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F. A. O. No. 11 of 1971, decided on 16th October, 1982.

‑‑ No. 89, paras. 8, 14 & 15‑Powers of civil Court‑Chief Settlement Commissioner or Officer authorized by him, held, empowered to decide disputes regarding area surrendered by an allottee in accordance with para. 8 of Martial Law Regulation and such powers do not vest in a civil Court.

‑‑‑ No. 89, paras. 8, 14 & 15‑Transfer of Property Act (IV of 1882), S.43‑Doctrine of feeding eatoppel‑Applicability‑Contention that respondents I to 4 alone entitled to transfer of land in dispute after purchase of surrendered land under para. 8 o: Martial Law Regulation and this matter not hit by bar of jurisdiction clause of Martial Law Regulation‑Held, sale declared void by operation of para. 14 of Martial Law Regulation and doctrine of feeding estoppel under S. 43 of Act cannot be invoked as sale not set aside on account of any fault, fraud or misrepresentation on part of respondent 5.

Ghulam Muhammad Bhatti and Ch. Muhammad Ashraf Wahla for Appellants. .

Ch. Bashir Ahmad AM for Respondents Nos. 1 to 4.

Respondent No. 5 : Ex parte.

Date of hearing : 11th October, 1982.

The dispute in this F. A. O. relates to 563 kanals and 10 marlas of agricultural land situate in village Kbarian of Sheikhupura District. It was evacuee property and was allotted with some other land to respondent No. 5 who was a displaced person from the non‑agreed area. After the allotment he sold this land to respondents Nos. 1 to 4 through mutation No. 352 attested on 23‑12‑1960. On 23‑8‑1961 Martial Law Regulation 89 was pro mulgated. In pursuance of the provisions of this Regulation the claim of respondent No. 5 was reverified. Consequent upon the refortification he was made to surrender land equivalent to 15,586 units. The land surrendered. included the land in dispute as well. On 30‑10‑1961, that is, after the surrender of the land in dispute, he executed a deed in favour of respondents‑‑whereunder he promised to return the sale price of Rs. 16,000 within one year to them. Subsequently, he purchased the land surrendered by him. After the purchase he entered into an agreement with the petitioners for the sale of the land in dispute. On 11‑6‑1962 he executed a sale‑deed in their favour.

2. On 6-6‑1962 respondents Nos, I to 4 instituted the present suit inter alfa for a declaration that they were owners in possession of the land in dispute and that the agreement to sell executed by respondent No. 5 in favour of the petitioners was ineffective in so far as their rights were concerned. The suit was resisted by the petitioners on a number of grounds. To begin with two preliminary issues were framed on two different dates but I am not concerned with them in, this appeal suffice it to say that they were both decided by the trial Court in favour of respondents Nos, I to 4. On 22‑2‑1965 the trial Court framed two farther issues. These were

(i) Whether th6 civil Court has jurisdiction in the case

(ii) Whether the plaintiffs have been dispossessed from the suit land during the pendency of the suit, if so, its effect

The learned trial Court held that respondents Nos. 1 to 4 were dispossessed from the land in dispute during the pendency of the suit and that the civil Court bad no jurisdiction to try the suit. On the basis of its finding en the issue of jurisdiction, it dismissed the suit with costs. Respondents Nos. I to 4 then went in appeal before the District Judge, Sheikhupura. The learned District Judge did not record any finding of his own on the issue of possession but set aside the finding of the trial Court on the issue of jurisdiction.

Accordingly, he remanded the suit to the trial Court for a decision on merits. From the order of the learned District Judge the petitioners have come in appeal to this Court.

3. The cause of action upon which respondents Nos. 1 to 4 based their suit, is to be found in paragraph No. 3 of their plaint. It reads as follows :‑

It will thus be seen that respondents Nos. l to 4 had come to the Court on the foot of two assertions, namely :‑.

(f) that respondent No. 5 was not competent to surrender the land which he had earlier sold in. their favour ;.and that since they had paid the price of the land for response No. 5 the latter was not competent to transfer it to any one else. So far as the first ground is concerned it was a matter clearly outside the jurisdiction of the civil Courts for reasons, which will presently appear. Martial Law Regulation 89, entitled Security of Claims (Evacuee Property) Regulation was promulgated on 23‑8‑1961. By operation of paragraph No. 7 (1) thereof, the allotment made in favour of respondent No. 5 stood cancelled and was to be deemed never to have been made. His entitlement was to be verified afresh in accordance with the provisions of the Regulation and any allotment made to him earlier was required to be modified accord ingly. The modified allotment was to be treated as fresh allotment and was to include as far as possible the land previously allotted to him. By virtue of paragraph No. 8 he was required to surrender any area which was found to be in excess of his modified entitlement. Paragraph No. 14 of the Regula tion reads as follows :‑

"14. Certain transactions void.‑(I) The transfer of any land, in respect of which an allotment has been made or the creation of any right or interest in, or encumbrance on, such land, made in any manner what soever before or after the commencement of this Regulation, by or on behalf of any allottee shall be void to the extent to which the area is in excess of the area to which he is entitled under the fresh allotment under paragraph 7.

(2) If any question arises whether the transfer or creation of any right, interest or encumbrance is void under sub‑paragraph (I), the question shall be referred to the Chief Settlement Commissioner or to an officer authorised by him, whose decision thereon shall be final."

A perusal of this paragraph indicates that any dispute with regard to the area which the allottee surrendered in accordance with paragraph No. 8 was to decided by the Chief Settlement Commissioner or an officer authorised him. Paragraph No. 15 of the Regulation ousted the jurisdiction of all civil Courts in respect of any matter for the determination of which provisions had been made by or under the Regulation. The Courts below were therefore, perfectly justified in holding that they had no jurisdiction to entertain the suit in respect of the area which respondent No. 5 should or should not have surrendered. The remedy of respondents Nos. 1 to 4 in this regard lay exclusively with the Chief Settlement Commissioner or the Officer authorised by him in this behalf.

4. As regards the second ground that respondents Nos. 1 to 5 alone were entitled to the transfer of the land in dispute after the purchase of the surrendered land by respondent No. 5, this was a matter not hit by the of jurisdiction clause in the Regulation. It could no doubt be agitated in a civil Court. But then I find that there is no basis for such v aim a advanced by respondents Nos. 1 to 4 and the remand of the case back' to the civil Courts will merely prolong the litigation which has already been going on for more than 20 years. The sale in their favour had been declared void by operation of paragraph No. 14 of the Martial Law Regulation. It is pot a case where the doctrine of feeding the estoppel as incorporated in section 43 of the Transfer of Property Act could be invoked for the sale in their favour stood set aside not on account of any fault, fraud or misrepresentation on the part of respondent No. 5 but on account of the operation of a Statute Apart from the provision of section 43, ibid, the learned counsel for respon dents Nos. 1 to 4 could not spell out the basis upon which they were claiming that respondent No. 5 must after the purchase of the surrendered land resell the land in dispute in their favour. Their right4 any extended only to seeking refund of the price which they had earlier paid to respondent No. 5.

5. For the reasons stated above I set aside the order of the learned District Judge and restore the judgment and decree of the trial Court. The petitioners shall also have their costs in this Court as well as before the District Judge.

M. Y. M. Appeal dismissed.

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