P L D 1994 Peshawar 185 (PLP)

This is a revision petition under section 115 of the Code of Civil Procedure, 1908, arising out of the order of Mr. Abdur Rehman Khan, Addl. District Judge, Kohat, dated 7‑12‑1991 whereby he affirmed the finding of the learned Senior Civil Judge, Kohat, dated 9‑10‑1989 directing the plaint to be returned to the plaintiff‑petitioner for presenting it "to the proper forum of jurisdiction".

2. Brief facts of the case are that the plaintiff‑petitioner had brought a suit wherein besides claiming a 'declaration of his proprietary title to and confirmation of his possession over 10 Kanals and 14 Marlas of land in dispute, he had challenged on the ground of fraud the legality and propriety of Mutation No.1967 attested on behalf of the plaintiff in favour of defendant respondent No.1 on 20‑1‑1985, Mutation No.1968 on behalf of defendant respondent No.1 in favour of defendant‑respondent No.3, Mutation No.2018 on behalf of defendant‑respondent No.3 in favour of defendants‑respondents Nos.4 to 10 and Mutation No.2019 on behalf of defendant‑respondent No.3 in favour of defendant‑respondent No.11 respectively attested on 20‑2‑1985. Another relief claimed was of perpetual injunction so as to restrain the defendants from interfering with the plaintiffs possession over the disputed land. The plaintiff has asserted in the plaint that the disputed land was originally owned by one Shah Wali Khan who had mortgaged it to Hari Singh by virtue of Mutation No.537 sanctioned on 24‑8‑1916. By subsequent Mutation No.906 dated 8‑5‑1928 the first mortgagees sold their mortgagee rights to Waish Singh and Kartar Singh. In consequence of partition preceding, by Shah Wali Khan, the equity of redemption in the disputed land fell to the share of Fateh Khan, one of his three sons, from whom the plaintiff claimed to have purchased the land which Fateh Khan had held. The grievance of the plaintiff‑petitioner precisely is that upon the migration of the evacuee mortgagees the mortgagee rights vested in the Central Government (respondent No.1) by operation of law while the plaintiff‑petitioner acquired the right of equity of redemption but the defendant‑respondent No.1 had fraudulently transferred the proprietary rights of the plaintiff to defendant No.3 who in his turn transferred the same rights to defendant No.11 without either consent of or notice to the plaintiff which alienations having been made some where in 1985 were void and ineffective qua the proprietary rights of the plaintiff. The plaintiff claimed the relief of redemption of the suit land on payment of Rs.41.

3. The suit was contested jointly by defendants Nos.3 and 11 while defendants Nos.4 to 10 filed another joint written statement, inter alia, asserting therein the plea of lack of jurisdiction in that the disputed land being evacuee in nature the Civil Court was devoid of jurisdiction.

4. The learned trial Judge invoked the provisions of section 25 of the Displaced Persons (Lands Settlement) Act (No.XLVII), 1958 and held that the jurisdiction of the Civil Court was expressly barred to entertain the suit. The learned appellate Court affirmed this finding with the following observations:‑‑ "Admittedly, the suit land was evacuee property and as the plaintiff has challenged its acquisition by the Central Government through Rehabilitation Department and then its subsequent transfer in favour of Muhammad Akbar respondent‑defendant vide RL.No. II No. 142 dated 30‑12‑1983 against a refugee claim, which was exclusive job of Settlement and Rehabilitation Department. Therefore, the learned trial Court was right to opine that Civil Court has got no jurisdiction in such like cases in accordance with the provisions of sections 22 to 26 of Land Settlement Act, 1958, the wording of which the learned trial Court has reproduced in his judgment and so, I do not consider it proper to reproduce the same."

5. Both the learned Courts below, I am afraid, have fallen into a grave error. Admittedly, the impugned orders of transfer of the land were passed on 20‑1‑1985 and 20‑2‑1985 respectively. Prior to passing of these orders the evacuee laws including Displaced Persons (Land Settlement) Act, 1958, were repealed by virtue of the Evacuee Property and Displaced Persons (Repeal) Act (NoXIV) of 1975 which came into operation from the 1st of July, 1974. However, all the proceedings under the repealed evacuee laws which were pending immediately before such repeal were saved. As provided in subsection (2) of section 2 of the Repealing Act, however, all such pending cases were transferred to such officers as were to be notified by the Provincial Governments in the Official Gazette. It was also provided in section 2(2) ibid that all cases decided by the Supreme Court or the High Court after such repeal which would have been remanded to any such authority in the absence of such repeal were also to be remanded to the Officers notified as aforesaid by the Provincial Governments in the Official Gazette. In the instant case, there is nothing on the record to show that it was pending case. The impugned transfer mutations were admittedly sanctioned on 20‑1‑1985 and 20‑2‑1985 after the 1st of July, 1974, when evacuee laws already stood repealed. Again the question of fraud, after the repeal of evacuee laws as aforesaid, had to be adjudicated upon only by the Civil Courts. The learned counsel appearing on behalf of the respondents, when faced with this legal position, did not seriously contest this civil revision. Accordingly, the learned two Courts below have committed an illegality to assume jurisdiction in a matter which squarely fell within their jurisdiction.

6. In view of the above discussion, I am constrained to accept this revision petition, set aside the impugned orders of the two Courts below on the question of lack of jurisdiction of the Civil Courts and held that the Civil Court has the plenary jurisdiction under section 9 of the Civil Procedure Code to adjudicate upon the claim of the plaintiff‑petitioner. The case is accordingly remanded to the learned trial Court to proceed with suit and decide the remaining controversy strictly in accordance with law. Costs to follow the event. A.A./1553/P Case remanded.