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Second Appeal from Order No. 13 of 1957, decided on 26th February 1958, from the order of Sheikh Mushtaq Hussain Munir, District Judge, Lyallpur Division at Lyallpur, dated the 20th June 1957.

S. 16-‑Order passed by Rehabilitation authority under Ordinance cannot be called in question in Civil Court.

S. 8 (2) ‑Ejectment of person from property which had ceased to be abandoned property, is illegal.

S. 10‑Custodian can take possession under S. 10 ‑Rehabilitation authority has no power to eject under section 10.

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Party is not estopped from raising plea of jurisdiction ff facts are not in dispute.

Muhammad Siddique for Appellant.

M. B. Zaman for Respondents.

Date of hearing: 26th February 1958.

The suit out of which this appeal has arisen relates to the possession of two shops situate in Ward No. 4, Chiniot Bazar, District Lyallpur. These shops are situate in an ihata, 1/3 of which was jointly owned by Wali Ram, Amin Chand and Sundar Das before Independence. The two plaintiffs‑respondents were admittedly the tenants of these two shops before they became, or could have become, evacuee property. The above‑named three persons agreed, on the 19th of September 1946, to sell their share in the ihata to the defendant‑appellant for Rs. 7,500 and received Rs. 400 as earnest money. As, however, they failed to execute the sale‑deed a suit for specific performance was filed by the defendant‑appellant Rahim Bakhsh. The suit was decreed on the 7th May 1948 and a sale‑deed was executed through Court on the 6th of January 1949. The Custodian of the Evacuee Property confirmed the sale on the 14th January 1951.

On an application by Rahim Bakhsh there was partition of the ihata by the Custodian on the 12th August 1953 and the two shops in question fell to Rahim Bakhsh's share. On the 26th April 1954 the Deputy Rehabilitation Commissioner gave notice of ejectment to the plaintiffs‑respondents, Imam Din and Ibrahim, who contested it on every possible forum in the Rehabilitation Department and by way of revision before the Custodian, All their efforts proved unsuccessful and they were, eventually, ejected on the 19th January 1956 when the possession of the shops was made over to the defendant‑appellant. The plaintiffs filed a suit for possession on the 2nd February 1956. Learned trial Court held that the Civil Court had no jurisdiction in the matter and ordered the plaint to be returned for presentation to a competent Court. On appeal, the learned District Judge, Layallpur, held that the suit was cognizable by a Civil Court and remanded the case for disposal according to law. The defendant Rahim Bakhsh has come up to this Court in appeal against the order of the learned District Judge, and the sole question involved in the appeal is whether the Civil Court has or has not jurisdiction to decide the suit.

It is true that, in view of the provisions of section 16 of the Pakistan Rehabilitation Ordinance XIX of 1948, no order passed, by the Rehabilitation Authority under that Ordinance can be A called in question by a Civil Court; but the question is whether the order of the Rehabilitation Authority in this case ejecting the plaintiffs‑respondents was an order under that Ordinance. The learned counsel for the appellant contends, that it was such an order because it had been passed under section 8 (2) (b) of the Ordinance. That provision, in so far as it is relevant to the present case, is as follows:-

.Rehabilitation Authority may‑

(a) .

(b) eject summarily with the use of such force as may be necessary any person in possession of any abandoned land, building, business or undertaking whose possession thereof has not been authorised by the Rehabilitation Authority, or, to whom such land, building, business or undertaking has been allotted (whether the stock‑in‑trade or machinery involved in the business or undertaking has been sold to him or not) but who has failed to observe any of the conditions of the allotment, or who has subsequently been found in the opinion of the Rehabili tation Authority to be an unsuitable person to hold the property so allotted or any person in possession of any property which, after it has been allotted to him as evacuee property, has lost the character of being such property either by a declaration or by the operation of any other law for the time being in force".

Learned counsel for the appellant urged that since the plaintiffs were not allottees but in unauthorised possession of the shops in question, the order of their ejectment by the Rehabilita tion Authority is covered by the first part of clause (b), which authorises the ejectment of "any person in possession of any abandoned land . . . . . . . . . whose possession thereof has not been authorized by the Rehabilitation Authority". "Abandoned land" according to section 2 (1) of the Ordinance means evacuee property which, in its turn, according to sub section (4) of section 2, means "any property in which an evacuee has any right or interest . . . . . . . . . " In the present case, however, the evacuees ceased to have any interest in the two shops on the 14th January 1951 when the Custodian confirmed the sale in favour of the defendant‑appellant; and, there fore, the order of the ejectment of the plaintiffs‑respondents made long after the date cannot be deemed to be an order under the, first part of clause (b) of subsection (2) of section 8 because the B plaintiffs at the time of their ejectment were not in possession of any land or property, which was "abandoned".

Learned counsel referred to section 10 of the Administration of Evacuee Property Ordinance XV of 1949, which authorizes the Custodian to take possession of the portion of a property which is not evacuee property if the greater portion of it is evacuee property. That provision is entirely inapplicable to the facts of the present case. In the first place it is not contended‑nor could it be contended‑that the order of ejectment by the Rehabilitation Authority was passed under this provision. The order under section 10 has to be passed by the Custodian and not by the C Rehabilitation Authority; and it has to be one for taking possession and not for ejectment. In any case the Custodian could not have passed an order under section 10 in this case because he himself had partitioned the property on the 12th of August 1953 and the two shops ceased to be parts of any other property, evacuee or non‑evacuee.

In spite of his unqualified admission at the very outset of his argument, that the two shops were never allotted by the Rehabilitation Authority to the plaintiffs‑respondents, who were in unauthorized possession thereof, learned counsel for the appellant argued, in the alternative, that the order of ejectment could be treated as an order under the last portion of section 8 (2) (b) of Ordinance XIX of 1948, which enables a Rehabilitation Authority to dispossess "any person in possession of any property which after it had been allotted to him as evacuee property, has the character of being such property . . . . ." This provision is clearly inapplicable because the plaintiffs were neither allotted the shops, nor were they allotted to them "as L evacuee property". In fact they admittedly obtained the posses sion of the shops as tenants at a time when they were not evacuee E property at all.

7. It was next argued that the whole scheme of the evacuee laws shows that clear possession of a property which has for some time been treated as evacuee property must be given to the person entitled to it after it has ceased to be evacuee property. The contention may be correct in so far as it relates to the dispossession of a person, who has been put into possession by the Rehabili tation Authority during the period in which the property, in question was to be treated as evacuee; but no provision in an relevant law has been pointed out which, directly or indirectly, casts the duty upon the Rehabilitation Authority to dispossess, for the benefit of a non‑evacuee, a person in unauthorized posses sion at any time after the property ceases to be evacuee and, thus, under the supervision and the control of either the Rehabilitation Authority or the Custodian. Learned counsel referred to sections 6, 7, 9, 10 and 12 of Ordinance XV of 1949 in support of his arguments. There is nothing in any of these sections which has even a remote bearing upon the proposition contended for by him:

It was lastly urged that since the respondents themselves sought relief from the Rehabilitation Authority and the Custodian against the notice of their ejectment by the Deputy Rehabilitation Commissioner they cannot now turn round and assert that the Rehabilitation Authority had no jurisdiction to eject them. I am unable to see any logic or principle in the argument. The fact, that the plaintiffs pleaded to the authority, which had passed an illegal order against them, cannot estop them from subsequently, impeaching the legality of that order in another forum or jurisdiction. In any case a party cannot be estopped from raising the plea of jurisdiction if the facts are not in dispute, as they are not in the present case.

9. The order of the lower appellate Court is clearly correct and must be upheld. This appeal is, therefore, dismissed with costs.

K. M. A. Appeal dismissed.

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