MIAN SAQIB NISAR; J.- The suit for the declaration, filed by the petitioner, challenging the allotment of the land in question in favour of respondent No. 2 Ramzan and claiming herself to be entitled to the allotment, has been dismissed by the learned Trial Court vide judgment and decree dated 10.2.1998. Appeal filed by the petitioner has also failed on 7.12.1999.
2. The brief facts'of the case are, that the petitioner, who is the*daughter of one IJassan Muhammad, on 27.1.1990, filed a suit for the declaration claiming that he land bearing Khasra Nos.
617, 855, 856, 857, 917 and 918 measuring 44 Kanals and, 8^Marlas, situated in Mauza Daira Shah Jamal, Tehsil Noshehra Virkan District Gujranwala, was allotted not only in the name of Hassan Muhammad, her predecessor, but also Mst. Hakam Bibi, Abdul Ghani and herself for their maintenance allowance being the refugees from the Jammu & Kashmir, however, without canceling the allotment, out of the said land, the land measuring about 33 Kanals (suit land) has been illegally and unlawfully allotted to one Razman, as an evacuee property by the settlement department, against his .Claim vide RL-H No. 245, dated 3.10.1966, who has further sold the said land in favour of Muhammad Yaqoob vide Mutation No. 53, dated 31.3.1996. Thus, she challenged the above two transactions being void, and also sought the decree of her entitlement for the transfer of the proprietary rights of the suit property in her favour.
3. . The suit was contested by the respondents. Respondent No. 2 defended the validity of the transfer of the land in question to his predecessor by the competent authority, and according .To him this was followed by a lawful sale in his favour, besides, the pleas of limitation and the waiver on the plaintiff's part, were also set out in the written statement. Accordingly, the.Leamed Trial Court, framed the following importance issues:-
(2) Whether the suit is time-barred? OPD
(3) Whether this Court has no jurisdiction to entertain this suit? OPD (4-A.) Whether Hassan Muhammad predecessor-in- interest of plaintiff has waived his right and executed Iqrarnama in this respect? OPD No. 3.
After recoding of the evidence, the learned Trial Court, by. Returning its findings on all the above issues against the-petitioner and in favour of the respondents, dismissed the suit, lt was held that the suit was barred tty time, as the allotment of the land in favour of Ramzan made in the year 1966 has been challenged by the plaintiff/petitioner in the year 1990 and that too after the death of Hassan Muhammad, who was the original allottee of the property, lt was further found that as Hassan Muhammad has not challenged the disputed allotment/transfer during his lifetime, therefore, the petitioner as his successor could not impugn the same. The issue of jurisdiction has also gone against the petitioner and therefore, her suit was dismissed Aggrieved of this judgment and decree, the petitioner preferred an appeal, but without any success and the findings of the Trial Court upon , the above-mentioned issues have been maintained, hence ' this revision:
4. Learned counsel for the petitioner, by relying upon the judgment reported as Ghulam Muhammad and another vs. Ahmad Khan and another (PLD 1991 SC 391), Jan Muhammad and others vs. Sher Muhammad and another (PLD 1979 SC 985), Mst. Sakina Bibi and another vs. Mamla and 2 others (PLD 1977 Lahore 202), has argued that the property in dispute was not allotted exclusively in the name of Hassan Muhammad, as the maintenance allowance being a refugee from the Jammu & Kashmir, but the other members of the his family as well,' includiiig Muhammad Bibi, the petitioner; thus, once the property had been so allotted, it becomes the prop.Erty of the Ministry of Jammu & Kashmir, meant for transfer to . a refugee, with the legal consequence that it stood excluded from the compensation ,pool and the settlement authorities were left with no power to make the allotment of such land as an evacuee property. The learned counsel has further submitted, that-the Courts below have misread the record and misapplied the judgment reported as Ailah Rakhi vs. Sughra Bibi and others (1986 CLC 2095), while holding that the land was allotted only to Hassan Muhammad and that it is not heritable by the petitioner and-therefore, the petitioner could not maintain a cause of action for the suit after the death of her father, to. Whom the allotment was originally made; he argued that the allotment, as is clear from the record, was also in the name of Muhammad Bibi and therefore, notwithstanding the death of Hassan Muhammad, she had the independent right for the transfer of the property to her and could also challenge the allotment of Ramzan and* further transfer in favour of Yaqoob.
5. Confronted with the above, leafrned counsel for respondent No. 2 has argued that the issues of limitation -and jurisdiction have been rightly decided against the petitioner; in this behalf, there is a concurrent finding of facts, which is not defective on account of any misreading and non-reading of the evidence or for any other factual or legal infirmity, thus, in the revisional jurisdiction, such concurrent findings of facts, cannot be interfered. Reliance in this behalf has been placed upon the judgment reported as Muhammad Bakhsh vs, Ellahi Bukhsh and others (2003 SCM R 286). Lt is further argued that the issue of limitation had been decided againSt the petitioner by the two Courts below and such finding has not been assailed in the revision petition as no ground of attack has been set out in the petition. The learned counsel submits that the judgment reported as 1986 CLC 2095 is squarely applicable to the case in hand, because the allotment of thejand through the order dated 20.2.1957 is only vis-a-vis Hassan Muhammad; Hassan Muhammad has never challenged the allotment of Ramzan and the sale in favour of respondent No. 2 during his lifetime, therefore, after his death, the present petitioner has no right or locus standi to assail the same; the learned counsel submits that PW.l, the attorney of the petitioner, in his statement has admitted that the land was only allotted to Hassan Muhammad and not to her.
6. Heard. As regards the question about the transfer of the allotment in favour of Ramzan is concerned, it is established on the record that Hassan Muhammad was the prior allottee of-the suit land measuring 44 Kanals and 8 Marlas, which was given to him for his and the maintenance of his other members of the family, being the refugee from the Azad Jammu & Kashmir. Therefore, as per the ratio of the judgments cited by the learned counsel for the petitioner, referred to in paragraph No. 4 of this judgment, it is settled that the property once allotted for the above purposes, goes out of the compensation pool and exqlusively vests in the Ministry for the Azad Jammu & Kashmir and thereafter, any allotment made by the Settlement Authorities, treating it to be an evacuee property, is without jurisdiction; shall be void and of no leg'al effect.
7. Anyhow, despite the above, the important questions to be examined in this case however, are:-
(i) The legal effect of non-assailment of the allotment/transfer in favour of the respondents by Hassan Muhammad;
(ii) Whether Muhammad Bibi was a co-allottee . And if not, whether the allotment of HassanMuhammad was heritable;
(iii) Evan if, the allotment .Order in favour of Ramzan was void, it should have' been challenged within the prescribed period of limitation or not;
(iv) _Whether the issue of limitation going agairrst the petitioner, ' has riot been assailed in the present revision petition, and its effects.
I find it expedient to decide the first two questions together. Though in the plaint, it is stated by the plaintiff that the allotment had been made in favour of Hassan Muhammadas also the others including her, but from the record, particularly the allotment orders, it transpires that it is only Hassan Muhammad, who was. The allottee of the property and the names of his other family members were incorporated perhaps to assess the needs for determining the quantum of the land required for the allowance. Even otherwise, the attorney of Muhammad Bibi, while appearing as PW.l, in clear and unequivocal terms has stated that Hassan Muhammad was the allottee and that Muhammad Bibi is agitating her claim on the basis of the allotment of her father; this is also the finding of the two Courts below that Muhammad Bibi is not the allottee and such findings have not been assailed in the revision petition. From all the above factors, it is answered that Muhammad Bibi was not the co- allottee and, therefore, in accordance with the law laid down in the judgment reported as Allah Rakhi vs. Sughra Bibi and othefe (1986 CLC 2095 at page 2096), such rights under the allotment are not heritable, with the legal effect that Muhammad Bibi could not competently challenge the allotment/transfer in favour of the respondents.
8. On the first'question, it may be held, that admittedly the land was allotted in favour of Ramzan by the settlement authorities on 3.10.1966 against his claim- vide RL-II No. 245 and this allotment was given due effect in the revenue record. Ramzan further sold the land to Muhammad Yaqoob vide Mutation No. 53, dated 31.3.1969. This action was not. Challenged by Hassan Muhammad, despite the fact that the physical possession under the said sale was delivered to Muhammad Yaqoob and his name duly appeared in the revenue record; Hassan Muhammad was alive till 1971 and despite being aware of the above, because of the change of the possession, he,did not throw any challenge to these transaction. Therefore, notwithstanding that the allotment was not he'ritable by her, in my view, she-had no locus standi and the cause of action to impugn the transaction, as being the successor of Hassan Muhammad, who during his lifetime had not assailed the allotment/transfers. I am fortified to hold that above, by the judgment of the Honourable Supreme Court reported as Abdul Haq and another vs. Mst. Surrya Begum and others (2002 SCMR1330), in which it has been held:- "Plaintiffs chiming property through A as his heirs and filed the sUiHin 1979, about,nine years after sanction of mutation, which had already been given feffect in the record-of-rights. Plaintiffs had no locus standi to challenge the mutation independently, for A through whom they claimed inheritance had not challenged the same during his lifetime."
9. As far as the arguments,, that the order of allotment in favour of Ramzan was void, therefore, being nullity in the eyes of law, it should be ignored and the entire superstructure built upon such void'order has no legal value; that there ist no limitation against the void order, thus the findings of the two Courts below on the issue of. Limitation should be reversed, suffice it to say that obviously, an order passed without authority or jurisdiction is void and nullity, but at the same time, it is a ground reality that the order was passed and in this case has been given due effect in the recbrd- of-rights, envisaging,. The respondents' ownership about the land, and this obviously resulted in depriving Hassan Muhammad from the fruits of his allotment, which wag meant to provide him and his family the allowance for their subsistence. But despite attaining the knowledge of such a void order, if Hassan Muhammad or the petitioner slept over the matter and allowed the prescribed period of limitation to expire, they cannot take refugee under the principle that void order does n6t carry any sanction of limitation, ln my view, a litigant does not have an unbridled and unfettered right or the prerogative to himself ignore the void order, allowing it to be acted upon and given due effect in the relevant record of ownership maintained by the state; let third party acquire and assert a right, whatever its worth may be, on account of that void order and then choose its own time and the value to challenge the order, not in the jurisdiction and hierarchy in which it is passed, but before the Civil Court, after the extinction of the requisite forms.Therefore, despite the legal position that a void order has no legal effect and the significance, yet vis-a-vis a person who is affected on account of such order, when he comes to know of the same, he cannot be allowed to remain silent and allow the prescribed period of limitation, for challenging the order affecting his rights, to pass and thereafter to initiate a cause as per his convenience after the expiry df the limitation.
10. ln the instant case, as has been mentioned earlier, the b^sic order of allotment was passed in favour of Ramzan in the year 1966, Who in the year 1969, transferred the land through sale in favour of Yaqoob, but for long 24 years the affected party never challenged the order through any proceedings and allowed the necessary change in the record-of-rights to remair\intact. Lt is also the finding of the two Courts below that wheK the sale was made in favour of Yaqoob, the possession of the land was delivered to the purchaser. Considering this to be an overt act on the part of Ramzan and Yaqoob in asserting their allotment and transfer and denying that of Hassan Muhammad, even on the basis of the void order, the period of limitation commenced from that point of time. My view, that the affected party has to bring an action within the prescribed period of, limitation, after attaining the knowledge of a void order, is fortified by the judgments reported as Muhammad Rai Khan vs. Government of N.W.F.P, and another (PLD 1997 SC 397), Sayed Sajid Ali vs. SayedWajid Ali (PLD 1975 Baghdad-ul- Jadid 29), Muhammad Ismail vs. Abdul Rashid and 2 others (1983 SCM R 168) AND Riasat Ali and 2 others vs. Mahmood Ahmad (1993 CLC 120). Therefore, I am not. Inclined to upset the findings of the Courts below .On the issue of limitation, which is a mixed question of law and facts and on factual premises, it has been held that the petitioner was aware of the allotment/transfer and had n6t challenged the same for long 24 years.
11. As regards the issue of, jurisdiction is concerned, I am of the considered view that the same has not been decided by the two Courts below in accordance with law. Obviously, Hassan Muhammad had the right to challenge the order in the settlement hierarchy, but at the same time, order being void in nature could always toe assailed before the Civil Courts, which are the Courts of ultimate inherent civil jurisdiction and under the settlement and rehabilitation laws, neither any protection has been provided to such orders nor the jurisdiction of the two Courts below on issue No. 3 are hereby reversed and it is held that the Civil Court possessed the jurisdiction to adjudicate the matter. - ln the light of above, this petition has no merits and is hereby dismissed.