the learned Courts below. The predecessor of respondents Nos.1 to 7 filed Suit No.44 of 1967 for possession against Barkat Ali, the predecessor-in-interest of the applicants before the Civil Judge, Ilnd Class, Shahdadpur. The suit was decreed on 9-9-1968 and the judgment is at page 103 of the file of the trial Court. The said Barkat Ali preferred. an appeal against the judgment, dated 9-9-1968 before the Additional District Judge, Tharparkar being Civil Appeal No.73 of 1968 which was dismissed, by judgment dated 9-5-1969 and the judgment is at page 109 of the record of lower Court. The respondents filed Suit No.141 of 1970 against Barkat Ali, the predecessor-in-interest of the applicants in the Court of Civil Judge, Shahdadpur for possession and recovery of money which suit was decreed by judgment dated 14-2-1972. The said Barkat Ali preferred an appeal before the District Judge Sanghar being Civil Appeal No.31 of 1972 which was dismissed by judgment, dated 12-5-1973. These judgments are final and they were decided against the predecessor-in- interest of the applicants. The Issues which were decided in these cases were that the predecessor-in-interest of the respondents is the owner of the disputed property in suit as such the suit which was filed by the applicants and the plaint was rightly rejected by the Senior Civil Judge, Sanghar. The doctrine of res judicata is applic9ble to the facts of this case and precludes the applicants from raising the same assertion in successive actions. The predecessor-in-interest himself filed an application being Application No.301 of 1970 before the Deputy Custodian of Evacuee Property at Karachi for a declaration that the above property is non-evacuee property. The Deputy Custodian while dismissing the application observed that the question whether the property is evacuee or not was made an issue and was decided against the said Barkat Ali the predecessor-in-interest of the applicants. The said Barkat Ali preferred an appeal being Appeal No.7 of 1971 against the order, dated 10-4-1971 before the Additional Custodian of Evacuee Property. The Additional Custodian Evacuee Property passed an order, dated 2-2-1973 dismissed the appeal thereafter he preferred a revision before the Custodian Evacuee Property, Sind, being Revision Application No.6 of 1973 which was also dismissed by an order, dated 29-3-1974. The Custodian Evacuee Property by his order, dated 29-3-1974 held that the property in question was an Evacuee Property. The order the Custodian Evacuee Property is final and cannot be challenged in a civil Court. The learned counsel for the respondent has contended that the order of the Custodian could not be questioned in view of section 41 of Pakistan (Administration of Evacuee Property) Act, 1957. The section in so far as it is relevant, reads:- "41(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 arises until the decision of the Custodian on the question stated shall be conclusive." This section is very clear. It does not bar the constitutional jurisdiction of this Court but, it bars its ordinary jurisdiction. This is because the Custodian is a Tribunal of exclusive jurisdiction. Hence the direction in clause (b) of subsection (1) of the section that n civil Court shall have jurisdiction to question the legality of the anything done by the Custodian. This means that the legality of the order holding the property as evacuee could not be questioned in the suit under Revision. The reliance is placed on P L D 1965 S C 698; P L D 1965 S C 705; P L D 1968 Lah. 148; P L D 1973 S C 451; P L D 1976 S C 208 and 1979 C L C

294. I do not find any force in this revision which is dismissed. I allow the applicants six months' time to vacate the premises. M.A. K. Petition dismissed.