2001 PLP 265 (CLC)

"the appellant (Harridan Begurh) has obtained specific Khasra numbers through Civil Court judgment and decree, dated 16‑4‑1992 which have now been included in application of partition. The same have also been implemented in the Revenue Record through mutation. Until and unless, the judgment and decree is set aside, the specific land cannot be withdrawn from the appellant. The Tehsildar/A.C.‑I vide order, dated 1‑1‑1995 was absolutely competent to dismiss the application of respondents on this score." The learned counsel for the petitioners raised the following points in vision petition:‑‑ (i) According to the Notification of the Board of Revenue, appeals/revisions against orders of D.C./District Collector should be entertained and decided by learned Commissioner alone. Additional Commissioner, therefore, while deciding the revision petition of the respondents assumed jurisdiction not vested in him. (ii) The order of A.C.‑I was void since he had refused to exercise his exclusive jurisdiction under section 172(2) of West Pakistan Land Revenue Act. Under section 172, the jurisdiction of the Civil Court has exclusively been barred under clause (1). The civil Court decree, dated 16th April, 1992 relied by A.C.‑I was void ab initio and not binding on the petitioners as they were not a party thereto. Since order of A.C.‑I was void ab initio, question of limitation did not and could not be of any relevance to the petitioners' appeal against the said order. (iii) Alternative plea of the petitioners that the delay, if any, which had satisfactorily been explained by the petitioners, was not considered in its true perspective. It was stressed that section 5 of the Limitation Act was fully applicable in the case. The petitioners right to have partition of the land in accordance with law on the subject was sacrificed in the impugned order at the alter of technicalities and mere formalities. The petitioners by dint of Mutation No.6630, dated 2nd June, 1990 and through Mutation No.74‑3, dated 30th July, 1994 had become owners in the joint Khata to the extent of 3/4 share. The aforesaid registered sale‑deeds and mutations are intact. The petitioners application for partition of the joint Khata was perfectly maintainable and competent. Additional Commissioner, therefore, erred in misreading, misinterpreting misapplying the law on the subject. (iv) The decree of the Civil Court was void ab initio also as it was violative of para.22 of M.L.R. 115 of 1972. The said provisions of para.22 were fully operative on the date of decree i.e. 16th April, 1992. (v) It was further argued that even Khangi Taqseem (Private Partition) is void if the same is conflicting with the provisions of para. 22 of M.L.R.115. The order and decree of the civil Court were also asserted to be the result of collusion of two co‑owners having minor share of 1/3 in the joint Khata.

6. In nutshell the pleadings of the learned counsel for the petitioners focus on two main issues:‑‑ (a) The order and decree of the Civil Court being violative of para.22 of M.L.R.115 and section 172, West Pakistan Land Revenue Act was void and was not binding on the petitioners as they were not party in the suit. (b) The order of A.C.‑I refusing to exercise jurisdiction exclusively vested in him under section 172 passed an order which was void and as such the question of limitation in filing of appeal before D.C./District Collector was redundant. In support of his contention that the decree was not binding on the petitioners since they were not party to the said suit, he placed reliance on 1992 CLC 1609, 1980 CLC 110 and PLD 1970 Lah.

6. In support of his contention that the decree was obtained collusively and as such is tinkered with fraud which vitiates all solemen proceedings and the order and decree could not be allowed to subsist, he cited 1985 SCMR

356. For the contention that formality or technicality ought not to be allowed to prevail to detriment of interest of justice, he relied on PLD 1987 SC

636. He referred to 1988 CLC 654 to substantiate his averment that the Courts must lean in favour of adjudication on merits unless litigant by his conduct makes it impossible for the Court to proceed further.

7. The learned counsel for the respondent stated that sale of land to the present petitioners took place during pendency of the suit. It was asserted that the preposition involved is whether the sale of land involved in the suit during its pendency is hit by section 52 of the Transfer of Property Act. It was averred that if the petitioners intended to purchase the property, they should have done it with the permission of the Court. It was stated that in the instant case, the petitioners are/were bound to accept determination of the case since they purchased the property without consent of the Court. It was contended that Mst. Batool Fatima arid Jamila Begum were represented through Sardar Muhammad Hayat, father of the present petitioners. Liaqat Ali, petitioner No.2 was witness cited in the compromise deed. He referred to 1992 SCMR 652 in which it was held "what is contemplated by this provision (section 52 of the Transfer of Property Act) is that the property cannot be transferred or otherwise dealt with, without permission of the Court by any party to the suit or proceedings so as to affect rights of any other party thereof under any decree or order which might be passed there. Subject to these reservations, property can be transferred even without permission of the Court, but the transferee or donee or assignee would acquire right thereto or interest therein only subject to the judgment or order of the Court in the suit". In this context, he referred to PLD 1973 Lah. 546 and stated that the decree of the Civil Court is binding on the petitioners. It was stated that the petitioners could claim any right whatsoever from Mst. Batool Begum, Mst. Jamila Begum and Mukhtar Ali from whom they purchased this‑land through sale. The endorsement of signatures as witness by Liaqat Ali and Sardar Muhammad Hayat, father of the petitioners as attorney of the vendors establish that they were party to the compromise, if not in the suit. They were, therefore, estopped by their own conduct to challenge the decision of the Civil Court on the basis of the compromise. The order of Revenue Officer was not devoid of legal force as he was bound under law to give affect to the order and decree of the Civil Court.

8. It was further stated by learned counsel for the respondent that after the demise of the grandmother of the petitioners, there were still 8 days within which they could file the appeal. Anyone of the petitioners could file appeal within time. He referred to 1978 SCMR 457 and 1984 CLC 1724 in which it was held that delay of even one day is fatal. He further argued that even if an order which was claimed to be void ought to be challenged within stipulated period. It was argued that paras.22, 23 and 24 became, ineffective since 28th February, 1994 and as such order of Additional Commissioner is just and is, therefore, maintainable.

9. I have given careful consideration to the arguments of the parties. Mst. Hamidan Begum had filed civil suit for declaration to the effect that she had not gifted 9 Kanals, 19 Marlas to Mukhtar Ali. During the pendency of the suit, a compromise was arrived at between litigants which resulted into order of Civil Court, dated 16th April, 1992. It is patently clear that civil Court did not assume jurisdiction under section 172 of West Pakistan Land Revenue Act but merely proceeded to resolve lis between the contestant parties on the basis of the compromise. The order and decree had merely to give affect and declare the title of the parties to the suit and did not amount to ordering partition of the suit land. It is borne out from the record available that Mst. Hamidan Begum vide the aforesaid decree was allowed to retain the land already in her possession as an owner to the exclusion of 9 Kanals, 19 Marlas which she agreed to surrender to Mukhtar Ali in lieu of acquisition of interest in a house. The said decree, therefore, could not be considered void since assumption of a non‑existent jurisdiction was not involved in the order. For the affect of the decree in disregard of para.22 of M.L.R. 115, it can be considered as voidable for which an aggrieved party ought to have had recourse to the Court of competent jurisdiction for rectification of the defect or illegality. Revenue Officer was, therefore, bound to honour the said decree and order of the Civil Court and rightly refused to allow partition of the land. In this view of the matter, the question of limitation assumes crucial, significance. As extensively dealt with in para.5 of the impugned order, the present petitioners had no satisfactory explanation to give for delay in filing of the appeal before District Collector. As held in many, judgments of superior Courts, the delay of even one day is fatal. The two orders aforesaid in my view not being void and in the absence of any satisfactory explanation for delay in filing the appeal, District Collector wrongly allowed the condonation of delay. The Commissioner rightly considered that the appeal before District Collector was not competent owing to the limitation. As stated in section 3 of the Limitation Act, it is duty of the Court to take cognizance of delay without limitation having been set up as a defence by any party. The arguments contrary or in support of the proposition whether section 5 of the Limitation Act is applicable to the cases covered under the West Pakistan Land Revenue Act, being a special arid local law, cannot be of any benefit to either of the parties. District Collector, therefore, erred in condoning the delay without any cogent satisfaction. In view of the facts stated in various paras.; the petitioners were associated in one way or the other in the compromise deed and were fully aware of the litigation in the Civil Court. Although section 52 of the Transfer of Property Act was not adopted by the Province of Punjab yet the general principles underlining this section have been made applicable to the Province of Punjab as held in PLD 1973 Lah.

546. In this view of the matter lis pendens is attracted in the case. The petitioners were bound as purchasers to accept the result of the civil suit filed by Hamidan Begum. Purpose of lis pendens is to inform prospective purchasers that any interest acquired by them in property under litigation is subject to decision of Court.

10. In view of the aforesaid, the revision petition is devoid of any legal force and as such is dismissed.

11. Arguments in this case were heard on 27‑6‑2000 and judgment reserved which has now been announced and may be conveyed to Commissioner, Lahore Division, District Collector, Kasur and through him to the parties. H.B.T./19/Rev.???????????????????????????????????????????????? Petition dismissed.