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Civil Petition No. 644 of 1980, decided on 1st September, 1985.
(Against the judgment and order dated 4‑3‑1980 of the Lahore High Court, Lahore, in R.S.A. No. 760 of 1965).
Constitution of Pakistan (1973)‑‑
‑‑Art. 185 (3)‑‑ Displaced Persons (Land Settlement) Act (XLVII of 1958), S.25‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S. 10‑‑Evacuee property‑‑Jurisdiction of Civil Court‑ Allotment of land confirmed in favour of petitioners‑‑Land subsequently found to be Trust property‑‑Allotment made under Rehabilitation Scheme cancelled‑‑Civil suit challenging order of cancellation failed to Jurisdictional point and Second Appeal also dismissed‑‑Petition for leave to appeal‑‑Civil Court had no jurisdiction; however, petitioners counsel seek relief under other law from designated authorities, if otherwise entitled to it‑‑Nr) question of law being involved, leave to appeal refused.
Sh. Naweed Shahryar, Advocate Supreme Court instructed by Sh. Masood Akhtar, Advocate‑on‑Record for Petitioners.
Ch. Fazal Hussain, Advocate Supreme Court Ch. Muhammad Aslam, Advocate‑on‑Record for Respondent
Date of hearing: 1st September, 3965.
The petitioners who have been unsuccessful as plaintiffs in all the three Courts seek leave to appeal against the judgment of the Lahore High Court, dated 4th of March, 1980 whereby their second appeal was dismissed.
The petitioners received allotment of land measuring 25 Kanals 15 Marlas against their verified claim under the Rehabilitation Scheme in 1948. It was confirmed to them by the Deputy Rehabilitation Commissioner (Land) on 30th of March, 1952. In March, 1961 the lease rights in the land were advertised for auction as a Trust property. The petitioners claim to have applied to the Deputy Commissioner who was then the Chairman of the Evacuee Trust Board against it. When the auction was held, they, however, participated under protest and came out as the successful bidders for the lease period Kharif 1962 to Rabi 1964 and held the land in that capacity. In the meantime, on a report of the Tehsildar dated 7‑10‑1961 the Assistant Rehabilitation Commissioner (Land) cancelled the allotment on the ground that it was Trust property When the period of lease of the petitioners was about to expire, they instituted a civil suit challenging the order of the Assistant Rehabilitation Commissioner dated 12‑7‑1961 treating this as trust land and setting aside the confirmation made by the Deputy Rehabilitation Commissioner, in their favour. They sought a perpetual injunction against disturbance of their possession over the land. All the issues on merits were framed in the contest that followed but the case failed on the jurisdictional point. The trial Court on 30th of May, 1964 holding that section 41 of the Pakistan (Administration of Evacuee Property) Act barred such a suit and the District Judge maintained the finding but on the basis of section 25 of the Displaced Persons (Land Settlement) Act, 1958. The Regular Second Appeal was, according to the learned counsel for the petitioners, admitted to examine whether the allotment confirmed by the Deputy Rehabilitation Commissioner could be nullified by his Assistant and whether certain memoranda issued by the Chief Settlement Commissioner were not of avail to the petitioners in protecting their allotment.
The learned Judge in the High Court held that it appeared to be not disputed that the property was a Trust property. On that premise its allotment under the Rehabilitation Scheme itself was a nullity and there was no question of setting aside the order of the Deputy Rehabilitation Commissioner by his Assistant. It was merely a case of declaring the true status of the property the earlier orders being a nullity or non‑existent in the eye of law. Additionally, it was found that the petitioners had themselves participated in the auction and were holding the land on lease under the auction. The regular second appeal was, therefore, dismissed.
The learned counsel for the petitioners does not dispute the true character of the land, that its, its being evacuee trust property. What has been urged is that the petitioners were entitled to seek appropriate relief from the competent authority under section 10 of Act XIII of 1975 whereby certain allotments‑‑of evacuee trust lands could be validated. He considers that in view of the observations made by the learned Judge in the High Court his remedy in that direction and under that law stands for all practical purposes barred.
The grievance of the petitioners itself shows that their remedy was not in the civil Court but before authorities who were competent to deal with such properties and allotments for the present under section 10 of Act XIII of 1975. All the three Courts have consistently, held that the Civil Court had no jurisdiction in the matter. On such al finding, the observations made will determine or decide only the question of jurisdiction and cannot operate as a bar to their seeking relief under the other law from the designated authorities if otherwise the petitioners are entitled to it. On the question of ouster of jurisdiction, we are satisfied that a correct view has been taken and there is question of law which requires further examination in the context. Leave to appeal is, therefore, refused.
M. I. Petition dismissed.
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