1997 PLP 2408 (MLD)

Samad Mahmood for Petitioners. Ali Ahmad Awan and Mr. Saeed for Respondent No.2. Date of hearing: 19th February, 1996. This judgment shall dispose of C.R. No. 41/95, W.P. No. 874/95 and W.P. No. 886/95 as common questions of law and facts are involved therein.

2. The dispute in all these matters relates to land measuring 2 Kanals, 1 Marla bearing Khasra No. 224 and another piece of land measuring 5 Kanals, 3 Marlas forming part of Khasra No.220 in the revenue estate of Mareer Hassan Qasbati Rawalpindi. According to the petitioners the aforesaid land alongwith certain other area in all measuring 33 Kanals, 15 Marlas was under a Brick Kiln belonging to Pirthvi Chand, Milki Ram evacuee and was allotted to Sher Zaman, predecessor of the petitioners by the Rehabilitation Commissioner vide his order dated 4‑5‑1951. It is further claimed, that the said industrial concern was transferred to the petitioners alongwith the land underneath on 22‑8‑1963 when a provisional order was also issued. On the death of Sher Zaman, the petitioners were admitted as successors of the deceased transferee and transfer order was issued to them on 27‑2‑1990. The grievance of the petitioners is that the land comprised in two Khasra numbers mentioned above namely 220 and 224 have been illegally and unlawfully transferred vide RL‑II No. 102 to certain other persons from whom respondents Nos. 2, 3 and 4 have purchased it on 16‑12‑1981. On coming to know of these facts the petitioners had filed a civil suit for declaration and injunction claiming to be the owners of the entire land including 2 Khasra numbers. The plaint in that suit was rejected by the Trial Court on 22‑12‑1992 which was challenged in appeal by the petitioners which, however, was dismissed by the learned Additional District Judge, Rawalpindi on 10‑1‑1995. The Civil Revision bearing No. 41/95 is directed against the judgment and order of the Civil Judge and Additional District Judge, Rawalpindi.

3. So far as the Constitutional petitions (W.P. Nos. 874/95 and 886/95) are concerned, these have been filed to challenge the transfer of the land in favour of the respondents vide Khata RL‑II No. 102.

4. In support of these petitions, the petitioners' learned counsel has contended that as the two Khasra numbers formed part of the brick kiln which was an industrial concern and was allotted and transferred as such to the petitioners there was no jurisdiction vesting in the Settlement Department to have transferred the two pieces of land to respondents Nos. 2 to

4. It has further been argued by Mr. Samad Mahmood, Advocate that while rejecting the plaint, Order 7, rule 11, C.P.C. has been misapplied as according to the allegations made in the plaint itself the petitioners have cause of action to go to the Trial Court.

5. On the other hand, the learned counsel for respondents has argued that the two Khasra numbers were never part of the brick kiln but were under cultivation and were rightly treated and transferred as agricultural land to Mst. Ejazi Begum and Mst. Zareef‑un‑Nisa from whom the land has been purchased by respondents Nos. 2 to

4. It has also been stated that the respondents have since long constructed their houses over the same.

6. So far as the two Constitutional petitions are concerned, as already observed, these were field some while in the month of July, 1995 while the order of the Settlement Authorities transferring the aforesaid land to the aforesaid respondents vide RL‑11 No. 102 was passed about 16 years back. These petitions clearly suffer from laches and are liable to be dismissed on this short ground. It has not been explained in the petitions as to why the petitioners had not challenged the impugned orders within reasonable time. The only explanation appears to be that civil suit had been filed by the petitioners which is the subject‑matter of C.R. No. 41/95 but that suit too was instituted in 1992, again after about 14 years of the transfer of the land in favour of the respondents while the names of the two ladies namely Mst. Ejazi Begum and Mst. Zareef‑un- Nisa had appeared as transferees in the Jamabandi for the year 1978‑79.

7. It is true that it has been held in some cases that delay by itself is not fatal but that principle applies only so long as due to the delay no injustice is caused to the opposite side and that parties had not changed their position. In the present case, however, after the transfer of land to Mst. Ejazi Begum and Mst. Zareef‑un‑Nisa, the contesting respondents have purchased the same through registered sale‑deed as far back as 16‑4‑1981 and 6‑12‑1981 and have raised construction over the said land. It would, therefore, be unjust to deprive them of the land purchased by them about 14 years back for valuable consideration. These petitions are, therefore, liable to be dismissed on the grounds of delay, laches and acquiescence. 7‑A. So far as the civil revision is concerned, the Courts below have come to the conclusion that the suit filed by the petitioners was frivolous and vexatious. While coming to the conclusion that the petitioners have no claim to the property in dispute, the Courts have inter alia relied upon the petitioners' own admission in the other litigation wherein they had categorically stated that the two Khasra numbers did not belong to them. The view taken by the Courts below thus appears to be just, fair and in consonance with the material on the record. As substantial justice has been done by the Courts below by refusing to proceed with the suit, I am not inclined to interfere, even if there be some force in the contention raised by the learned counsel that Order 7, Rule 11, C.P.C. was misapplied.

8. Be that as it may, there is another reason as to why the petitioners cannot succeeded before this Court and the suit was not maintainable which was that the jurisdiction of the Civil Court to enter into the question as to whether the land in question has been properly transferred to the respondents under the Displaced Persons (Land Settlement) Act, 1958 and stood ousted by section 25 of the aforesaid Act. This protection remains available even after the repeal of the evacuee laws as held by the Supreme Court of Pakistan in Muhammad Akhtar, etc. v. Abdul Hadi (1981 SCMR 878) and Nazir Amad v. Ghulam Mehdi (1988 SCMR 824). That being so, the suit on the face of it was barred by law and the Courts below were justified in rejecting the plaint. The result of the above discussion is that all the three petitions fail and are dismissed with no order as to costs. A. A. /Q‑3/L Petition dismissed.