PLJ 2004 Lahore 1350 (DB)

(v) Civil Procedure Code, 1908 (V of 1908)--

—S. 100-Constitution of Pakistan, (1973), Arts. 189 & 190--Land
underneath building-Matter relating to title thereof, stood resolved and
settled upon final decision by Supreme Court-Title relating to land in
qu 3stion, was decided by Division Court in earlier round of litigation-
Di'dsion Bench of High Court was bound by earlier decision of another
Drdsion Bench as also by the decision of Supreme Court in terms of Arts.
189 and 190 of the Constitution. [P. 1371] E

1981 SCMR 878; 1989 CLC 15; 1987 SCMR 1036; PLD 1973 SC 537 and

PLD 1974 SC 139 ref.

Malik Muhammad Azam Rasool, Advocate for Appellant. Respondents Nos. 1 and 3 in person.

Dr. Sohail Akhtar, Advocate for Respondents Nos. 2, 4 and 6. Respondents Nos. 5, 7 and 8 proceeded Ex-parte.

Dates of hearing: 12.11.2003, 25.11.2003, 3 & 4.12.2003, 8 to 11.12.2003, 15 to 16.12.2003, 12 to 15.1.2004, 19 to 22.1.2004 and 26.1.12004.

judgment

Muhammad Ghani, J.--This second appeal is directed against the judgment and decree, dated the 3rd of December 1989 of a learned Additional District Judge, Lahore, whereby first appeal filed by Mst. Mazhar Khanum, appellant herein, against the judgment and decree, dated the 16th of November 1987 of a learned Civil Judge, Lahore, rejecting under Order VII, Rule 11 CPC, the plaint in the suit filed by the appellant, was dismissed.

2. Behind a long tale of events, to which we would advert later in this judgment, the primary legal contention raised by Mr. Ghulam Murtaza Bhatti, learned counsel for the appellant, is that in order to determine whether a suit should be buried in its inception, by rejecting the plaint under Order VII, Rule 11 CPC, it is not permissible for the Court to travel beyond the plaint; that it has to confine itself, at such an initial stage, only to the contents thereof; that the averments in the plaint are to be taken on their face value and assumed as true, and it is on that basis alone that the Court has to determine whether or not the plaint is liable to rejection summarily for one or more of the reasons as set out in Order VII, Rule 11 CPC. According to the learned counsel, it was not permissible for the Courts below to have entered into the area of a full-dressed enquiry into the defences, founded on various documents, requiring appreciation and interpretation. In support of his submission, he has referred to a number of reported decisions of various High Courts, to which it is not necessary to make a detailed reference, because by now it has been settled that Rule 11 of Order VII, CPC, is not exhaustive of all the situations in which a plaint can be rejected. In Muhammad Akhtar u. Abdul Hadi (1981 SCMR 878) the plaint in the suit filed by the tenant challenging the title and ownership of his landlord and seeking declaration that the earlier orders, passed at various levels, including
an order of tne Hon'ble Supreme Court, had been obtained by fraud, wasrejected by the learned trial Court under Order VII, Rule 11 CPC, basing its decision on findings recorded by the Apex Court, in a contested litigation, wherein it was unequivocally held that the property had vested in the landlord, and that to permit the tenants to re-agitate the same matter, tantamounts to an abuse of the process of law. The decision of the trial Court was upheld by the first appellate Court. In second appeal filed by the tenant, the High Court reversed the decisions and remanded the case for its disposal on merits, by observing that the plaint could not be rejceted under Order VII, Rule 11, CPC, if the averments in the plaint disclose a triable issue as, according to the High Court, at that juncture, the trial Court was not to attend to the defences or to the documents filed by the defendant. The decision of the High Court was challenged by the landlord, and the Supreme Court reversed the same, restoring those of the trial Court and the First Appellate Court, by inter alia observing that Order VII, Rule 11, CPC, did not exhaustively cover all the situations in which a plaint could be rejected or a suit could be dismissed summarily, and that the earlier decision of the Supreme Court holding that the title to the property vested in the landlord . , had clinched the issue which could not be re-agitated through a suit, particularly in view of the provisions of Section 12(2), CPC. Relying on Muhammad Akhtar v. Abdul Hadi imipra), a learned Judge of this Court had held in Muhammad Akram v. Muhammad Rafi (1989 CLC 15) that the . "concept has undergone a change, in that even material produced in defence could also be kept in mind for rejecting a plaint". In Fazal-ur-Rehman v. Pakistan (1987 SCMR 1036), while dealing with a preliminary issue of jurisdiction, a learned Single Judge of this Court had held that the question of jurisdiction of the Civil Court, in the absence of evidence, could not be decided on the basis of the pleadings of the parties, but only the averments made in the plaint could be considered. However, the Hon'ble Supreme ~~~ Court authoritatively laid down as follows:

"Thus, under the circumstances a plaint which did not conform to ' the very basic principles of pleadings, which was vague and blad of true facts, could not alone be relied upon in deriding the question of jurisdiction."

After taking note of the precedent cases, relied upon by the learned Judge of this Court, their lordships further held that "the determination of the question of jurisdiction was to be based on the pleadings of the parties and not on the averments made in the plaint alone." The instances can be multiplied where it is permissible for the Court to look beyond the contents of the plaint itself. It is the duty of the plaintiff to place before the Court absolutely clean cards and to disclose all relevant facts forming the background of the dispute as a whole, without in any manner, suppressing any material fact or aspect of the case. He should not deliberately conceal the earlier litigation, if any, with malicious and vexatious design. In a case where the suit of the plaintiff is conceived out of motives and unbecoming tactics and tricks designed to harassing the defendant, the latter has every right to seek indulgence of the Court to look beyond the contents of such a plaint. And, if the defendant brings to the notice of the Court facts which, though in existence at the time'the suit is filed by the plaintiff who was supposed to plead the same, but were withheld for any reason whatsoever, the Court cannot shut its eyes, and to sit as a mute spectator or observer, rather it must take into consideration already existing relevant facts, brought to its notice through the written statement and the undisputed documents filed in support thereof, and treating those facts as an integral part of the plaint, it would be justified to determine whether the suit is ultimately to fail, and, if so, not to subject the defendant to the rigours of a protracted trial, inconvenience, waste of time and money, besides mental agony and torture. If on consideration of the overall facts and circumstances, the Court comes to a definite conclusion, without unduly leaning towards the defendant and at pains of unnecessarily stretching the facts in his favour, with obvious motive to shutting out altogether the plaintiff once for good, it can certainly put an end to the matter. Therefore, we are of the considered view that the Courts below were justified in looking beyond the contents of the plaint. The impugned decisions cannot, therefore, be set at naught on this hyper technical ground.

3. We now proceed to consider whether, on the facts and
circumstances of the present case, the Courts below were justified in non
suiting the plaintiff-appellant brevi manu. Sh. Ghulam Mustafa, ancestor of
the parties herein had a polygamous institution. Firstly, he married one Mst
Ghulam Fatima who gave birth to two sons, namely, Sh. Muhammad Nawaz
and Sh. Muhammad Riaz, both of them having died long ago, none from the
said wedlock is in the picture. Then, he married Mst. Sardar Begum who
produced six children, two daughters by the names of Mst. Razi^a Begum and
Mst. Ijaz Amanullah, and four sons named Sh. Akhtar Ali, Sh. Shaukat Ali,
Sh. Salim Ali and Sh. Murtaza Ali. Lastly, he married Mst. Taj Begum. Out
of this wedlock, a son and a daughter, namely, Sh. Mumtaz Ali and Mst.
Mazhar Khanum were born. Ghulam Mustafa was an affluent person, a man
of means and owner of huge immovable properties and vast business
undertakings. The present controversy is, however, confined to a composite
building Bearing No. SE-9-R-75, Brandreth Road, Lahore, constructed on a
piece of land, measuring 6 Marias 148 sq.ft.

4. It is a common ground between the parties that the land
underneath the building was originally owned by Fazal Ilahi Dalgar. One
Khalifa Abdul Hakim took it on lease from him, through a registered lease
deed, dated the 7th of April 1920, for a period of 20 years, commencing from
April 1921, Khalifa Abdul Hakim sub-let it to Sh. Ghulam Mustafa on the
16th of December 1921. Sh. Ghulam Mustafa then constructed on the said
land a three storeyed building, consisting of a house and a workshop.

5. On the trial Court's record, there is a copy of a Sale-Deed, dated
the 21st of December 1934, executed by the then Deputy Commissioner,
Lahore, on behalf of the Secretary of State for India-in-Council, acting
through the Government of the Punjab, whereby a strip measuring one
Kanal, one Maria and 156 sq.ft. of Government Nazool land comprised in
Khasra Nos. 1689, 1692/2, 1692/3, 1692/4 and 2550-min, bounded:-

on the North by land of Ch. Muhammad Fazal Elahi,

on the East by Government owned land,

on the West by Government owned land, and

on the South by Brandreth Road,

was sold for Rs. 8135/- to Khalifa Abdul Hakim and Sh. Ghulam Mustafa. It was further mentioned in the sale-deed as follows:

"That the vendees undertake to indemnify Government against any loss and damages resulting from or in the course of any action that may at any time be taken by Chaudhri Fazal Elahi or his representatives or successors-in-interest with regard to the said land."

From the record, it appears that a small portion of the land so sold overlapped the piece of land taken on lease by Sh. Ghulam Mustafa from Khalifa Abdul Hakim, as hereinbefore mentioned.

6. The case of Mst. Mazhar Khanum, plaintiff, was that Sh. Ghulam
Mustafa had sold his rights as sub-lessee of land measuring 6 Marias 148
sq.ft., and the building constructed thereon by him, in favour of his third
wife, Mst. Taj Begum through a Sale-Deed, registered on the 25th of march
1930 with the Sub-Registrar, Lahore, at Serial No. 100, Book No. 1, Volume
1493 (Pages 340-341) and also handed over its possession to her, and that
Mst. Taj Begum, in turn, alienated the same in favour of the plaintiff
through a Sale-Deed, registered on 23rd of October 1971 and handed over to
her the possession of the premises. According to the plaintiff, the land having
been later on purchased by Lala Bulaqi Mai and Sons, as will be shown
hereinafter, it became evacuee, but the building constructed thereon was
non-evacuee, and was owned by the plaintiff.

7. On the other hand, the case of Sh. Murtaza Ali, Defendant-
Respondent No. 2 was that the land purchased by Sh. Ghulam Mustafa
alongwith Khalifa Abdul Hakim, as aforementioned, was sold by him to his
second wife, Mst. Sardar Begum through a Sale-Deed, dated the 1st of
January 1935, registered with the Sub-Registrar, Lahore, on the 14th of
January 1935 at Serial No. 142, Book No. I, Volume No. 1786 (pages 33-34);
that Mst. Sardar Begum transferred the same in his favour through Gift-
Deed, dated the 15th of July 1968 registered on the 18th of July 1968 with the Sub-Registrar, Lahore, at Serial No. 10114, Book No. 1, Volume No. 4746 (pages 228-231) and, therefore, he was the sole, absolute and exclusive owner in possession of the suit property.

8. In order to properly comprehend the factual and legal position, we have scanned through the record, which reveals that according to the Survey of India Map, one Fazal Elahi Dalgar was owner of a triangular piece of land located on Brandreth Road, Lahore, measuring 5 Kanals, 6 Marias and 138 sq.ft. He was, however, declared insolvent and Khawaja Nazir Ahmed, Advocate was appointed as official receiver. Khawaja Nazir Ahmed filed a suit against Khalifa Abdul Hakim, Sh. Ghulam Mustafa and Mst. Sardar Begum, seeing their ejectment from land measuring 5 Kanals 18 Marias situate on Brandreth Road, claiming that the said land belonged to insolvent Fazal Elahi Dalgar and not to the Punjab Government and that, therefore, the sale in favour of the said defendants was void and ineffective. The suit was transferred to the original side of this Court. The parties entered into a compromise with regard to land measuring one Kanal and 156 sq.ft. which, as mentioned above, was purchased by Khalifa Abdul Hakim •and Sh. Ghulam Mustafa, with the above-quoted rider, mentioned in the Sale-Deed. According to this compromise, while acknowledging that the land actually belonged to Fazal Elahi Dalgar, the said three defendants surrendered all their rights, title and interest in the land measuring one Kanal one Maria and 156 sq.ft. comprised in Khasra Nos. 1684, 1692/2, 1692/3, 1692/4 and 2580, min. The following further statements in the compromise, dated the 8th of April 1937 are also worth special notice:

"That Respondent No. 2 (Sh. Ghulam Mustafa) was a sub-tenant of Respondent No. 1 (Khalifa Abdul Hakim) per lease deed, dated 16th December 1921 and Respondent No. 2 had subsequently assigned all his rights as sub-tenant to, his wife Mst. Taj Begum. Respondent No. 2 on behalf of his wife Mst. Taj Begum and on his personal responsibility assign all her rights unto the Special Official Receiver. Should Mst. Taj Begum raise any dispute with the Special Official Receiver or with his assignees and thereby cause them any loss then the person and property of Respondent No. 2 will be liable for the same."

"That the rights vesting in Respondent No. 2 per sale-deed, dated 2nd January 1935 had been subsequently assigned by a registered deed by the said respondent to his wife Mst. Sardar Begum, Respondent No. 3. Therefore, Mst. Sardar Begum, Respondent No. 3 is bound by this compromise. Respondent No. 3 has understood this compromise, and considered it and has no objection and Respondent No. 3 has also independently consulted her lawyer."

The compromise deed was signed by Khawaja Nazir Ahmed, Khalifa Abdul Hakim and Sh. Ghulam Mustafa, whereas Mst. Sardar Begum is shown to have thumb-marked the same. It was also signed by the learned counsel for Defendants 1 to 3. A joint application under Order XXIII, Rule 3, CPC, was filed on the 8th of April 1939 in this Court for recording of the compromise. The then Chief Justice accepted the compromise on the same day and passed a decree in terms thereof. The property of Fazal Elahi Dalgar was then put to auction and was purchased by Lala Bulaqi Mai & Sons. The property so auctioned included also the land in dispute underneath the huilding, but not the building itself. The auction was confirmed on the 29th of March 1937. Consequently, Khawaja Nazir Ahmed, Official Receiver, executed on the 12th of June 1939, Sale-Deed in favour of the said auction purchaser regarding the entire property of insolvent, Fazal Elahi Dalgar. In the Sale-Deed, it was inter alia mentioned as follows:

On the record, there is then a Mutation Bearing No. 6868. In Column No. 12, thereof, it is mentioned as follows:

And, in the last Column (No. 14) the following note is shown to have been recorded by the Patwari:

In Column No. 11, there are entries of Khasra No. 1693/4, measuring 4 Marias 108 sq.ft. (House) and Khasra No. 5018/1694, measuring 2 Marias 40 sq.ft. (House). The Mutation is shown to have been sanctioned on the 29th of June 1942 in the presence of Sh. Akhtar Ali, one of the sons of Mst. Sardar Begum. This Mutation had been the sheet anchor of the claim of Mst. Sardar Begum that the property was non-evacuee. Needless to add here that Mst. Sardar Begum instituted Civil Suits Nos. 598 and 599 of 1947 against lala Bulaqi Mai & Sons. Suit No. 598 was filed by her on the 2nd of December 1947 for possession by partition of half share out of plot of land measuring 8 Marias 158 sq.ft. comprised in Khasra No. 4781. Lala Bulaqi Mai and Sons had filed a written statement on the 12th of May 1948 giving a lie to the claim of Mst. Sardar Begum. The suit was dismissed on the 31st of May 1949 for non-prosecution. She filed application for restoration of the suit. Issue whether there were sufficient and reasonable grounds for restoration of the suit was framed. The application was, however, dismissed on the 12th of November 1949 for lack of evidence. The other suit (No. 599) filed by Mst. Sardar Begum on the 2nd of December 1947 for possession through partition pertained to a shop, measuring 22 sq.ft. only. She claimed that she being owner of the shop, had let out the same to one Siraj Din, but Bulaqi Mai & Sons were claiming to be the owner. According to Mst. Sardar Begum, this second suit could not be continued "on account of the Evacuee Property Legislation and Ordinance". After that, when Ordinance No. XV of 1949 was promulgated, Mst. Sardar Begum filed two cases of identical nature Bearing Nos. 286 and 287 of 1950, under Section 18 of the said Ordinance before the learned Deputy Custodian of Evacuee Property, seekftig declaration that a portion (one-quarter) of the land under the building was not evacuee property as it belonged to her. That portion of land bore old Khasra No. 1692/4, whereas the rest of the plinth land of the building on the back of that position bore old Khasra No. 1693/4. Both the cases were consolidated. After producing some evidence, Sh. Shaukat AH, Advocate, who was her son as well as her counsel, withdrew the cases on the 6th of April 1951, with permission to approach the Court against. Needless to mention that, as per record, she did not thereafter agitate the matter herself independently. From filing of the suits and then applications under Section 18 of Ordinance No. XV of 1949 and the subsequent withdrawal thereof, it could legitimately be implied that the plinth land under the building, at one time, was assumed to be evacuee property even by Mst. Sardar Begum herself.

9. Be that as it may, since as per Mst. Mazhar Khanum the land underneath the building belonged to Lala Bulaqi Mai and Sons, who had become evacuee, she, in order to perfect her title qua the land measuring 6 Marias and 148 sq.ft. as well as the building standing thereon, filed before the Chief Settlement Commissioner, LH Form under Settlement Scheme No. VIII, alongwith an application for condonation of delay in the submission of the said Form, seeking transfer of the evacuee plinth land of her house No. SE-9-E-75, Brandreth Road, lahore. The Chief Settlement Commissioner sent the case to the Deputy Settlement Commissioner, Circle-Ill, Lahore, for disposal. As the land, transfer of which was sought by Mst. Mazhar Khanum, was shown to be owned by Mst. Sardar Begum as per entries in the revenue record as well as in the record of the Taxation Department, the learned jJeputy Settlement Commissioner, Circle III, Lahore, issued notice to Mst. Sardar Begum on the 28th of December 1971 to enter appearance before him, alongwith the proof of her ownership. Mst. Sardar Begum appeared and filed written statement. On the other hand, Muhammad Ali Sheikh (husband and General Attorney of Mst. Mazhar Khanum) produced before the DSC inter alia the sale-deed in favour of his wife. After hearing both the parties and going through the documents produced by them, the learned DSC held vide order, dated the 7th February 1972, that the house was owned by Ms?. Mazhar Khanum, whereas the land underneath being owned by Lala Bulaqi Mai and Sons, was evacuee property. He further held that the claim of Mst. Sardar Begum was based on fake Tamleeknama, because no such document actually existed in the Sub-Registrar's Office. Despite this finding, which was sufficient for the learned DSC, who also enjoyed powers of Deputy Rehabilitation Commissioner, to go ahead with the transfer of the property, he proceeded to make a Reference (No. 5 of 1972) under Section 41(2) of the Administration of Evacuee Properties Ordinance (No. XV) of 1949, to the Deputy Custodian of Evacuee Property for the purpose of determination of the evacuee interest and to remit back to him the case for disposal of LH Form submitted by Mst. Mazhar Khanum.

10. Upon reference as aforementioned, the matter was taken up by Mr. Muhammad Azam, learned Deputy Custodian. The preliminary objection raised on behalf of Mst. Sardar Begum that LH Form of Mst. Mazhar Khanum was not filed before the target date, was over-ruled by the learned Deputy Custodian of Evacuee Property on the grounds, firstly that the Chief Settlement Commissioner was competent to entertain a belated form, and that even otherwise under the amended law, LH Form could still be filed, and secondly that the order, dated the 7th of February 1972 passed by the learned D.S.C., having not been challenged any further by Mst. Sardar Begum, the same had attained finality. The objection of Mst. Sardar Begum that reference under Section 41(2) filed after the 1st of January 1957, being barred by Section 30(1) was not entertainable, was also over-ruled by order, dated the 18th March, 1972. Against the said order, Mst. Sardar begum then filed Revision (No. 3 of 1972) which was dismissed on the 16th of December 1972. Mst. Sardar Begum then filed Writ Petition No. 274-R of 1973, which too was dismissed on the 30th of December 1973 by this Court holding that the Custodian had exclusive jurisdiction under Section 4 of the Act to determine whether or not a certain property was evacuee. Before the learned Deputy Custodian, both Mst. Mazhar Khanum and Mst. Sardar Begum filed their respective written statements whereas the latter had also filed reply to the written statement of the former. Both of them had also produced oral as well as documentary evidence. In the meantime, Mst. Sardar Begum died on the 18th of January 1973, whereupon her successors, namely, Sh. Akthar Ali, Sh. Shaukat Ali, Sh. Salim Ali, Sh. Murtaza Ali, Mst. Razia Khanum and Mst. Ijaz Khanum were substituted in her place. After the legal representatives of Mst. Sardar Begum were substituted, they filed additional written statements and were also allowed to produce further evidence in support of their claim that the property belonged to Mst. Sardar Begum and was not an evacuee property. The learned Deputy Custodian then by his detailed order, dated the 1st of November 1973 held that Mst. Sardar Begum had surrendered all her rights in the, land in dispute in favour af Khawaja Nazir Ahmed, Official Receiver as was borne out from the :ompromise decree, dated the 7th of November 1942; that Khawaja Nazir f\hmed had, in turn, transferred the disputed land to the auction-ourchasers, Lala Bulaqi Mai & Sons; that Sh. Ghulam Mustafa who was sub- tenant of the land by virtue of Lease Deed, dated the 16th of December 1921 en the one hand assigned all his rights to his wife, Mst. Taj Begum, and, on the other, to the Official Receiver on his own responsibility that in the event of any dispute by Mst. Taj Begum, he shall be liable for the same; that the rights acquired by Sh. Ghulam Mustafa as a consequence of the Sale-Deed, dated the 2nd of January 1935, executed in his favour by the Secretary of State, were transferred by him in favour of his other wife, Mst. Sardar Begum who, in turn, after having consulted her lawyer and having independently considered and understood the terms of the compromise, entered into the bargain and was thus bound by the same; that whatever rights and interest Mst. Sardar Begum had in the disputed land, stood transferred to the Official Receiver and then to Lala Bulaqi Mai & Sons; that similarly, on account of undertaking of Sh. Ghulam Mustafa, lease-hold rights of Mst. Taj Begums stood also transferred to Lala Bulaqi Mai & Sons, though she was not a party to the case, and that in this Way the disputed '.and wholly vested in Lala Bulaqi Mai & Sons, evacuee.

11. So far as the portion of the land on which the building had been constructed by Sh. Ghulam Mustafa was concerned, the learned Deputy Custodian also took notice of the recital in the Sale-Deed executed by Khawaja Nazir Ahmad, Official Receiver in favour of Lala Bulaqi Mai & Sons wherein it was stated that the vendee-"Lala Bulaqi Mai & Sons" was bound to transfer the same to Sh. Ghulam Mustafa, and observed that this was at best a promise made to Sh. Ghulam Mustafa and not to Mst. Sardar Begum; that the building over the disputed land had been constructed by Ghulam Mustafa (not by Mst. Sardar begum) and sold away by Ghulam Mustafa to his other wife, Mst. Taj Begum, about 19 years prior to above stated promise; that in any case, Mst. Sardar Begum could not become the transferee of the disputed land by virtue of that promise, and that Mst. Sardar Begum's claim on the basis of the recital in the Sale-Deed, dated the 13th June 1939 was wholly baseless. So far as Mutations Nos. 4866, 4867 and 4868, sanctioned in one go on one and the same day, viz. 29.6.1942 were concerned, notice was taken of the entries in Column No. 14 of the Mutation in favour of Mst. Sardar Begum wherein Lala Kirdar Krishan had produced the "Registry" wherefrom it was apparent that in terms of the compromise and to avoid any dispute, Lala Bulaqi Mai & Sons had made a Tamleek in favour of Mst. Sardar Begum who was also in possession. The order of the Revenue Officer sanctioning the Mutation, wherein it was mentioned that Akhtar Ali, a son of Mst. Sardar Begum, identified by Muhammad Sharif, Consolidation Patwari, reported change of ownership of Khasra No. 1693/4 (measuring 4 Marias 108 sq.ft.) and Khasra No. 5018/1692 (measuring 2 Marias 40 sq.ft.) from Bulaqi Mai & Sons in favour of Mst. Sardar Begum, was also referred to and it was observed that as per Certificate, dated the 23rd September 1971 issued by the Office of the Sub-Registrar, Lahore, no Tamleeknama existed on the record of Sub-Registrar, Lahore. On these premises, it was held that the order sanctioning Mutation in favour of Mst. Sardar Begum was obtained by misrepresentation and behind the back of original owner, Lala Bulaqi Mai & Sons and, therefore, Mst. Sardar Begum could not be recognized as owner of the land, as the same was owned by Lala Bulaqi Mai & Sons at least since 1942. The learned Deputy Custodian also took note of the two civil suits filed by Mst. Sardar Begum. Suit No. 598 of 1947 pertained to Khasra No. 4793 (a part of the disputed land bearing Khasra Np. 5018/1692/4). Statement of Akhtar AH was also referred to, wherein he had stated that his mother had neither signed the compromise deed (of 1937) nor she had authorized Sh. Ghulam Mustafa to enter into that compromise and that the thumb-impression affixed on the compromise deed was not of his mother. The learned Deputy Custodian further observed that Lala Bulaqi Mai & Sons had resisted the suit and produced Sh. Abdul Aziz, Advocate, to falsify Akhtar Ali inasmuch as the said Advocate had deposed in his statement that he was counsel for Mst. Sardar Begum, Ghulam Mustafa and Abdul Hakim; that Mst. Sardar Begum had affixed her thumb-impression on the compromise deed after it was read out to her, and that he himself had also signed the compromise deed. It is also mentioned in the order of the learned Deputy Custodian that ultimately Mst."Sardar Begum gave up the pursuit of her suit which was dismissed for non-prosecution on the 31st of May 1949; that an application for restoration thereof was likewise allowed to be dismissed on the 12th of November 1949, and that her allowed claim, thus, stood barred once for good. Reference was also made to the proceedings initiated by Mst. Sardar Begum under Section 18 of Ordinance No. XV of 1949; the statement made by her son, Sh. Akhtar Ali, which was contradicted by Kh. Nazir Ahmed in his statement recorded on the 31st of October 1950 in those proceedings, wherein he had, inter alia stated that Mst. Sardar Begum was indirectly related to him; that she and her husband had come to his house where the terms of the compromise were settled; that she had thumb marked the compromise deed (of 1937) and that she had done so after having understood the contents thereof. It is mentioned that the learned Deputy Custodian allowed the proceedings to be withdrawn vide order, dated the 6th April, 1951 with permission to file fresh one. It is also mentioned that in those proceedings Mst. Sardar Begum was represented by her other son, Sh. Shaukat Ali, Advocate. After referring to other documentary evidence, the learned Deputy Custodian recorded findings in paragraphs 32 to 36 of his order, dated the 1st of November 1973 to the effect that Sh. Ghulam Mustafa had sold his rights as a sub-tenant in the land together with the building constructed thereon to his wife, Mst. Taj Begum, by means of the registered Sale-Deed, dated the 25th of February 1930; that Ghulam Mustafa had surrendered on behalf of Mst. Taj Begum which, in any case, had expired in the year 1941; that no rights as a subtenant thus remained even with Mst. Taj Begum .who, after 1941, continued owner of the building only while Lala Bulaqi Mai & Sons had been owners of the land under the building; that through registered Sale-Deed, dated the 23rd of October 1971, Mst. Taj Begum had sold to her daughter, Mst. Mazhar Khanum, her non-existent rights as a sub-tenant in the land, and the building comprising the house and the workshop; that Mst. Taj Begum appeared to be ignorant of the fact that her husband had surrendered her rights as sub-lessee in favour of Lala Bulaqi Mai & Sons as far back as the year 1942; that since Mst. Mazhar Khanum had realized the said true factual position, she was consequently not laying any claim to the land as a sublessee and, therefore, rightly and honestly approached the learned Deputy Settlement Commissioner seeking transfer of the proprietary rights in the land under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. The learned Deputy Custodian further observed that Mst. Sardar Begum had not disputed ownership of building by Mst. Mazhar Khanum till the conclusion of her evidence on the 14th of June 1972, or even afterwards till her death on the 18th of January 1973. Reference was made to the affidavit of Mst Mazhar Khanum and then to the evidence before him and it was held that the same had remained unrebutted. It was also held that sale in favour of Mst. Taj Begum had been acknowledged by Mst. Sardar Begum as well as by Sh. Ghulam Mustafa in the Deed of Compromise, dated the 8th of April 1937, duly embodied in the decree passed by the High Court pursuant thereto. The learned Deputy Custodian further held that Sh. Akhtar Ali had deliberately deposed falsehood in denying facts which his predecessors had frankly conceded. In the result, he held unequivocally that Mst. Mazhar Khanum was owner of the superstructure/building Bearing No. SE-9-R-75, whereas the plinth land was evacuee property. The operative part of the order of the learned Deputy Custodian took the following form:

"To sum up my above findings I hold that the House No. SE-9-R-75 is owned by Mst. Mazhar Khanum (the petitioner) and it has not evacuee interest to the extent that its plinth land- is evacuee property, and there is no bar under the law to treat it as evacuee property at this stage. The Deputy Settlement Commissioner Circle III> Lahore while making this reference sent his entire case file alongwith the Forms LH filed by the petitioner to this Court. The said, file may be returned back to him alongwith findings of this tribunal for further disposal of the petitioner's LH Forms. Any change in the property due to evacuee interest may be disposed of by the D.S.C. Circle III, Lahore, at his end, after obtaining accounts of rents from the property tax records, received by the petitioner and the respondents or their predecessor-in-interest Mst. Sardar Begum."

12. Dissatisfied with the above decision, Sh. Akhtar Ali etc. (legal representatives of Mst. Sardar Begum) filed a revision petition which was heard by late Justice Zaki-ud-Din Pal, the then learned Custodian of

Evacuee Property, Punjab, Lahore, who made reference to the following factual backgruound at pages 7-8 of his order, dated 25.5.1974:

"The entries in favour of Mst. Sardar Begum in the relevant record maintained by the Lahore Municipal Corporation, Excise and Taxation Department and the Revenue Authorities during the period prior to independence of the country were never changed and

She continued to he shown as owner of the plinth area in question. even after the independence of the country. It is admitted in Para 2 of the impugned order passed by the learned Deputy Custodian that since the area in question was shown in the Revenue as well as in the property tax record as owned by Mst. Sardar Begum, therefore, the Deputy Settlement Commissioner issued notice to her. It cannot be denied that all the said entries pertain to the period prior to the independence of the country and even thereafter the said property was not treated as evacuee at any stage whatsoever. This being the position, it cannot be said that the property in question was a concealed one. It was shown in the ownership as well as possession of Mst. Sardar Begum in all the relevant records and as such the contention that since known as well as the concealed property was acquired under Section 5 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, therefore, the property in question was also acquired under the relevant notification issued in this regard, has no substance. The circumstances of the case clearly show that the property was known to .every one to be owned and by possession by Mst. Sardar Begum since before independence of the country and as such it cannot be said that it was a concealed property and was acquired under the law."

On the basis of the above facts, the learned Custodian held that the property in question having been shown in the relevant record as owned and possessed by Mst. Sardar Begum was never treated as evacuee; that it was never acquired under Section 3 of the Displaced Persons (Compensation and Rehabilitation) Act 1958; that the Settlement authorities had no jurisdiction to deal with the matter inasmuch as neither the application nor LH Form submitted by Mst. Mazhar Khanum could be entertained, and that, therefore, the reference made pursuant thereto was without jurisdiction and thus incompetent. However, so far as the superstructure on the land in dispute was concerned, the learned Custodian unequivocally held as follows:

"It is submitted by the parties as well as in the impugned order that the superstructure was raised on the plinth area by late Sh. Ghulam Mustafa father of the parties, as such it is not an evacuee property. Its character as such is also not denied by the respondent nor by the learned Deputy Custodian. The ownership of the said superstructure is claimed by the respective parties. The superstructure being admittedly non evacuee to all intents and purposes cannot be the subject matter of any. proceedings either before the Rehabilitation/Settlement Authorities or the Custodian Authorities. The rights of the parties inter-se with regard to the superstructure cannot be decided by any of such authorities it can only be determined by the competent Civil Court. It is strange as to how the learned Deputy Custodian has decided that the superstructure is owned by the respondent, Mst. Mazhar Khanum having been transferred in favour of her mother by her father, Sh. Ghulam Mustafa. This contention on the part of the respondent is controverted by the petitioners. It will be for the civil Court to decide in accordance with law as to which of the parties own the said superstructure. It is absolutely beyond the .jurisdiction of the Custodian Authorities to decide the claim of the parties inter-se in regard to such property. In this view of the matter the findings of the learned Deputy Custodian in this regard cannot be maintained and they are hereby set aside." (Emphasis supplied).

The revision petition was thus allowed, and the order of the learned Deputy Custodian was set aside. Be that as it may, the conflicting claims of the parties regarding the superstructure were left open to be adjudicated upon by the Civil Court of competent jurisdiction.

13. Mst. Mazhar Khanum challenged the aforementioned decision of the learned Custodian before this Court through Writ Petition No. 1308-R of 1974 which was heard and dismissed in limine by a Division Bench of this Court on the 16th December 1974. Relying on The Custodian, Evacuee Property. West Pakistan. Lahore v. Rais Ghazi Muhammad (PLD 1973 Supreme Court 537), it was held that no valid exception could be taken to the learned Custodian's order that the property not having been treated as evacuee property on or before 1st January 1957, the proceedings before him were not maintainable. The contention of the learned counsel for Mst. Mazhar Khanum that the learned Custodian had erred on facts to hold that the site in dispute was not treated as evacuee on or immediately before the 1st of January 1957 was not entertained, by observing that in view of the decision reported as Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139), it was not permissible for the High Court "to enter into this factual finding recorded by the learned Custodian in this case". Doubtless, while stating the factual back-ground, at the outset of the order, the learned Judges had mentioned that:

"Musammat Sardar Begum who was a member of the family of Mst. Mazhar Khanum (being a co-wife) filed a revision petition in the Court of the learned Custodian of Evacuee Property, Punjab, Lahore. Her claim was that both the building and the site were her own exclusive property and that there was no evacuee interest involved therein. From this, it will appear that so far as the superstructure is concerned, there is no dispute regarding its non-evacuee character and the controversy rests so far as is relevant for the present case only regarding the site thereof."

But, no finding had been recorded as to the ownership of the superstructure, whether it belonged to Mst. Mazhar Khanum, or Mst. Sardar Begum was owner thereof. Thus, the finding of the learned Custodian that the inter se rights of the parties qua the superstructure could be determined only by the Civil Court of competent jurisdiction stood maintained.

14. The aforementioned decision of the learned Custodian, as
affirmed by this Court, was then challenged by Mst Mazhar Khanurn before
the Hon'ble Supreme Court Leave having been granted, the petition was
converted into Civil Appeal No. 172 of 1975 which was, however, dismissed
on the 5th of May 1984, upholding the impugned decisions. While repelling
the contention that the "disputed land" was a concealed evacuee property,
their Lordships observed that:

"All the relevant entries in the Revenue record pertained to the period prior to the independence of the country, and even thereafter the said property was not treated as evacuee property at any stage whatsoever. It was shown in the ownership as well as possession of Mst. Sardar Begum in all Revenue records and this being the position it could not be said that the property in question was a concealed one. It was stated on behalf of the respondents before us, which was not disputed by the learned counsel for the appellant, that Messrs Lala Bulokimal and sons had stayed over in Pakistan after partition and Mst. Sardar Begum had filed two suits against them which were contested by them but no claim was laid to the disputed land nor entries in the record of rights were challenged. The matter whether or not the disputed land had ever been treated as evacuee property on or before 1.1.1957, determination of its status as evacuee property or otherwise lay within the exclusive jurisdiction of the Custodian. The issue was decided by the learned Custodian on the basis-of the relevant entries in the Revenue record as also the evidence available before him. The learned High Court, in the circumstances, rightly declined to go into the question whether the findings of the learned Custodian were -erroneous on factual plain."

So far as the rival claims of the parties about the superstructure and the observations of the learned Custodian that the same could be gone into only by the Civil Court were concerned, the Hon'ble Supreme Court had not recorded any finding of its own.

15. Mst. Mazhar Khanum, appellant herein, then filed on the 7th of
March 1987, a suit for declaration, permanent injunction and possession as a
consequential relief, by pleading that her late father, Sh. Ghulam Mustafa,
being a lessee of the vacant plot, raised thereon a building in the year 1923;
that by means of a Sale-Deed, registered on 25th of February 1930, he sold
the building alongwith lease hold rights in favour of his second wife, Mst. Taj
Begum, and also handed over possession to her; that Mst. Taj Begum, in
turn, alienated the same in favour of the plaintiff-appellant through a Sale-
Deed dated the 23rd of October 1971 and handed over to her possession of
the premises; that the appellant let out the workshop on the ground-floor to
Sharif Ahmed, Ghulam Ahmed and Muhammad Hassan of M/s Auto Kraft,

17-General Bus Stand, Badami Bagh, Lahore; that the shop located on the ground-floor was leased out to Iqbal and Farooq of M/s Al-Hilal Machinery Traders. Gujranwala, another shop was rented out to Khawaja Tallat of Al-Irading Company, while the upper storey was kept vacant for surplus tools of appellant's workshop; that under a bona fide belief that the land underneath the building was evacuee, since it was owned by Lala Bulaqi Mai and Sons, the plaintiff-appellant applied to the Chief Settlement Commissioner seeking its transfer; that the matter was referred to the Deputy Settlement Commissioner-Ill, Lahore, who made a reference to the Deputy Custodian of Evacuee Property for declaration with regard to the evacuee or otherwise nature of the property; that though the Deputy Custodian had held that the land underneath the building was evacuee, but the Custodian declared the same to be evacuee, which decision was maintained by this Court as well as the Hon'ble Supreme Court. The plaintiff-appellant further averred that behind her back, defendants-Respondents 1 to 8 entered into an arbitration agreement, dated the 24th of May 1984; that Defendants 1 to 4, 6 and 7 were sons an daughters of late Sh. Ghulam Mustafa from other first wife, namely, Mst. Sardar Begum; that Sh. Mumtaz AH (Defendant No. 6), a real brother of the plaintiff, and Javed Ali (Defendant No. 8), a son of Mrs. Razia Shafi Beg, (Defendant No. 7), none of them had any right, title or interest in the suit property; that though in the afore-mentioned arbitration agreement, the suit property was also included but in the last paragraph thereof it was mentioned that "The inclusion of any property in the above list will not mean admission on the part of any of the parties about its ownership;" that in the Award, dated the llth of November 1985 which was pronounced pursuant to the arbitration agreement, dated the 24th of May 1984, it was held that the suit property being ancestral property of Sh. Ghulam Mustafa, had devolved on all his legal representatives and should be partitioned amongst them; that the Award to the extent of the suit property was "inoperative, invalid, illegal and was not binding on the plaintiff' as she was not a party to the arbitration agreement; that to the communications of the plaintiff, the Arbitrator had not responded; that upon an application of Sh. Akhtar Ali, Defendant No. 2 for making the said Award rule of the Court, the matter was subjudice in Civil Original No. 2-C of 1986 pending in this Court; that her two applications filed under Sections 30 and 33 of the Arbitration Act 1940 read with Order I, Rule 10, CPC, were dismissed on the 5th of November 1986 with permission to her to watch her interest to the extent it had been determined as per para 58 of the Award otherwise she being not a party to the arbitration agreement, neither the resultant Award was binding on her nor she had the right to challenge the same; that she being rightful exclusive owner of the suit property by virtue of the Sale-Deed, dated the 23rd of October 1971, inclusion of the same in the arbitration agreement was wholly unauthorized and the consequent Award dated the llth of November 1985 was equally illegal and inoperative qua her rights to the suit property. The plaintiff-appellant also threw challenged to Mutation No. 4868 sanctioned on the 15th of June 1942 in favour of Mst. Sardar Begum, after death of Sh. Ghulam Mustafa on the 5th of December 1938, having been allegedly conceived as a result of connivance of Sh. AJditar Ali, Defendant No. 2 with the revenue staff. It was further averred that the decree, dated the 8th of April 1397 passed by this Court in Civil Original No. 80 of 1937 pursuant to compromise between Kh. Nazir Ahmed and the father and mother of Defendants 1 to 4, 6 and 7 as well as the Sale-Deed executed by Kh. Nazir Ahmed in favour of M/s Bulaqi Mai and Sons and registered on the 13th of June 1939 might "become relevant if some of the defendants happen to raise any vexatious claim by misrepresentation". The plaintiff claimed to be in constructive possession of the suit property on the basis of the aforementioned Sale-Deed in her favour, and asked for actual physical possession.

16. Separate written statements were filed by Sh. Salim Ali, Sh.
Akthar Ali, Sh. Murtaza Ali and Sh. Shaukat Ali, Defendants 1 to 4. On the
2nd of July 1987, Sh. Murtaza Ali, Defendant No. 3 filed an application
under Order VII, Rule 11, CPC, seeking rejection of the plaint. The main
grounds for rejection of the plaint were that although reference was made in
the plaint to the decisions of the Custodian, the High Court and the
Supreme Court to the effect that the suit property was non-evacuee, but it
was suppressed that the High Court had further given a finding that Mst.
Sardar Begum was the lawful owner thereof; that Mst. Sardar Begum had,
during her life time, executed a gift-deed in favour of the applicant (Sh.
Murtaza Ali, Defendant No. 3) which was duly registered on the 18th of July
1968 with the Sub-Registrar, Lahore, and that he being exclusive owner in
possession of the suit property, the plaint was liable to rejection. After
hearing learned counsel for the parties, the learned Civil Judge proceeded to
reject the plaint and the plaintiff having failed in her first appeal, as afore
mentioned, she has filed the instant second appeal.

17. The parties have been heard. The learned Civil Judge, seized of
the suit of Mst. Mazhar Khanum rejected the plaint by his impugned
judgment, dated the 16th of November 1987, wherein after reproducing in
extenso the first four paragraphs of the judgment of the Hon'ble Supreme
Court delivered in Civil Appeal No. 172 of 1975, he observed that Mst.
Mazhar Khanum, plaintiff, had been agitating, in the first round of litigation
starting from the Settlement Department ending with the decision of the
apex Court, for transfer of the property on the ground that it was evacuee
property but she failed as the property was held to be owned by Mst. Sardar
Begum and thus not evacuee property; that in view of the findings about the
non-evacuee character of the property, Mst. Mazhar Khanum's alleged claim of being exclusive owner thereof was destitute of any foundation whatsoever; that the foundation of the plaintiffs claim was a Sale-Deed by Sh, Ghulam Mustafa in favour of her mother, Mst. Taj Begum, which withered away by virtue of the Deed of Compromise inter alia between Sh. Ghulam Mustafa and Kh. Nazir Ahmed, accepted and made rule of the Court by the Lahore High Court, wherein it had been unequivocally agreed as follows:

"That Respondent No. 1 (Sh. Ghulam Mustafa) was a sub-tenant of Respondent No. 1 (Khalifa Abdul Hakim) as per lease deed, dated 10th of December 1921, and Respondent No. 2 had subsequently assigned all his rights as sub-tenant to his wife Mst. Taj Begum and on his personal responsibility both assigned all her rights unto the Special Official Receiver. Should Mst. Taj Begum raise any dispute with the Special Official Receiver or with his assignees and thereby cause them any loss, then the person and property of Respondent No. 2 shall be liable for the same."

The learned trial Judge further observed that Mst. Taj Begum remained in the wedlock of Sh. Ghulam Mustafa till his death in the year 1938; that she had never challenged the compromise deed and the consequent decree, either during the life time of Sh. Ghulam Mustafa or thereafter till her own death, meaning thereby that she had accepted the same; that the plaintiff could not agitate against or question the same, nor she could be held to be the exclusive owner on the basis of the alleged sale-deed. The learned Civil Judge, by referring to paragraph 58 of the Award, dated the llth November 1985 rendered by Chief Justice (Retd.) Khan Bashir-ud-Din Ahmed and Chief Justice (Retd.) Mushtaq Hussain, wherein the property in dispute had been treated as belonging to Sh. Ghulam Mustafa, and all his legal heirs, including Mst. Mazhar Khanum, plaintiff, had been found entitled to inherit from the same according to their shares under Muslim Law (except Mr. Javed Ali), held that she was only entitled to inherit her share as heir of Sh. Ghulam Mustafa. In the same context, reference was made to the order of this Court, dated the 5th of November 1986 whereby she was allowed to watch her interest under the said paragraph 58 of the Award during proceedings making the Award rule of the Court. On these premises, the learned Civil Judge non-suited the plaintiff, Mst. Mazhar Khanum, by further observing that she had no cause of action to bring the suit so as to claim "exclusive ownership" of the suit property.

18. While dealing with the first appeal, the learned Additional District Judge gave a resume of the facts in paragraph 6 of the judgment by stating that Sh. Ghulam Mustafa, after obtaining the land on lease from Khalifa Abdul Hakim, constructed a house thereon in the year 1923; that he had alienated house as well as lease-hold rights in favour of his wife Mst. Taj Begum (mother of Mst. Mazhar Khanum) by way of registered sale-deed, dated the 25th of March 1930; that in the year 1934, the then Government sold away one Kanal, one Maria and 156 sq.ft. of Government land to Sh. Ghulam Mustafa and Khalifa Abdul Hakim in equal shares; that Sh. Ghulam Mustafa sold out his share to his other wife Mst. Sardar Begum by way of registered Sale-Deed, dated the 1st of January 1935; that subsequently that land was found to be in the ownership of insolvent Ch. Fazal Elahi Dalgar, and Kh. Nazir Ahmed, as an Official Receiver filed a suit for ejectment against Sh. Ghulam Mustafa and Mst. Sardar Begum, that the suit was tried on the original side by the High Court; that a compromise was arrived at between the parties on the 8th of March 1937 according to which the said parties agreed to surrender their land as per terms and conditions of the compromise. After referring to afore-quoted portion of the compromise, the learned Additional District Judge observed that (1) "Mst. Taj Begum did not challenge the "compromise entered on her behalf by her husband uptil his death in 1938 and even uptil her own death when she died in Seventees after execution of the alleged sale-deed in favour of Mst. Mazhar Khanum, the appellant"; (2) "It appears that after that compromise which was arrived at between Sh. Ghulam Mustafa and Official Receiver before the Honourable High Court in March 1937, Mst. Begum's rights in the disputed property were extinguished and she was no more owner of that property", and that (3) she, therefore, was not empowered to transfer the same to anybody." On these premises, the learned First Appellate Court held that Mst. Mazhar Khanum had no right to challenge the validity of the order of the High 3ourt, based on the compromise arrived at between Sh. Ghulam Mustafa and the Official Receiver, and that more than 50 years having elapsed since hen, the suit was thus not only barred by limitation but also disclosed no use of.action, consequently the appeal was dismissed.

19. The learned Additional District Judge had also held that the promise was executed on the 8th of March 1937 having been challenged m the 7th of March 1987 the suit was barred by limitation. We have left open the question of limitation, since the same is a mixed question of fact and law and can better be decided by the learned Judge after recording evidence of the parties. Since we are of the considered view that the impugned decisions cannot be sustained in law and have decided to remand he case to the trial Court for decision of the suit on merits, it is not desirable examine the contention of Sh. Murtaza AH, Respondent No. 3 that upon alleged expiry of the lease in terms of Section 108 of the Transfer of Property Act (No. IV of 1882), the only right which plaintiff-appellant was left with ras to have removed the construction whereafter the property became that Mst. Sardar Begum. It shall be open to him to raise this question, if otherwise permissible, before the learned trial Judge.. Moreover, both parties, Mst. Mazhar Khanum on the one hand and Sh. Murtaza Ali on the other threw serious challenged to the genuineness of the documents of each other. Since the plaint had been rejected summarily, without taking evidence, the parties had no opportunity to tender their respective title deeds in evidence, and to subject the same to proper scrutiny by the other side. Therefore, it will be for the trial Court to determine genuineness and authenticity of their respective title deeds/documents when the same are tendered in evidence, in accordance with law.

20. So far as the findings in the Award, dated the llth of November
1985 qua the suit property are concerned, suffice it to refer to the following
observations of the Hon'ble Supreme Court contained in paragraph 4 of the
decision, dated the 22nd of August 1989 rendered in Civil Petition for Leave
to Appeal No. 804 of 1989 titled Mst. Mazhar Khanum v. Sheikh Salim Ali
etc:

"We have heard the learned counsel. We find that the impugned order of the High Court is according to law and unexceptionable for the petitioner was not a party to the arbitration proceedings in which the award given includes the property to which or "in which she claims right, title or interest. She was also not a party to the arbitration agreement out of which the dispute arose and was referred to arbitration resulting in the award. "Russell on Arbitration" (19th Edition) on page 69 has succinctly stated legal position as to the binding nature of arbitration agreement as follows:

"An arbitration agreement will bind not only the actual parties to it but also an assignee of a contract containing it, the personal representatives of a deceased party, a trustee in bankruptcy who adopts a contract containing it, and • generally all persons claiming under a party to it but not strangers to' the agreement, (emphasis supplied)."

Accordingly, the award will not affect her right, title or interest in the property, if any."

21. We have already copiously reproduced from the decision of the
learned Custodian to show that with regard to the superstructure, the question of title thereto was left open by him to be decided by the Civil Court and was not interfered with either by this Court or by the Hon'ble Supreme Court. Thus, to the extent of superstructure, the plaintiff could not be non suited. Whatever rights she had in the superstructure, the same had to be determined by the Civil Court after receiving evidence from both the parties,

which they might have produced in support of their respective claims. The impugned decisions of both the Courts below cannot, therefore, be sustained.

22. We declined to hear Mr. Ghulam Murtaza Bhatti, learned counsel for the appellant when he attempted to further argue that

(a) It is really'beyond one's comprehension to reconcile the position
of Mst. Sardar Begum claiming, on the one hand, right of
ownership of the property, founded on Mutation No. 4868
purported to have been sanctioned on the 29th of June 1942,
and, on the other, institution firstly of the two Suits Nos. 598
and 599 and then filing of two Petitions Nos. 286 and 287 of
1950 before the learned Deputy Custodian of Evacuee Property,
as aforementioned, because, according to him, if Lala Bulaqi
Mai & Sons had made a Tamleek which was shown to have also
been registered on the 13th of June 1939, regarding the land
measuring 6 Marias and 148 sq.ft. (4 Marias, 108 sq.ft. out of
Khasra No. 1693/4 and 2 Marias, 40 sq.ft. out of Khasra No.
5018/1694), then there was no occasion for Mst. Sardar Begum
to have filed on the 2nd of December 1947 the aforementioned
two suits .and subsequently the two applications in the year
1950, seeking declaration that the property was non-evacuee.

(b) If Lala Bulaqi Mai & Sons had, in fact, made the purported
Tamleek, there could be no justifiable reason for them to have
filed a contesting written statement. Not only that, Mst. Sajdar
Begum did not base her claim on the alleged Tamleek.

(c) The learned Deputy Custodian was correct in discarding the
plea of Mst. Sardar Begum that the property was non-evacuee
whereas the learned Custodian had completely misdirected
himself.

(d) That when Mst. Mazhar Khanum filed Civil Petition for Special
Leave to Appeal No. 176 of 1975, leave was granted on 21st of
November 1975 to consider the contentions:-

(i) that the evacuee character of the site in dispute fell to be determined under clause (b) of sub-section (2) of Section 3 of Act No. XII of 1957 and, therefore, did not fall within the prohibition created by sub-section (1) ibid, the former provision being in the nature of exception to sub-section (1), and

(ii) that the finding that Mst. Sardar Begum was transferee of the site in dispute was not based upon any legal evidence whatever.

but at the time of final disposal of the appeal the said questions were not adverted to, and

(e) That the jurisdiction of the Civil Court or any other authority was ousted and the Custodian authorities were entrusted exclusive jurisdiction by the provisions of clause (a) of subsection (1) of Section 41 of the Pakistan (Administration of Evacuee Property) Act, 1957, to determine "as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property" and that once it was held that the plinth area in dispute was not an evacuee property, the functions and power of the learned Custodian came to an end, the further question as to who was its owner-the entire progeny of Sh. Ghulam Mustafa, or Mst. Sardar Begum or Mst. Mazhar Khanum to the exclusion of all others-was a matter which fell fairly and squarely within the jurisdiction of the Civil Court to determine."

The reason for our refusal to entertain the above submissions is that the decision of the learned Custodian, having been upheld by the Division Bench of this Court in Writ Petition No. 1308-R of 1974, decided on the 16th of December 1974, which decision was affirmed by the Hon'ble Supreme Court, we are under compulsion of law to the effect that a Division Bench of a High Court is bound by an earlier decision of another Division Bench of the same Court, and more particularly because of the Constitutional mandate contained in Articles 189 and 190 enjoining in unequivocal terms that any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan and that all "executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court". Therefore, so far as the land underneath the building is concerned, the matter stood resolved and settled upon final decision, dated the 5th of May 1984 of the Hon'ble Supreme Court.

23. In the result, we allow this appeal, set aside the impugned
judgment and decree, dated the 16th of November 1987 of the learned trial
Judge as well as the judgment and decree, dated the 3rd of December 1989
of the learned Additional District Judge, Lahore, and remand the case to the
trial Court for disposal of the suit on merits. We make no order as to costs.

24. It is greatly to be regretted that here is a case of tragic story of
wasted endeavor inasmuch as the suit which was originally filed way back in
the year 1987 has to take start from its inception after about seventeen years
having been spent by the parties in litigation. Therefore, we have decided to
remit this case to the learned District Judge, Lahore, for entrustment of the
suit to a learned Civil Judge, who may proceed with the trial with despatch
and, if possible, to dispose of the same within a period of six months. The parties shall appear before the learned District Judge, Lahore on the 10th of March 2004.

(A.A.) Case remanded.