2007 SCMR 655 (PLP)

CH. IJAZ AHMED, J.

The petitioners have sought leave to appeal against the judgment of the Lahore Nigh Court, dated 13-4-2001 wherein the learned High Court 'had accepted the R.S.A. filed by the respondents and set aside the concurrent findings of fact recorded in favour of the petitioners and dismissed the suit of the petitioners.

2. Necessary facts out of which the present petition arises are that petitioners/their predecessors-in-interest filed a suit for possession of land in question against the respondents in the Court of Civil Judge 1st Class, Jhang on 18-4-1973. The contents of the plaint reveal that predecessor-in-interest of the petitioners, namely, Qasim, Gamman, Shamun Nizam, Pehlwan and Sultan mortgaged their land measuring 390 Kanals, 3 Marlas situated in Khata No.23 and one half share situated in Khata Nos.24 and 25 measuring 148 Kanals, 9 Marlas and 101 Kanals, 6 Marlas respectively as depicted from Misal Haqiayat for the year 1924-25 of Village Paharpur, District Jhang in favour of two evacuees namely Chanan Dass and Melap Ram sons of Khota Ram. Predecessor -in-interest of the petitioners filed an application before the Collector, Jhang for redemption of the land in question on 28-5-1928. During the course of proceedings of redemption, the parties agreed to settle the dispute through arbitration. In view of said agreement Mian Noor Muhammad Cheela and Mehr Bahadur Khan were appointed as Arbitrators in terms of the agreement arrived at between the parties. The Arbitrators announced the award on 22-6-1929. The award was submitted before the Collector who disposed of the matter vide order, dated 30-9-1929. In view of order of the Collector dated 30-9-1929, the Mutation No.337 was sanctioned in favour of the mortgagees on 30-9-1929. The contents of the plaint further reveal that entire Khata No.23 pertaining to land measuring 390 Kanals stood redeemed under the award while 1/4th share each in Khata Nos.24 and 25 was to be sold in favour of the evacuee mortgagees in lieu of the consideration mentioned in the award and 1/4th share each i.e. Khata Nos.24 and 25 stood redeemed in favour of the mortgagors/predecessor-in-interest of the petitioners. The Collector did not pass order in terms of award dated 22-6-1929 and while passing the order, dated 30-9-1929 misconstrue the terms of the award and erroneously allowed the sale of half share of the land of Khata Nos.24 and 25 in favour of the mortgagees. The contents of the plaint further reveal that on account of the aforesaid error committed by the Collector while misconstruing award vide order, dated 30-9-1929 Mutation No.337 was sanctioned in favour of the mortgagees on 30-9-1929. The contents of the plaint further reveal that after partition of the Sub-Continent and on the creation of Pakistan, the non-muslims inclusive of the mortgagees had migrated to India. The disputed land was wrongly treated to be evacuee property and allotted in favour of the Noor Muhammad etc. in the year 1956 which was purchased by the respondents from the allottees. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the divergent pleas/pleadings of the parties, the trial Court framed 7 issues and thereafter recorded the evidence of the parties. The learned Civil Judge 1st Class Jhang/trial Court, decreed the suit vide judgment and decree, dated 31-1-1982. The respondents being, aggrieved filed appeal in the Court of Additional District Judge, who dismissed the same vide judgment and decree, dated 11-10-1983. Respondents being aggrieved filed R.S.A. in the Lahore High Court which was accepted vide impugned judgment as mentioned above. Hence this petition.

3. The learned counsel submits that learned High Court had erred in law to disturb the concurrent findings of fact recorded by the Courts below while exercising power under section 100, C.P.C. He further submits that order of the Collector was void as the learned Collector had passed the order in violation of the contents of the award dated 22-6-1929. He further submits that basic order of the Collector dated 30-9-1929 was without lawful authority, therefore, learned High Court was not justified to set aside the concurrent findings of fact recorded by the Courts below qua the issue of jurisdiction and limitation. He further submits that Civil Courts being Courts of plenary jurisdiction, conferred on them by section 9 of Civil Procedure Code, 1908, would retain jurisdiction in cases where the orders of public functionaries are without lawful authority in spite of the bar of jurisdiction through a special law. In support of his contention, he relied upon Muhammad Jamil Asghar's case PLD -1965 SC

698. He further maintains that limitation cannot run against the void order.

4. The learned counsel for the respondents supported the impugned judgment.

5. We have considered the submissions made by learned counsel for the parties and perused the record. It is better and appropriate to reproduce basic facts in chronological order to resolve the controversy between the parties: (i) Predecessor-in-interest of the petitioners had mortgaged the land in question in favour of non-muslims before partition. (ii) Predecessor-in-interest of the petitioners filed application for redemption of the property in question before the Collector on 28-5-1928. (iii) During the proceedings of redemption, parties agreed to settle the dispute through arbitration. (iv) Mian Noor Muhammad Cheela and Mehr Bahadur Khan were appointed arbitrators who announced the award on 22-6-1929 with specific particulars with regard to redemption as mentioned in preceding paragraphs. (v) Collector passed the order on 30-9-1929 in violation of terms of award and Mutation No.337 was sanctioned in favour of the mortgagees on 30-9-1929 in terms of the order of Collector, dated 30-9-1929. (vi) Predecessor-in-interest of the petitioners did not challenge the order of the Collector in their life time. (vii) After the partition, non-muslims had migrated to India and land in question remained in their name in view of order, dated 30-9-1929 of the Collector. The said land was treated to be evacuee property which was allotted in favour of Noor Muhammad etc. in the year 1956 which was purchased by the respondents from the allottees. (viii) Petitioners filed suit before the trial Court on 18-4-1973.

6. In case the aforesaid facts are put in a juxtaposition, then it is crystal clear that the respondents had purchased the land in question from the allottee before filing of the suit by the petitioners/their predecessor-in-interest before the Civil Court on 18-4-1973. This fact alone is sufficient to come to the conclusion that respondents had not committed any fraud or misrepresentation at the time of the purchasing the land in question from the allottees. It is pertinent to mention here that in the case in hand allottees had also not committed any fraud or misrepresentation at the time of allotment of the land in question in their name. The contention of the learned counsel for the petitioners has no force that learned High Court had erred in law to dismiss the suit of the petitioners through the impugned judgment as the order of the Collector was void as law laid down by this Court in S. Sharif Ahmad Hashmi's case 1980 SCMR

711. The relevant observation is as follows:-- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation."

7. It is an admitted fact land in question was treated as evacuee property which was allotted in the year 1956. The petitioners had filed suit without impleading the Custodian Evacuee Property as defendant in their suit. Therefore, the suit of the petitioners was liable to be dismissed. See Zafar Iqbal's case NLR 1996 UC

452. It is pertinent to mention here that the object and the purpose of the evacuee laws were to compensate and rehabilitate the refugees who migrated to Pakistan at the time of partition of Indo-Pak Sub-Continent. This is, thus, a right guaranteed to such refugees under Article 2-A of the Constitution of Islamic Republic of Pakistan, 1973 and the evacuee laws on the subject for their settlement and Rehabilitation in the economic life of Pakistan. It is a settled law that longstanding entries in Jamabandis does have presumption of truth. The Mutation No.337 was sanctioned on 30-9-1929, therefore, after partition land in question was properly c treated by the authorities as evacuee. The petitioners had filed a suit with regard to. the determination of the status of the land in question before the Civil Court and the Civil Court had no jurisdiction to take the cognizance of the matter. See Muhammad Ramzan's case NLR 1995 UC

43. It is also a settled law that constitutional jurisdiction is discretionary in character. He who seeks equity must come with clean hands and must be vigilant qua his rights. As mentioned above in case whole facts are put in a juxtaposition, then equity demands that the petition be dismissed as the respondents had purchased the land in question from the allottees well in time and the petitioners did not challenge the original order, dated 30-9-1929 and also did not challenge the same well within time when the land in question was treated as evacuee property. In view of the peculiar facts and circumstances of the case coupled with conduct of the petitioners, we are not inclined to exercise our discretion in favour of the petitioners as law laid down by this Court in the following judgments: (i) Haji Saifullah Khan's case PLD 1989 SC 166, (ii) Wali Muhammad's case PLD 1974 SC 106, (iii) Khawaja Sharif's case PLD 1988 Lah. 725, (iv) G.M. Malik's case 1990 CLC 1783, (v) Nawab Syed Raunak Ali's case PLD 1973 SC 236 and (vi) Rana Muhammad Arshad's case 1998 SCMR 1462.

8. For what has been discussed above, this petition has no merit which is dismissed and leave to appeal is refused. M.H./I-2/SC Petition dismissed.