' Though the above mentioned civil miscellaneous applications have been separately filed under section 12(2), C.P.C., but both these petitions call in question the same order, dated 27-6-1990 passed by this Court in Writ Petition No.566/R of 1970 titled "Abdul Ghani and others v. Khan Abdul Hameed Khan Niazi and others", hence are being disposed of by means of this single order.
2. It would be relevant to point out here that earlier under the orders of the Honourable Chief Justice these petitions were placed at the roster of my learned brother Syed Sakhi Hussain Bokhari, J. For disposal. But during the availability of my said learned brother at this Bench, these petitions could not be finally disposed of, therefore, on subsequent noting by the office, the Honourable Chief Justice has been pleased to nominate me to decide the above mentioned two petitions.
3. The facts briefly stated are that Abdul Ghani, etc. Filed the titled Writ Petition No.556/R of 1970, seeking following declarations:-- "(i) That the order of respondent No.1 dated 11-2-1970 is without lawful authority and of no legal effect.
(ii) That the allotment of the joint Khata made in favour of respondent No.3 is without lawful authority and of no legal effect.
(iii) That the payment of compensation by respondent No.2 to respondent No.3 is without lawful authority and of no legal effect.
(iv) That the transfer of Bungalow No.1-A/7 Rahim Yar Khan with an area of 13878 sq. Ft. As per P.T.D.
Dated 5-6-1962 issued in favour of Ch. Abdul Hameed, deceased, predecessor-in-interest of the petitioners is not affected by illegal order of respondents Nos.1 and 2.
(v) That respondents Nos.2 and 4. To 10 may be directed to restore the total area measuring 13878 sq.Ft. To the petitioner and pay Rs.4,70,000 as cost of the material and he may also be proceeded for contempt of Court because he had violated order dated 26-5-1970."
' The writ petition came up for hearing before my learned brother Mian Allah Nawaz, J. (as his Lordship then was), on 27-6-1990 and the learned Judge in Chamber, after hearing the parties decided the said writ petition with the following order:- "With the consent of the--parties this petition is accepted, the impugned order is set aside. The requested relief is allowed in favour of the petitioners. The Deputy Commissioner/District Collector, Rahim Yar Khan is directed to demarcate the property of the petitioners in accordance with the property fully described in permanent transfer deed and the supplementary order noted above within two months of the receipt of the order. The petitioners so shall be able to get the property identified in demarcation proceedings. This order shall not prejudice the right of petitioners to institute suit for damages. There shall be no order as costs."
' As the Revenue Authorities failed to implement the above mentioned order of this Court, hence Mst. Akhtar Begum widow of Abdul Hameed (deceased writ petitioner), Faiz Rasool son of Abdul Ghani (not party to the writ petition) and Hamid Khan son of Ghulam Muhammad (deceased writ petitioner) filed another Writ Petition No.1437 of 1993 with the prayer that Assistant Commissioner, Rahim Yar Khan and Deputy Commissioner/Collector, Rahim Yar Khan be directed to complete the demarcation of the property in terms of this Court order dated 27-6-1990 passed in Writ Petition No.566/R 1970. When summoned in Writ Petition No.1437 of 1993, Rizwan Ahmad, Assistant Commissioner entered appearance and submitted that order of this Court dated 27-6-1990 had been complied with demarcation proceedings had been completed and a report had been prepared by the concerned Assistant Collector-I, wherein the property transferred to the petitioners had been clearly identified. He further submitted that number of persons had filed appeals against the demarcation proceedings/report made by the Assistant Commissioner-I in the Court of Collector, Rahim Yar Khan which were pending and some of the parties had gone to seek redressal of their grievances in Civil Court. Resultantly, the Writ Petition No.1437 of 1993 was disposed of having been rendered unnecessary on account of compliance made by the concerned Authorities, vide order, dated 13-7-1993 passed by my learned brother Mian Allah Nawaz, J. (as his Lordship then was). Before proceedings further it would not be out of place to mention here that in Writ Petition No.1437 of 1993, Qazi Abdul Rehman (applicant in C.M. No.218 of 1993) filed an application claiming that he being a transferee in possession of certain area of land situated in the same Khata, hence, be impleaded as party. But as the writ petition was being disposed of in the light of the statement of the Assistant Commissioner, therefore, said application was refused and Qazi Abdul Rehman was not allowed to be impleaded as party to the said writ petition, rather he was directed to avail the remedy whatever available to him under the law before the forum of competent jurisdiction, against the demarcation proceedings and the competent Authority will determine his entitlement strictly in accordance with law. In the light of the above mentioned observations of my learned brother Mian Allah Nawaz J. Qazi Abdul Rehman filed appeal in the Court of Assistant Commissioner/Collector Sub-Division, Rahim Yar Khan, against the order of Tehsildar/Assistant Collector-I dated 4-1-1993, regarding demarcation of Bungalow No.1- A/7, Tehsil Rahim Yar Khan (hereinafter to be referred as property in dispute). But the same was disposed of by the Collector vide order, dated 21-7-1993 due to want of jurisdiction, as according to the said Revenue Officer the disputed demarcation was carried out under the direction of this Court. In the above mentioned background, Qazi Abdul Rehman has approached this Court by way of filing application under section 12(2), C.P.C. (C.M. A No.218 of 1993), with the prayer that the said order, so for it relates to the proceedings and demarcation of property in dispute, be recalled/set aside having been passed without impleading him as party, without any notice or affording opportunity of hearing, as he is transferee of 3 Kanals, 4 Marlas out of the disputed property vide order, dated 12-10-1970 passed by the Additional Settlement Commissioner, Multan and Bahawalpur Division (Annexure "B" with this C.M.) and also through Permanent Transfer Deed, dated 12-3-1971 (Annexure "C" with C.M.) issued in his favour, hence, he was condemned unheard.
4. Similarly, the facts giving rise to the filing of C.M. No.75 of 1994 are that out of the disputed property an area measuring 4 Kanals, 11-1/2 Marlas was allegedly allotted to one Munshi Khan by the Settlement Authorities. This allotment in his favour was challenged by one Malik Nisar Ahmad through Writ Petition No.39/R of 1977 but the same was dismissed for non-prosecution on 11-4-1994, meaning thereby that allotment in favour of Munshi Khan deceased, attained finality. The heirs of Munshi Khan deceased sold an area measuring 2 Kanals, 9 Marlas out of property in dispute through registered sale-deeds dated 16-4-1994, 18-4-1994 and 11-4-1994 to Dr. Ghulam Dastigir, etc. (applicants) and Dr. Ghulam Dastigir, etc. After getting their site plans sanctioned from Municipal Committee raised construction over there and are now in possession of the same. They have filed C.M. No.75 of 1994 on the ground that they being bona fide purchasers out of the disputed property and in possession of the same were necessary party and the order of demarcation of joint Khata was passed by this Court on 27-6-1990 in Writ Petition No.566/R of 1970 which was violative of principles of natural justice having been passed in their absence.
5. Chaudhry Naseer Ahmad, Advocate learned counsel representing Qazi Abdul Rehman (applicant in C.M. No.218 of 1993) has argued that as the portion of the property in dispute stood validly transferred to Qazi Abdul Rehman through order, dated 12-10-1970 (Annexure "B") and Permanent Transfer Order dated 12-3-1971 (Annexure "C"), hence Qazi Abdul Rehman was a necessary party in the writ petition but the order of demarcation of the property has been passed by this Court in his absence, without notice and affording him opportunity. It is further argued that in the main writ petition neither there was any prayer for demarcating the property, in dispute nor this Court had jurisdiction to direct demarcation of the disputed property or to order the separation of shares of writ petitioners, in the absence of all the co-sharers and also without notice or hearing them, hence the order passed by this Court on 27-6-1990 to the extent, it directed the conduct of demarcation and separation of shares of writ petitioners was without jurisdiction having been passed in.Violation of principles of natural justice and also condemning the applicant unheard. The learned counsel further contends that much earlier to thepassing of the impugned order, dated 27-6-1990, Asad Ullah one of the co-sharers of the property in dispute had already filed a suit for partition against all the co-sharers including the writ petitioners and Qazi Abdul Rehman applicant.
Copy of plaint in the said suit is placed on record. In the plaint the writ petitioners have been arrayed as defendants but the writ petitioners without bringing the facts of pendency of the suit to the notice of this Court, obtained .The order on 27-6-1990 in their favour which amounts to practising fraud on the Court. Learned counsel has also pointed out that pursuant to this Court order dated 27-6-1990, the demarcation was conducted by the Tehsildar and in consequence thereof site plan was prepared by him showing the possession of different persons on the property in dispute including writ petitioners as well as Qazi Abdul Rehman, Which also indicates that applicant Qazi Abdul Rehman was in possession of a part of the property in dispute hence, no partition could be ordered without his impleadment in the writ petition and after giving him notice and affording him opportunity of being heard. The site plan prepared by the Tehsildar while conducting demarcation proceedings pursuant to this Court order dated 27-6-1990, is Annexure "0" to this C.M. It is argued that nature of the property in dispute is such that same could not be partitioned/demarcated by the Revenue Authorities and the same could only be done by the Civil Court in the suit for partition already filed; The learned counsel concluded his arguments with the prayer that as the order of this Court dated 27-6-1990 directing partition/demarcation of the disputed property was passed without hearing the applicant Qazi Abdul Rehman and also without any law conferring power on this Court to order demarcation, hence, the said order is liable to be set aside, in exercise of powers under section 12(2), C.P.C. To support his contention that this Court can exercise jurisdiction under section 12(2), C.P.C., reliance has been placed on the case Province of Punjab through Collector Sialkot v. Muhammad Irshad Bajwa 1999 SCM R 1555 and Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993 SCM R 1171.
6. Chaudhry Muhammad Shafi Meo, Advocate appearing on behalf of applicant in C.M. No.75 of 1994 besides adopting the arguments of Chaudhry Naseer Ahmad, Advocate, has also argued that as the applicants were in possession of part of the disputed property in their own rights and had construed residential houses on the area purchased by them, hence the order of this Court could not have been passed in their absence and without notice or affording them opportunity of hearing.
7. On the other hand, Mr. M.M. Bhatti, Advocate learned counsel appearing for the respondents/writ petitioners has not only vehemently opposed both these C.Ms. But has also argued that the alleged transfer of disputed property in favour of Qazi Abdul Rehman as well as Munshi Khan predecessor- in-interest of Dr. Ghulam Dastigir, etc. Applicants, was bogus and that demarcation order in favour of the writ petitioners was rightly passed by this Court in order to put the litigation between the writ petitioners and the respondents in the writ petition, to an end. He has also argued that applicants have failed to make out a case for invoking die provisions of section 12(2), C.P.C. By placing reliance on the case of Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992 SCM R 2184 and Riyaz Qasim v. Messrs A.M.A. (Pvt.) Ltd. 1999 CLC 445.
8. I have considered the arguments of learned counsel for the respective parties, perused the record and also gone through the judgments cited from both the sides.
9. To start with, it is to be seen whether there was any prayer in the main Writ Petition No.556/R of 1970 for undertaking demarcation of the property. I have gone through the certified copy of said writ petition (Annexure "A"), wherein no such prayer has been made. So, there is substance in the contention of learned counsel for the applicants that the order for demarcation/partition was passed by this Court, without the same being in question or subject-matter of the said writ petition.
It is C also not denied by the learned counsel for the respondents/writ petitioners that transfer/allotment in favour of the writ petitioners was out of a joint Khata/property and this fact is admitted by the writ petitioners in para.10 of the writ petition in the following words:--: "It may be submitted that this allotment, was absolutely illegal and unwarranted for the reasons firstly that without partitioning the Khata no allotment could have been made and second the area allotted to the allottees included some of the land which was under the bungalow confirmed 'and transferred to Ch. Abdul Hameed (writ petitioner) and without issuing a notice to the petitioner the allotment could not have been made."
The fact that Qazi Abdul Rehman was transferred area of 3 Kanals, 4 Marlas from the property in dispute vide order, dated 12-10-1970 and Permanent Transfer Deed dated 12-3-1971 is not denied nor the same was challenged in the said writ petition for the obvious reason that the writ petitioners were themselves claiming area measuring 2 Kanals, 11 Marlas out of the total area of the property in dispute measuring 14 Kanals, 5 Marlas. Similarly, Munshi Khan predecessor-in-interest of the vendors (applicants in C.M. No.75 of 1994), is also proved to be joint owner in the disputed property to the extent of 91-1/2 share out of total shares of 285 which is evident from the copy of Register Haqdaran Zameen for the years 1981 (Annexure "M" to the C.M.).
10. The narration of above facts lead me to the conclusion that at least applicants in both these C.Ms. Were necessary party and they should have been impleaded and this Court could not order/direct demarcation or partition of the property to the extent of share of the writ petitioners only, in the absence of Qazi Abdul Rehman and Dr. Dastigir, etc. And without notice as well affording them opportunity of hearing and the said order dated 27-6-1990 was passed by this Court by condemning them unheard, which is violative of principles of natural justice, as held by the Honourable Supreme Court of Pakistan in the case Pakistan and others v. Public-at-Large and others PLD 1987 SC 304 ordaining that due notice of action proposed to be taken and opportunity of showing cause against such action is Constitutional right of every Citizen.
11. Prima facie the applicants in both the C.Ms. Had no concern with the area measuring 2 Kanals, 11 Marlas allotted to Abdul Hameed, etc., writ petitioners and about the determination of their entitlement qua the respondents in the writ petition and to that extent the impugned order passed by this Court has neither been challenged in these C.Ms. Nor any prayer for its recall or setting aside has been made to that extent. However, the applicants in both the C.Msare well within their right to challenge the order of this Court dated 2-6-1990 to the extent it relates to the demarcation/partition of the property forming part of joint Khata in their absence. I have not been able to find out any authority conferred on this Court to order demarcation/partition of property, after it was jointly allotted to the persons and also in the absence of all the co-sharers of the joint Khata by ordering partition or demarcation of the same on the request of few share-holders. At the time of passing of the impugned order of this Court, a regular suit for partition was also pending before the Civil Court, in which at least the writ petitioners were party and they had been summoned. The plaintiff in that suit had therefore, chosen the right forum for having the property in dispute partitioned and the Civil Court was the only forum to decide such suit after full-fledge 'trial whereas this Court while sitting in Constitutional jurisdiction could not go into such exercise involving questions of fact in partition proceedings. Even otherwise, the partition/demarcation conducted by the Revenue Authorities in compliance with order passed by this Court in Writ Petition No.1437 of 1993 also does not appear to be a fair exercise but the same seems to have been done just to avoid consequences of non-compliance of this Court order passed on 27-6-1990 in Writ Petition No.566/R of 1990. The demarcation proceedings, copy of which is Annexure "H" in C.M. No.75 of 1994, itself indicate that despite complaints of several persons in possession, that they were not served with any notice, the Revenue Authorities proceeded to demarcate the property in compliance with this Court order dated 27-6-1990. No indication is made out from the demarcation proceedings, that while proceeding to demarcate the property in dispute, the relevant rules relating to demarcation framed under the Land Revenue Rules, were complied with and it is also not clear whether the Collector confirmed the demarcation proceedings after hearing all the effected persons. Legal efficacy of the demarcation also falls on the ground, as the Collector refused to decide the appeal of Qazi Abdul Rehman applicant in C.M. No.218 of 1993 through his order dated 21-7-1993 (Annexure "I") by holding that as the demarcation proceedings were conducted under the direction of this Court, hence, he had no jurisdiction to hear the said appeal, notwithstanding the fact that this Court in subsequent order dated 13-7-1993 passed in Writ Petition No.1437 of 1993 had specifically directed that the parties feeling aggrieved against the demarcation proceedings, may avail of the remedy available to him under the law before a forum of competent jurisdiction which will determine the same strictly in accordance with law. The order passed by the Collector, Rahim Yar Khan dated 21-7-1993 also indicates that demarcation proceedings were not conducted independently or under the provisions of Land Revenue Act but under the direction of this Court which compelled the Collector to dismiss the appeal of Qazi Abdul Rehman, though on an erroneous assumption of facts and law.
12. The case-law relied upon by Mr. M.M. Bhatti, Advocate learned counsel for the respondents/writ petitioners is of no help to him for the reason that in 1992 SCM R 2184, it was held that as the decree in question having been passed by the Court after contest on the basis of admissions and concessions made by the respective parties, the same would not amount to decree on the basis of compromise, hence, such decree could not be assailed under provisions of section 12(2), C.P.C.
Similarly, 1999 CLC 444 governs quite a different situation, as in the said case the dispute between the parties was with regard to decision of certain application under Order VII, rule 11, C.P.C. And decree passed under Order IX, rule 13, C.P.C. And it was held that as no fraud or misrepresentation was practised or committed by the respondents in procuring the judgment and decree, hence, application under section 12(2), C.P.C. Was not competent. But in the instant case, not only the order in question is without jurisdiction, having been passed in violation of principles of natural justice as well as concealing the factum of pendency of a suit for partition before the Civil Court which amounts to committing fraud on the Court.
13. The upshot of above discussion is that, the order passed by this Court on 27-6-1990 in Writ Petition No.556/R of 1970 is without jurisdiction, to the extent it relates to demarcation/partition of the property in dispute, for the following reasons:--
(I) There was neither any prayer in the writ petition for the demarcation of the property in dispute nor this Court while sitting in Constitutional jurisdiction, sit over the jurisdiction of a competent forum i.e. Either under the Land Revenue Act or that of Civil Court;
(II) the property in dispute was and is admittedly a joint property and it is established principle of law that each co-sharer in the joint property is necessary party and without joining, giving notice or affording reasonable opportunity of hearing to all the co-sharers, no joint property can be demarcated or partitioned just at the desire of some of the co-sharers and also qua them only. But in this case neither other co-sharers including applicants in both the C.Ms. Were impleaded as party nor they were given any notice or afforded opportunity of hearing who were thus condemned unheard which is against the principles of natural justice;
(III) the demarcation/partition proceedings conducted by the Revenue Officer in compliance with this Court order dated 27-6-1990 as well as 13-7-1993 in second Writ Petition No.1437 of 1993, were not conducted strictly in accordance with law, especially demarcation Rules framed under the Land Revenue Act nor the report of demarcation proceedings was finally approved by the .Collector of the area as required under Rules 67-A and 67-B of Punjab Land Revenue Rules, issued by Punjab Notification No.2313-37/629/LR-I dated 23-11-1973;
(IV) that the parties before this Court in the writ petition did not bring to the notice of this Court the factum of pendency of partition suit before the Civil Court and thus, obtained the order, dated 27- 6-1990 for demarcation of writ petitioners' share, which amounts to playing fraud on this Court.
Otherwise, this Court would have been hesitant in ordering demarcation/partition of the property while sitting over the jurisdiction of Civil Court which in fact is the Court of competent jurisdiction to decide such matters in terms of section 9, C.P.C.
14. Resultantly, both the C.Ms. Are accepted and the order of this Court dated 27-6-1990 passed in Writ Petition No:556/R of 1970 (para.11) to the extent of direction to the Deputy Commissioner/District Collector, Rahim Yar Khan to demarcate the property of the writ petitioners in accordance with the property fully described in the Permanent Transfer Deed,, is declared as without jurisdiction and based on fraud. Consequently the demarcation proceedings conducted by the Revenue Authorities on the basis of above mentioned order of this Court are declared as without lawful authority and of no legal effect and the observations of this Court recorded in this aspect in subsequent order dated 13-7-1993 passed in Writ Petition No.1437 of 1993 declaring demarcation proceedings as complete, are also inconsequential, hence, recalled. The obvious result of this direction is.That allotment/transfer in favour of respective parties by the Settlement Authorities, shal! Remain as it is unless decided otherwise by any Court of competent jurisdiction and that the parties on the basis of their respective allotments/transfers shall be at liberty to seek demarcation/partition by way of a railing any remedy available to them under the law, including partition suit mentioned above, if still pending.
15. As the order passed by this Court dated 27-6-1990 in Writ Petition No.556/R of 1970 has been declared as without jurisdiction and based on fraud in exercise of jurisdiction under section 19(2), C.P.C. No purpose would be served by restoring the writ petition and deciding. It afresh, by involving the parties to the writ petition to another round of litigation. The findings recorded by this Court to the extent of entitlement of the parties qua the writ petitioners in the above mentioned order, except to the extent of demarcation shall remain intact and shall be binding on them. There would no order as to costs.