2003 PLP 936 (CLC)

A.R. Shaukat for Petitioners. Ch. Asghar Ali for Respondents. Date of hearing: 18th October, 2002. The dispute between the parties relates to 318 Kanals of land situated in Mauza Chah Topianwali. Dakhali Mauza Nekukara, Tehsil Shorkot. District Jhang. The petitioners filed a suit claiming the ownership of the said land by challenging the allotment made in favour of the original allottees as evacuee property and also further sales made in favour of the other defendants by the allottees. This suit after contest was dismissed by the learned trial Court vide judgment and decree dated 4-3-1989. Appeal of the petitioners also failed on 28-5-1990.

2. Briefly the facts of the case are that the petitioners claim that their predecessor, was the non-occupancy tenant over the suit land, under non-Muslim landlord. In addition to their occupancy tenancy, the land was jointly owned by the Muslim and non-Muslim in the same Khata. Under section 114 of the Tenancy Act, the ownership of the suit land was conferred upon the petitioners' predecessor in the year 1952 thus it became the Muslim property and therefore could neither be treated as evacuee nor transferred to the allottee/respondents. Moreover in view of paragraph 4-A of the Rehabilitation Scheme, the allotment land comprising of occupancy tenancy was excluded from the compensation pool and could not be transferred to the claimant displaced person. Same is the position as per paragraph

31. Sub-pupa. 9 of' the Scheme, It is the case of the petitioners that in violation of the law the allottees got the allotment of the land in the year 1963 as an evacuee property and made further alienation to the other respondents thus constraining the petitioners to the a suit in the year 1980, challenging the original allotment as also the subsequent alienation and claimed declaration of ownership. This suit as stated earlier, has been dismissed by the Courts below.

3. Learned counsel for the petitioner, has reiterated his submission that according to paragraph 4-A of the Rehabilitation Scheme, as also paragraph 31, the property in dispute admittedly being in the occupancy tenancy of the petitioners, was not allotable to the allottee and thus any allotment made in their favour is void ail initio. In support of his contention, he has relied on PLD 1995 Lahore 462 and 2000 CLC 1651. It is also submitted that the petitioners were the owners in the joint Khata alongwith non-Muslim evacuee and therefore, without partition of the Khata the transfer is invalid. He has drawn support from PLD 1974 SC

93. It is also submitted that the property was never treated as evacuee and therefore, was not the part of the compensation pool. Besides the above, learned counsel has also relied upon unreported judgment of the Honourable Supreme Court in Civil Appeals Nos.323 to 326 of 1983 decided on 9-3-1991.

4. Conversely, learned counsel for the respondents contends that the suit land was transferred in favour of the allottees in the year 1962. The petitioners' predecessor brought a suit against the allottees and in paragraph No.4 of the plaint, it is stated:- This suit was subsequently withdrawn by the predecessor of the petitioners on 4-11-1964 with permission to tile a fresh suit. In this suit being fully aware that land had been treated and transferred to the allottees as evacuee property the petitioners never threw any challenge to the allotment, but only restricted himself to the claim of 1/6th share of the produce therefore, the present suit filed by the petitioners in the year 1980 is barred by time. It is also stated that as during: the period, when the Evacuee Laws were in force, the petitioners or their predecessor did not avail the remedy of appeal, etc. available under the law, therefore after repeal of evacuee laws. Civil Court had no jurisdiction to decide the matter.

5. I have heard learned counsel for the parties. Admittedly according to the law, cited by the learned counsel for the petitioners the allotment made in favour of the allottees was invalid. The predecessor of the petitioners however did not challenge the said allotment at the proper time before the appropriate forum and only restricted his claim in the earlier suit to 1/6th share of the produce, which was subsequently withdrawn with permission to file a fresh suit. No fresh suit was filed till 1980 and during this period, allottees of the property had further alienated the suit land to so many other respondents. Thus having full knowledge about the allotment in favour of the allottees and having failed to challenge the same and assert their right of ownership at the appropriate time before the proper forum, subsequently, the petitioners cannot throw any challenge to the original allotment: the treatment of the property as Evacuee and subsequently sales made in favour of purchasers, who are bona fide purchasers of the suit land from the allottees or from their vendees, etc.

6. The argument of learned counsel for the petitioner that the order of allotment was void ab inito and resultantly, there is no limitation against the void order, suffice it to say that according to law laid down in PLD 1993 SC 147 and 2001 SCMR 1062, petitioners were not permitted to sleep over their rights and to chose their own time and forum for challenging the allotment, even on the ground that the original order of the allotment in favour of the allottees is void. The predecessor of the petitioners, should have filed appeal before the appropriate forum admittedly, when in the year 1962 came to know of the fact that the allotment of the land treating it to be evacuee property had been made in favour of the allottees. Resultantly, the suit of the petitioners was barred by time, and it is mis-conceivable to argue that even in such circumstances as involved in the present case no limitation would run against the petitioners.

7. There is another aspect of the matter that the petitioners' predecessor in the earlier suit had only confined himself to assert his right qua 1/6th share in the produce and never ever agitated against the allotment to the allottees. Though his suit was subsequently withdrawn with permission to file afresh, but no fresh suit was brought within the' period of limitation.

8. Moreover the provisions of Order II, rule 2 would also be applicable to the instant case precluding the petitioners to claim the relief which their predecessor had voluntarily relinquished. The argument of the petitioners' counsel that no defence in this behalf, has been set up by the respondents, suffice it to say that from the admitted facts of the record, this is a pure question of law and it is the duty of the Court to apply correct law and decide the lis between the parties.

9. As regards the question of jurisdiction of the Civil Court it may be held that the petitioners' predecessor was welt aware of the disputed allotment in the year 1962, but he did not avail his appropriate remedy, under the evacuee laws, thus under the general principles even if the Civil Court has the jurisdiction to set aside the orders which are passed without jurisdiction or lawful authority and are mala fide in nature, yet in the circumstances of the case where the jurisdiction of the Civil Court was expressly barred under the special law, after the repeal of the such law the Civil Court would have no jurisdiction even if the orders are without jurisdiction. The unreported judgment of the Honourable Supreme Court mentioned above is of no help to the case of the petitioners, because in the said case, aggrieved party had approached the Settlement Authorities for seeking the cancellation of the allotment and the matter before the Supreme Court had originated out of such proceedings. In the case petitioners or their predecessor never approached the Settlement Authorities, rather earlier filed a suit, not challenging the allotment in favour of the allottees, but confining to the share in the produce this suit too was dismissed as having been withdrawn with permission to file afresh and the matter within the, prescribed period of law was never reagitated. In the light of above. I do not find any error in the judgments of the Courts below calling for interference in the revisional jurisdiction. This petition thus has no force and the same is hereby dismissed. S.A.K./G-223/L Petition dismissed.