1986 PLP 1677 (CLC)

Nemo for Respondents Nos. 1 and

3. Sh. Naveed Sheharyar for Respondent No.4. Date of hearing: 19th February, 1986. This revision petition by Ahmad Khan etc. (six petitioners) who are sons of Yara Khan is directed against the order of the learned District Judge, Jhang dated 18th of June, 1983 whereby he dismissed their appeal from the order passed by the Civil Judge, Jhang on 8th of June, 1983 rejecting the plaint of their suit.

2. The dispute between the parties pertains to house No.706 situated in Block XI, Mohallah Baghwala, Jhang Saddar. The claim of the petitioners is that they are the owners in possession of the house as the same was purchased by Ahmhd Khan and Muhammad Khan, two of them, alongwith their father namely Yara Khan and their deceased brother namely Gehna Khan from Sultan etc. sons of Muhammad Din for Rs.800 vide registered sale‑deed dated 21st of December, 1929: However, the house was treated as evacuee property by the Settlement Department and in an earmarking scheme transferred to Muhammad Mazharul Haq, respondent No.4 by the Deputy Settlement Commissioner, Jhang vide his order, dated 25th of February, 1960. P.T.O. and P.T.D. of the house were issued in favour of the respondent on 12th of June, 1960 and 18th of February, 1979 respectively. The petitioners assailed the order of the Deputy Settlement Commissioner, Jhang dated 25th of February, 1960 before the Additional Settlement and Rehabilitation Commissioner who ‑vide his order, dated 27‑12‑1969 accepted the same and remanded the case to the Deputy Settlement Commissioner with a direction to provide an opportunity to the petitioners to lead evidence in support of their claim that the house belonged to them and it was not an evacuee property. The Deputy Settlement Commissioner vide his order dated 6th of May, 1970 rejected the claim of the petitioners observing that. since the house was a part of the compensation pool, only the Custodian was the competent authority to declare the same as non‑evacuee. The petitioners instead of approaching the Custodian assailed the order of the Deputy Settlement Commissioner before the Additional Settlement Commissioner who vide his order dated 27th of July, 1972 upheld the order of the Deputy Settlement Commissioner and directed the petitioners to approach the Custodian for a declaration of their title to the house. The petitioners persisted in seeking the relief from the Settlement Department by assailing the order of the Additional Settlement Commissioner in revision before the Settlement Commissioner who too dismissed the same on 11th of May, 1974. The petitioners admittedly did not move any application to the Custodian for a declaration of their title as envisaged by section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 which ultimately was repealed by the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, promulgated on 30th of September, 1974 but made effective from 1st of July, 1974.

3. On 27th of September, 1977, respondent No. 4 filed an application for the eviction of the petitioners from the house under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 on the grounds of default in the payment of rent and personal need. The petitioners contested the application. The application was accepted by the Rent Controller on 17th of September, 1980. The petitioners assailed the ejectment order in appeal but the Appellate Authority dismissed the same. The petitioners filed a constitutional petition to challenge the ejectment order passed against them by the Rent Controller and the Appellate Authority. This writ petition was dismissed on 27th of March, 1982. They appealed before the Supreme Court. It is reported that they did not succeed in the Supreme Court also.

4. On 10th of July, 1982, the petitioners filed a civil suit in which they alleged that since the house had been purchased by them in 1929, the action of the Settlement Department in treating the same as evacuee property and transferring it to Muhammad Mazharul Haq, respondent No. 4 was illegal, without jurisdiction and void. They sought a declaration to this effect and also a perpetual injunction restraining respondent No.4 from evicting them from the house.

5. The learned trial Court rejected the plaint observing that the petitioners had no cause of action as the matter had been conclusively decided by the Settlement Authorities and by the High Court in writ jurisdiction and that they ought to have obtained a declaration of title from the Custodian. Feeling dissatisfied, the petitioners preferred an appeal which was heard by the learned District Judge, Jhang who dismissed the same holding that the suit of the petitioners was barred not only by res judicata under section 11, C.P.C. but also under section 3 of the Limitation Act as the orders of the Settlement Authorities could be impugned within six years as prescribed by Article 120 of the Limitation Act.

6. Learned counsel for the petitioners has contended that the pleas of res judicata and limitation which have prevailed with the learned District Judge in dismissing the appeal of the petitioners are untenable. He has argued that the High Court did not determine the question of title in writ jurisdiction and as the P.T.D. of the house was issued to respondent No.4 on 18th of February, 1979, the suit of the petitioners having been filed on 10th of July, 1982 i.e. within six years was within time under Article 120 of the Limitation Act. He has further contended that since the Evacuee Laws had already been repealed on 18th of February, 1979 on which date the P.T.D. of the house was issued in favour of respondent No.4. the petitioners had no other forum except the Civil Court to assail the same and the suit instituted by them was not barred by any law. These contentions have been vehemently controverted by learned counsel for the respondent. He has argued that cause of action, if any, accrued to the petitioners when the house was treated as evacuee property and then on 25‑2‑1960 on which date the order was passed by the Deputy Settlement Commissioner transferring the house to respondent No.4 in an earmarking scheme.

7. Once a property was treated as an evacuee property, no civil) or revenue court or any other authority could entertain or adjudicate upon any question as to whether the property was or was not evacuee as provided in section 41 of the Pakistan Administration of Evacuee Property Act, 1957. If any person claimed any right or interest in any property treated as evacuee property, the only remedy available to him was to invoke the Jurisdiction of the Custodian by an application under section 22 ibid for a declaration that the property was not evacuee. The petitioners admittedly did not avail of this remedy in spite of repeated directions given to them by the Settlement Authorities, the last in the series having been issued by the Settlement Commissioner in revision on 11th of May, 1974. Learned counsel for the petitioners argues that since a certified copy of the order of the Settlement Commissioner was not supplied before the promulgation of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974, they could not apply to the Custodian. This argument is invalid. No such copy was required to be filed alongwith the application to the Custodian under section 22 of the Pakistan Administration of Evacuee Property Act, 1957. On account of the failure of the petitioners to obtain the requisite declaration from the Custodian, their title to the house, if any, was extinguished. The Civil Court has no jurisdiction to question the validity of the orders passed by the Settlement Authorities even after the repeal of the Evacuee Laws. Reliance in support of this view may be placed on Jamal Din and another v. Mst. Pari Jan and 4 others 1984 S C M R 403.

8. For the foregoing reasons, this revision petition has no force and the same is accordingly dismissed. The parties are left to bear their own costs. M . Y . H . Petition dismissed.