1988 PLP 1289 (SCMR)

SAAD SAOOD JAN, J.‑‑This is an appeal by special leave from the judgment of the Lahore High Court whereby a learned Single Judge after reversing the judgments of the Courts below decreed the suit of respondent No.l.

2. The dispute between the parties relates to 33 kanals of agricultural land situate in village Kot Pindi Dass of Tehsil Ferozewala, District Sheikhupura. It was evacuee 'property and on 2‑11‑1962 it was allotted to the appellant. On 6‑2‑1965 after his entitlement had been scrutinized under Martial Law Regulation No.89 it was confirmed in his name. Sometimes in 1968 respondent No.l moved an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act before the Additional Settlement Commissioner, vested with the powers of Chief Settlement Commissioner, wherein he alleged that the land in question had been given to him in as far back as 1952 and as such it could not be allotted to the appellant.

3. The appellant was a resident of Karachi and his address in Karachi was recorded in R.L.‑II register. Nevertheless, no notice was sent to him at his Karachi address; instead substituted mode of service by way of publicity in the village was resorted to for serving the notice of the application upon him. The appellant did not appear before the Additional Settlement Commissioner; consequently, ex parte proceedings were taken against him. Subsequently, by an order dated 20‑8‑1968, the Additional Settlement Commissioner set aside the allotment of the appellant and transferred tie land to respondent No.l.

4. On 10‑5‑1973 the appellant filed an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act before an Additional Settlement Commissioner, also vested with powers of Chief Settlement Commissioner, alleging that respondent No.l, had made misrepresentations and committed fraud and forgeries in securing allotment of the land in dispute. By an order dated 12‑10‑1973 the Additional Settlement Commissioner dismissed the application on the grounds that he was not competent to review the order of 20‑8‑1968 made by another Additional Settlement Commissioner, and that as the land in dispute had already been allotted to respondent No.l it could not have been again allotted to the appellant. The appellant then on 3‑11‑1973 filed a revision petition before the Settlement Commissioner. The Settlement Commissioner entrusted this revision petition for disposal to the Additional Settlement Commissioner under section 19(3), as amended by Act LV of 1973, of the Displaced Persons (Land Settlement) Act. The Additional Settlement Commissioner inter‑alia found: (i)???????? the order of 20‑8‑1968 had been passed without any proper ??????????? service on the appellant, (ii)??????? khasra numbers had been rubbed and sheets had been replaced ??????????? in the relevant records, and (iii)?????? the allotment made in favour of respondent No.l was of more ??????????? recent origin than 1952. Accordingly, by his order dated 29‑1‑1974 he accepted the revision petition, set aside the orders dated 20‑8‑1968 and 12‑10‑1973 and restored the allotment of the appellant.

5. Respondent No.l filed a civil sui: to challenge the legality of the order dated 29‑1‑1974 of the Additional Settlement Commissioner. The suit was resisted by the appellant. The trial Court framed as many as six issues on the pleadings of the parties. One of the issues related to the competency of the Civil Court to entertain the suit of respondent No.l. The learned trial Court held that the Civil Courts had no jurisdiction to entertain the suit. It then did not record any finding on the other issues and rejected the plaint under rule 11 of Order VII, Civil Procedure Code. Its order was affirmed by the Additional District Judge, Sheikhupura in first appeal. Respondent No.l then filed a second appeal in the High Court.

6. A learned Single Judge in the High Ccurt re‑examined the legal position and came to the conclusion that the jurisdiction of the Civil Courts to entertain the suit of respondent No.l was not barred. He described the finding of the Additional Settlement Commissioner that the transfer obtained by respondent No.l was tainted with fraud, as superficial, sketchy and inconclusive. After holding that the Civil Courts had the jurisdiction to try the suit the learned Single Judge, instead of remanding the suit back to the trial Court for decision or other issues, himself disposed of the case with the observation:‑ "Firstly, the main question involved is a question of law but even a question of fact could be determined by this Court under section 103, C.P.C. It is to be noted that the Civil Court got the entire evidence and exhibited all the documents being relied upon by the parties. The question involved is only and question of law In the circumstances, it is not necessary to send this case back." The learned Single Judge then held that the order of the Additional Settlement Commissioner dated 29‑1‑1974 was without jurisdiction and void. Accordingly, he set aside the judgments and orders of the Courts below and granted the declaration sought by respondent No.l.

7. Leave to appeal was granted in this case for examination of the following two questions:‑‑ (i) Whether the Civil Court had jurisdiction to try the subject? matter of the suit in question, which related to the transfer of the property under Lands Settlement Law; and (ii) Whether in case the Civil Court has jurisdiction. the High Court should have, instead of remanding the case for proper trial and decision by the learned trial Court (the plaint was rejected in this case under Order 7, Rule 11), decided it itself, decreeing the suit in favour of the respondent.

8. In support of his conclusion that the Civil Court had jurisdiction to entertain the suit of respondent No.l the learned Single Judge observed:‑‑ "The net result of the above discussion is that the delegate of the Chief Settlement Commissioner who passed the order dated 29th of February, 1974 could not have set aside the order dated 20th August, 1968. except by way of review which power was not available and was not inherent as held in Mst. Zainab Khatoon v. Mian Ghulam Shabbir and another P L D1965 S C

55. Again he could set aside the ex parte order in proper proceedings but even that was not done. No finding on sufficiency of service or date of knowledge or sufficient cause for delay was given. The question of limitation or jurisdic?tion does not seem to be present in his mind while he proceeded to set aside the previous order. The judgments of the Supreme Court referred to in para. 11 above fully apply to this case to hold the impugned order as without jurisdiction and void. The civil Court, therefore, did have the jurisdiction to go into the matter and pass an order in accordance with law." With due respect, the learned Single Judge misconstrued the application which the appellant had filed on 10‑5‑1973 before the Additional Settle?ment Commissioner. It was neither in the nature of a review petition from the order dated 20‑8‑1968 nor an application for setting aside the ex parte proceedings resulting in as ex parte order. It was simply an application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act whereby he laid information before an officer exercising the powers of Chief Settlement Commissioner that in securing the land in dispute respondent No.l had made misrepresentations and committed fraud and forgeries. There was no time limit prescribed _ for are application of the nature preferred by the appellant. It was also not a case where after having fought the first round of litigation to the bitter end the appellant wanted to use the provisions of sections 10 and 11, ibid, to start a second round of litigation. The learned Single Judge was therefore not right in treating the application of the appellant as one for review of the order dated 20‑8‑1968.

9. The Additional Settlement Commissioner to whom the Settlement Commissioner entrusted the revision petition preferred by the appellant summoned the relevant record and examined the same in presence of both parties. He found that the allegation made by the appellant that respondent No.l had obtained the allotment through fraud and forgeries stood established. He also came to the conclusion that the claim of respondent No.l that his allotment was as old as of 1952 was not correct. Now these were findings of fact and undisputedly the Additional Settlement Commissioner while exercising the powers of the Chief Settlement Commissioner was competent to record them. It is difficult to support the observations of the learned Single Judge that these findings were superficial, sketchy or inconclusive. The findings were recorded after a personal inspection of the relevant record. The original record was not before the learned Single Judge. He could not therefore be in a position to say whether the original entries had been rubbed off or the relevant pages from the register had been replaced. We therefore do not see how the findings of the Additional Settlement Commissioner could be summarily rejected with the observations that they were sketchy, superficial or inconclusive.

10. Section 10, Displaced Persons (Land Settlement) Act empowers the Chief Settlement Commissioner to cancel an allotment if he is satisfied that the allotment had been obtained by any person by means of fraud or false representation. In this case the Additional Settlement Commissioner who made the order of cancellation of allotment obtained by respondent No.l was vested with the powers of Chief Settlement Commissioner. The property in dispute was admittedly of evacuee nature. After he came to the conclusion that respondent No.l had obtained the allotment by committing forgeries and fraud the Additional Settlement Commissioner was competent to cancel his` allotment. It is clearly not a case where the finding with regard to fraud and forgeries was not based on evidence. The order of the Additional Settlement Commissioner was this competently made under section 10, ibid.

11. Section 25 of the Displaced Persons (Land Settlement) Act ousted the jurisdiction of the Civil Courts in respect of matters which the Central Government or any Officer appointed under the Act was empowered by or under the Act to determine. As the order of the Additional Settlement Commissioner, exercising the powers of the Chief Settlement Commissioner, fell well within his competence the provisions of section 25 were attracted in this case; and as such the Civil Courts had no jurisdiction to interfere with it. The learned Single Judge was, therefore, not right in holding that the Civil Courts had the jurisdiction to entertain the suit of respondent No.l. This being the position, it is not necessary to record any finding on the second question formulated in the leave granting order.

12. For 'the reasons stated above, we accept this appeal, set aside the judgment and decree of the High Court and restore that of the trial Court. There will be no order as to costs. M.Y.H./F‑48/S??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.