2004 PLP 170 (YLR)

2. Through these civil revisions the learned counsel for the applicant has challenged the legality, propriety and correctness of judgment dated 6‑1‑1998 passed by the learned 1st Additional. District Judge, Khairpur, in Miscellaneous Application No.1 of 1996 in Civil Appeal No.79 of 1985 and in Miscellaneous Application No.2 of 1996 in Civil Appeal No.20 of 1988 whereby the applications under section 12(2), C.P.C. were rejected.

3. The brief facts relating to the present revision applications are that late Mir Muhammad, the ancestor of the applicants was allotted agricultural land measuring 54.32 acres in Deh Tando Mir Ali, now transferred to Deh Dato Dasti, Taluka Mirwah by the Government during the days of Khairpur State by the Colonization Officer, Sukkur Barrage, Hyderabad in the year 1937. Such "A" Form was issued on 30‑3‑1938. The price of the land was to be paid in annual instalments up to the year 1948. After the death of Mir Muhammad, Shah Muhammad, the respondent No.7 who was son of Mir Muhammad cleared the instalments and obtained T.O. Form on 25‑5‑1981. The respondents Nos. 1 to 5 filed a Suit No. 180 of 1982 before Senior Civil Judge, Gambat for declaration that they are owners of the suit and by way of inheritance from Ghulam Ali and Chanesar, who according to them, had purchased the suit‑land from Mir Muhammad. The suit was contested' by respondent No.7 and the same was dismissed by Senior Civil Judge, Mirwah vide judgment dated 29‑6‑1985 and decree dated 30‑6‑1985.

4. Respondent No.7 Shah Muhammad filed Civil Appeal No.79 of 1985 (New No.18 of 1986) before the learned District Judge, Khairpur, which was transferred to the, 1st Additional District Judge, Khairpur, who dismissed the same vide judgment dated 18‑4‑1994 and decree dated 24‑4 1994.

5. The applicant filed an application under section 12(2), C.P.C. praying that both the judgments and decree passed by the trial Court and Appellate Court were obtained by fraud and misrepresentation and that the trial Court had no jurisdiction to entertain the suit. It was further submitted that the applicants being necessary parties were not joined in the suit as well as in appeal. Further that during the pendency of appeal, respondent No.7 Shah Muhammad who was appellant expired, but his legal heirs were not joined and the respondent No.3 also expired during the pendency of appeal, but no proper guardian ad litem was appointed for his minor legal heirs.

6. The respondents Nos.1 to 3 (g) filed objections. The learned Court framed two issues and recording evidence and has passed the above judgment, hence the present revisions have been filed.

7. I have heard the learned counsel for the respective parties and perused the record.

8. It has been contended by the learned counsel for the applicants that it has wrongly been held by the learned 1st Appellate Court that late Shah Muhammad being of age of 13/14 years in the year 1942 was adult at the time when late Mir Muhammad was going to perform Hajj, therefore, late Mir Muhammad was supposed to know each and every transaction made in favour of late Mir Muhammad and in favour of Chanesar and Ghulam Ali. It has further been contended that it is a strange analysis and actually the law of limitation applies in every case when the date of knowledge of any order of transaction, there is no question of presumptions and suppositions as held by the learned 1st Appellate Court. It has also been contended by the learned counsel that the learned 1st Appellate Court has wrongly applied a legal presumption in respect of the so‑called registered sale‑deeds being called the old documents. In fact there is a ban on sale of the Government lands which has been transferred in favour of anyone by the barrage authorities for 10 years after T.O. Form has been issued. The "A" Form does not confer any right to sell or elevate the said property. The learned counsel refers to section 10 of the Colonization of Government Lands Act of 1912, paragraph 4 of which reads as under:‑‑ "No person shall be deemed to be a tenant or to have any tight, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of Collector. After possession has been so taken, the grant shall be held subject to the conditions declared applicable thereto." Learned counsel for the applicants has also stressed upon section 19 of Colonization of Government Lands Act of 1912 and argues that except as provided in section 17, none of the rights or interest vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or this Act, shall without the consent in writing of the Commissioner, or of such officer as he may be by a written order empower in this behalf, be transferred or charged by any sale, exchange, gift; will, mortgage or other private contract, other than a sub‑lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years (amended 10 years) in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without consent in writing shall be void, and if (after the commencement of this Act) the transferee has possession, he shall be ejected under the orders of the Collector. It was next argued by the learned counsel that the learned 1st Appellate Court has wrongly held that the applicants were not necessary party and their non‑joinder is not affecting the proceedings. This is clear misinter pretation. It was last contended by the learned counsel that learned 1st Appellate Court has also misinterpreted rule 13 of Order 8, C.P.C. as well as rule 1 of Order 22, C.P.C. as no suit can proceed without joining legal heirs of the deceased party and no suit can proceed against minor defendants without appointment of their guardian ad litem, and it is legal requirement under mandatory provisions of law but it has been made by the learned 1st Appellate Court. Learned counsel for the applicants has referred to the cases reported in Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286; 2000 SCMR 346; Mst. Jamila Khatoon and another v. Mst. Tajannisa and others PLD 1984 SC 208; Mst. Maqbool Begum etc. v. Ghullan and others PLD 1982 SC 46; Laxmishankar Harishanker Bhatt v. Yashram Vasta by Legal Heirs 1993 SCMR 2149; Muhammad Abdul Rehman v. Abdul Jabbar and others PLD 1962 Dhaka 665; Akhtar Ali Khan and another v. Settlement Commissioner, Peshawar and 4 others 1989 SCMR 506; 1990 MLD 1633 and Munawar Sultana v. Ahsanullah Khan and others PLD 1966 Karachi 359 in support of his contentions.

9. Controverting to the argument of the learned counsel for the applicants, it has been contended, by the learned counsel for the respondents 1, 2, 3 and c to g, Mr. A.M. Mobeen Khan that the learned 1st Appellate Court has rightly dismissed the civil miscellaneous appeals. It has also been contended by the learned counsel that as far as non joining of applicants in the suit is concerned, according to the plaint, suit‑land was mutated by Mukhtiarkar only in the name of Shah Muhammad and the opponents Nos. 1 to 5 has cause of action against him and not against all the heirs of Mir Muhammad, hence it was not necessary that applicants should have been joined as defendants in the suit. Besides that applicants were contesting other suit bearing No.47 of 1984 before the same Court, they should have moved application for their joining in Suit No. 180 of 1982 but they did not move any such application. The suit as well as appeal, therefore, does not suffer for non‑joinder of the necessary parties. It has also been argued by the learned counsel that Civil Court has got jurisdiction to entertain the suit and rightly decided it as the orders of Colonization Officer and Mukhtiarkar, Mirwah was not challenged before the Revenue Authorities and the same was challenged before the Civil Court. The notice issued by Mukhtiarkar, Mirwah shows that mutation in the name of Mir Muhammad was made by him on the basis of T.O. Form issued by Colonization Officer, hence he effected the mutation without issuance of the notice, the order of Mukhtiarkar without notice was made and in such event it was not necessary to the respondents to challenge the same before Revenue Authorities, therefore, the T.O. Form was challenged before the Civil Court. The learned counsel for respondents has also contended that the revisions are time‑barred as the judgment was passed on 6‑1‑1998 and the revisions were filed on 8‑5‑1998 therefore, they are beyond 90 days. The learned counsel for the respondents 1, 2, 3 and c to g referred to the cases reported in 2001 SCMR 286 and PLD 1984 SC 208 in support of his contentions.

10. Mr. Abdul Sattar Chohan learned counsel for the respondent No.7 supported the contentions of Mr. Abdul Fateh Malik and has contended that 1st Appellate Court has wrongly held that the applicants were not necessary party and their non-joinder is not affecting the proceedings. The learned counsel for respondent No.7 did not cite any case in support of his contentions.

11. I have given my anxious consideration to the arguments of learner counsel for the respective parties, perused the record and feel that there is no substance in the present revisions to interfere in the judgment of learned 1st Appellate Court, moreover the above revisions are barred by time and no plausible explanation about such delay has been given. Consequently the same are dismissed in limine. Civil Revisions Nos.35 and 36 of 1998 stand disposed of in the above terms. H.B.T./A‑508/K Revisions dismissed.