1984 PLP 376 (CLC)

‑‑‑ Ss. 9 & 100 read with O. VII, r. 11 (d) and Displaced Persons (Land Settlement) Act (XLVII of 1958)‑Succession in respect of evacuee property‑Suit for declaration‑Question relating to succession to estate of "confirmed allottee"‑Held, falls within domain of civil Court for adjudication and beyond purview of Settlement authorities‑Civil Courts cannot be divested of their jurisdiction to decide claim touching succession to estate of allottee merely because claim related to property not permanently settled on allottee.‑[Jurisdiction]. Mst. Ghulam Fatima v. Muhammad Hussain and 5 others P L D 1979 S C 729 rel. Mst. Imam Hussain Bibi v. Muhammad Latif and others P L D 1971 Lah. 727 ref. JUDGMENT This appeal under section 100, C.P.C. arises out of the judgment and decree, dated 10th December, 1965 of the learned Additional District Judge, Lyallpur whereby he dismissed the appeal filed by Muhammad Sharif Khan, the predecessor‑in‑interest of the appellants and maintained the order of the learned trial Court, dated 31st May, 1965 rejecting the plaint under Order VII, rule 11 (d), C.P.C.

2. The facts in brief giving rise to this appeal are that Muhammad Sharif Khan, the predecessor‑in‑interest of the appellants, instituted a suit for declaration to the effect that the plaintiff and defendants Nos. 3 and 4 (Aziz‑ur‑Rahman and Mst. Zahida Begum) were heirs and legatees of Mst. Asghari Begum, widow of Qabool Khan and sought injunction restraining the defendants Nos. 1 and 2 (Shabbir Ahmad Khan and Wahid Khan) to interfere in their possession of the suit land. It was asserted in the plaint that Mst. Asghari Begum was allottee of the land in dispute in her own right and that the plaintiff being her collateral was entitled to inherit her estate. It was also mentioned in the plaint that Mst Asghari Begum by means of a 'will' bequeathed the suit property in favour of defendants Nos. 3 and 4 they had, therefore, inherited the property to the extent of 1/3rd share. It was pleaded that defendants Nos. I and 2 were not heirs of Mst. Asghari Begum and had no right to inherit her property. The suit was resisted by the aforesaid defendants. The learned trial Court rejected the plaint holding that the land in dispute being an evacuee property and not permanently settled on the deceased allottee ; the civil Court had no jurisdiction to try the same. The learned first appellate Court concurred with the finding of the learned trial Court on this point and dismissed the appeal filed by the appellants.

3. Learned counsel for the appellants contended that the learned lower Courts misdirected themselves to hold that the civil Court had no jurisdiction to try the suit merely because the land in dispute was evacuee property and not permanently settled on the deceased allottee. Learned counsel relied on Mst. Ghulam Fatima v. Muhammad Hussain and 7 others (P L D 1979 S C 729) and Mst. Imam Hussain Bibi v. Muhammad Latif and others (P L D 1971 Lah. 727) in support of his case.

4. Mr. Abdul Aziz Qureshi, Advocate on behalf of Wahid Khan respondent opposed this appeal. It was submitted that the land in dispute having not been permanently settled on the allottee the civil Court had no jurisdiction to entertain the suit and the learned lower Courts rightly held so.

5. I have considered the contentions raised by learned counsel for the parties and have perused the relevant record. Undoubtedly, the dispute between the parties in the suit was regarding the succession to the estate of Mst. Asghari Begum. In my view the question relating to the succes sion to the estate of `confirmed allottees' fell within the domain of civil Court for adjudication and would be beyond the purview of the Settle ment authorities. The civil Courts cannot be divested from their jurisdiction to decide the claim touching the succession to the estate of the allottees merely because the claim related to the property not permanently settled on the allottee. The case of Mst. Ghulam Fatima cited by the learned counsel for the appellants has set at rest the controversy about the jurisdiction of civil Courts in dealing with such matters. It has been held therein that no provision of law or scheme authorises Settlement authorities to determine the question of succession to the estate of `confirmed allottees', only the Civil Court has the jurisdiction to decide such disputes.

6. In view of the law laid down in the above‑cited case the impugned judgments and decrees passed by the learned lower Courts are hereby set aside, this appeal is accepted and the case remanded to the learned trial Court for fresh decision on merits expeditiously.

7. There shall be no order as to costs. S. Q. Appeal accepted.