2000 PLP 1083 (CLC)

Zawar Hussain Jaffri, Addl. A.‑G. for the Official Respondents Nos. l and

2. Gul Hassan, Attorney for Respondent No.3 (in person). Date of hearing: 20th October, 1999. MUSHIR ALAM, J.‑‑ The petitioners have impugned orders, dated 9‑6‑1987 and 4‑10‑1992 passed by the Senior Member, Board of Revenue, Sindh, Hyderabad and Member (Judicial), Board of Revenue, Sindh, respectively.

2. Contention of the learned counsel for the petitioners is that the respondent No.3 since deceased survived by his heirs, had agitated his right as against the petitioners in respect of Survey Nos.724 and 725 of Deh Wali Muhammad Bhatti before the Civil Judge, 1st Class Khairpur, in Civil Suit p No.24 of 1971 which suit was decided against him vide judgment and decree, dated 30‑4‑1975 and 5‑8‑1975 respectively. He preferred Civil Appeal No.1 of 1976, Civil Court finally held that "There is no area of Serial Nos.724 and 725 on the site and grant in the name of appellant is mere paper grant,, and area of said survey number is not available at site." Said factual findings of the Civil Courts were not agitated any further.

3. The deceased respondent No.3 without disclosing the fate of above referred adjudication, unsuccessfully approached the Director of Settlement, Survey and Land Record, Sindh for acknowledgment of his rights over said survey numbers, ultimately filed appeal before the Board of Revenue wherein he succeeded to obtain favourable order, dated 9‑6‑1987 impugned herein. In none of the proceedings petitioners were made party.

4. It is the case of the present petitioners that they were not aware of the above‑referred‑ order, dated 9‑6‑1987 passed behind their back. It was only when proceedings under section 145, C.P.C. against the petitioners were initiated by the deceased respondent No.3 that they learnt about the orders impugned herein, as such, on coming to know about such order they filed review petition under section 163 of Land Revenue Act read with section .8 of the Board of Revenue Act, 1957, but the same was dismissed by the learned Member (Judicial), Board of Revenue, Sindh on the short score that the review was barred by four years and maintained the orders passed on appeal.

5. Contention of the learned counsel for the petitioners is that the petitioners were not party to the appeal filed by the deceased respondent No.3 before the Senior Member, Board of Revenue as such there was no occasion for them to know about any decision and furthermore from the orders impugned, it is apparent on the record that the deceased respondent No.3 had suppressed the factum of filing of the civil proceedings which resulted in decision against him. Limitation if any, would run from the date of knowledge and not from the date of the order. 6: Learned Additional Advocate‑General concedes on this point. We have heard the arguments of the learned counsel for the petitioner and so also, the learned Additional Advocate‑General, perused the record and so also the orders impugned herein... Review before the Board of Revenue would lie under section 164 of the Act, 1967 and not under section 163, as invoked by the petitioner. But the fact remains that misquoting of provision of law would not render particular proceedings incompetent, provided the jurisdiction invoked is available under the law. In the instant case, power to review was available to the Member, Board of Revenue, both under section 164 of the Act, 1967 as well as under section 8 of the Board of Revenue Act, 1957. The petitioners admittedly were not party before the Member, Board of Revenue as such e knowledge of impugned orders, could not be attributed to the appellants. In such an eventuality the limitation would only commence to run from the date of knowledge and not from the date of order.

8. Period of‑limitation as provided under section 164 of the Act, 1967, is 90 days from the date of passing any order. For computing limitation in cases of appeal, review and revision under Chapter XIII of the Act, 1967 the limitation thereof is governed by the provisions of the Limitation Act, 1908, as provided under section 167 of the Act, 1967. Under Limitation Act, there are plethofa of authorities to the effect, that where, the orders/judgments are ex parte the limitation would run from the date of knowledge and not from the date of orders, by analog‑y same principles, would be applicable in the instant case.

9. In view of the above legal position, the order, passed by the Member (Judicial), Board of Revenue on review, dated 4‑10‑1992 cannot be sustained and is accordingly set aside.

10. Now there remains order, dated 9‑6‑1987 passed by the Member, Board of Revenue on appeal filed by the deceased respondent No.

3. Said order on the face of it, was passed behind the back of the petitioners and was procured by misrepresentation and concealment by the deceased respondent No.3 who did not join the petitioner. He also suppressed the fact that his rights were already adjudicated and determined by Civil Court of plenary jurisdiction and affirmed by the Appellate Court. Once such determination of right has taken place before the competent forum and is not agitated further in appeal, same attains finality and is binding on the litigating parties. The effect of such determination of rights by the competent Court of law cannot be nullified in other corallary proceedings. Once such proceeding comes under the scrutiny of High Court in writ jurisdiction, the Court would unhesitatingly set it at naught, resultantly order, dated 9‑6‑1987, obtained by the deceased respondent by misrepresentation and suppression of facts is also set aside.

11. The petition is accordingly allowed with no orders as to costs. However, the petitioners are directed to pay deficit court‑fee in respect of petition. Q.M.H./M.A.K./Q‑2/K Petition accepted.