1998 PLP 2058 (CLC)

This civil revision is directed against the judgment and decree, dated 3‑6‑1997 passed by the learned Additional District Judge, Khushab, whereby the first appeal of the petitioner was disposed of in terms of compromise reached between the parties resultantly the judgment and decree, dated 9‑4‑1995 passed by learned Trial Court Khushab, was set aside.

2. The suit of the respondents seeking possession of land measuring 10 Marlas comprised in Ihata No‑85, Chak No.63‑M.B. Tehsil and District Khushab through demolition of structure constructed thereon was resisted by the petitioner on the ground that he is owner in possession of the land in dispute vide judgment and decree passed by the learned Civil Court. The parties are related to each other inasmuch the petitioner is the maternal uncle of the respondent. It was after due contest between the parties that the suit of the respondents was decreed by the learned Trial Court vide its judgment, dated 9‑4‑1995. The petitioner appealed against the above said decree before the learned Additional District Judge, Khushab, and during the course of pendency thereof, the parties got recorded their statements thereby stating that the disputed piece of land is agreed to be that of Mst. Maryam Bibi, the mother of the respondents and the sister of the petitioner and that the petitioner be deemed to be in possession thereof for and on behalf of said Mst. Maryam Bibi. The parties also agreed that in view of the compromise aforenoted the judgment and decree passed by the learned Trial Court be set aside.

3. It was on the basis of compromise aforenoted that the judgment and decree of the learned Trial Court was set aside and the appeal was disposed of in terms of compromise reached between the parties vide judgment and decree, dated 3‑6‑1997 passed by the learned Additional District Judge, Khushab.

4. The above said judgment and decree has been assailed in the present revision petition mainly on the ground that the petitioner had not authorised his counsel to offer the compromise aforenoted. On being confronted with the statement duly thumb‑marked by the petitioner himself whereby he agreed and consented to the compromise, the learned counsel for the petitioner argued that in fact the whole affair was misrepresented to the petitioner with the result that he thumb‑marked the statement under a misconception as to whole affairs.

5. I am afraid the argument is absolutely misconceived as the proof thereof requires recording of evidence which cannot be done in the exercise of revisional jurisdiction. Needless to add that presumption of correctness is attached to the proceedings taken and recorded by a Court of law and, even otherwise, it is now well‑settled that a consent decree is not appealable muchless revisable the petition is found to be meritless, therefore, the same is dismissed in limine. R.M.S./B‑35/L???????????????????????????????????????????????????????????? Revision dismissed. 1998 C L C 2070 [Lahore] Before Ch. Ijaz Ahmad, J ABDUL GHANT ‑‑‑ Appellant versus Mst. HAMEEDA BANO‑‑‑Respondent First Appeal from Order No.51 of 1983, decided on 1st July, 1997. (a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)‑‑‑ ‑‑‑‑S. 18‑‑‑"Evacuee property"‑‑‑Definition‑‑‑Jurisdiction of Civil Court‑‑‑Once the P.T.D. was issued in respect of a property, Civil Court had no jurisdiction to declare the same as non‑evacuee property. (b) Limitation Act (IX of 1908)‑‑‑ ‑‑‑‑Ss. 3, 14, 19; Arts. 95 & 120‑‑‑Point of limitation is a mixed question of fact and law‑‑‑Duty of Court is to take cognizance of the question of limitation suo motu. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O. XLI, R.23‑‑‑Limitation Act (IX of 1908), S.3‑‑‑Remand of a case ‑‑‑Time?barred suit‑‑‑Not in interest of the parties to remand case to the Trial Court for putting the parties to further litigation when the same was badly time‑barred. Sardar and others v. Shaukat Ali and others 1990 SCMR 951; Ahmad Khan and 5 others v. Member, Board of Revenue with powers of Chief Settlement Commissioner, Punjab, Lahore and 3 others 1986 CLC 1677 and Wazir Muhammad and others v. Settlement Commissioner (Lands) and others 1986 MLD 2074 ref. Syed Jamshaid Ali Shah for Appellant. Syed Munir Hussain Naqvi for Respondent. Dates of hearing: 19th, 23rd, 25th June and 1st July, 1997. The brief facts giving rise to this appeal are as follows:‑‑‑ That the respondent/plaintiff filed a suit on 18‑9‑1978 for declaration with consequential relief that the respondent/plaintiff being the owner of disputed land, is entitled to get possession of the plot since it has been occupied by the appellant who is trespasser without any lawful authority. The present appellant filed written statement denying the rights of the respondent/plaintiff The other defendants were proceeded ex parte by the learned Trial Court. The learned Trial Court on the basis of the pleadings of the parties framed the following: (1) Whether the plaintiff got no cause of action? O. P. D. (2) Whether the plaintiff has got no locus standi to file the suit? O.P.D. (3) Whether this Court has got the jurisdiction to adjudicate upon the matter? O. P. P. (4) Whether the plaintiff is estopped by his conduct and laches to file the suit? O.P.D. ' (5) Whether the suit is barred by the principle of res judicata? O.P.D. (6) Whether the suit is maintainable? O. P. P. (7) Whether the suit suffers from the defects of misjoiner of parties, non? joinder of parties and multifariousness, if so, its effect? (8) Whether the suit is barred under section 42 of the Specific Relief Act? (9) Whether the suit is properly valued for the purposes of court‑fee and jurisdiction? (10) If not, what is the correct valuation and its effect? (11) Whether the plaintiff is Indian National; if so, its effect? (12) Whether the costs of Rs.150 is not paid; if so, its effect? (13) Whether the plaint is liable to rejection under Order VII, Rule 11, C. P. C. (14) Whether the defendant No.5 is entitled to compensatory costs; if the suit fails, if so, to what amount? (15) Relief.

2. The learned Trial Court decided Issues Nos. I , 2, 6, 8, 13, 4 and 7 in favour of the appellant/defendant No.5 and against respondent/plaintiff, but the learned Trial Court decided Issues Nos.9 and 10 in the negative as no evidence were produced by either side. Issues Nos.3, 5, 11, 12 and 14 were decided in favour of respondent/plaintiff and against appellant/defendant No.5. Finally the learned Trial Court dismissed the suit vide its judgment and decree, dated 5‑9‑1981.

3. Respondent/plaintiff aggrieved by the said judgment and decree of the Trial Court filed an appeal before the District Judge Lahore who accepted the appeal vide his judgment, dated 2‑12‑1982 and set aside the judgment and decree of the learned Civil Judge and remanded the case to the learned Trial Court with a direction, that the same may be decided on merits in accordance with law: hence the present appeal.

4. The learned counsel for the appellant contended that Deputy Settlement Commissioner, Lahore offered plot in question to Mian Mushtaq Ahmad under Scheme No.6, Exh.D.9. The Deputy Settlement Commissioner on 27‑7‑1964 intimated that a plot in question measuring 1 Kanal, 6 Marlas and 12 Sq. feet was transferred to Mian Mushtaq Ahmad under Scheme No.6 with direction to deposit total price of Rs.7,816 within one month. Mian Mushtaq Ahmad completed all the formalities and deposited the said amount and the Deputy Settlement Commissioner issued P.T.D. in favour of Mian Mushtaq Ahmad on 17‑2‑1966 regarding the said plot. Out of 1 Kanal and 6 Marlas of said plot, 16 Marlas were purchased by the present appellant from Mian Mushtaq Ahmad vide registered sale‑deed, dated 29‑4‑1967. The appellant constructed the house on the said plot. The appellant deposited the property tax of the said house and he relied upon assessment order 1971‑72 and 1972‑73 (Exhs.D.4, D.5). The respondent/plaintiff did not turn up in Pakistan till 1969 and filed petition on 20‑12‑1969 under section 22 of Pakistan Administration of Evacuee Property Act, on the ground that she purchased the said plot from Lala Ram Chand in the year 1946 and the Provisions of Evacuee Property Laws are not applicable. Subsequently the same was allowed to withdraw vide order, dated 24‑7‑1971 by Deputy Custodian Evacuee Property. The Jamabandi for the year 1949‑50 Exh.D.11 shows name of the Commissioner Abadkari, in the column of ownership. The Jamabandi of the year 1966‑67 shows in the column of ownership that the property belongs to Central Government through Commissioner Abadkari. The learned counsel for the appellant contended that by virtue of Exhs.D.1 l and D.10 property stood in the name of the Commissioner Abadkari, meaning thereby that the status of land in question was declared by the competent Authority as evacuee property. The learned counsel further contended that once the land was declared evacuee property the Civil Court had no jurisdiction to declare the same as non‑evacuee property and relied upon the following judgments: (1) Sardar and others v. Shaukat Ali and others 1990 SCMR 951: (2) Ahmad Khan and 5 others v. Member, Board of Revenue with powers of Chief Settlement Commissioner, Punjab, Lahore and 3 others 1986 CLC 1677. (3) Wazir Muhammad, etc. v. Settlement Commissioner (Lands) etc. 1986 MLD 2074. The learned counsel further contended that the appellant was bona fide purchaser but the First Appellate Court did not consider this aspect of the case in true perspective. The learned counsel further contended that Exh.D/1 P.T.D. was in the knowledge of respondent but the respondent did not challenge the same in any forum, therefore, the 'respondent could not agitate the same in the Civil Court. The learned counsel further contended that once the P.T.D. is issued the Civil Court has no jurisdiction to take cognizance of the matter. Learned counsel for the appellant also contended that respondent purchased the land in the year 1946 and filed the suit in 1978 in spite of the fact that she came in Pakistan in the year 1969 as admitted in the plaint, therefore, the suit was time‑barred. The learned counsel further contended that the respondent tried to get possession from Mian Mushtaq Ahmad, Advocate in the year 1948‑49 but this piece of the evidence was misread by the First Appellate Court. It has been further stated that the respondent did not directly assail the P.T.D. but Collector challenged the P.T.D. through the present proceedings which is not permissible in the eyes of law and the respondent was aware that the suit of the respondent was time‑barred by virtue of Articles 14, 19, 95 and 120 of the Limitation Act, therefore, he challenged the P.T.D. in collateral proceedings. The learned counsel for the appellant further contended that respondent tried to get the possession in the year 1948‑49 from Mian Mushtaq Ahmad but could not get the possession and finally P.T.D. was issued in favour of Mian Mushtaq Ahmad, Advocate on 26‑2‑1966 and the present appellant purchased 16 Marlas out of the said plot on 29‑4‑1967. As per record of the Revenue and the Settlement Authorities, Mian Mushtaq Ahmad was the owner, therefore, the appellant was bona fide purchaser and was not privy of any fraud. Mian Mushtaq Ahmed, Advocate did not commit any fraud and plot was allotted to him after completing all the legal formalities prevailing at that time. Subsequently the appellant constructed the house over the said plot. The learned counsel further contended that the respondent withdrew the application from the Deputy Custodian Evacuee on 24‑7‑1971 soliciting to agitate his grievance before the Settlement Authorities but the respondent did not do and, therefore, the suit filed by the respondent is hit by the principle of estoppel. The learned counsel further relied upon the definition of Evacuee Property under the Pakistan Administration of Evacuee Property Act, 12 of 1957 that the property in question covered under the definition of evacuee: The observations in the order of withdrawal of the application on 14‑7‑1971 (Exh.D.2) from the Deputy Custodian Evacuee; are not relevant and the respondent could not get the benefit .of the observations as the application was dismissed as withdrawn.

5. The learned counsel for the respondent contended that respondent purchased the property in 1946 for consideration of Rs.5,750 froth Lala Ram Chand measuring 1 Kanal, 9 Marlas and possession of the plot remained with the respondent till 1969. The learned counsel further contended that in 1969, the appellant and others took the possession illegally being trespasser and narrated the facts of the case till filing of the suit. The learned counsel supported the judgment of the Trial Court in all respects and further stated that the proceedings before the Trial Court are complete i.e., evidence of both the parties have been recorded, therefore, in the interest of justice and fair play the present appeal may be disposed of in terms that the Trial Court shall decide the case on the basis of the evidence adduced by both the parties before it.

6. I have given my anxious consideration to the facts of the case. It is admitted that the property in question was declared evacuee and the Civil Court A has no jurisdiction to declare the said land as non‑evacuee property. Both the Courts below decided Issues Nos.l, 2, 6, 8 and 13 together. The learned Appellate Court decided in the abovementioned issues that point of limitation is a mixed question of facts and law. It is proved from the record that the respondents came to know about the possession of the appellant over the property in dispute in the year 1969 and that the cause of action finally, arose to the respondent against the appellant in the year 1971 but the learned Appellate Court misread this fact that the respondent tried to get the possession in the year 1948‑49 but failed to get possession. Finally P.T.D. was issued in favour of Mian Mushtaq Ahmad, Advocate on 26‑2‑1966 and the present appellant purchased 16 Marlas out of the said plot on 29‑4‑1967, therefore, from the pleadings of the parties it comes out that the respondent purchased the property in 1946 and remained silent till 1948‑49 and subsequently he filed suit in 1971. The suit was time‑barred, therefore, the findings of the learned First Appellate Court are not in accordance with the record adduced before the Court. It is the duty and obligation of the Court to take cognizance of the question of limitation suo motu but in the present case on the basis of pleadings of the patties the learned Trial Court came to the right conclusion that the suit was time‑barred. The contention of the learned counsel for the respondent that the matter may be decided on merits on the basis of evidence of both the parties adduced before the Trial Court, instead of technicalities, has no force as the suit is badly barred by time. It is also not in the interest of parties to remand the case to the Trial Court for putting the parties to further litigation. In view of what has been discussed above the appeal is accepted and the judgment and decree of the Appellate Court is set aside and the judgment and decree of the Trial Court is upheld. R.M.S./A‑257/L ???????????????????????????????????????????????????????????????????? ??????????? Appeal accepted.