2002 PLP 484 (MLD)

(9) Relief. The learned Civil Judge 1st Class, Lahore dismissed the suit of the petitioners predecessor‑in‑interest and decreed the suit of the respondents/plaintiffs vide the impugned judgment and decree, dated 9‑7‑1990. The petitioner being aggrieved filed two appeals before the Additional District Judge, Lahore who dismissed the same vide consolidated judgment, dated 2‑3‑1994, hence, the present revision petitions.

3. The learned counsel of the petitioners submits that P.T.D. in favour of the predecessor‑in‑interest of the petitioners was issued in pursuance of the judgment of the Honourable Supreme Court dated 2‑7‑1983, therefore, the same could not be legally cancelled by any Court in the country. He further submits that there is a gross misreading of evidence. He further submits that both the Courts below wrongly decided the case in favour of the respondents on the principle of natural justice as the rule of natural justice was not attracted in. the proceedings qua demarcation. He further submits that respondents have no right or locus standi to challenge the, demarcation report in favour of the petitioners as the respondents/plaintiffs had already sold the entire property in their ownership. He further submits that the Civil Courts lacks jurisdiction to touch the 'transfer order issued by the Settlement Department/ authority on the basis of the order passed by the higher Courts of the country. He further submits that Civil Courts have no jurisdiction to entertain the suits qua the validity of the transfer order issued by the Settlement Department. In support of his contention, he relied upon the following judgments:‑‑ Ghularn Rasool and others v. Jannat Bibi (1990 SCMR 744). Lady Dr. S.K. Qureshi and others v. Khalid Rauf and another (1987 SCMR 1664). Ghulam Mohi‑ud‑Din v. Sh. Muhammad Mushtaq (1988 CLC 2304). The learned counsel of the respondents submits that the demarcation report was prepared in the absence of the respondents/plaintiffs and Deputy Settlement Commissioner passed the transfer order in favour of the predecessor‑in‑interest of the petitioners on the basis of the demarcation report and the property of the respondents was transferred to the petitioners' predecessor‑in‑interest on the basis of the said demarcation report. He further submits that when the basic order is without lawful authority the superstructure must have to be fallen on the ground automatically. He further submits that the Deputy Settlement Commissioner transferred the property of the respondents to predecessor‑in‑interest of the petitioners in violation of the principle of natural justice, therefore, Civil Court has i jurisdiction to entertain the suit. He further urges that substantial justice has been done between the parties as no adverse order has been passed by both the Courts below except the case was remanded to the Settlement Authority to demarcate the property first and then transfer order be passed in favour of the predecessor‑in‑interest of the petitioners. He further urges that both the Courts below have given concurrent findings of fact against the petitioners and therefore, revision petitions are not maintainable and are liable to be dismissed.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

5. I would like to decide the question of jurisdiction first raised by the learned counsel of the petitioners that Courts below have no jurisdiction to take the cognizance of the matter as the transfer order passed in favour of the predecessor‑in‑interest of the petitioners had attained finality under the provisions of Settlement Laws. As Honourable Supreme Court in Hamid Hussain's case (1974 SCMR 356) has held that Civil Court has jurisdiction to take cognizance of the matter. The relevant observation is as under:‑‑ "It is well‑established principle that even where the jurisdiction of Civil Court is barred and conferred upon special Tribunal Civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see there cause are in accordance with law or illegal or even mala fide." The aforesaid proposition of law is also supported by the following judgments:‑‑ "The Province of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636). Devachand Muljimal v. The D.S. & R.C. and others (PLD 1965 SC 356). Mr. Muhammad Jamil. Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698). Zafar‑ul‑Ahsan v. The Republic of Pakistan (PLD 1960 SC (Pak.) 113). In the present case the respondents/plaintiffs challenged the vires of the demarcation report, dated 28‑11‑1983 on the ground that the report was prepared behind the respondents In similar circumstances, the question of finality of the order passed by the Deputy Settlement Commissioner regarding demarcation of the area of transfer property was considered .in Muhammad Idrees Khan v. Settlement Commissioner, Hyderabad and 2 others (1981 CLC 1510) and laid down the following principle:‑ "The order of Deputy Settlement Commissioner, dated 5th February, 1972 with regard to demarcation of area for the reasons given above being void ab initio and a nullity the subsequent orders resting on the same also are of no effect as held by the learned Settlement Commissioner (Headquarters) in the impugned order, dated 20th June, 1974." It is settled principle of law that when the basic order is without lawful authority the super‑structure must have to be fallen on the ground automatically. In arriving to this conclusion, I am fortified by the following judgments Cresent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue Islamabad arid 2 others (PLD 1982 Lah. 1). Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak.) 104). The aforesaid proposition of law qua the jurisdiction of the Civil Court was considered by Sardar Muhammad Iqbal, J. (as he then was) in Syed Ali Moazzam v. M.A. Effandi and others (PLD 1965 (W.P.) Lahore 193) and laid down the following principle:‑‑ "In fact both the parties claim their respective rights based on the orders passed by the Settlement Authorities, and do not in any way question the finality attached to them under the Act, No objection under the circumstances can be taken under section 22 of the Act \to the jurisdiction of the Civil Courts to hear and determine this suit." I may add that order passed by the Settlement Authorities under the provisions of the Settlement Laws, the finality attached to the orders passed by the Settlement Authorities only if the order is passed with jurisdiction within the four‑corner of the Act and in respect of matters which such Settlement Authorities are empowered under the Act to determine. The Settlement Authorities passed the orders in favour of both the parties on the basis of the orders of the superior Courts, therefore, Civil Court has only jurisdiction to determine the validity of the orders passed by the Settlement Authorities whether the same were passed within the parameters prescribed by the superior Courts or not. In view of what has been discussed above the contentions of the learned counsel of the petitioners that Civil Courts has no jurisdiction has no force. It is pertinent to mention here that Evacuee Properties and Displaced Persons Laws (Repeal) Act (XIV of 1975) came onto force on 28‑1‑1975, therefore, only the Civil Court has jurisdiction to take cognizance of the matter and both the Courts below rightly assumed the jurisdiction coupled with the fact that the demarcation report was prepared on 28‑11‑:983 on the basis of which transfer order was issued by the Deputy Settlement Commissioner in favour of the predecessor‑in‑interest of the petitioners on 9‑5‑1934. The case‑law relied upon by the learned counsel of the petitioners based on un‑Repealed Act i.e. Displaced Persons Compensation and Rehabilitation Act, 1958 whereas Evacuee Property and Displaced Persons Repealed Act, 1975 did not contain any provisions to oust the jurisdiction of Civil Court. In this view of the matter, both the Courts below rightly assumed the jurisdiction. It is admitted fact that demarcation report was prepared in the absence of the respondents/plaintiffs on 28‑I1‑1983, therefore, same is not sustainable in the eyes of law as per principle laid down by the Honourable Supreme Court in the following judgments:‑‑ The University of Dacca v. Zakir Ahmed (PLD 1965 SC 90). Pakistan and others v. Public at Large and others (PLD 1987 SC 304). As mentioned above, that the basic order is without lawful authority, the superstructure shall have to fall on the ground automatically. Both the Courts below have given concurrent findings of facts against the petitioners. It is well‑settled law that interference in concurrent finding of fact can be made by the High Court when the evidence is ~'i misread and finding is based on surmises and conjectures or based on inadmissible evidence or there existed an error or defect in the procedure which may possibly have introduced an error or defect in the decision on merits. It is also established proposition of law that findings of question of facts or of law, howsoever, erroneous the same may be recorded by the Court of competent jurisdiction, cannot he interfered with by the High Court, in exercise of its revisional jurisdiction under section 115 of C.P.C., unless such findings suffer from jurisdictional defect, illegality, or material irregularity. In N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (PLD 1949 Privy Council 26), the relevant observation is as follows:‑‑ "This section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought, to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provisions of law or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law." No jurisdictional defect has, of course, been pointed out in this case and, similarly, no legal infirmity in the impugned judgment has been alleged." The learned counsel of the petitioners fails to point out any illegality or infirmity in the impugned judgments of the Courts below, therefore, .the revision petitions have no force, the same are dismissed, however, in the interest of justice and fair play the competent Authority is directed to finalize the process of demarcation within three months after receiving the order of this Court. Parties are directed to appear before the Deputy Settlement Commissioner/Notified Officer on 18‑10‑2001 who is directed to do the needful within the prescribed period. With these observations, the revision petitions are disposed of. Q.M.H./M.A.K./ M‑844/L Revision dismissed