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Civil Revision No. 151 of 1957, decided on 6th January 1958, from the order of Sh. Muhammad Asadullah, Civil judge, IV Class, Sargodha, dated the 13th April 1957,

S. 42‑Suit for declaration that plaintiff (refugee) alone as sole heir is entitled to inherit property left by deceased and to receive compensation that may be paid on account of property and for permanent injunction restraining defendants from interfering with rights of plaintiff or from approaching Rehabilitation Department to obtain compensation‑Order of Rehabilitation Authorities not to be called in question in Civil Court‑Declaration sought even if granted will be entirely infructuous‑Grant of declaratory relief-Discretionary‑Discretion should not be exercised in favour of plaintiff, when Court cannot pass any effective decree.

Heman v. Fazal P L D 1955 Lah. 280 ref.

Ghulam Abbas Jafri for Petitioners.

Nemo for Respondent.

Date of hearing: 17th December, 1957.

This is a petition for revision of the order of Mr. Muhammad Asadullah. Civil judge 4th Class, Sargodha, dated the 13th of April 1957, dismissing certain preliminary objections raised by the defendants in suit No. 278 of 1956, and directing the suit to proceed on the merits.

2. The facts of the case, so far as they can be ascertained from the material available, are that one Allah Dia died in village Humayoonpur, Tahsil Sarhind, District Bassi, Patiala State, in the year 1946. leaving four sons, a daughter Mst. Zenab, and two sisters, Mst. Raji and Mst. Kariman. A mutation, No. 492, relating to the Sammat year 2003 (corresponding to 19147 A. D.) was entered in favour of the sons, Mehdi Hasan, Faqir Muhammad, Hasan Muhammad and Ahmad Hasan, but was rejected two years later on the ground that they had migrated to Pakistan. It is, however, alleged that they did not reach Pakistan, being murdered in the course of their migration. Mst. Kariman also died before the institution of the present suit, leaving three sons, Babu, AIiMuhammad and Jan Muhammad, and one daughter, Mst. Ghafuri.

3. On reaching Pakistan the survivors of Allah Dia's family settled in Chak No. 42/S, B., District Sargodha. Some land (the area is not given in the plaint) was allotted by the Rehabilitation Authorities in lieu of the land aban doned in India, and on the 7th of May 1953. the Naib Tahsildar, as Assistant Rehabilitation Commissioner (Lands), mutated half of the said land in favour of Mst. Zenab and the other half in favour of Allah Dia's sisters, Mst. Kariman and Mst. Raji. An appeal to the Deputy Rehabilitation Commis sioner (Lands) against the above mutation was filed on the 8th of May 1956, and dismissed by order dated the 12th of September of the same year.

4. On the 12th of November 1956, Mst. Zenab filed the present suit against Mst. Raji and the childien of Mst. Kariman for a declaration that as the heir of her brothers, Mehdi Hasan, Faqir Muhammad, Ali Hasan alias Hasan Muhammad and Ahmad Hasan, she is the only person entitled to succeed to the property left by her father Allah Dia and to any compensation that may be paid on account of his property. She further sought a permanent injunction restraining the defendants from interfering with her rights or from approaching the Rehabilitation Authorities to obtain compensation.

5. The defendants contested the suit on the merits and also raised certain legal objections, the nature of which is sufficiently shown by the following preliminary issues framed by the trial Court

(1) Whether the suit in the present form is main tainable (O. P. P.)

(2) Whether the Civil Court is debarred to exercise jurisdiction in the suit (O. P. D.)

(3) Whether the prayer of permanent injunction to the effect that the defendants should not claim any compensa tion from the Rehabilitation Department is untenable (O. P. D.)

6. On the first issue the learned Civil Judge held that as no order of the Rehabilitation Authorities can be called .in ques tion by a Civil Court, nor can a Civil Court dispossess the de fendants, the plaintiff was not entitled to sue for possession or compensation and that the suit was, therefore, correctly fram ed. On the second issue, the Court held, relying on Heman v. Fazal (P L D 1955 Lah. 280), that the Civil Courts in Pakistan have jurisdiction to determine the question of who was the owner of property left in India so as to determine the parties' rights to allotment of property in Pakistan in lieu of the said property, and that such a determination of ownership is hit neither by sections 16 and 20 of the Code of Civil Procedure nor by the provisions of the Pakistan Rehabilitation Act (XVII of 1956). The rele vant portion of the judgment runs:--

"The plaintiff's suit is for declaration that she is the sole heir of Allah Dia, i.e., she is the owner of the property left by him in India and according to the above discussion so much of the suit is maintainable in and triable by this Court. But this Court cannot in view of sections (sic) 6, 12 and 18 of Act XLII of 1956, above, grant any further relief as that is a subject which is in the exclusive jurisdic tion of the Rehabilitation Authorities. The issue is decided accordingly."

On issue No. 3, the decision of the learned Civil judge was that as the relief of an injunction is hit by clause (d) of section 56 of the Specific Relief Act (I of 1877) and sec tion 18 (3) of Act XLII of 1956, the suit for an injunction as prayed for is not maintainable.

7. After deciding the preliminary issues in the above sense, the learned Civil Judge ordered the suit to proceed on the merits.

8. Although the learned Civil judge, in deciding issue No. 2, relied on Heman. Fazal, he unfortunately overlooked one of the key sentences in the judgment, namely; therefore, for deciding whether the Court has jurisdiction consider whether the Court can pass an effective decree." The present case must be considered in the light of the principle enunciated above.

9. The learned Civil judge rightly held that no injunction can be issued by a Civil Court, but his further argument on issue No. 2, as set out in paragraph 6 above, when analysed, amounts by implication to saying that although, but for the existence of other legislation, the plaintiff should have prayed not only for a declaration nut also for consequential relief, the fact that the Court has no jurisdiction to grant the conse quential relief appropriate to the case makes a suit for a decla ration simpliciter competent.

10. The above argument entirely overlooks two cardinal principles of law, first, that the grant of a declaration is a discretionary relief, and second, that where the Court cannot B pass any effective decree the discretion vesting in it should not be exercised. In the present case, it is abundantly clear that a mere declaration that she is the sole heir to the pro perty in dispute will not help the plaintiff. Her object in bringing the present suit was to obtain, or to least pave the way to obtaining, the share of Allah Dia's property allotted by the Assistant Rehabilitation Commissioner to Mst. Kariman and Mst. Raji, and since the order of the Rehabilitation, Authorities cannot be called in question in a Civil Court. the declaration sought for would, even if granted, be entirely infructuous.

11. For the reasons given above .I hold that in ordering the suit to proceed on the merits in spite of the fact that even if it were decreed the relief obtained would be of no avail to the plaintiff, the mutation sanctioned by the Assistant Rehabilitation Commissioner being immune from attack in a Civil Court, the Court acted in the exercise of its jurisdiction with material irregularity. I accordingly accept the petition and dismiss the suit with costs throughout.

K. M. A. Petition accepted.

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