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Second Appeal No. 479 of 1968, decided on 6th February, 1983.

Pakistan (Administration of Evacuee Property) Act (XII of 1957)-

Ss. 22 & 41-Evacuee property-Determination of question whether property evacuee or non-evacuee within competence of Custodian under S. 22-Circumstances in which property treated as evacuee property and transferred as such by Settlement Authorities-.Held, cannot be investigated into by civil Court-Concurrent findings of Courts below that transfer of disputed property in favour of respondent could not be challenged before civil Court on ground that such property was wrongly treated as evacuee property on basis of certificate of Municipal Committee-Held, cannot be taken exception to.

Abdul Matin for Appellant.

A. Karim Lakhan for Respondent.

Dates of hearing : 23rd and 30th January, 1983.

JUDGMENT

The appellants have challenged the order of District Judge, Sukkur dated 27-6-1968 in Civil Appeal No. 25 of 1968 which was filed against the judgment of First Class Civil Judge, Sukkur dated 31-1-1968 in Suit No. 43/65, filed by the present respondent against the appellants.

2. The suit of the appellant was that the Plot No., D/495/5-A measuring 3200 sq. ft. belonging to one Kishnomal evacuee situated in Pano-akil was transferred by the Settlement Authorities to the father of the respondent on 8-5-1960 and P. T. D. was issued in his name. Respondent's father died in 1964 leaving the respondent as his sole heir. The respondent and his father bad constructed house and s shop on this plot. Subsequently the Railway Department started claiming the plot as the property of the Railway and requested Mukhtiarkar Pano-akil to eject the respondent from the premises. Hence the suit for declaration and injunction. Alongwith his plaint the respondent also filed original cope of the P. T. D. in respect of the plot in question The prayer of the respondent in the suit was that it may be declared that the property in dispute stands transferred to the respondent by the Settlement Authorities permanently and that the appellants be restrained from interfering with his possession over the same.

3. Written statement was filed only by the appellant No: 1 in which it was alleged that the appellant has encroached upon railway land and raised construction thereon and that the .land in question could not have been transferred to the respondents by the Settlement Authorities.

4. On these pleadings following issues were framed by the trial Court :

(1) Whether the disputed property belongs to the railway deptt

(2) Whether the plaintiff has encroached upon the disputed property

(3) What should the decree be

After recording evidence of the parties the learned trial Judge came to the conclusion that the plot in question was transferred by Settlement Authorities to respondent and that he had not encroached on the railway land. Consequently the suit of the respondent was decreed. Aggrieved by this order the appellant filed appeal before the District Judge, Sukkur which was decided by the Additional District Judge, Sukkur as stated above. The learned Additional District Judge concurred with the findings of the trial Court and upheld its judgment.

5. The orders of the two Courts below have been challenged by the present appellants inter alia on the ground that (i) that the orders of the Courts below are in disregard of section 41 of Pakistan Administration of Evacuee Property Act, 1957 (hereinafter referred to as Act of 1957), (ii) that the Courts have erred in not holding that the property in dispute was non-evacuee, (iii) that the Settlement Authorities had no jurisdiction to treat the property as evacuee property and to transfer it to the respondents.

6. None of the above grounds can be pressed into service by the appellants in support of the appeal. The lower Courts have not declared the property as evacuee or non-evacuee, hence the question of contravention of section 41 of the Act, 1975 does not arise. On the contrary it is appellants who have been alleging throughout that the property in question is non-evacuee. Hence it was not open to the trial Court or First Appellate Court to hold, that the property which had been treated by the Settlement Authorities as evacuee property and who had permanently transferred the same as such to the respondent's father, was not evacuee property. The appellant No. 1 itself should have approached the custodian under section 22 of the Act, 1957 for declaration that the property in question was non-evacuee and that it was not liable to be transferred to any one by the Settlement Authorities.

7. The main plea urged by Mr. Abdul Mateen, learned counsel for the appellant No. 1 was that the Settlement Authorities were not entitled to treat the plot in question as evacuee property simply on the certificate of Chairman of Municipal Committee Pano-akil. It is not open to the civil Court t investigate into the circumstances in which the property has been treated a evacuee property and transferred as such by the Settlement Department. The transfer in favour of the respondent's father cannot be challenged before the civil Court on the ground that the property was wrongly treated as evacuee property on the basis of certificate of Chairman of the Municipal Committee. This question could have been agitated before the appropriate forum. that is, Custodian who was competent under section 22 of the said Act to declare that the evidence on the basis of which the property was treated as evacuee property was not sufficient. Civil Courts could not have given a finding about the property being non-evacuee on the ground as urged by the learned counsel for the appellant No. 1.

8. In view of the above, no exception can be, taken to the concurrent findings of the two Courts below. Consequently the appeal is dismissed with costs.

S. Q. Appeal dismissed.

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