2002 PLP 526 (MLD)

This judgment passed in Civil Revision No.217‑D of 1979 shall also decide Writ Petition No. 1329 of 1999 as the same questions of law and fact are involved in both cases:

2. This civil revision seeks to challenge the judgment and decree, dated 21‑6‑'1978 of the trial Court as well as judgment and decree, dated 29‑7‑1979 of the Lower Appellate Court by which the declaratory suit of the petitioners was dismissed.

3. The facts are that the land measuring 89 Kanals and 6 Marlas situate in village Ghummana (also known as Talia) Tehsil and District Bahawalnagar was allotted in favour of Murad Ali predecessor‑in‑interest of the respondents vide R. L. II No. 122, dated 10‑6‑1972. The petitioners filed . a suit for declaration and permanent injunction on 13‑10‑1975 claiming therein that the subject land comprised of Abadi Deh and its confirmation in favour of predecessor‑in‑interest of the respondents as evacuee agricultural land was illegal and ineffective upon their rights. As a consequential relied, perpetual injunction restraining the respondents from interfering in their possession was also claimed. The respondents , contested the suit on the ground that the Civil Court had no jurisdiction; that the suit was barred by time; that, the plaintiffs not being in possession, the suit was not maintainable and that the suit was not properly valued for the purposes of court‑fee and jurisdiction. On merits it was denied that the land formed part of Abadi Deh and contended that it was evacuee agricultural land which was rightfully transferred in their favour vide R.L.II No. 122, dated 10‑6‑1972.

4. From the pleadings of the parties, following issues were framed:‑‑ ISSUES: (1) Whether the suit is not maintainable in its present form? OPD. (1‑a)Whether this Court has no jurisdiction to try this suit? OPD (1‑b) Whether the suit is barred by time? OPD. (1‑c) Whether the plaintiffs have no cause of action to bring this suit? OPD. (2) Whether the suit is not properly valued for the purposes of court‑fee? OPD. (3) Whether the confirmation of the property in dispute in favour of the defendant No.2 is illegal, void and without jurisdiction and of no effect against the rights of the plaintiffs? OPP. (4) Whether the plaintiffs are entitled to the transfer of the property, in dispute? OPP. (5) Whether the plaintiffs have not come to the Court with clean hands and the defendants are entitled to special costs under section 35‑A, of C.P.C.? OPD. (6) Relief.

5. The learned trial Court after recording the evidence produced before it found that the petitioners are in possession of the property in dispute, wherein, they are residing and .thus the suit was maintainable. Nonetheless it was found that the suit was barred by time; that the Civil Court had no jurisdiction in the matter and that despite the possession of the petitioners upon a portion of property in question, it retained its character of agricultural land. Consequently, the suit was dismissed vide judgment and decree, dated 21‑6‑1978.

6. Aggrieved of the dismissal of their suit, the petitioners filed an appeal which was dismissed vide judgment and decree dated 29‑7‑1979. The Appellate Court confirmed the findings of the trial Court and came to the conclusion that the suit was barred by time and that the jurisdiction of the Civil Court was barred under section 22 and section 25 of the Displaced Persons (Land Settlement Act), 1958. The learned Appellate Court refrained from itself determining the nature of the land in question as to whether it was evacuee agricultural land of formed part of Abadi Deh. It was of the view that the determination of this fact was the exclusive domain of the Settlement Authorities regarding which their final verdict in the shape of the disputed R. L.11 had been made.

7. While this, C.R. was pending, one Rao Khurshid Ali, acting in representative capacity on behalf of village Ghummana, moved an application dated 27‑2‑1997 before "the" Collector Bahawalnagar, wherein, the allotment in favour of Murad predecessor in‑interest of the respondents vide the R.L.II No.122 dated 10‑6‑1972 was challenged as being based upon misrepresentation and fraud. This application was marked to Assistant Commissioner, Bahawalnagar for his report. Report dated 27‑3‑1997 was submitted by A.C. through which it was recommended that the R.L.1I No.122 dated 10‑6‑1972 was a result of misrepresentation and that the said R.L.11 be cancelled Subsequently, the Member Board of Revenue/Chief Settlement Commissioner. Punjab authorized the Collector vide letter dated 17‑12‑1998 to proceed for the cancellation of the disputed R.L. II. As the Assistant Commissioner/ Deputy Settlement Commissioner (Rural) Bahawalnagar was proceeding to finally decide the matter of R. L.II No.122, dated 10‑6‑1972 Writ Petition No.1329 of 1999 was filed by Dewan Ali and others contending that proceedings initiated by the Collector, Bahawalnagar, the Chief Settlement Commissioner and the A.C./Deputy Settlement Commissioner (Rural) was without lawful authority. The case of the writ petitioners was that the issuance of R. L. 11 No. 122, dated 10‑6‑1972 was a past and closed transaction and that the afore‑cited authorities had no jurisdiction in the matter particularly after the Repeal of Evacuee Laws and after the concurrent findings of the Civil Court and the First Appellate Court which at the time of filing the Writ Petition No. 1329 of 1999 was subjudice in the present Civil Revision.

8. Mr. Aejaz Ahmed Ansari, Advocate, appearing in support of the C. R. contended that the findings of both the learned lower Courts upon the question of Limitation and jurisdiction was illegal. It was argued that the lower Courts had erroneously held that the limitation shall be governed by Article, 14 of the Limitation Act. According to him the period of limitation was to, be determined under Article 120 of the Limitation Act which provided‑ a period of six years and not as decided by the lower Courts. He further submitted that as the disputed R.L.II was obtained through misrepresentation and fraud and as fraud vitiates all proceedings, no limitation shall run against such an order. On the ground of jurisdiction, the learned counsel for the petitioners contended that the Civil Court is a Court of general jurisdiction and is competent to examine the legality of all acts of authorities constituted under Special Laws, despite the ouster clause if the special authority has acted without jurisdiction.

9. On merits, the learned counsel for the petitioners submitted that according to the evidence on the record comprising the statements of P.W.1 Khalid Sharif, Patwari, P.W.2 Muhammad Siddique, P.W.3 Kala, P. W.4 Talib Hussain and P. W.5 Muhammad Yasin, it‑is established that the land in dispute forms part of Abadi Deh.. He also referred to Exh. P. 1 site, plan produced by P.W.1, P.5 Jamabandi for the year 1949‑50, P.6 Jamabandi for the year 1973‑74, P.7 Jamabandi for the year 1940‑41, P.8 and P.9 Jamabandi for the year 1934‑35 to contend that the land in question was recorded therein as Ghair Mumkin Basti. According to him this evidence was sufficient to show that the land in dispute was not agricultural land and could not be allotted in favour of the predecessor of the respondent as such. The learned counsel for the petitioners further claimed that after the promulgation of Settlement Scheme No.7, the petitioners were entitled to the transfer of Rural Houses in which they were in possession before 1961 According to him after coming into force of Scheme No.7, the confirmation of the land in dispute vide R. L.11 as agricultural land is void Reference was made to Farida Begum v. Nasir‑ud‑Din PLJ 1974 Lahore 322 to contend that the Settlement Commissioner came to the conclusion on the basis of Special Jamabandi in that case that land was not agricultural land and cancelled the allotment made under Displaced Persons (Land Settlement) Act, 1958. The learned counsel for the petitioners submitted that such an order of the Settlement Commissioner declaring land as "building site" cannot be declared as without lawful authority. "He further relied upon Abdul Saeed v. Choudhary Muhammad Latif Khan and others 1983 CLC 2491 to contend that description of. land as "Banjar Qadeern" and "Banjar Jadeed" are both descriptions of two categories of agricultural land but notwithstanding such land can be proved to be denuded of status of agricultural land if proved through evidence. The learned counsel for the petitioners further referred to the case of Captain Asmat Hayat Khan and others v. Yousaf Masih and others 1994 SCMR 456 in support of his contention that where houses were built on Ghair Mumkin Abadi and such site was allotted as agricultural land, such allotment shall be void, if the character of Ghair Mumkin Abadi is proved.

10. To support his contention that the Civil Court had jurisdiction despite the repeal of Evacuee Laws, reference was made to Abdullah and others v. Muhammad Nawaz and others 1994 SCMR

83. To the same effect, reference was made to Ghafoor Bux v. Haj Muhammad Sultan and others 2001 SCMR 398.

11. Upon the question of limitation, the learned counsel for the petitioners referred to Article 120 of the Limitation Act to contend that in the circumstances of the case in hand the prescribed limitation would be six years.

12. On the other hand, Mr. M.M. Bhatti, Advocate the learned counsel for the respondents contended that while making allotment of land to claimants, made for determination of the classification of land is to be as shown in the special Jamabandi. He relied upon Exh.P.8 wherein; the land in question has been described as agricultural land and the said entries are based upon the entries in the special Jamabandies. Special Jamabandis has also been placed on the record according to which the Khasra numbers in question are shown to belong to Ram Lal and Ram Lai evacuees. According to him the land is not described as Ghair Mumkin Abadi or Ghair Mumkin Basti to the Special Jamabandi. He placed reliance upon Tufail Muhammad v Abdul Aleem Khan and others 1991 SCMR 1 in support of the contention that the classification of the land is to be made according to the special Jamabandis

13. It was further contended that after the repeal of evacuee laws on 30‑6‑1974, the R.L.II in question has become past and closed transaction. Both the lower Courts have concurrently found that the classification of the land in dispute as agricultural land was within the jurisdiction of the Settlement Authorities, and fraud was neither specifically alleged nor proved on the record. Relying upon copies of Khasra Gardawari and copies of Register Haqdaran Zamin it was urged the major portion of the property in question was agricultural in nature. It has also been found that any structure raised for a purpose subservient to agriculture shall not change the nature and character of the land as it originally enjoyed.

14. Arguments heard. Record perused.

15. There is no cavil with the proposition that true nature of land is to be determined on the basis of the actual use to which it is, or has been put by its owners. The entry in the special Jamabandi is one such indicating factor. It is in this context that the entry such as Banjar Jadeed or Banjar Qadeem have to be appreciated. In Farida Begum v. Nasuruddin PLJ 1974 Lahore 322, it was determined as a question of fact that the property in that case had ceased to be agricultural land as it was not being held at the relevant time for the purpose of agriculture or for any purpose subservient to agriculture. In Abdul Saeed and others v. Chaudhary Muhammad Lateef Khan 1983 CLC 2491 the terms Banjar Qadeem and Banjar Jadeed were again examined. Although both these descriptions were held to be known categories of agricultural land yet the important factor for determining its character was the material to be placed on the record according to which a determinative finding can be given. In that case it was held that land bears the character of agricultural land and that such findings was supported by material on the record. Reference at this stage may also be made to the rule laid down in Boota Ram v. Bagga Singh and another AIR 1948 Lahore 103, where a Division Bench ruled that despite part of estate lying fallow and although it is not occupied for the purpose of either agricultural or subservient to agriculture. It does not automatically ceased to be part of the estate unless the owner has converted it into a building site by an overt act which hay the effect of effectively changing the nature of the land from agricultural to building site.

16. A similar question came up before the Supreme Court in Captain Asmat Hayat Khan and others v. Yousaf Masih and others 1994 SCMR 156, where the site in question was recorded in the special Jamabandi as Ghair Mumkin Abadi. It was in such circumstances ruled that allotment of such land as agricultural land under the provisions of Displaced Persons (Land Settlement) Act, 1958 was void.

17. Reviewing the evidence on the record in the light of the above determining factors, it is found that both the learned lower Courts came to a concurrent finding of fact that the land in question was agricultural in nature despite there being some construction on the same. In arriving at this conclusion both oral and documentary evidence on the record was kept in mind In the suit that has been filed by the petitioners no specific allegation of fraud has been alleged nor any such fraud have been proved on the record which could vitiate the transfer in favour of the respondent No.2. It is also found that the declaratory suit filed against the order of A.R.C. Bahawalnagar dated 10‑6‑1972 whereby evacuee land was confirmed in favour of respondent No.2 was filed on 13‑10‑1975, The learned counsel for respondent No.2 is correct in submitting that under Article 14 of the Limitation Act the time prescribed for filing the suit against the order of a public functionary is one year and that resort cannot be made to Article 120~of the Limitation Act to avail of six years as period of limitation. The finding of both the lower Courts that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the transfer which took place prior to the repeal of the evacuee laws was not a pending matter and could not be re‑opened or k challenged before the trial Court is without exception. Reliance in this respect is placed on the case of Jamal Din and another v. Mst. Pari Jan and four others 1984 SCMR 403, wherein, it has been held that in the absence of proof of fraud or misrepresentation the Civil Court would have no jurisdiction. As found from the record, no fraud or misrepresentation has been proved by the petitioners.

18. As a sequel of this discussion, the civil revision has no merit and is hereby dismissed. On the same parity of reasoning the corresponding Writ Petition No. 1329 of 1999 filed by Dewan Ali and others the Legal Heirs of Murad Ali (respondent No.2 in Civil Revision) is liable to succeed. As a result the Writ Petition No. 1329.of 1999 is accepted. Parties to beat their own costs. Q.M.H./M.A.K./D‑28/L Revision dismissed.