P L D 1973 Lahore 546 (PLP)

Gut Muhammad Khan for Petitioners. Mazhar‑ul‑Haq for Respondent No.

1. Dates of hearing: 31st March and 3rd April 1972. The land, comprising Khasra Nos. 139/97‑106, 107, 142‑97, situated in Mauza Kachur, Tehsil and District Multan, was confirmed in the name of one Nizam Din son of Allah Bakhsh caste Gujjar, on 6‑11‑1961. On his death, this land was inherited by Saeed Ahmad son of Muhammad Ishaque, who was nephew of Nizam‑ud‑Din, deceased. Later on, Saeed Ahmad sold away this land to petitioner No.1. Necessary mutation in this regard was effected by the Revenue Staff. Respondent No.1 and one Abdur Rehman filed appeal against the petitioner on the ground; that original allotment of land made in favour of Nizamuddin, deceased, was illegal as the same was made while their units were still pending in the said Chak. This appeal was dismissed by the Deputy Settlement Commissioner, mainly on the ground; that the same was barred by time. Thereafter, respondent No.1 and said Abdur Rehman filed revision petition before the Addi tional Settlement Commissioner, Multan, who accepted the same on the ground; that the claim of respondent No.1 and Abdur Rehman had not been satisfied totally when allotment of land was made in favour of Nizamuddin. He, therefore, remanded the case for fresh decision with a direction that respondent No. 1 and Nizamuddin, deceased, should be treated on a par and both the parties should be satisfied. Petitioner No. 1 along with petitioner No. 2, who is vender of the land in dispute, has now challenged the validity of the impugned order passed by respon dent No. 2.

2. It is contended that the land in question had been alienated by petitioner No. I in favour of petitioner No. 2 at the time when the impugned order was passed and, as such, he was a necessary party before respondent No. 2 Since he was not impleaded as party by respondent No. I and was never afforded an opportunity of being heard, therefore, the order in revision cannot be maintained. According to petitioner No. 2, be had got vested right in the land on account of sale in his favour and no order affecting his rights adversely can be passed without notice to, him. It is further contended. that, the appeal filed by respondent No. 1 was barred by one year and eight months. The order of confirmation of land in favour of Nizam ud‑Din, deceased, was made by the Assistant Rehabilitation Commissioner (Land) on 6‑11‑1961, while the appeal was filed before the Deputy Rehabilitation Commissioner (Land), Multan on 1‑7‑1963. It is submitted that this aspect of the case, that the appeal was barred by time and, therefore, could not be entertain ed, had not been adverted to by the Deputy Settlement Commis sioner as well as the Additional Settlement Commissioner.

3. The learned counsel for respondent No. 1 has submitted that the factum of sale of land in favour of petitioner No. 2 was never disclosed by petitioner No. 1 who was party along with Saeed Ahmad, vendor of the land, in appeal and revision. He further submitted that the transfer of land, if any, in favour of petitioner No. 2 during the pendency of the appeal before the Deputy Settlement Commissioner was bit by the provision of law as contained in section 52 of the Transfer of Property Act and whatever order was passed against petitioner No. 1 was effective against petitioner No.

2. It is further submitted that after the case was remanded by respondent No. 2 to the Assistant Settlement Commissioner concerned for fresh decision, the land In question was again transferred in favour of respondent No. 1 and Abdur Rehman. Petitioner No.1 was present before the Assistant Settlement Commissioner. He was heard and he never produced any mutation effected in favour of petitioner No. 2, whereby the sale of the land in question had been made in his favour. The order passed by the Assistant Settlement Commissioner (Land) is dated 9‑11.1964. Annex 'R/B'. It is submitted that the order of the Assistant Settlement Commissioner passed against the petitioner has been concealed by them and they have not come to this Court with clean hands. According to respondent No. 1 the said order of the Assistant Settlement Commissioner (Land) has become final as no appeal or revision was ever filed against the same.

4. One of the main questions involved in this case is, as to what is the effect of alienation of land in dispute in favour of petitioner No. 2 by petitioner No. 1 at the time when the appeal was pending adjudication before the Deputy Settlement Com missioner (Land), Multan. Respondent No. 1 and Abdul Rehman son of Muhammad Ishaque, who filed appeal against the order of Assistant Settlement Commissioner. Multan, dated 6‑11‑1961, impleaded Saeed Abroad son of Muhammad Ishaque and Haider Ali son of Nur Din, petitioner No. 1, as respondents. At the time when the appeal was filed, mutation of inheritance in respect of the land in dispute had been effected in favour of Saeed Ahmad, who in turn had sold the same in favour of Haider Ali, petitioner No.

1. It is admitted by the parties that the land in question was sold by Haider Ali during the pendency of the appeal. He did not disclose this fact at the titre of the hearing of the appeal, that the suit land had been sold by him in favour of petitioner No. 2, nor petitioner No. 2 made any application before the Deputy Settlement Commissioner concerned for being impleaded as party on the basis of the sale in his favour. Again, at the time when the revision petition was filed by respondent No. 1 along with said Abdur Rehman, Saeed Harder Ali, petitioner No. 1, both, were impleaded as party in the revision petition they did not disclose at the tune of the hearing of the revision petition that the land in dispute had been alienated in favour of petitioner No. 2, nor any mutation based on the above‑mentions sale in favour of petitioner No. 2 was produced before the Court. According to law, no interest which is created during the pendency of the suit can affect any decree passed in the suit. Section 52 of the Transfer of Property Act lays down that during the pendency of any suit or proceeding in any Court in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order, which may be made therein, except under the authority of the Court and on such terms as it may impose. It may be mentioned here that the Transfer of Property Act does not apply to the Province of Punjab since the section is only enactment of general principle of law, therefore, the general principles underlying the section have been made applicable to the province of Punjab. Reliance in this respect can be placed upon Moolchand and others v. Gangajal and others (1). Since the alienation of land in question was made in favour of petitioner No. 2 by petitioner No. 1 during the pendency of the proceedings of appeal before the Deputy Settlement Commissioner, Multan, therefore, the said alienation cannot affect the order in appeal or revision. Petitioner No. 2 steps into the shoes of petitioner No. 1 by purchasing the land in question during the pendency of the proceedings, therefore, he would be bound by the order made by the settlement authorities against petitioner No.

1. He derives his title from the vendor, petitioner No. 1 and whatever the order has be en made in the appeal or revision in which the petitioner No. 1 was a party would be applicable to him also. Since the right in respect of the property in dispute was created In favour of respondent No. 2 during the; pendency of the proceedings, therefore, the position of petitioner No. 2 would be that of petitioner No. 1 who was contesting the appeal and revision filed by respondent No. 1 before the settlement, authorities as respondent. His position would be that of a party to the appeal and revision and according to law he would be bound by the orders made therein. There are many authorities in support of this principle of law, but I, would like to refer to only one Pir Abdullah Shah and 8 others v. Hamayun and others (P L D 1957 Lah. 1051). In the circumstances, the presence of petitioner No. 2 was not necessary before the appellate and revisional authorities. If he himself had made an application before the said authorities for being Impleaded as party in the appeal and revision filed by respondent No. 1 then the same may have been considered and disposed of on merits by them. The impugned order passed by the Additional Settlement Commissioner, Multan, however,) cannot be upset on this ground, as discussed above.

5. The Assistant Rehabilitation Commissioner (Land), Multan, by his order transferring the land in favour of Nizam‑ud -Din, on 6‑11‑1961. while appeal was filed by respondent No. 1 and Abdur Rehman son of Muhammad Ishaque before the Deputy Settlement Commissioner, Multan on 1‑7‑1963, vide Annex '13' (certified copy of the grounds of appeal). In para. 10 of the grounds of appeal, it was mentioned by respondent No. 1 that the delay in filing the appeal may be condoned due to the reasons, that the order passed by the Assistant Settlement Commissioner (Land), Multan, was passed without notice and as soon as respondent No. 1 came to know about the same, he made an application for supply of certified copy of the same. The Deputy Settlement Commissioner (Land), Multan, who heard the appeal did not advert to this aspect of the case in his impugned order, as to whether the appeal was barred by time, and the delay in filing the same could be condoned or not. The Additional Settlement Commissioner (Land) also did not touch this point in his order dated 16‑9‑1964. It appears from the impugned orders as if the Additional Settlement Commissioner (Land) was not even conscious of the fact that the appeal filed by respondent No. 1 was barred by time. According to law, it was imperative for him to decide first, whether the appeal which was barred by time could be decided on merits without deciding the question of limitation. Reliance in this respect can be placed upon Syed Azmat Ali v. The Chief Settlement and Rehabilitation Commissioner. Lahore and others (P L D 1964 S C 260) and Muhammad Farooq Imam v. Claims Commissioner, Lahore and 2 others (P L D 1964 S C 585). It was held by their Lordships of the Supreme Court in Ahsan Ali and others v. District Judge and others (P L D 1969 S C 167) that waiver by the Court on question of limita tion was not permissible, even where period of limitation was prescribed by a special or local law and mere disposal of appeal on merits was not sufficient to lead to inference that appellate Court had condoned the delay. The relevant portion of the judgment reads as under :‑ "We are unable to agree with this contention, for section 29(2) of the Limitation Act itself provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provisions of section 3 shall apply, as if such period was prescribed therefore in that Schedule. The Displaced Persons (Compensation and Rehabili tation) Act 1958, is undoubtedly a special law. It is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law. It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceed ing was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits . . ."

6. In the present case, the appeal was obviously barred by time. The explanation for condoning the delay in filing the appeal may be plausible, but it was necessary under the law for the appellate as well as the revisional authorities to decide the question .of limitation first and then proceed with the decision on merits. The mere disposal of the case on merits would not lead to inference that the delay in filing the appeal had been condoned. The Additional Settlement Commissioner (Land, Multan, did not advert to this question, at all. It was necessary to be dealt with irrespective of the fact whether the same was raised before him or not. The Additional Settlement Commissioner was obliged under the law to decide, whether the order passed in the appeal was proper without deciding the question of limitation involved An the same. In the circumstances, the impugned order passed by the Additional Settlement Commissioner (Land) cannot be sustain ed in law.

7. It has been argued by the learned counsel for the respon dents that after the case was remanded by the Additional Settlement Commissioner (Land), the land in dispute was again allotted in favour of respondent No.1 and Abdur Rehman. It is submitted that this order of allotment in favour of respondent No.1 and Abdur Rehman was never challenged and the same has become final. The answer to this argument is that when the impugned) order passed by the Additional Settlement Commissioner (Land) has been found to be illegal, then the subsequent order based upon the said order cannot hold the field.

8. As a result of the above discussion, the petition is accepted and the impugned order passed by the Additional Settlement Commissioner (Land), Multan, dated 16‑9‑1964, is hereby set aside being illegal, without jurisdiction and of no legal effect. The case is remanded to him to decide the revision petition filed by respondent No. 1 afresh, in accordance with law and in the light of the observations made above. There will, however, be no order as to costs.