' MIAN SAQIB NISAR, J.---Civil Revision No,1364 of 1993 and Civil Revision No,1751 of 1993, are being disposed of together, as both involve the common questions of law and facts.
2. The disputes between the parties relates to the land measuring 1200 Kanals situated in Chak No,7, Mauza Rakh Mankera, Tehsil Mankera District Bhakkar, which according to the case of the respondent/plaintiff was allotted to him as Lot No,188 on 28-3-1953 under the Tube-well Scheme, but it was cancelled and resumed by the Thal Development Authority on 26-8-1963, constraining respondent No,1/plaintiff to file a suit for the declaration on 10-2-1987, against the Province of Punjab and the TDA, challenging the cancellation order dated 26-8-1963 qua the aforesaid lot by the TDA, on the ground that he had been delivered the possession of the property; had made the first instalment of Rs,1350 and that the cancellation has been made without giving him any opportunity of hearing.
3. It may be relevant to mention here that the plaintiff initially filed the suit against the Province of the Punjab and the TDA, but subsequently vide order dated 24-7-1991, the petitioner was also impleaded as defendant No,3 (respondent No,1 in C.R. No,1751 of 1993); he has contested the suit by stating that the Lot No,188 earlier granted to the respondent, was resumed and later on it was re- allotted to him under the new Colony Scheme of 1963 on 10-10-1964 and since then he is in continuous possession of the land. The Province of Punjab and the TDA also contested the matter; they partly supported the case of Sardar Ali, to the extent that the lot measuring 1200 Kanals i.e, the suit-land, has been allotted to him, but have some different version for the allotment of remaining 800 Kanals, out of 2000 Kanals as was claimed by Sardar Ali. Anyhow, this is not much relevant for the purposes of these petitions. Out of the pleadings of the parties; the learned trial Court framed the following issues:--
1. Whether the plaintiff is owner in possession of the suit-land? OPP
2. Whether the order of defendant No,2 dated 26-8-1963 for the cancellation of the lot is against facts and law, without jurisdiction hence void and ineffective upon the rights of the plaintiff? OPP
3. Whether the plaintiff has got no cause of action? OPD
4. Whether this Court lacks jurisdiction? OPD
5. Whether the suit is not maintainable in its present form? OPD
6. Whether the plaintiff has received back the advance money, hence the suit is collusive? OPD
7. Whether the suit is time-barred? OPD 7-A Whether the suit-land was merged into Lot No,165 new Scheme? OPD-3 7-B Whether defendant No,3, was properly allotted land on 5-10-1964 in which The suit-land was merged? OPD-3 7-C. Whether defendant No,3, has made improvement over it and how much? OPD-3
8. Relief.
4. The parties were put to trial; the respondent/plaintiff examined P. W.1 Muhammad Akram, Ledger Clerk, P.W.2 Faiz Muhammad, Colony Clerk, P.W.3 Karim Bakhsh, the' attorney, P.W.4 Muhammad Iqbal, neighbour of the land; besides, the oral evidence, the plaintiff also produced three documents Exh.P.1, the power of attorney, Exh.P.2 is "Fard Taqseem" and Exh.P.3 is Kha, Girdawari. As against the above, Sardar Ali himself appeared as D.W.2 and examined D.W.1 Iqbal Hussain, Ledger Clerk, D.W.3 Sikandar Khan, Zamindar of the area, D.W.4 Muhammad Yaqub, Patwari, D.W.5 Faiz Muhammad, Clerk, and D.W.6 Muhammad Siddique, Zamindar of the area; besides the above, the documents Exh.D.1 to Exh.D.9 have also been tendered in evidence.
5. The learned trial Court, after conclusion of the trial, vide judgment and decree dated 30-3-1993 dismissed the suit, inter alia holding, that in view of the bar contained in section 36 of the Colonization of Government Lands Act, 1912, it had no jurisdiction and that the suit is barred by time; that the plaintiff had withdrawn the amount of Rs,1,350 and that he had failed to fulfil the conditions of allotment. It was also concluded that upon his allotment, the possession was delivered to Sardar Ali since the year 1964, who continues to hold the same. Aggrieved of the above, respondent No,1 preferred an appeal, which has been accepted on 20-7-1993 and the learned Court of appeal has held that the Civil Court has the jurisdiction; the respondent/plaintiff was given no opportunity of hearing before the cancellation of the lot and thus, he has been condemned unheard, resultantly the bar of limitation against such void order shall not operate; besides, the respondent/plaintiff has been proved to be in possession of the property on account of the Khasra Girdwari (Exh.P.3).
6. Respondents Nos.1 (i) to (vi), in the noted C.R. No,1364 of 1993 have been proceeded ex parte vide order dated 6-7-2005.
7. Ch. Khurshid Ahmad, the learned counsel for the petitioner in the noted civil revision contends, that under the provisions of section 36 of the Colonization of Government Lands Act, 1912, the jurisdiction of the Civil Court was totally barred and, therefore, the view taken by the learned Court of appeal is contrary to the law settled in the following judgments:-- ' Karam Din v. Member, Board of Revenue, West Pakistan, Lahore and others (PLD 1968 Lahore 321); ' Abdul Hamid and others v. Province of the Punjab through Collector, Faisalabad and others (1989 SCMR 1741); ' Muhammad Ishaq v. Abdul Ghani and 3 others (2000 SCMR 1083), and ' Muhammad Ishaq v. Abdul Ghani (2000 CLC 159).
' On the proposition of limitation, it is submitted that the land in question was admittedly cancelled from the name of the respondent/plaintiff in the year 1959, was allotted in favour of the present petitioner in 1964; since then the petitioner has been in possession of the property, resultantly under the provisions of Article 14 of the Limitation Act, the maximum period to challenge such cancellation order of the respondent's lot or the allotment in favour of the petitioner is one year, without prejudice even conceding for the sake of arguments, the Article 14 is not applicable, yet under the residuary Article 120, the period of limitation is six years. But the suit was filed after 25 to 30 years of the order/action event, which was hopelessly barred by time. As regards the so called explanation in this behalf given by the respondent/plaintiff in Paragraph No,4 of the plaint, Ch. Khurshid Ahmad, Advocate has argued that the plaintiff avers to have acquired the knowledge of the cancellation etc. 15 days before the filing of the suit, and also asserts to be in continuous possession of the suit property, but both these pleas on the face of it are absolutely fake and not proved on the record; the lot was cancelled from the name of the respondent, as stated by him, in 1959 and the possession was taken from him at that time, therefore, he is supposed to have known the action, and the plea raised is an abortive attempt to cover up the lost limitation.
8. In the connected C.R. No,1751 of 1993, the learned A.A.-G., appearing for the petitioners, states that the respondent/ plaintiff in fact had withdrawn the amount of Rs,1,350, which he had initially deposited as the first instalment and, therefore, he is estopped by his own conduct to challenge the cancellation of the lot.
9. Heard. As regards the question of jurisdiction is concerned, the proposition has been duly answered by the judgments quoted by the learned counsel for the petitioner. Obviously, in the facts and circumstances, the Civil Court had no jurisdiction, because the jurisdiction had vested exclusively with the authorities under the Colonization of Government Lands Act and no attempt has ever been made to avail the appropriate remedy in that hierarchy. On the point of limitation, I am of the clear view that it is established on the record that the allotment in favour of the respondent/plaintiff was cancelled in 1959, he was deprived of the possession, which was delivered to Sardar Ali, meaning thereby that the respondent was out of the possession since 1964, but he initiated no action, therefore, even if the provisions of Article 120 of the Limitation Act are applied, the suit on the face of it was out of limitation. Resultantly, the learned Court of appeal has not considered the record in its true and proper perspective, and the decision is based upon misreading and non-reading of the evidence and against the law, thus, such findings on the requisite issues cannot sustain.
' For whatever has been, stated above, both the revision petitions are allowed, the impugned judgment and decree of the learned Court of appeal is set aside and that of the learned trial Court is upheld, with the consequences that the suit of the respondent/plaintiff shall remain dismissed.