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Writ Petition No. 92 /R of 1973, decided on 24th April 1975.

(a) Pakistan Rehabilitation Act (XLII of 1956)-

-- S. 11-Appeal against orders of Additional Rehabilitation Commis sioner-Not competent under Rehabilitation Act, 1956-Orders of Additional Rehabilitation Commissioner - Could be set aside by Rehabilitation Commissioner only in revision-Question of limitation, hence, does not arise-Application for revision, even if belated, would not take away jurisdiction of Rehabilitation authorities to interfere with order of Additional Rehabilitation Commissioner.-[Revision (civil)-Limitation].

(b) Rehabilitation Settlement Scheme (Punjab)-

Para. 52 and Punjab Limitation (Custom) Act (I of 1920), S. 7 & Sched.-Decree for possession of property and not decree for mere declaration-To be given effect to under custom-Decree for mere declaration-Valueless unless suit for possession during limitation period instituted and decreed.-[Limitation].

The sum and substance of para. 52 of Rehabilitation Settlement.' Scheme (Punjab) is that effect could be given under it only to those:' decrees to which effect could have been given in the revenuer records of prescribed territory in India but could not be given on account of the perturbed conditions prevailing in those areas before the Partition. In the present case, the petitioner's suit was only a suit for declaration that the sale effected in favour of the father of the petitioner would not affect the reversionary rights of the plaintiff after the death of limited owner. The limited owner admittedly died in 1948. By its own force this decree could not have been given effect to in the revenue records of India. If the limited:: owner had died before Partition, the plaintiff could not have taken benefit of the decree unless he had obtained a decree for possession of the property by filing a suit within the period of limitation provided by the Schedule to the Punjab Limitation (Custom) Act. I of 1920. A decree for declaration had to be obtained on account of the provisions of section 7 of the above Act. The only decree that could have been given effect to under custom would have been the decree for possession of the property and not the .decree for mere declaration which would be of no value unless a suit for possession during the period of limitation had been instituted and decree for that relief obtained.

A. R. Shaukat for Petitioner.

Nemo for Respondent No. 1.

Masud Zikria for Respondent No. 2.

Dates of bearing: 21st and 22nd April 1975.

The petitioner has challenged by this writ petition an order dated the 29th November 1972, passed by the Settlement and Rehabilitation Commis sioner, Punjab, Lahore, allowing a revision petition of the respondents and passing an order under Paragraph No. 52 of the Rehabilitation Settlement Scheme cancelling the entitlement certificate issued for the area in dispute in favour of the petitioner and directing the claim of respondent No. 2 in respect .. of the area to be verified and necessary entitlement certificate to be issued to him.

2. The relevant facts are that an area of 107 Bighas 11 Biswas of land was sold by Mst. Sahib Jan widow of Karim Bakhsh to Allah Dia father of the petitioner for a sum of Rs. 1,000, on the 6th February 1931. Mst. ,.Sahib Jan was a limited owner of that property under Custom. A suit was, -therefore, filed by Wali Muhammad and his brother as reversioners of Karim Bakbsh for a usual declaration that the sale having been effected without legal necessity it could not bind them after the death of Mst. Sahib Jan. This suit was decreed on the 9th November 1934, by a civil Court at Ambala. An .appeal against this decree was dismissed by the learned ,District Judge, Ambala, by an order dated the 15th March 1935.

3. Mst. Sahib Jan died in the year 1948. Respondent No. 1 submitted an application to the Central Record Office on the 7th December 1950, laying claim to the land which might be allotted in lieu of the land at Ambala. An application under Paragraph No. 52 of the Rehabilitation Settlement Scheme was, however, filed by him on the 30th October 1957, before the Additional Rehabilitation Commissioner (Land) (Touring and Inspection), West Pakistan, Lahore The Additional Settlement Commissioner called for a report from the Naib Tehsildar which was submitted to him on the 15th December 1958. On the 17th December 1958, he dismissed the application of Wali Muhammad respondent.

4. Wali Muhammad respondent filed a revision against that order after . about 3 years but the same was dismissed as incompetent on the 3rd March 196x, by Ch. Ali Ahmad, Settlement Commissioner, Lahore. Wali Muhammad then filed a Writ Petition (No. 946/R of 1964) which was allowed by the High Court and the case was remitted for hearing of the revision petition. It was left open to the learned counsel for the petitioner to raise as many legal objections as were open to him without prejudice to any observation which might have been made in the judgment about the rights of the parties. The matter was heard by Mr. Muhammad Yousaf Khan, Settlement and Rehabilitation Commissioner, Punjab, Lahore, who allowed the revision petition as well as the application under paragraph 52.

5. The learned counsel for the petitioner submitted that the revision petition was in fact an appeal but since it was submitted after a long delay of 38 months after the date of dismissal of the application of respondent No. 2 by Mr. M. Y. Khand, this appeal should have been dismissed as barred by limi tation. He further argued that paragraph 52 of the Scheme was not attracted to the facts of the case since there was no decree in favour of respondent No. 2 which could have been given effect to in the revenue record in India.

6. The first point raised by the learned counsel has no force. No appeal under the Rehabilitation Act is competent against an order of the Additional Rehabilitation Commissioner. Such an order can by set aside only in revision by the Rehabilitation Commissioner. The question of limitation, therefore, does not arise. At most the application for revision could be said to be belated but that does not take away the jurisdiction of the Rehabilitation Authorities to interfere with the order of the Additional Rehabilitation Commissioner.

7. Regarding the second point the learned counsel for the respondents urged that it was neither urged before learned Rehabilitation Commissioner nor was taken specifically in so many words in the writ petition. He also argued that paragraph 52 is applicable to all the decrees obtained in India which affected the entitlement regarding land.

8. This point which relates to the jurisdiction of the Rehabilitation Authorities was allowed to be taking by me as it is strictly a point of law Telating to interpretation of paragraph No. 52.

9. paragraph 52 reads as follows:-

"The Additional Rehabilitation Commissioner (Lands) and Additional Secretary, Resettlement and Colonies Department will deal with such applications for claims to land allotment in the Punjab as are based on registered deeds and decrees of civil Courts, effect to which had not been given in the revenue records of the prescribed territory in India, due to the perturbed conditions prevailing in those areas before the Partition. Other refugee claimants with similar claims may, if they so desire, file their petitions with the Additional Rehabilitation Commissioner (Lands) and Additional Secretary, Resettlement and Colonies Department."

This paragraph was added to the Rehabilitation Settlement Scheme Punjab) on the 30th September 1951. It was omitted on 14th January 1959. It enabled the Additional Rehabilitation Commissioner (Land) to deal with applications for claims to land allotment in the Punjab as were based inter alia on decrees of civil Courts, effect to which had not been given in the revenue records of the prescribed territory in India, due to the perturbed conditions prevailing in those areas before the Partition. The sum and substance of this paragraph is that effect could be given under it only to those decrees to which effect could have been given in the revenue records of prescribed territory in India but could not be given on account of the perturbed conditions prevailing in those areas before the Partition. In the present case; the petitioner's suit was only a suit for declaration that the sale effected in favour of the father of the petitioner would not affect the' reversionary rights of the plaintiff after the death of Mst. Sahib Jan. Mgt. Sahib Jan admittedly died in 1948. By its own force this decree could not have been given effect to in the revenue records of India. If Mo. Sahib Jan had died before Partition, the plaintiff could not have taken benefit of the, decree unless he had obtained a decree for possession of the property by' filing a suit within the period of limitation provided by the Schedule to the Punjab Limitation (Custom) Act, I of 1920. A decree for declaration had to be obtained on account of the provisions of section 7 of the above Act relevant portion of which reads as follows:-

"Subject to the provision of section 6:

(a) No suit for the possession of ancestral immovable property on the grounds that an alienation of such property or the appointment of an heir is not binding on the plaintiff according to custom shall lie if a snit for a declaration that the alienation or appointment of an heir is not so binding would be time-barred, unless a suit for such a declaration has been instituted within the period prescribed by the schedule."

The only decree that could have been given effect to under custom would have been the decree for possession of the property and not the decree for mere declaration which would be of no;) value unless a suit for possession during the period of limitation had been instituted and decree for that relief obtained. The decree obtained in the year 1934 by respondent No. 2 was not, therefore, covered by paragraph 52.

10. The order of the Rehabilitation Commissioner is without lawful authority. I, therefore, allow this petition without any order as to costs and quash the order of the Rehabilitation Commissioner dated the 29th November 1972 (Annexure D').

Petition allowed.

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