1995 PLP 1823 (CLC)

(1) Whether the Civil Court has got no jurisdiction to entertain and try this suit? (2) Whether the suit has been correctly valued for the purposes of court fee and jurisdiction? If not, what is the correct valuation? (3) Whether the suit is maintainable in its present form? (4) Whether the suit has already become infructuous? (5) Relief Issues Nos.1 and 3 were decided against the plaintiffs/petitioners, whereas Issues Nos.2 and 4 were found in their favour and on Issue No.5 of relief the suit was dismissed leaving the parties to bear their own costs by the Trial court on 11‑2‑1976. The present petitioners filed appeal under section 96, C.F.C. in the District Court which was transferred to the Court of Additional District Judge, who heard and dismissed the same vide his judgment and decree dated 9‑4‑1984 upholding the judgment and decree of the Trial Court. The appellate Court disposed of the appeal on Issue No.1 alone. The findings of issues Nos.2 and 4 were maintained and commented nothing about the findings on Issue No.3 and I presume that the findings on Issue No.3 of the Trial Court were maintained. The Appellate Court left the parties to bear their own costs.

3. I shall first take Issue No.3. The Trial Court while deciding the issue observed that compensation regarding the land in dispute could have been claimed through a suit for recovery of an ascertained amount and that, in his view, the plaintiffs have purposely adopted the form of suit for declaration to avoid payment of court‑fee. The Trial Court had no material with him to observe as aforesaid. surprisingly the Trial Court omitted is read the import of the plaint itself. The plaintiffs could claim an ascertained amount only in case they were declared to be entitled to some right or title in the property being acquired. As the plaintiffs/petitioners were in possession of the land at the time of the issuance of notification for acquisition they were the interested persons and as such the form of the suit as for declaration was perfectly in order. I shall rather add that unless the plaintiffs were armed with sonic decree of the Court, declaring them entitled to any compensation or allotment of alternate land as compensation of the right or title they had in the property, defendants Nos.18 and 19 would never have entertained their claim for payment of compensation and/or of alternate allotment. The plaintiffs still would have faced the difficulty as their names would not have been mentioned by the Land Acquisition Collector in his award because their right in the land was being denied as was apparent from the written statements of defendants Nos.18 and

19. In view of what has been stated above the findings of the Trial Court on Issue No.3 are reversed and the same is decided in favour of the plaintiffs/petitioners.

4. Issue No.1 was decided against the petitioners/plaintiffs on the ground that the documents Exh. P.2 and P.3 contain the names of the Evacuees i.e. defendants Nos.1 to 17 in the column of ownership of Jamabandi for the estate and as such the property was evacuee anc3, therefore, the Civil Court lacked jurisdiction. The Appellate Court also confirmed the findings of the Trial Court on the issue and further held that the petitioners had failed to prove that they were occupancy tenants under sections 5(1)(a) and 5(1) (d) of the Punjab Tenancy Act, 1887.

5. Both the Courts below failed to appreciate the contentions raised at the Bar before them and also did not appreciate the entries in Exh. P.2 and Exh. P.3. These documents were more tha4 thirty years old and Courts below ignored the entries in column No. 9 of Jainabandi. It was mentioned therein that the occupants, Ghulam Rasool etc, were in possession as tenants "BASHARAH MALKAN BILA MALKANA" and this was sufficient to prove that the occupants i.e. 13 predecessors of the present plaintiffs were in possession of the land, though as tenants, without payment of any tent to the owners recorded in column No.4 of the Jamanbandi and their possession was admittedly " BASHARAH MALKAN BILA MALKANA. With this entry in Jamabaadi for the years 1930‑31 the lower Courts had absolutely no jurisdiction to treat the property as the ownership of the Evacuees. There was yet another circumstance which negated the ground taken by the Courts below to hold that the Civil Court had no jurisdiction. The Courts below failed to look into the provisions of Pakistan Administration of Evacuee Property Act, 1957. Section 3 thereof reads as under:‑‑ "3.‑‑(1) Notwithstanding anything. contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of Januar'3', 1957, shall be treated as evacuee or, as the case may be x‑s evacuee property, on or after the said date. (2) Nothing in subsection (1) shall apply‑‑ (a) to any person in respect of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee of such property as evacuee property; or (b) to any property which is occupied, supervised, or managed by a person whose authority or right so to do after the twenty‑eighth day of February 1947, has not been accepted‑"

6. After partition in the year 1947 J3 properties abandoned by non Muslims in Pakistan were allotted to rye refugees under Temporary Rehabilitation and Settlement Scheme. The land in dispute was never allotted to any of the Displaced Persons and the present petitioners or their predecessor‑in‑interest retained the possession as previously held by them. After the promulgation of Settlement Scheme No. 2 the displaced persons again were not settled on the land in dispute. The disputed land as such was neither treated as evacuee property nor the same could be treated as such after 1‑1‑1957, in view of section 3 of Pakistan Administration Evacuee. Property Act, 1957. The provisions of subsection (2) of section 3 did not apply to the present case because no action had been commenced where any proceedings were taken on the commencement day of Act XII of 1957. The petitioner; were in occupation of the land as a matter of right and clause (b) of subsection (2) of section 3 also did not apply .to them and any such presumption was excluded not only by the circumstances but also by the documentary evidence produced by the plaintiffs/petitioners as Exh.P'4 Exh.P.4 was the order of the Collector, Gujranwala, wherein a portion out of the disputed land was the subject‑matter of a suit for establishment of occupancy rights under sections 5(1)(a) and 5(1)(d) of the Punjab Tenancy Act, 1887. It was held by the Collector that the occupants had a right of remain in possession and that they could not be ejected from the said hard in view of the documentary evidence which had been placed on the said file. He further directed the parties to go to the Civil Court for determination of their right.

7. The Land Laws in Punjab have a history of their own and that entries in the revenue record create and extinguish the rights of the parties is an admitted fact. The entries in column No.9 of Jamabandi for the estate relating to the disputed property for the year 1930‑31 remained unchallenged and the long standing entries do have the presumption of truth and as the Jamabandi has been considered to be a record of right no entry therein could be changed except under a decree of the Court. The defendants/respondents failed to bring on record any decree of the Civil Court changing the nature of the possessory right of the plaintiffs/petitioners and as such I do `hold that the plaintiffs/petitioners, who were held by the Collector of the District to be not liable to eviction, did have a right in the land as at least occupancy tenants under section 8 of the Punjab Tenancy Act, 1887. Reliance is placed on Parman v. Ghanthu (AIR 1919 Lahore 277) and Babu and another v. Sahib Nath and others (Revenue Revision No.4 of 1933‑34) and also Kirpa and Jhala v. Tirhu and others (Revenue, Revision No. 36 of 1917‑18) and Bishambar Lal‑Basheshar v. Ram Chandar and another (1932) (II LLT 89).

8. The above view is supported by yet another legal aspect. The Displaced Persons (Land Settlement) Act XLYII of 1958 came into force in, the year 1958 and in view of section 4 thereof the. Central Government had the powers to acquire land and subsequent thereto the Government of Pakistan issued notification under subsection (2) of section 4 supra bearing No. 1376‑RR/4‑59 dated 15‑4‑1959 published in the Gazette, Extraordinary of Pakistan in its issue of 1‑5‑1959 and Notification No.R‑S/1‑60 (1462) dated 8‑6‑1960 and all evacuee properties, so acquired, were made into compensation pool and thus ceased to be the evacuee property. Defendants/respondents had no right to decide the nature of the property as evacuee and it was the Custodian alone who was competent to decide as such. Reliance is placed on Ghulam Muhammad v. Custodian, Evacuee Property (PLD 1966 Lahore 953). Even the Settlement Authorities had, in the present case no jurisdiction to treat land in dispute as evacuee property and even if they had held that the disputed land was evacuee property, the same could be challenged in an ordinary Civil Court on the ground that they had no jurisdiction with respect to the property in their possession. Reliance is placed on Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698) and similarly the reliance is placed on Mst. Ghulam Fatima v. Muhammad Hussain and 5 others (PLD 1976 SC 729). In view of what has been stated above the findings on issue No.1 of the trial Court and that of the lower appellate Court are set aside and issue is decided in favour of the plaintiffs/petitioners. Before parting with the discussion of issue No.1 I may remark that the onus of the issue was on the defendants who had not stated a word and had not even submitted a document to show, or by producing oral evidence to prove that the Civil Court had no jurisdiction to entertain and try the suit, and I would thus observe that the trial Court failed to appreciate the import of the Issue framed by itself and the appellate Court omitted to do so like‑wise. Issue No.5:

9. Coming to 'the question of relief and after holding that the Civil Courts had the jurisdiction and that the defendants failed to prove that the Civil Court had no jurisdiction I am left to decide as to what relief the plaintiffs/petitioners were entitled to. I am cognisant of the fact that the drafter of the plaint was not sure as to his own specific right in property. The very clear finding under Exh. P.4, as a consequence, made the plaintiffs, their predecessor‑in‑interest, the occupancy tenants, by implication, under section 8 of the Punjab Tenancy Act, 1887. The defendants failed to disprove all the documents placed on the file showing the possessory title of the plaintiffs by production of any evidence on the contrary, the Pro‑visions of the Punjab Tenancy Act, 1887 would take its effect. The Act supra was amended and section 114 was added to by Punjab Tenancy Act VII of 1952 and the occupancy tenancies thereunder were extinguished by operation of law, and the occupancy tenants, who at the time of the coming into force of the aforesaid amendment were in occupation of any land as such became full owners.

10. The suit of the plaintiffs/petitioners is decreed against the defendants/respondents in the terms that they had been the occupancy tenants of the disputed land ad measuring 206 Kanals 18 Marlas situated in Mauza Thatha Chheena, Tehsil Wazirabad, District Gujranwala as entered in Khewat Nos. 12/13, Khatauni Nos. 989 to 1002 of Jamabandi for the estate for the years 1959‑60 and of 25 Kanals 14 Marlas as entered in Khewat No. 21, Khatauni No. 4 of Jamabandi for the estate for the years 1942‑43 and for all the land as mentioned in Khata No. 21, Khatauni Nos. 1210 and 1211 as entered in the Jamabandi for the estate for the years 1959‑60 and had become absolute owners thereof after extinction of occupancy rights under section 114 of the Punjab Tenancy Act, 1887 with effect from coming into force of the Punjab Act VII of 1952 and as such entitled to all consequences emanating F from the ownership so vested in .them and as a consequential relief respondents Nos. 18 and 19 are directed by way of mandatory injunction, to pay compensation assessed under Acquisition of Lands Act, 1894 and also to issue entitlement certificates as per scheme of Gujranwala Cantonment Affectees promulgated by the Government and to allot the alternate land to the plaintiffs in accordance with law. The decrees passed by the trial Court on 11‑2‑1976 and by the lower appellate Court on 29‑4‑1984 are consequently, set aside. The suit stands decreed. As the important question of law was involved the parties are left to bear their own costs. AA./N‑332/L Order accordingly.