P L D 1965 (W (PLP)

MUSHTAQ HUSSAIN, J.‑House No. 5. 1‑130‑S‑1, was trans ferred to Sheikh Muhammad Ishaq defendant while another house No. 5. 1‑130‑S‑2, was transferred to Mian Muhammad Din plaintiff. These two houses are situated at the Nisbet Road, Lahore and form part of the same building. The transfer took place under the Displaced Persons (Compensation and Rehabili tation) Act, 1958 (XXVIII of 1958). A dispute arose between the parties about the ownership of the portion delineated red in the plan, Annexure `A'. The Settlement Authorities gave a finding that it formed part of house No. 5. 1‑130‑S‑1.

2. Mian Muhammad Din filed a suit in the Court of the Senior Civil Judge, Lahore, praying for a declaration that the disputed portion is a part of house No. 5. 1‑130‑S‑2, which has been lawfully transferred to him and for an injunction restraining the defendant from interfering with his possession.

3. The suit was dismissed by the Senior Civil Judge, Lahore, on the 20th of February 1964 and an appeal filed against that order met with the same fate at the hands of the Additional District Judge, Lahore, on the 15th of January 1965.

4. Feeling aggrieved Mian Muhammad Din filed the present Second Appeal in the High Court.

5. The disputed portion being in possession of Mian Muhammad Din, on 1st of September 1961, Sheikh Muhammad Ishaq Gaba filed an application under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959, for the ejectment of the respondent from it. Muhammad Din raised a preliminary objection that the relationship of landlord and tenant did not exist between the parties. A preliminary issue was, therefore, framed. This preliminary issue was decided against Muhammad Din, and the Rent Controller held that the relationship of landlord and tenant did exist between the parties. Thereafter, the learned Rent Controller proceeded to determine the matter on merits and he framed three issues‑ (1) Whether a valid notice was served upon the respondent? (2) Whether this Court has no jurisdiction to try this application? (3) Relief.

6. Having decided all of them against him the Rent Controller passed an order of ejectment against Muhammad Din on the 7th of March 1962.

7. Muhammad Din went in appeal to the Court of the Additional District Judge who by his order dated the 1st of July 1963, upheld the order of the Rent Controller and dismissed the appeal.

8. Muhammad Din has come up in second appeal against that order also to this Court. The Second Appeal against order was admitted to a pacca bearing and numbered as 233 of 1963, while the Regular Second Appeal, referred to above, has not yet been admitted to a pacca bearing. Since the Regular Second Appeal, had been placed in motion before this Bench, the Chief Justice ordered that the Second Appeal, which has already been admitted, be also placed before us for disposal.

9. The only ground, which has been urged before us by the learned counsel for the appellant, is that the property having been transferred by the Settlement Authorities to the parties they become functus officio and it was not open to them to have demarcated the property or to have settled the dispute between the parties with regard to the fact as to whether the portion in dispute formed part of one house or the other. He contends that all that the Settlement Authorities were competent under the law to do was to transfer the house bearing one number to one party and that bearing the other number to the other party. They could not, according to him, go into the question as to whether the portion in dispute was a part of one property or the other. The jurisdiction to determine this question is that of the civil Courts alone and that the lower Courts in having come to the contrary conclusion have acted against the law.

10. Civil Courts derive their jurisdiction from section 9 of the Code of Civil Procedure which runs as follows:‑ "The Courts shall (subject to the provisions herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which cognizance is either expressly or impliedly barred. Explanation.‑A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of question as to religious rites or ceremonies:" There can be no doubt that the dispute in the present case is one of a civil nature and should be ordinarily triable by the civil Courts unless it can be shown that these Courts have bean either expressly or impliedly debarred from taking cognizance of it.

11. The Settlement Authorities act under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). Section 22 of this Act, provides: "Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act shall be final and shall not "be questioned in any Court." Section 25 of the same Act is to the following effect:‑ "Bar of jurisdiction.‑Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the 'Central Government or an officer appointed under this Act is empowered under this Act to determine and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." If, therefore, the order of demarcation of the property in dispute is one which can be made by a Settlement Officer under the said Act, the jurisdiction of the civil Courts would be barred.

12. Paragraph I of the Schedule of this Act provides that a house in possession of a claimant shall be transferred to him. Section 2(4) defines a house in the following words:‑ " `house' means evacuee residential premises of any value in an urban area, or of the value of ten thousand rupees or more in a rural area, together with the gardens, grounds, garages and‑ outhouses, if any, attached to or appurtenant to such premises, notwithstanding that any such garden, ground, garage or outhouse is in the possession of a person other than the person or persons in possession of such residential premises, but does not include building situated within the premises of an industrial concern, or a building or premises declared under paragraph 16 of the Schedule to be a big mansion or hotel: Provided that where any building or premises not so declared consists of more than one residential unit, and such units are in the possession of several persons, then, unless the Chief Settlement Commissioner orders otherwise, the whole of such building or premises shall be deemed tube a house: Provided further that where the area of the gardens and grounds attached or appurtenant to a house exceeds three times the plinth area of the house including outhouses and garages, if any, the area so in excess, or such part thereof as the Chief Settlement Commissioner may determine, shall not be treated as part of the house." It is not denied ‑that the two houses in question are part of the same building and that they consist of more than one residential unit. It was, therefore, for the Chief Settlement Commissioner, or, a person acting under authority delegated by him, to decide whether they were to be one house or two. In the instant case, it is clear that the building was held to constitute two houses. For the purpose of coming to this conclusion it was, therefore, essential for the persons' exercising the delegated authority to determine and demarcate the exact portion of the building which would constitute one house and the other would then automatically constitute the other house. It is therefore, not correct to contend that the demarcation of they two houses was a duty not cast upon an Officer of the Settlement Department under the Act. It needs no gain‑saying that it is not an ethereal object which is transferred by the Settlement Department by virtue of the Provisional Transfer Order but a tangible thing in the shape of a house and unless the transferee knows what is actually being transferred to him the Settlement Authority would not be deemed to have performed its function in accordance with the Act. For this purpose it is the duty of the Settlement Authority to demarcate the property‑and to describe it in the Provisional Transfer Order with exactitude as has been, done in the present case.

13. The extent of the jurisdiction of civil Courts came up for examination before the Privy Council in the case, Secretary of State v. Mask & Company (AIR 1940 PC 105.). Mask & Company in that suit sought to recover the excess amount collected from them by levying duty upon a tariff value of twenty‑three rupees per hundred weight upon one thousand bags and of sixteen rupees per hundred weight upon the remainder, Viz., 3,063 bags instead of levying duty upon the invoice value of ten rupees nine annas and one paisa per hundred weight; the order of the Assistant Collector of Customs which had been confirmed by the Collector and by the Government of India in revision was assailed in this case. One of the issues framed in the case was: "Has this Court no jurisdiction to entertain this suit and is the suit barred by the provisions of the Sea Customs Act?" The following observation of their Lordships at page 110 is very illuminating:‑ "By sections 188 and 191 a precise and self‑contained code of appeal is provided in regard to obligations which are created by the statute itself, and it enables the appeal to be carried to the supreme head of the Executive Government. It is difficult to conceive what further challenge of the order was intended to be excluded other than a challenge in the civil Courts . . . . . . . . Their Lordships are of opinion that in this case the jurisdiction of the civil Courts is excluded by the order of the Collector of Customs on the appeal under section. 188, and is unnecessary to consider whether, prior to taking such appeal under section 188 the respondents would have been entitled to the resort to the civil Courts, or whether they would have been confined to the right of appeal under section 188."

14. Section 188 of the Sea Customs Act provides that am person who deemed himself aggrieved by any decision or order passed by an Officer of Customs under that Act may within the prescribed period appeal there from to the Chief Custom Authority or to such other Officer not inferior in rank to a Custom Collector who is especially empowered in that behalf. It was also provided in that section that‑ "every order passed in appeal under this section shay subject to the power of revision conferred by section 191 by final." And section 191 declared that‑ "the local Government may on the application of any person aggrieved by any decision or order passed under this Act by any Officer of Customs or Chief Customs Authority and from which no appeal lies reverse or modify such decision." The conclusion reached by their Lordships of the Privy Council and referred to above was based on an interpretation of the words appearing in section 188,‑ "every order passed in appeal under this section shall, subject to the power of revision conferred by section 191, be final." The wordings of sections 22 and 25 of Act XXVIII of 1958 reproduced above are in much wider terms than those of section 188 of the Sea Customs Act, and it, therefore, seems to us that section 188 of the Sea Customs Act would have been construed so as to exclude the jurisdiction of the civil Courts there is no reason why sections 22 and 25 of the Displaced Persons (Com pensation and Rehabilitation) Act do not have the same effect.

15. The following observations of the Full. Bench in Mian Sultan Ali Manghiana v. Mian Nur Hussain (P L D 1949 Lah. 301) are of interest in this connection‑ "The rule is fundamental both here and in England that where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party com plaining of any infringement of such right can only seek such remedy as is provided by that statute . . . . . . . The law being settled beyond question that where a Special Tribunal, out of the ordinary course is appointed by an Act to determine questions as to rights which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied, that Tribunal's jurisdiction to determine those questions is exclusive." Learned counsel for the petitioner adverted our attention to a judgment of this Court delivered by Muhammad Iqbal, J. in Syed Ali Moazzam v. M. A. Effandi R. S. A. No. 374 of 1963 to support his argument that the jurisdiction of civil Courts is not ousted in such cases. We have perused the judgment and have found that it relates to an entirely different set of facts and the dictum laid down in it is not attracted to the circumstances of this case. In that case‑‑ "none of the parties challenges the correctness or validity of an Order passed by the Settlement Authorities . . . 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." On the other hand, in the instant case the whole dispute centres round the orders passed by the Settlement Authorities demarcating and describing the property transferred to the parties. These orders were passed on the application of one of the parties and were subjected to the test of appeal and revision before officers who had the jurisdiction to do so. These orders were being assailed in the suit from which the present appeal has arisen. The judgment in R., S. A. No. 374 of 1963 has no bearing on the matter in dispute.

16. We, therefore, hold that the jurisdiction of the civil Court in the instant case was barred and that it was held so rightly by the learned trial Court as well as the learned lower appellate Court.

17. The result is that the second appeal against order stands dismissed and the regular second appeal would stand dismissed in limine. The parties shall be left to bear their own costs. A. H. Appeal dismissed.