2014 PLP 1718 (CLC)

MUHAMMAD AZAM KHAN, C.J.

The titled appeal with the leave of the Court, arises out of the judgment and decree of the High Court dated 13th April, 2011, whereby the second appeal field by the appellants, herein, has been dismissed.

2. The plaintiff/appellants, herein, filed a suit for declaration and perpetual injunction in the Court of Civil Judge, Kahuta-Haveli on 9th January, 2004 against the defendants-respondents, herein, alleging therein that they are owners of the land measuring 7 kanals, 5 marlas, comprising survey No.483 (new), Survey No.642 (old) situated in village Kalali, Tehsil Haveli, on the basis of sale-deed dated 22nd February, 1989 and the defendant-respondents may be directed to refrain from interfering in the suit land. After necessary proceedings, the trial court dismissed the suit on the ground that the suit land is an evacuee property and the civil Court has no jurisdiction to entertain such suit. Dissatisfied from the judgment and decree of the trial Court, the plaintiff-appellants filed an appeal before the Additional District Judge Kahuta-Haveli which was dismissed on 22nd May, 2008. A second appeal filed before the High Court was also dismissed, hence this appeal.

3. Kh. Muhammad Nasim, Advocate, the counsel for the appellants, submitted that the judgment of the High Court is against law and the record. The appellants are owners of the land bearing survey No.483 on the basis of sale-deed executed in their favour on 22nd February, 1989. The sale-deed was executed in respect of land comprising old survey No.642, which is renumbered and the new survey number of the suit land is now

483. All the three courts below have drawn incorrect conclusion from the material brought on record. The learned counsel further submitted that a specific plea was raised before the Trial Court that the property is an evacuee property. When such question was raised before the Civil Court then under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, it was enjoined upon the trial Court to refer the matter to the Custodian for adjudication and keep the suit pending till final adjudication by the Custodian. The civil Court erred in law while dismissing the suit on the question of jurisdiction. He referred to the following cases:-- (1) Abdul Shah v. Rehabilitation Department and others (1992 SCR 269), (2) Muhammad Sarwar Khan v. Atta Muhammad (2003 SCR 81), and (3) Muhammad Ayub and 4 others v. Muhammad Fazil and 17 others 2005 YLR

568. In all the cases referred to by the learned counsel, the law is correctly laid down that when the controversy is involved about the character of the land in dispute as to whether it is an evacuee or non evacuee, then the matter falls within the exclusive jurisdictional competence of the Custodian under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 and civil Court has no jurisdiction in such matters.

4. Syed Azad Hussain Shah, Advocate, the counsel for the respondents filed written arguments while submitting that there are concurrent findings of facts that the property is admittedly an evacuee property. The respondents are refugees and the allottees of the disputed land. The appellants are locals and they have no concern with the land. The old survey number of the disputed land is 651, measuring 13 kanals, 7 marlas and its new survey numbers are 482 and

483. The matter regarding the character of the disputed land was finally settled by the Custodian vide its order dated 13th September, 2003 declaring therein that the old survey number of the suit land is 651 and it is an evacuee property. The learned counsel referred to the cases reported as Muhammad Mumtaz Malik v. S.H.O. Police Station Kotli and 3 others 2003 YLR 1241, 1999 SCR 269(sic), 1991 SCR, 87, Javed Iqbal v. Mst. Kulsoom Bi (1996 SCR 33) and Muhammad Ibrhaim v. Custodian and 2 others 2000 YLR 2367). The case titled Muhammad Mumtaz Malik v. S.H.O. Police Station Kotli an 3 others 2003 YLR 1241 is a case under Order VII, Rule 11, C.P.C. and it is not relevant for the purpose of the instant case. The perusal of citation referred to by he counsel i.e. 1999 SCR 269(sic), shows that there is no case at page No.269. Regarding the case referred to by the counsel for the respondents i.e. 1991 SCR 87, it may be observed that the SCR is being published by the court from the year 1992 and in 1991, the SCR Journal was not in existence. Next case referred to by the counsel for the respondents is Javed Iqbal v. Mst. Kulsoom Bi (1996 SCR 33). The referred case relates to the Guardian and Wards Act, wherein it has been laid down that concurrent findings of facts recorded by the two courts and confirmed by the High Court cannot be disturbed by this Court. The case titled Muhammad Ibrahim v. Custodian and 2 others 2000 YLR 2367 is in respect of interpretation of section 18(b) of the Pakistan (Administration of Evacuee Property) Act, 1957. The rehabilitation authorities recorded the findings of facts that non-Muslims were in occupation of the land as occupancy tenant till the War of liberation, such findings of facts recorded by the tribunal of exclusive jurisdiction are not open to interference in the writ jurisdiction.

5. We have heard the learned counsel for the parties and perused the record. The appellants filed a suit in the Court of Civil Judge on 9th January, 2004 alleging therein that they are owners of the land measuring 7 kanals, 5 marlas comprising survey No.483 (new), survey No.642 (old) situate in village Kalali, Tehsil Haveli on the basis of sale-deed executed on 22nd February, 1989. The defendants want to interfere in the land. They sought a decree for declaration to the effect that the land is in the ownership and possession of the plaintiffs and the defendants shall refrain from interfering in the land. The plaintiffs filed a copy of record of rights pertaining to year 1998-99, Exh."PA" and a photocopy of gift-deed executed in favour of the appellants in respect of the land bearing survey No.642 purportedly registered on 22nd February, 1989. No sale-deed regarding the disputed land is on record. Under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, the jurisdiction of Civil Court is ousted in respect of the matters; particularly, whether any person is or is not an evacuee or whether any property is or is not an evacuee property or what right or interest, if any, an evacuee has in any such property. In respect of these matters, the Custodian is empowered under the Act to determine the status of a person or property as evacuee or non evacuee. It will be useful to reproduce here section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, which reads as under:-- "

41. Jurisdiction of Courts barred.

(1) Save as expressly provided in this Act no civil or revenue court or any other authority shall have jurisdiction; (a) to entertain or adjudication upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property; (b) to question the legality of anything done under this Act by or at the instant of the Custodian, or (c) in respect of any matter which the Custodian is empowered by or under this Act to determine. (2) Whenever any question such as is referred to in clause (a) of subsection (1) arises in any court, or before any other authority, the court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive. (3) .. . (4) . (5) .." The plain reading of section 41(1)(2) of the Pakistan (Administration of Evacuee Property) Act, 1957 leaves no doubt that if a controversy is involved in the case about the character of the land and dispute is whether it is an evacuee or non evacuee, such question falls in the exclusive jurisdictional competence of the Custodian. In the case reported as Fazal Dad v. Custodian Evacuee Property and 3 others (1984 CLC 487), this Court has held that civil court has no jurisdiction to entertain the suit relating to the character of the evacuee property. Again this Court in a case tilted Ghulam Ahmed and others v. Raja Muhammad Yusuf Khan and others (PLD 1986 SC (AJ&K) 16) observed as under:-- 12." . Generally, the law is clear that, under section 41 of the Pakistan Administration of Evacuee Property Act, 1957, no Court, Civil or Revenue or any other authority, whatsoever; shall have the jurisdiction to entertain or adjudication upon any question arising in any suit, appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any an evacuee has got in any such property. The reason is that all such questions are decided by the Custodian to whom the evacuee property is vested under law. No civil Court is competent to grant an injunction or order in relation to any proceedings before Custodian under law " In another case titled Khurshid Anwar and 25 others v. Muhammad Aslam and 2 others (2001 MLD 757). It was observed by this Court as under:-- "If there is a dispute between two parties out of which one says that the land in dispute was purchased by a Hindu evacuee from Local Muslim in Dogra Regime while the other contends that no such sale-deed was executed, the controversy between the parties essentially would be as to whether the property is an evacuee property or it is non-evacuee. Obviously, the character of the property would depend upon resolution of the controversy as to whether the sale-deed was executed by a Muslim owner in favour of a Hindu evacuee or not, as in the instant case. Thus, in view of sections, 22, 23 and 41 of the Pakistan (Administration of Evacuee) Property Act, the jurisdiction to determine the character of the property is that of the Custodian and not the Civil Court as has been held by the High Court." The plaintiff-appellants, herein, relied upon the record of rights pertaining to year 1998-99, Exh. "PA". A perusal of Exh."PA" reveals that Khata No.364, 365, 366 and 367 are entered in Khewet No.100, according to which Bishon Singh son of Hari Singh is owner of half of the share and Harichand Singh son of Lal Singh and Barhaman Singh, resident of village are owners of half of the share. The Khewat contains survey Nos. 482, 477, 479, 483, 478 and in possession column of survey No.483, measuring 7 kansls, 5 marlas, Saraj Din son of Baga Gujar, resident of village is shown in possession of the land. From the record produced by the plaintiffs, it appears that property is an evacuee property and it is not in their possession. The plaintiff-appellants have not brought on record any document for ascertaining the fact that the survey No.483's previous survey number is

642. It has rightly been observed by all the three courts below that property is an evacuee property and the civil Court has no jurisdiction under section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 to entertain any suit in respect of the same. The plaintiff-appellants want a declaration to the effect that the plaintiffs are owners of the evacuee land, thus the Civil Court has no jurisdiction and the suit has rightly been dismissed.

6. WE have also considered the argument of the counsel for the appellants that under subsection (2) of section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957 when any question is raised; whether any property is evacuee or not, then it is enjoined upon the civil court to refer the matter to the Custodian for adjudication. The question raised before the Civil Court was not for declaration as to whether the property is an evacuee property or not. Had the plaintiff-appellants raised such question then it was enjoined upon the Civil Court to refer the matter to the Custodian for adjudication but the record reveals that the property is entered in the record of rights for the year 1998-99, Exh."PA", relied upon by the plaintiffs, as evacuee property and the Custodian Evacuee Property has also determined the status of property as an evacuee one through order dated 13th September, 2003. The said order was delivered prior to filing of the suit. Had the plaintiff-appellants, herein, any grievance, they should have challenged the order of Custodian dated 13th September, 2003. The matter before the Civil Court was not regarding the determination of the character of property, whether it is an evacuee or not, rather the plaintiff-appellants filed simply a suit for declaration of ownership and from the record, relied upon by them, it is crystal clear that the property is an evacuee property and in the light of section 41(1) of the Pakistan (Administration of Property) Act, 1957, the Civil Court has no jurisdiction to entertain such a suit. The result of the above discussion is that finding no force in this appeal, it is hereby dismissed with costs. AG/7/SC(AJ&K) Appeal dismissed.