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Civil Revision No. 721 of 1967, decided on 3rd December 1968.
Ss. 7 & 25‑--Suit for restoration of possession under S. 9, Speck Relief Act, 1877‑--Not barred by provisions of Ss. 7 & 25‑--Specific Relief Act (I of 1877), S. 9 and Civil Procedure Code (V of 1908), S. 9.
A P. T. O. was issued by the Settlement Department in favour of the defendant in respect of the disputed house. The defendant entered into a sale agreement with the plaintiff and after receiving advance payment delivered possession of the house to the plaintiff: He further undertook to obtain permanent trans fer deed and then to complete the sale deed in favour of the plaintiff. The plaintiff upon being forcibly dispossessed thereafter by the defendant filed suit under section 9, Specific Relief Act, 1877 for restoration of possession. It was contended on behalf of the defendant that only a provisional transfer order had been issued in his favour and as such the property still being a part of compensation pool no civil Court possessed jurisdiction in the matter in view of the provisions of sections 7 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
It was also contended that according to the terms of the P. T. O. the defendant could not alienate the house and as such the agreement of sale being void could not be enforced by civil Court. These contentions were rejected
Held: The provisions of sections 7 and 25 of the Displaced Persons (Compensation and Rehabilitation), Act, 1958 do not operate to oust the jurisdiction of civil Courts in all matters but only to the extent mentioned therein. It is an undisputed propo sition of law that the jurisdiction of the civil Courts cannot be taken away except by express provisions or by necessary implica tion. By section 9, Civil Procedure Code the civil Courts have jurisdiction to entertain all suits of civil nature except those the cognizance of which is expressly or impliedly barred. Section 7 of the Act (XXVIII of 1958) exempts property which forms part of the compensation pool from being proceeded against in any claim in execution of any decree or order or by any other process of Court or other authority.
There is no express provision in Act XXVIII of 1958 barring the jurisdiction of civil Courts to adjudicate upon the right of a party put into possession of a property by its transferee under the provisions of Act XXVIII of 1958, after he has been dispossessed therefrom otherwise than in due process of law. Similarly section 25 of the Displaced Persons (Compensation and Rehabi litation) Act, 1958, can be pressed into service to bar the jurisdic tion of the civil Courts only in those matters which the Central Government or an officer appointed under the Act (XXVIII of 1958), is empowered to determine. The function to be per formed by the civil Court under section 9 of the Specific Relief Act cannot be performed by an officer exercising powers conferred by Act XXVIII of 1958. Nor can any order be passed by a civil Court under section 9 of the Specific Relief Act affecting any action taken in exercise of any power conferred by Act XXVIII of 1958. As already noted the function performed under section 9 of the Specific Relief Act is not one of the functions which any Settlement Officer is to perform under the provisions of Act XXVIII of 1958. An order under section 9 of the Specific Relief Act, does not therefore contravene the provisions of section 25 of the said Act.
A suit for restoration of possession under section 9 of the Specific Relief Act is competent and not barred by any provision of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Ali Muhammad v. Mahmood‑ul‑Hassan P L D 1958 Lab. 329 distinguished.
Musharraf Sultana v. Fazal Hussain Law Notes 1968 Lah. 153; Ali Moazzam v. M. A. Effandi and others P L D 1965 Lab. 193 and Sharif Ahmad v. Dildar Beg etc. P L D 1967 Lab. 432 ref.
Teegula Babiah v. Muhammad Abdus Subhan Khan A I R 1954 Hyd. 156; Debendra Mohan Das v. Muhammad Afazuddin P L D 1965 Dacca 269; Waryam Singh v. Sundar Singh A I R 1936 Lab. 576; Abdullah Khan v. Nisar Muhammad Khan P L D 1965 S C 690; S. Zafar Ahmad v. Abdul Khaliq P L D 1964 Kar. 149 and Muhammad Ali v. Muhammad Amin and another P L D 1967 Lah. 854 ref.
S. 9‑--Suit for restoration of possession‑Court under S. 9 concerned only with fact whether plaintiff's possession had been disturbed unlawfully despite fact that person dispossessed may not have any title to property--‑Actual occupation of property--‑Not necessary‑--Person having power to use property at his discretion‑Deemed to be in possession.
If a person had entered into a possession peacefully although he had no title to it and is dispossessed by another person, he becomes entitled under section 9 of the Specific Relief Act, 1877 to sue such other person for restoration of possession. In a suit for such a relief the Court does not decide the question of title and all that it is concerned with is as to whether possession has been disturbed without any authority of law and in disregard of it. It is not necessary for the plaintiff to be in actual occupation for invoking the provisions of section 9 of the Specific Relief Act and so long as a person has the power to bring the property into use whenever he likes he will be deemed to be in possession for the purposes of section 9.
Ratanlal Ghelabhai v. Amarsing Rupsing and others A I R 1929 Bom. 467 and Mahendra Nath Bagchi v. Tarak Chandra Sinha and others A I R 1932 Cal. 504 ref.
Mst. Jaina and others v. Hasan and another P L D 1963 Kar. 351 held not relevant.
S. 115‑--Revision ---Court‑fee, question of‑Decision given by Court in respect of Court- fee--‑Not a "case decided" and, therefore, not open to revision unless such decision resulted in. Court exercising jurisdiction not vested in it or in failing to exercise jurisdiction vested.
S. Qasim Shah v. Mst. Bibian P L D 1962 Pesh. 156 ref.
Zamir Hussain for Petitioner.
A. Waheed Saleem for Respondent.
Dates of hearing: 4th, 5th, 6th and 14th November 1968.
The facts giving rise to this petition may be briefly recounted as follows:‑
Fazal Muhammad petitioner was issued a P. T. O. by the Settlement Department in respect of house No. 15‑E (southern portion), situate in E Block, Vehari. He entered into a sale agreement on 26‑7‑1965 for the sale of this property in favour of Muhammad Usman respondent/plaintiff. According to the averments made in the agreement of sale a sum of Rs. 4,000 had been received as advanced money and the balance of Rs. 1,000 was to be paid before the Sub‑Registrar at the time of the registration. As Fazal Muhammad had not got the permanent transfer of the property in his own favour as yet and was not in a position to get the agreement of sale registered in favour of the respondent‑plaintiff Muhammad Usman, he undertook to obtain the permanent transfer document in his own favour within two months in order to complete the sale transaction. It was, however, recited in this document that the possession had been delivered to the other party (Exh. P. 2). A separate affidavit was sworn to by Fazal Muhammad also on 26‑7‑1965 wherein it was averred, in Para. 5 thereof, that the deponent had delivered possession of the portion of the house in question in favour of the respondent‑plaintiff Muhammad Usman (Exh. P. 1). The respondent‑plaintiff filed a suit on 10‑12‑1965 alleging that he had been forcibly dispossessed by the petitioner‑defendant on 18‑9‑1966 and prayed that a decree be passed in his favour restoring him into possession of the house in dispute under section 9 of the Specific Relief Act. The petitioner‑defendant, Fazal Muhammad, in his written statement raised objections as to the non‑payment of the correct court‑fees. The other allegations made in the plaint were also denied.
2. On the question of the correct valuation of court‑fees, inter alia, a preliminary issue was framed and the learned civil Judge, Vehari, by his order dated 10‑5‑66 held that the proper valuation for court‑fees was Rs. 137.50 if the value of the subject‑matter is determined at Rs. 5,0;0. He did not, however, give any finding as to the real valuation of the subject- matter as fixed by the plaintiff. An amended plaint was filed affixing court‑fees of Rs. 137.50, after the said decision. The following issues were framed for decision on merits
(1) Is the suit improperly valued for court‑fee and jurisdic tion (O. D.)
(2) Whether the plaintiff was dispossessed from the suit premises otherwise than in due course of law (O. P.)
(3) Is the suit within time (O. P.)
(4) Relief.
On the issue of court‑fees it was held that no material bad been adduced by Fateh Muhammad defendant to show that the market value of the house in dispute exceeded Rs. 5, 000 and reliance was only placed on Muhammad Usman's statement in cross‑examination to the effect that in the settlement record the full house was valued at Rs. 17,500 and as half of the house had been agreed to be sold, the value of the subject‑matter would clearly be more than Rs. 5,000. The entry in the settlement record was, however, not held as conclusive by the learned trial Court, in the absence of other evidentiary material and accordingly the issue was decided in favour of the plaintiff Muhammad Usman.
As regards the second and third issues, it was held that in face of the recitals in the sale agreement (Exh. P. 2) and Fateh Muhammad's affidavit (Exh. 1), it stood established that Muhammad Usman was delivered possession of the property on 26‑7‑1963 which recitals could not be contradicted by oral evidence to the contrary. It was further held that Fateh Muhammad had re‑taken forcible possession of the house on 18‑9‑1965 and since the suit was instituted on 10‑12‑1965 less than three months of the dispossession, the suit was competent. The learned civil Judge also made mention of the fact that during the pendency of the suit the parties agreed to refer the dispute for arbitration of Rao Abdus Salam. Advocate, on 4‑10‑1966. The arbitrator's award was set aside on the objections levelled thereto by Fateh Muhammad aad the matter was proceeded with by the learned trial Court. Tree learned civil Judge found that with the setting aside of the award, the reference to arbitration also stood annulled for the reason that in the agreement for arbitration, no other arbitrator was named by the parties nor a further reference foreseen in the case of failure of Rao Abdus Salam's arbitration. In the result, the plaintiff's suit was decreed with costs. This is a petition by Fateh Muhammad under section 115, C. P. C. for revision of the aforesaid order and decree passed by the learned Court dated 29‑9‑1967.
3. Mr. Zamir Hussain, learned counsel for the petitioner has contended that only a provisional transfer order had been issued in respect of the house in question and that the property still formed a part of the compensation pool and that no civil Court possessed any jurisdiction in the matter. In this connection my attention was drawn to the provisions of sections 7 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The said provisions are to the following effect:‑
"S.7. Exemption of property in pools from processes. No property which forms part of any of the pools constituted under this chapter shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority."
"S. 25. Bar of jurisdiction.--‑Save as otherwise provided in this act, no civil Court shall have jurisdiction in respect of any matter which the Central Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
The learned counsel has also relied upon Ali Muhammad v. Mahmood-ul-Hassan (P L D 1968 Lah. 329) wherein it was held "that though the right and interest of a person in the property allotted to him under the Rehabilitation Settlement Scheme is immovable property and its sale is covered by sections 4 and 6 of the Punjab Pre‑emption Act (I of 1913), yet section 16 of the Pakistan (Administration of Evacuee Property) Act (XII of 1957) is a complete bar to the suit for possession to enforce the right of pre‑emption through a civil Court." The Court further held that "no Court or authority can pass any order of whatever kind in respect of an evacuee property. Thus the jurisdiction of the Court is completely barred to pass any order about such a property." This decision is not relevant as in it the bar contained in section 16 of Act XII of 1957, when the property was still evacuee property, fell for consideration. As explained in the subsequent case of Musharraf Sultana v. Fazal Hussain (Law Notes 1968 Lah. 153) the evacuee property was acquired by a notification of the Government issued under the Displaced Persons (Land Settlement) Act, 1958, and after the acquisition of the said property it ceased to be an evacuee property and sales taking place thereafter could be pre‑empted. It was observed:
"In a suit for pre‑emption the civil Courts are not in any way to adjudicate upon the propriety or legality of the orders of the Settlement Officers. That being so, the suit for pre- emption is not barred under section 6 or 25 of the Land Settlement Act."
There is also no force in the contention that owing to the bar contained in sections 7 and 25 of the Displaced Person (Compensation and Rehabilitation) Act (XXVIII of 1958), a suit for possession under section 9 of the Specific Relief Act 1877 is nit competent. The provisions of these two sections do not operate to oust the jurisdiction of civil Courts in all matters but only to the extent mentioned therein. It is an undisputed proposition of law that the jurisdiction of the civil Courts cannot be taken away except by express provisions or by necessary implication. By section 9, Civil Procedure Code the civil Courts have jurisdiction to entertain all suits of civil nature except those the cognizance of which is expressly or impliedly barred. Section 7 of the Act (XXVIII of 1958) exempts property which forms part of the compensation pool from being proceeded against in any claim in execution of any decree or order or by any other process of Court or other authority. In the instant case the plaintiff is not proceeding, against the property, on the contrary he is asserting that he is entitled to be in possession thereof instead of the defendant, his possession therefrom, according to him having been disturbed otherwise than by due process of law. There is no express provisions in Act XXVIII of 1958 barring the jurisdiction of civil Courts to adjudicate upon the right of a party put into possession of a property by its transferee under the provisions of Act XXVIII of 1958 after he has been dispossessed therefrom otherwise than in due process of law. Similarly section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, can be pressed into service to bar the jurisdiction of the civil Courts only in those matters which the Central Government or an officer appointed under the Act (Act XXVIII of 1958), is empowered to determine. The function to be performed by the civil Court under section 9 of the Specific Relief Act cannot be performed by an officer exercising powers conferred by Act XXVIII of 1958. Nor can any order be passed by a civil Court under section 9 of the Specific Relief Act effecting any action taken in exercise of any power conferred by Act XXVIII of 1958. As already noted the function performed under section 9 of the Specific Relief Act is not one of the functions which any Settlement Officer is to perform under the provisions of Act XXVII of 1958. An order under section 9 of the Specific Relief Act, does not therefore contravene the provisions of section 25 of the said Act. This Court upheld the competency of suit, and proceedings under C. P. C. in Ali Moazzam v. M. A. Effandi and others (P L D 1965 Lah. 193) and Sharif Ahmad v. Dildar Beg etc. (P L D 1967 Lah. 432) in some what similar circumstances. I hold also that a suit for restoration of possession under section 9 of the Specific Relief Act is competently and not barred by any provision of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
Learned counsel for the petitioner also argued that the agreement for sale was void, as such an agreement is forbidden by law and, therefore, the said contract cannot be enforced by any civil Court. Reference was made in this connection to the third term and condition to which the P. T. O. is made subject, namely:
"Pending the permanent transfer of the said property to him the transferee shall not alienate it in any manner, except that he may lease it out or mortgage it subject to such conditions as may be laid down by the Chief Settlement Commissioner."
Reliance in this behalf was placed on Teegula Babiah v. Muhammad Abdus Subhan Khan (A I R 1954 Hyd. 156). Mr. A. Waheed Saleem, learned Advocate for the plaintiff‑respondent submitted in reply that the suit of the plaintiff was not for specific performance but only for safeguarding the right of possession which had been unlawfully disturbed. He argued that the plaintiff‑respondent having once been put in possession he can sue for its restoration. In such cases the only question to be seen is whether the plaintiff was in possession when he was dis possessed, and the Court is not to decide the question of title. I agree. If a person had entered into a possession peacefully although he had no title to it and is dispossessed by another person, he becomes entitled to sue such other person for restoration of possession. In a suit for such a relief the Court does not o decide the question of title and all that it is concerned with is as to whether possession has been disturbed without any authority of law and in disregard of it Debendra Mohan Das v. Muhammad Afazuddin (P L D 1965 Dacca 269) maybe advantageously referred to in this behalf.
Moreover, it is an admitted position that the defendant could alienate the house after issuance of the P. T. D. The question, therefore, is whether an agreement of sale, in anticipation of the conferment of permanent rights is void. In this connection learned counsel for the plaintiff respondent invited attention to Waryam Singh v. Sunder Singh (A I R 1936 Lah. 576) wherein it was held that an agreement by a person that after the acquisition of proprietary rights he would have a mutation made in the names of his brothers jointly with himself is not void under section 19 of the Colonization Government Lands Act (5 of 19121. The following observations of the Supreme Court in Abdullah Khan v. Nisar Muhammad Khan (P L D 1965 S C 690) were also relied upon:
"Section 4 of Kabul River Project (Control and Prevention of Speculation of Land) Act, 1948, prohibits only alienation of land. The contention of learned counsel for the appellant is that whenever sale of land is prohibited an agreement for sale without sanction should also be regarded as prohibited on grounds of public policy. We find little force in this contention. If there is some condition precedent to the validity of a transfer it is open to the parties to enter into an agreement subject to compliance with the condition precedent. The attack on the agreement for sale on the ground of public policy could only succeed if it was shown that the intention of the agreement was to defeat a law. If the parties that enter into an agreement for sale contemplate only a sale with the requisite sanction they are not making any effort to defeat the law.
In this case the defendant undertook to apply to the relevant Authorities for issuance of the P. T. D. which formalities, accor ding to the agreement, were to be completed within two months of its execution. Thus the agreement of sale contemplated the fulfil ment of the conditions making the sale possible. If the defendant failed to act in accordance with his own commitment, he can not plead his own in action to his advantage. In actual fact, this question does not really arise in the present proceedings. As has been found already a suit is competent by a party who has been peacefully put into possession for restoration of his possession, which has been disturbed illegally.
4. Learned counsel for the defendant urged that the finding that the plaintiff was in possession in pursuance of the sale agreement dated 26‑7‑65 is erroneous and that the plaintiff was, in fact, never put into possession at all The learned counsel for the plaintiff objected to this challenge being made to the finding of fact recorded by the trial Court, in the present revisional proceed ings, on the basis of S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) and Muhammad Ali v. Muhammad Amin and another (P L D 1967 Lah. 854). These decisions are to the effect that findings of fact, "howsoever, erroneous" are not to be gone into in revisional jurisdiction. The plea in this behalf is that the plaintiff had not, in fact, paid the full amount of Rs. 4,000 mentioned in the sale-agreement and therefore the defendant had not put him in possession. Support for this plea was derived from the statement of the plaintiff during his cross‑examination that he was residing at another house and that he was not living in the house in dispute. The plaintiff had led evidence to show that the defendant broke open the lock placed on the premises by the plaintiff and thereby disturbed his possession. As it is not necessary to be in actual occupation for invoking the provisions of section 9 of the Specific Relief Act and so long as a person has' the power to bring the property into use whenever he likes he will be deemed to be in possession for the purposes of section 9 aforesaid. (See in this behalf Ratanlal Ghelabhai v. Amarsing Rupsing and others (A I R 1929 Bom. 467) and Mahendra Nath Bagchi v. Tarak Chandra Sinha and others (A I R 1932 Cal. 504). The case cited by the learned counsel for the defendant‑petitioner Mst. Jaina and others v. Hasan and another (P L D 1963 Kar. 351) in disproof of these propositions is not relevant.
5. Learned counsel for the defendant‑petitioner also challenged the finding of the learned trial Court that there was no material before him to show that the market value of the house in dispute exceeded Rs. 5,000. The learned counsel contended that as the plaintiff had himself admitted in his cross‑examination that in the Settlement record the full house was valued at Rs. 17,500, the value of the half of it would surely be more than Rs. 5,000. It appears that no evidence on this question was led by the defendant. In the sale‑agreement the portion in dispute was valued by the parties at Rs. 5,000. In these circumstances the view taken by the learned trial Court that the admission of the plaintiff as to the value of the house in the Settlement record could not be held as conclusive is a possible one and, therefore, not open to challenge in revisional proceedings. Learned counsel for the plaintiff‑respondent in this connection has also relied upon S. Qasim Shah v. Mst. Bibian (P L D 1962 Pesh. 156) wherein the view was expressed that a decision on the question of court‑fees given by a Court in favour of the plaintiff is not a "case decided" within the meaning of section 115, C. P. C. and, therefore, such a decision is not revisable unless the said decision had resulted in the subordinate Court exercising jurisdiction not vested in it or in failure to exercise jurisdiction vested in it.
6. Learned counsel for the defendant‑petitioner contended finally that the setting aside of the arbitrator's award did not result in the annulment of the agreement of arbitration itself, and therefore, either Rao Abdus Salam should have been asked to adjudicate upon the matter afresh and file a new award or in the alternative a new arbitrator should have been appointed. Learned counsel for the plaintiff‑respondent drew my attention to the objections dated 18‑2‑1967 referred by the defendant to the award under section 30 of the Arbitration Act, in Para. 4 whereof, the prayer was that "award be set aside and the case may be proceeded with". There was no request that the arbitrator should be asked to file a fresh award or that a new arbitrator be appointed. The defendant‑petitioner is, therefore, estopped from raising the above plea in this Court for the first time
7. As a result of the foregoing, the petition for revision must fail and is hereby dismissed. I must, however, express my gratitude for the hard work done by the learned counsel for the parties, Mr. Zamir Hussain and Mr. A. Waheed Saleem and for the able assistance rendered to me in this case.
A. E./K. B. A. Revision dismissed.
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