P L D 1983 Peshawar 140 (PLP)

PLD 1958 SC 104 rel. Z. Mahfooz Khan for Petitioner. Khawaja Nazir Ahmad for Respondents Nos. 1 to

4. Saeed Baig for Respondents Nos. 18, 24 to 43 and

46. Date of hearing : 30th March, 1983. Suit Khata measuring 159 kanals 1 marla was recorded in the ownership of Ziarat Hazrat Sheikh Mian Umar under the administration of Auqaf Committee while Ram Nath and his brother Kishan Chand and subsequently his widow were recorded as occupancy tenants under section 5 of Act No. XVI of 1887 in equal shares. Kishan Chand had sold his occupancy rights in the suit Khata to the extent of 96 kanals in favour of Abdul Hakim Khan petitioner by a registered deed dated 20‑1‑193b and the entry as such was accordingly incorporated in the revenue record. On migration of the n.on Muslim occupancy tenants, the evacuee interests devolved on the Central Government which allotted 46 kanals 2 marlas area to Azizul Nabi a claimant and 32 kanals to one Abdur Razzaq. Azizul Nabi sold 32 kanals area to Abdul Hakeem Khan, the petitioner. Petitioner's case is that after allotment of 46 kanals to Azizul Nabi there was left over an area of 1.7 kanals only in the suit Khata available for allotment. However, Abdul Razzaq was still allotted 32 kanals area which he considers a case of double allotment. The said Abdur Razzaq sold 16 kanals 18 marlas area to the predecessor‑in interest of respondents Nos. 6 to 43 while an area of 16 kanals 2 marlas was sold to one Fazal Mohammad.

2. Petitioner challenged the allotment of the land in the name of Abdur Razzaq and the subsequent transfer by him to respondents Nos. 6 to 43 by a civil suit in the Court of Senior Civil Judge, Mardan which was dismissed for want of jurisdiction on 17‑12‑1971. He went in appeal before the District Judge, Mardan but with no better fate. He filed a suit under section 22 of the Pakistan (Administration, of Evacuee Property) Act, 1957 in the Court of Deputy Custodian/Additional Deputy Commissioner, Mardan on 5‑6‑1976 from where he got a decree in his favour but on appeal by Fazal Mohammad, the judgment and decree of the Deputy Custodian/Additional Deputy Commissioner were set aside by the Additional Custodian/Additional Commissioner, Peshawar and the case was demanded to Deputy Custodian who by his order dated 24‑10‑1979 found the petitioner's case not intertain able before him and accordingly dismissed it. He went in appeal before the Custodian, Evacuee Property (Member, Board of Revenue II) N.‑W. F. P., Peshawar who also dismissed his appeal for want of jurisdiction as well on point of limitation.

3. The petitioner ultimately filed this writ petition praying for a writ/ order/direction to respondents Nos. 1 and 2 to exercise their jurisdiction vested in them and to remand the case to them for decision in accordance with law.

4. In para. 6, the petitioner states that some 15 kanals 2 marlas of area was sold by Abdur Razzaq to Fazal Mohammad and in para. 10 he states that the said Fazal Muhammad filed an appeal against the judgment and decree of the Deputy Custodian, Mardan before the Additional Custodian/Additional Commissioner where he succeeded but still Fazal Mohammad has not been made a party in the writ petition. Fazal Mohammad is a party who ought to have been joined and in whose absence an effective declaration/writ/direc tion cannot be made in the proceedings. Moreover, the impugned orders are the follow up proceedings of his appeal in which the judgment and decree of Deputy Custodian were set aside by the Additional Custodian and the case was remanded to him' for trial afresh. Non‑joinder of a necessary party is a rule of substantive law, more so in writ proceedings and as such this petition merits dismissal on this score alone.

5. Suit Khata comprises of an area of 159 kanals 1 marla. Kishan Chand was the occupancy tenant of half a share in the suit Khata which he sold to the petitioner by a registered deed in the year, 1936. Petitioner could thus acquire occupancy rights over an area of 79 kanals 10J marlas in the suit Khata and if he has been sold an area in excess of his entitlement i.e. 96 kanals by the vendor, the same has not to bestow a title on him with respect to that. Petitioner further purchased an area measuring 32 kanals from Azizul Nabi allottee and thus he can be the right holder to the extent of total 111 kanals 10 marlas in the suit Khata. In case Abdur Razzaq was allotted 32 kanals, the same will not amount to a double allotment because 111 kanals 10 marlas area of his entitlement and 14 kanals left over area of Azizul Nabi come to total 125 karals 10J marlas area leaving still about 34 kanals area available with the Central Government for allotment. In the context, Jamabandi 1969‑70 is referred which records petitioner in occupation of 115 kanals area i.e. some over 3 kanals area in excess of his entitlement. As such petitioner does not appear to be an aggrieved party within the meaning of Article 9 of the Provisional Constitution Order, 1981.

6. Petitioner does not file copies of memo. of appeal and judgment of the Court of District Judge, Mardan dismissing his appeal nor he mentions as when the appeal was filed and dismissed. This Court has, therefore, to take cognizance of the judgment of the Court of Senior Civil Judge, Mardan only vide the Court directed the return of plaint to the petitioner for presentation before a proper forum on 17‑12‑1971. Learned counsel for the petitioner contends that since he has been prosecuting his case with due diligence before the civil Courts against the defendants upon the same cause of action in good faith and that for want of jurisdiction he has been referred by the civil Courts to seek his remedy before the Custodian, hence he was entitled to the exclusion of time consumed in the proceedings bona fide in the civil Courts, without jurisdiction, the Court of Senior Civil Judge, how ever, non‑suited him on 17‑12‑1971. He filed his suit before the Custodian on 5‑61976 i.e. after 4 years of the termination of proceedings in civil Court. Section 14 can, therefore, not be of any avail to the petitioner and afford to him no help whatsoever. Petitioner is thus guilty of laches for wasting 3/5 years and instituting a suit under section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 before the Deputy Custodian/ Additional Deputy Commissioner, Mardan on 5‑6‑1576 when at the time, the Evacuee Property and Displaced Persons Laws (Repeal) Act; 1975 has come into effect and the Pakistan (Administration of Evacuee Property) Act, 1957 stood repealed with effect from 1st day of July, 1974. Under sub section (2) of section 2 of the Repealing Act, pending proceedings before authorities appointed under the repealed laws stood transferred for disposal to the officers authorised in this behalf. The petitioner's case was not pending before such authorities at the time arid as such his suit filed in the Court of Deputy Custodian, Mardan on 5‑6‑1976 was not entertainable, Since the basis of the proceedings has been found without jurisdiction, the subsequent decisions had to fall to the ground as superstructure raised on such basis. P L D 1958 S C 104 lays down a rule that if on the basis of a void order subsequent orders have been passed either by the same authority or by the other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must fall to the ground alone.

7. As a sequal to the aforegoing discussion this writ petition has been found terribly misconceived, completely devoid of any merits and unnecessarily dragging the respondents in protracted litigation. As a result, this writ petition is dismissed with costs. Counsel fee for respondents Nos. 1 to 4 is fixed at Rs. 1,000 and that of respondents Nos. 6 to 43 at Rs. 1,

500. M. Y. H. Petition dismissed.