Find a Lawyer

Civil Appeal No. 20/MR of 1980, decided on 14th December, 1983.

(On appeal from the judgment of the High Court, dated 29th May, 1979 in Writ Petition No. 34 of 1978).

‑‑S. 42‑Pakistan Administration of Evacuee Property Act (XII of 1957), S. 41‑Appeal by leave‑Appellant claiming that property in dispute lost character of evacuee property and its title transferred to his forefathers by means of a document‑Record showing that docu ment in question does not transfer any title in land to appellant and that said document and plea of adverse possession taken by appellant correctly overruled. by Custodian‑Oral evidence in support of claim not inspiring confidence and lacuna in revenue record with regard to title of appellant rightly taken by Courts below to have created no title for appellant‑Custodian having jurisdiction to adjudicate upon matter and his finding not shown to have been passed on no evidence‑Contention that orders passed by Custodian without evidence and liable to be quashed by High Court, held, has no substance.

Qazi Abdul Ghafoor for Appellant.

Ch. Shahwali for Respondents Nos. 1 and 3.

Muhammad Yunus Surakhvi for Respondent No. 4.

Nemo for Respondent No. 2.

‑This appeal, by leave, meant to discredit the judgment passed by a learned Single Judge of the High Court on 29th May, 1979 whereby refusing to interfere with the find ing of the learned Custodian, recorded on 29th October, 1978 the learned judge disallowed the writ petition moved by the appellant in limine.

2. The circumstances, in brief, which we have given rise to the controversy are as under The appellant sought a declaration in the Court of learned Deputy Custodian to the effect that the land in dispute under field Nos. 2351, 2364, 2695 and 2563, measuring 19 kanals and 4 marlas, situate in ‑ the area of village Kharick, Tehsil Mirpur, has lost the character of the evacuee property. The claim was based on a document, Exh. P. C. which purported to have transferred the title of the land to the forefathers of the appellant.

3. The learned Deputy Custodian and the learned Custodian found no evidence to support the title for the appellant in the document and proceeded to dismiss his claim. The learned Judge in the High Court also found no exception to these findings, while dismissing the writ petition.

4. Leave was granted to consider as to whether document Exh. P. C. was correctly excluded out of the evidence by all the Courts below.

5. Qazi Abdul Ghafoor, the learned counsel for the appellant, in support of the appeal reagitated the same points on which he sought to challenge the order of the Custodian in the High Court. He submitted that the finding given by the Custodian with regard to the nature of the property, in view of the document Exh P. C. was not correct and the orders of the Deputy Custodian and the learned Custodian, having been passed without evidence, were liable to be quashed by the High Court in exercise of the extraordinary writ jurisdiction.

6. The argument is misconceived. On going through the record we find that the learned Custodian has advanced cogent reasons to bold. that the document, Exh. P. C. does not transfer any title in the land to the appellant The appellant's case was that the suit land was purchased by Noor Alam, his father, from Ram Bahja Shah, a non‑Muslim evacuee, in Dogra Regime vide agreement Exh. P. C. In the first instance he claimed title on the basis. of this document and in alternate claimed adverse possession. Both the pleas have been correctly overruled by the learned Custodian. The Khasrai Girdawari pertaining to the Dogra Regime entered Ram Bahja Shah, non Muslim, as owner and Noor Alam is shown as a tenant., Similarly, Khasra Girdawari pertaining to the year 1996 Bk. carries the entry of the suit land in the name of Noor Alam on the basis of an oral sale. Obviously this entry is in departure to the plea of the appellant. The above would show that the conclusion drawn by the learned Custodian can safely be derived from the state of evidence.

7. The oral evidence in support of the claim does not inspire confidence for the reasons stated in the Custodian's order. The lacuna in the Revenue Record with regard to the title of the appellant has rightly been taken by all the Courts as to have created no title for the appellant.

8. Besides, whether this evidence should have been believed or not is entirely a different matter. The Custodian having disbelieved the evidence the High Court could not go beyond the finding of fact in a Constitutional petition unless it could be shown that the Custodian had no jurisdiction t adjudicate upon the matter. De Smith on the concept of jurisdiction in Judicial Review of Administrative Action, at‑ pages 66 and 67 beautifully says : ‑‑

"Jurisdiction means authority to decide. Whenever a judicial Tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a Court has jurisdiction to entertain an application, it does not lose its jurisdiction by coming to a wrong conclusion, whether it was wrong in law or in fact. It does not lose its jurisdiction even if its conclusion on any aspect of its proper field of inquiry is entirely without evidential support. The question whether Tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to inquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion of the inquiry. Thus a Tribunal empowered to determine claims for com pensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by deter mining any of those questions incorrectly ; but it has no jurisdiction to entertain a claim for re‑instatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A Tribunal may also lack jurisdiction if it is improperly constituted, or (possibly) if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required. (i. e. has jurisdiction).

Here in this case it is nobody's case that the Custodian had no jurisdic tion to entertain the matter. The learned counsel also failed to point out that the finding recorded by the learned Custodian is based on no evidence.) The points canvassed by the learned counsel, therefore, have no substance. The appeal, therefore, stands dismissed with costs.

M. Y. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.