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Regular Second Appeal No. 730 of 1975, decided on 14th April 1979.

-- [As amended by Thal Development (Punjab Amendment) Ordinance rr (XIX of 1975), S. 74-A]-Suit for cancellation of allotment dismissed merely on ground of bar created by amending Ordinance-- Records showing order of cancellation of allotment without jurisdiction--Such provisions, held, not applicable in circumstances suit cannot be disposed of without recording evidence on issues already framed-Case remanded for fresh decision on merits.- [Jurisdiction].

Mian Qurban Sadiq Ikram for Appellant.

Muhammad Nawaz Kasuri for Respondents.

Date of hearing : 14th April 1979.

This is an appeal against a judgment and decree passed by Mr. Zahir Ahmad Khan Yusufi, District Judge, Mianwali, by which he maintained the judgment of the trial Court dismissing the plaintiff appellant's suit as barred by Thal Development Ordinance 19 of 1975.

. 2. It is alleged in the plaint that the appellant was allotted the disputed land under the Tube-well Scheme on the 29th June 1953, by the Thal Develop ment Authority and its possession was delivered to him on the 1st August 1953. According to the conditions of the Tube-well Scheme the defendant had to do trial boring for installation of the tube-well for which a sum of Rs. 1,350 was deposited by the plaintiff but the defendant did not abide by the condi tion. The Authority therefore, cancelled the allotment although the plaintiff had drawn the waste, levelled the land, constructed the house on it, and installed a water-pump at the cost of Rs. 2,000.

3. A written statement was filed by the respondent denying the possession of the plaintiff alleging that the Provincial Government was the owner of the property and it was a necessary party. it was denied that the plaintiff had implemented the condition of the grant. On the other, it was asserted that he had taken away the amount deposited by him in advance. The following issues were framed by the learned trial Court :-

(1) Whether the plaintiff is in possession of the suit land and the suit is maintainable in its present form O. P. D.

(2) Whether the Provincial Government is a necessary party in this suit O. P. D.

(3) Whether, the plaintiffs have withdrawn the zar-a pashgi, if so with what effect O. P. D.

(4) Whether the defendants performed his part of condition O. P. D.

(5) Whether the order of resumption of the defendant is illegal and void for the reasons stated in the plaint O. P. D.

(6) Relief:

The case was adjourned for evidence to the 5th September 1975, on which date the suit was dismissed merely on the ground of the bar created by the Thal Development (Punjab Amendment) Ordinance, 1975.

3. The provisions of the Thal Development Act (Punjab Amendment) Ordinance, 1975, by which section 74-A was added to the Thal Development Act, 1949, are as follows :-

"A civil Court shall not have jurisdiction in any matter, which the Collector is empowered by this Act to dispose of and shall not take cognizance of the manner in which the Provincial Government. Board of Revenue, Collector or any other Revenue Office exercises any power vested in him by or under this Act."

This provision shall not apply once it is proved on the record that the order of cancellation of allotment was without jurisdiction. In these circumstances, the learned trial Court could not dispose of the suit without recording evidence on the issues already framed.

4. The appeal is, therefore, allowed with any order as to costs, the orders and decrees of the learned Courts below are set aside and the matter is remanded to the learned trial Court for a fresh decision on merits. Since respondents Nos. 2 to 4 claim to be allots and in actual physical possession of the property they shall be impleaded as respondents. Similarly issue No. 2 shall be tried as a preliminary issue because it appears from the document shown to me that the property in dispute is owned by the provincial Government.

Appeal accepted Case remanded.

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