2001 PLP 510 (YLR)

5. Respondents Nos. 1 to 19 thereafter, filed a suit for declaration claiming title to the aforesaid land on the best of the decree of the Civil Court in their favour. The allotment made in favour of Fateh Muhammad and sale made by him in favour of the petitioners were also assailed.

6. The suit was contested. Separate written statements were filed by the allottee and the petitioner. It was asserted that the mortgaged money was a charge on the property and the plaintiffs were entitled only to receive the said amount from the Central Government, the Civil Court had no jurisdiction as the land has already been declared as evacuee and duly confirmed in favour of Fateh Muhammad against which the appeal filed by the plaintiffs already stands dismissed.

7. Necessary issues were framed and the suit was tried. The learned trial Court found that after the repeal of Settlement Laws the Civil Court had jurisdiction, the plaintiffs were in possession of the disputed land who had become owners with the lapse of 60 years. The orders passed by the Settlement Authorities and the sale made by the allottee in favour of the petitioners were held to be illegal. Accordingly, the suit of the plaintiffs was decreed to the extent of 1/4 share of 136 Kanals and 6 Marlas.

8. Feeling aggrieved, the petitioners filed an appeal. Respondents No. 1 to 19 also filed an appeal. Their grievance was that in fact the land in dispute was 136 Kanals, 6 Marlas which formed 1/4 share of the total Khata measuring 555 Kanals and 4 Marlas, and therefore, they were entitled to a decree for 136 Kanals and 6 Marlas.

9. Both the appeals were disposed of vide consolidated judgment, dated 21-9-1986 of the learned Additional District Judge, Gujranwala. The appeal filed by the plaintiffs was allowed while the appeal filed by the petitioners was dismissed.

10. The learned counsel for the petitioners contended that in the Revenue Record the property was recorded in the name of the evacuee, therefore, it was rightly treated as evacuee property and allotted to Fateh Muhammad, respondent No.20 under the Displaced Persons (Land Settlement) Act, 1958. He maintains that it was only the learned Custodian who could declare the property as non-evacuee and at no stage the plaintiffs took any steps to get a declaration from the learned Custodian. He further contends that the property was allotted in favour of respondent No.20 by the Deputy Settlement Commissioner and appeal of the plaintiffs against the said order was dismissed. The said orders could not be assailed before the Civil Court. In support of his submission reliance was placed on Qamar Zaman and others v. Ejazi Begum and others 1997 MLD 2408, Nazeer Ahmad and others v. Ghulam Mehdi and others 1988 SCMR 824.

10. On the other hand the learned counsel for the plaintiffs/respondents submits that the effect of the decree of the learned Senior Sub-Judge dated 1-6-1946 was that the title to the land in dispute of the appellants stood perfected, the mortgage having been extinguished, they were the owners in possession of the land in dispute, the property never went to the compensation pool and therefore, was not available for allotment to respondent No.20. The Settlement Authorities had clearly exceeded their jurisdiction and, therefore, the Civil Court had the jurisdiction. It was further contended that the property was never treated as evacuee before 1-1-1957 and, therefore, no declaration of the custodian was required.

12. I have considered the submissions made by the learned counsel for the parties. The plain effect of the decree dated 1-6-1946 was that right of the mortgagor to claim redemption was extinguished with the result that title to the property vested in the predecessors of the plaintiffs as Muslim owners before the partition of the Sub?continent. It was only the evacuee property which went to the compensation pool while on the partition of the Sub-Continent the evacuees had no right or interest in the property after extinction of their right of redemption. The bar contemplated by section 25 of the Displaced Persons (Land Settlement Act No. XLVII of 1958) could only be applied if it was shown that the authorities had acted within the ambit of law. Reference may be made to Mr. Muhammad Jamili Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 in which it was observed as follows:-- "If the property was in fact not evacuee property and was not vesting in the Central Government the Settlement Authorities could not grant to themselves any jurisdiction to deal with it by holding that it was evacuee property. Their orders would always be liable to challenge in an ordinary Civil Court on the ground that they had no jurisdiction with respect to the property transferred at all..." It was further held: "The Displaced Persons (Compensation and Rehabilitation) Act does not grant unlimited powers to Settlement Authorities to bring all property within their jurisdiction on their own findings. According to the contention of learned counsel for the respondent if the Settlement Authorities chose to transfer property which never vested in the Central Government the only remedy of the person aggrieved was an appeal or revision under the Displaced Persons (Compensation and Rehabilitation) Act. We see no ground for attributing such an intention to the Legislature." Reference may also made to the Shaukat Hayat Jumani v. The Province of Sindh through Secretary, Rehabilitation Department and others 1991 SCMR 580 in which it was observed as follows:-- "The resume of the various provisions of the Act of 1957 and of the Act of 1958, referred to hereinabove, indicates that the jurisdiction to take over any property as an evacuee property or to allot the same as a part of compensation pool to any claimant, was vested in the Custodian or the Settlement Authorities provided the person and the property fell within the purview of the definition of the terms 'evacuee' and 'evacuee property' and not otherwise."

13. The Settlement Authorities had, ID therefore, jurisdiction to deal only with the property which formed part of compensation pool and as observed above, the property in dispute did not form part of the compensation pool to be dealt with by the Settlement Authorities. It was allotted to Fateh Muhammad on 31-5-1968. There was no specific order treating the property as evacuee before 1-1-1957. Therefore, in the facts and circumstances of the case, the Civil Court had the jurisdiction and no exception can betaken to the impugned judgments and decrees of the learned two Courts.

14. The judgment cited by the learned counsel for the petitioners may now be noted. Through the case of Qamar-uz-Zaman (supra) a writ petition and a revision petition of the petitioners in the said case' were disposed of. The orders of allotment were challenged in the writ petition after 16 years which was dismissed on the ground of laches. As far as the civil revision is concerned it was primarily dismissed on the ground, that according to petitions own admission the disputed Khasra numbers did not belong to them. It was, further observed that the bar of section 25 of the Displaced Persons (Land Settlement Act) was also applicable even after the repeal of Settlement Laws. It may, however, be noted that in the said precedent case, undisputedly the property involved was evacuee. In the case of Nazeer Ahmad (supra) there was a specific order of the learned Custodian declaring the property to be evacuee. The judgments relied upon by the learned counsel for the petitioners proceed on their own facts and do not advance the contention raised by him. 14-A. For what has been stated above I find no merit in this revision petition, which is accordingly, dismissed. H.B.T./P-38/L? ??????????????????????????????????????????????????????????????????????????????????? Revision dismissed.