P L D 2002 Supreme Court 681 (PLP)

IFTIKHAR MUHAMMAD. CHAUDHRY, J.

This petition for leave to appeal has been filed against judgment dated 18-11-1998 passed by Lahore High Court, Lahore whereby Writ Petition filed by the petitioners has been dismissed.

2. Precisely stating the facts of the case are that this matter relates to evacuee land initially allotted to one Mallay Khan against his claim at Khata No.4 .of Register R.L. II, , Chak Dulahrey, Tehsil Pasrur, District Sialkot. Subsequently on an application filed under sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958 by Ali Muhammad the allotment of the evacuee property was found to have been made in his favour fraudulently against bogus claim, as such it was cancelled by the Deputy Commissioner exercising powers of Additional Settlement Commissioner (L)/Chief Settlement Commissioner, Sialkot vide order dated 16th November, 1968. This order attained finality because it was not interfered by the Chief Settlement Commissioner in exercise of Revisional proceedings instituted on behalf of original allottee. It so happened that meanwhile heirs of Mallay Khan namely Khuda Bakhsh and others sold said land in favour of Khushi Muhammad vide registered sale deed dated 27th August, 1968 who in turn sold it to Muhammad Bashir and his brother son of Jhandey Khan (respondents 2 to 5). On the strength of conveyance so obtained by Muhammad Bashir and others mutation was also effected in their favour. Thereafter Muhammad Bashir filed a civil suit for declaration in the Civil Court wherein declaration was sought that he and his co-sharer are bona fide purchasers of the land. The Civil Court passed ex parte decree on 17th March, 1982 granting relief as it was prayed for.

3. Petitioners' claim is that they are in cultivating possession of the land in dispute, thereafter, after cancellation of its allotment from the name of Mallay Khan it should have been allotted to them. As such in pursuance of such request the Settlement Authorities were about to concede their claim but in the meanwhile they learnt that respondents Nos. 2 to 5 have obtained decree from the Civil Court. As such petitioners filed an application under section 12(2), C.P.C. for setting aside the ex parte decree on the averments that it had been obtained fraudulently without impleading them as party, as such being void ab initio is of no legal effect. The respondents contested the application.

4. Learned Civil Judge after framing issues and recording evidence dismissed the application on 28th May, 1989. Against this order petitioners preferred Civil Revision which too was dismissed on 10th March, 1993 by the Additional District Judge, Sialkot. Thereafter the petitioners preferred Writ Petition No.6330 of 1993 in the High Court, which was not pressed to avail the alternative remedy.

5. In the meantime petitioner Boota and others approached the Member, Board of Revenue (S&R Wing), Punjab, Lahore stating therein that as the allotment of the land from the name of Mallay Khan has been cancelled by DC/Additional Settlement Commissioner, Sialkot vide order dated 16th November, 1968, and that cancellation order has been upheld by the Settlement Commissioner, by order dated 9-2-1977 and this order has attained finality because no one has challenged it, therefore, the land may be resumed and sold to them under section 3 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 as they were in possession of the land. The Secretary (Rural OL), Board of Revenue (S&R Wing) vide memo. No.156'l/83/446, dated 26-7-1983 conveyed the order of the Member, Board of Revenue (S&R Wing)/Chief Settlement Commissioner through which land was ordered to be resumed with direction to consider its sale to petitioners after cancellation of decree of the Civil Court. Respondent Muhanmnad Bashir and others filed Writ Petition No.337-R of 1983 in the Lahore High Court, which was accepted on 26th July, 1983, and case was remanded to Additional Commissioner (Rev)/Settlement Commissioner (Land) with powers of Chief Settlement Commissioner, Gujranwala who vide order dated 19th November, 1994 concluded as under:-- "I have considered the submissions made by the counsel of the parties and have perused the record It is admitted fact that the allotment made to Mallay Khan was cancelled by the DC/Additional Settlement Commissioner, Sialkot vide his order dated 16-11-1968, it is also an admitted fact that the order was challenged through declaratory suit in the Civil Court which was decreed on 17-3-1982. That decree was upheld by the Court of District Judge. The contentions of the learned counsel for the petitioners that the decree passed by the Civil Court without jurisdiction should be ignored being Duality in the eyes of law, is not convincing. The decree was passed by the Court of competent jurisdiction. The decree was challenged in the Court of Additional District Judge, but was upheld. I am afraid this tribunal is not competent to declare the decree of the Civil Court null and void. The Board of Revenue in their Memo.No.1567/83/446, dated 26-7-1983 which was impugned in Writ Petition No.337-R of 1983 did not accept the request was to be considered after cancellation of the decree of the Civil Court. As long as the decree of the Civil Court dated 17-3-1982 is in the file no action can be taken on the application of the petitioners. The application is dismissed. "

6. The petitioners assailed above order before Lahore High Court by filing Writ Petition No.51-R/1995 which was dismissed by means of impugned judgment dated 18-11-1998. As such instant petition has been filed.

7. Learned counsel for petitioners vehemently contended that respondents Nos.2 to 5 obtained ex parte decree from Civil Court, dated 17th March, 1982 against the Province of Punjab without impleading the petitioners as party despite the fact that the decree having been passed by a Civil Court without jurisdiction in view of the provisions of section 25 of the Displaced Persons (Land Settlement) Act, 1958 will have no adverse reflection on the rights of the petitioners. The respondents Nos.2 to 5 obtained ex parte decree in their favour, dated 17th March, 1982 knowing well that the evacuee land purchased by them was originally allotted on the name of Mallay Khan and the Settlement Authorities had cancelled the allotment from his name on the ground of misrepresentation and fraud. It was further contended that for such reasons respondents Nos.2 to 5 would not be protected by a Civil Court decree which be in nullity in the eye of law deserves to be ignored by this Court.

8. On the other hand learned counsel for caveators 2 to 5 argued that petitioners have purchased the property from Muhammad Siddique in the year 1980 against value, therefore, being bona fide purchasers from ostensible owner of the land they are entitled to enjoy all the proprietary rights and because a Civil Court decree exists in their favour which has not been set aside despite the fact that the petitioners challenged the same by filing application under section 12(2), C.P.C. as well as before District Judge/Revisional Court, therefore, the Settlement Authorities cannot legally transfer the property in dispute to the petitioners because it is no more available. Thus, for these reasons learned High Court vide impugned judgment has rightly declined to issue writ in favour of petitioners 8-A. We have heard the learned counsel for both. the sides and have examined instant case from different dimensions and in our opinion following points emerge for consideration:-- (a) What would be the effect of Civil Court decree, dated 17th March, 1982 obtained by respondents Nos.2 to 5 in view of bar contained under section 25 of the Displaced Persons (Land Settlement) Act, 1958 and the principle enunciated by this Court in the cases (1) Muhammad Janul Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698, (2) Habib Khatoon v. Sardar Muhammad PLD 1970 SC 162, (3) Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729, (4) Faizuddin Ahmad v. Muhammad Yousuf and another 1988 SCMR 1289, (5) Qamar Zaman and others v Ejazi Begum and others 1997 MLD 2408, (6) lkram Khan and six others v. Fazal Khan and another 1997 CLC 1172 and (7) Muhammad Sarwar and 5 others v-. Muhammad Ali and 18 others 2002 SCMR 829, (b) As to whether respondents Nos.2 to 5 have obtained ex parte decree from the Civil Court by concealing facts namely that the evacuee land subject-matter of proceedings was , found to have been transferred on the name of Mallay Khan fraudulently/by misrepresentation and the Settlement Commissioner vide order, dated 16th November, 1968 cancelled allotment from his name and this order has been confirmed by the Settlement Commissioner on 9th February, 1969 as the revision filed by legal heirs of Mallay Khan was dismissed? (c) What would be the effect of non-implementation of order dated 16th November, 1968? (d) As to whether the rights of respondents Nos.2 to 5- will not be protected under section 41 of Transfer of Property Act and the judgments of this Court in the cases of (1) Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53, (2) Manzoor Hussain v. Fazal Hussain and others 1984 SCMR 1027, (3) Gul Muhammad and others v. The Additional Settlement Commissioner and others 1985 SCMR 491, (4) Ejaz Ahmad Khan v. Chahat and others 1987 SCMR 192, (5) Mst. Resham Bibi v. Mst. Elahi Sain PLD 1991 SC 1034, and (6) Sufi Zaheer Ahmad (deceased) through Legal Heir v. Chief Settlement and Rehabilitation Commissioner and others 1993 MLD 1952 (e) As to whether petitioners if found in possession of the evacuee land, subject-matter of proceedings, would not be entitled for its transfer under section 3(2) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 or under any Scheme prepared in this behalf by the Government for the transfer of available evacuee land? Thus, to consider above points leave to appeal is granted. Stay order granted on 30th December, 1999 shall continue. Leave granted.