P L D 1970 Supreme Court 162 (PLP)

Respondent Ex parte Date of hearing : 21st November 1969. MUHAMMAD YAQUD ALI, J.-These pauper appeals arise out of two civil suits one filed by Sardar Muhammad, respondent, in Civil Appeal No. 204 of 1969 and the other by Muhammad Anwar, respondent, in Civil Appeal No. 205 of 1969 against the appellants herein in the Court of Civil Judge, Multan. A common prayer was made in both the suits that the order of the Settlement Commissioner dated the 19th November 1965, modifying the mutation of inheritance of Allah Bakhsh, a displaced person from Punjab (India), settled in Chak No. 475/E. B., Tehsil Vehari, district Multan, was illegal, void and without justification. In the original Mutation the estate of Allah Bakhsh comprising of the land in dispute in the two suits was distributed among his widow Mst. Almay, appellant No. 2, a son Muhammad Yousaf, appellant No. 4, and his daughters Mst. Zainab and Mst. Sahib Khatoon, appellants Nos. 3 and

5. The name of Mst. Habib Khatoon, appellant No. 1, who claimed to be the third daughter of Allah Bakhsh was however; omitted either due to an error or for the reason that by then she had on migration not joined her family. By the impugned order the Settlement Commissioner allowed the claim of the appellant No. 1 and allotted her 7/40th share in the estate of Allah Bakhsh. The respondents who claimed to have earlier purchased the land from the appellants 2 to 5 in the year 1960 thus felt aggrieved by the order of the Settlement Commissioner and instituted separate suits to impugn its legality. Along with the suits the respondents moved applications under Order XXXIX, rule 1, C. P. C., for issuance of temporary in. junction restraining the appellants and the Settlement Commissioner from interfering with their respective possession of the land in dispute. The trial Judge accepted the applications and by order dated the 1st June 1967, granted temporary injunction asked for by the respondents. On appeals preferred by Habib Khatoon etc., the Additional District Judge, Multan, however reversed the orders of the trial Judge on the ground that section 25 of the Land Settlement Act was a bar to the maintenance of the suits. The respondents thereupon moved the High Court under section 115, C. P. C., contending that since absolute proprietary rights had been conferred on them under section 16 of the Land Settlement Act before the Settlement Commissioner passed the impugned order section 25 was not a bar to the maintainability of the suits. A learned Judge in the High Court accepted the revision petitions and setting aside the appellate orders of the Additional District Judge, Multan, restored the temporary injunctions granted by the Civil Judge in favour of the respondents. In arriving at the conclusion that section 25 of the Land Settlement Act was not a bar to the maintainability of the suits, he relied on the decision of this Court in Devachand Muljlmal v. Deputy Settlement & Rehabilitation Commissioner (P L D 1965 S C 357). It was held in that case that as soon as evacuee property was acquired under section 3 of the Displaced Persons (Compensation and Rehabili tation) Act, 1958, it ceased to be evacuee and the Custodian had no further jurisdiction with regard to it. The provisions of section 4 of the Land Settlement Act, 1958, being in similar terms as section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the learned Judge applied the above dictum to the facts of the present cases and felt fortified in this respect by the provisions of section 16 of the Land Settlement Act which as amended in 1964 provides: "

16. Notwithstanding anything contained in any other law for the time being in force, the land on which a displaced person is permanently settled under this Act shall vest absolutely in such person." In the opinion of the learned Judge it followed that such property not only ceased to be evacuee, but also passed out of the compensation pool with the result that neither the Custodian nor the Settlement authorities had any jurisdiction to deal with it. Disputes of civil nature regarding the suit land which had come to be vested absolutely in the respondents were, therefore, held to be within the exclusive jurisdiction of civil Courts. Special leave to appeal was granted on the 20th June 1969, to consider the correctness of the view adopted by the learned Judge. The proceedings in both the appeals were ex parse against the respondents possibly for the reason that in the meantime in a suit filed by Mst. Almay, appellant No. 2. the sale of the land in dispute in their favour has been set aside as tainted with fraud and misrepresentation. The reliable facts are that, Allah Bakhsh, a displaced person from East Punjab (India) had, on Migration settle4 in Chak No. 475/E.B., Tehsil Vehari, District Multan. He died in 1948, but the claim for the land abandoned by him in East Punjab was in accordance with the Rehabilitation Scheme verified by the Central Record Room in his name. Thereupon mutation No. 21/261 was entered in the names of the appellants 2 to 5 and as mentioned above, the name of Mst. Habib Khatoon, appellant No. 1, the third daughter of Allah Bakhsh was omitted. The mutation was attested by the Assistant Rehabilitation Commissioner (Land) on 10-5-1953. Later on when Mst. Habib Khatoon came to know that she had been excluded from the inheritance of her father she filed an appeal from mutation No. 21/261 before the Deputy Settlement Commis sioner (Lands) Multan, which was dismissed as barred by time on the 12th October 1964. She then filed a revision before the Settlement Commissioner (Lands), Multan, who accepted it by order dated the 19th November 1965 and directed that the name of Mst. Habib Khatoon be included among the heirs of Allah Bakhsh. The shares allotted to the appellants 2 to 5, under mutation No. 21/261, were, accordingly, modified and Mst. Habib Khatoon was given 7/40th share in the estate of Allah Bakhsh according to the rule of succession laid down in para. 46 of the Rehabilitation Scheme. Sardar Muhammad and Muhammad Anwar thereupon instituted separate suits in the Court of the Civil Judge, Multan, seeking declarations that the order of the Settlement Commissioner dated the 19th November 1965, was illegal, void and without jurisdiction. The subsequent events leading to the institutions of these pauper appeals have already been set out. It is unnecessary to examine whether the bar contained in section 25 of the Land Settlement Act is removed as soon as absolute rights are conferred on an allottee under section

16. As seen Mst. Habib Khatoon had filed an appeal before the Deputy Settlement Commissioner (Lands), Multan, on some date prior to 12th October 1964. Section 16 of the Land Settlement Ac4 comes into operation only when land has been permanently' settled on an allottee under section 15(3) which provides " ..in such manner and on payment of such fees as may be prescribed by the Central Government: Provided that no order of permanent settlement shall be passed in cases where- (a) the land held by the allottee concerned is the subject matter of an appeal, revision or review before a Rehabilitation Authority; . . . " Under rule 7 of the Displaced Persons (Land Settlement) Rules, 1959, a displaced person to whom any land has been allotted under a scheme shall subject to the proviso to subsection (3) of section 15 be deemed to have been permanently settled on the land so allotted to him with effect from the 24th day of December 1964, or the date of the confirmation of the allotment whichever date is later, provided that the allottee has paid settlement fees as required by rule

10. As the revision petition instituted by Mst. Habib Khatoon in the Court of the Settlement Commissioner was pending on the 24th December 1964, it followed that neither the appellants 2 to 5 nor the respondents claiming to be their successors-in-interest were permanently settled on the land to attract the provisions of section

16. A fortiori the Settlement Commissioner had the exclusive jurisdiction to determine the rightful heirs of Allah Bakhsh when he passed the impugned order on the 19th November 1965. The civil Courts were, therefore, debarred under section 25 of the Land Settlement Act to sit in judgment on the legality of that order. Both the appeals must, therefore, be allowed and the orders passed by the High Court in Civil Revisions 372 and 373 of 1967 set aside. In the result the appellate orders of the Additional District Judge, Multan, are restored and his finding that the suits instituted by the respondents to impugn the validity of the order of the Settlement Commissioner dated the 19th November 1965, are incompetent in law is armed. As the respondents have not chosen to defend the appeals there shall be no order as to costs. K. B. A. Appeals accepted.