' SYED HAMID ALI SHAH, J.---This revision petition has called in question judgment and decree, dated 10-10-2000 of the learned Addl. District Judge, Bhakkar whereby the appeal filed by respondents Nos. 1 to 9 against judgment and decree, dated 2-10-1997 of learned Civil Judge, Bhakkar dismissing that suit for decree for declaration and possession against the revision petitioners and the remaining respondents was accepted.
2. Nazir Ahmad son of Karim Bakhsh predecessor-in-interest of respondents Nos. 1 to 9 was allotted 1197 kanals of land comprising lot No, 284 located in Mauza Rakh Mankera Tehsil Mankera District Bhakkar (hereinafter referred to the disputed land under tube-well scheme) on 15-4-1953. The aforesaid Nazir Ahmad accordingly deposited Rs,1350 as advance money. The petitioners after resuming the disputed land through order, dated 12-10-1959 allotted it to respondents Nos. 11 to 20.
In the year, 1988, the aforesaid Nazir Ahmad breathed his last. His legal heirs, respondents Nos. 1 to 9, on 9-12-1989 instituted the instant suit for declaration. It was inter alia asserted in the plaint that the predecessor-in-interest of the respondents had paid Rs,1350 along with trial boring fee and thereafter further paid Rs,371.25; that the disputed land which was barred and uncultivable was made cultivable by spending huge amount of Rs,95,000; that houses were built, hand-pump was installed and trees were planted in the disputed land; that the petitioners violated the terms of the allotment as they failed in conducting the trial boring nor any place was earmarked for residence of the petitioners. It was further groused that no notice was given before the resumption of the disputed land. Thus decree for declaration was sought to the effect that the respondents Nos. 1 to 9 were owners of the disputed land. Subsequently, plaint was amended to incorporate the relief of possession of the disputed land.
3. The suit was resisted by the revision petitioners. Various preliminary objections were raised and averments of the plaint were controverted on merits. It was pleaded that on 29-4-1960, Nazir Ahmad allottee had made an application for the cancellation of the allotment of the disputed land from his name and as such the allotment was cancelled and refund voucher was issued. It was also pleaded that the aforesaid allottee had violated the terms of the allotment.
4. Out of the divergent pleadings of the parties, various issues were framed and respective evidence of the parties was led in response to issues framed.
5. Respondents Nos. 1 to 9 examined P.W.1 Iqbal Hussain Ledger Clerk who deposed that the allottee had paid Rs,1350 and thereafter on 28-7-1956 had deposited Rs,371.25. He expressed his unawareness whether the aforesaid amount included trial boring fee. P.W.2 Allah Wasaya Tubewell Clerk on the basis of record, deposed that allotment of the disputed land from the name of Nazir Ahmad was cancelled on 12-10-1959 by the order of C.O. Jauharabad. He added that various notices were issued to the allottee and service was also effected by affixation of notices. Abdul Wahid one among the respondents No, 1 to 9, appeared as P.W.3 to reiterate the averments of the plaint. As against this, the petitioners merely tendered in evidence, copies of documents Exhs. D.1 to D.17. After the conclusion of trial the suit was dismissed by the learned Civil Judge, Bhakkar through judgment and decree, dated 2-10-1997, which was assailed in appeal. The Same was accepted by learned Addl. District Judge, Bhakkar on 10-10-2000 vide impugned judgment and decree, hence this revision petition.
6. Learned Additional Advocate General, Punjab representing the petitioners, has contended that order of resumption was open to challenge by way of appeal or revision, under the Colonization of Government Lands Act, 1912. Cases of (1998 SCMR 468) and (2000 CLC 159) were referred in this respect. The suit was not competent. It was contended that learned lower appellate Court has not discussed the question of maintainability of the suit. Learned Law Officer has referred to Exh.D/1, Exh.D/2, Exh.D/3 and Exh.D/4, notices, dated 30-11-55, 27-11-1955, 3-7-1956 and 29-11-1956 to contend that respondents Nos. 1 to 9 were called upon to deposit the balance amount. Notices, dated 6-7-1959 and 20-8-1959 (Exhs.D/5 and D/6) were referred to establish that predecessor-in- interest of respondents Nos. 1 to 9, was duly informed about violation of conditions Nos. 8, 11 and 12 of Grant of Lease. It was argued that it is evident from perusal of Exhs.D/8 and D/9 that land disputed is "Banjar Qadeem" and allottee is absent. It was then contended that predecessorin- interest of respondents Nos. 1 to 9, through Exh.D/1 1 , applied for withdrawal of amount of Rs,1350 deposited by him and the same was refunded through Exh.D/12. Learned Law Officer then submitted that through the report of Naib Tehsildar Bhakkar, dated 12-9-1963, it is reflected that order of resumption was fully implemented. Learned Addl. Advocate-General further added that learned appellate Court reached erroneous conclusion that Exh.D/14 is in favor of respondents Nos.1 to 9. After making those submissions, it was contended that respondents Nos. 1 to 9, at the time of amending the plaint, has failed to mention or prove as to when they were dispossessed. Cases of (1980 CLC), Pakistan Railways through Divisional Superintendent v. Karachi Development Authority and 5 others (PLD 1992 Karachi 74),Muhammad Mian v. Syed Shamimullah and 2 others (PLD 1993 Karachi 146) and Ahmad Yar v. Miran Bakhsh and others (PLD 1951 B.J. 36) were referred to contend that suit for declaration is not competent, when plaintiff is not in possession of the disputed property. It was vehemently argued that order of resumption was challenged through filing a suit on 9-12-1989. The suit was filed after 30 years. The suit is barred by limitation.
7. As against this, learned counsel for respondents Nos. 1 to 9 has contended that the order of cancellation of allotment of the disputed land from the name of the predecessor-in-interest of respondents Nos. 1 to 9 was passed without affording an opportunity of being heard and as such that order was void. In this context, the learned counsel has sought support from the dictum laid down in Mst. Rehmat Bibi v. Panju Khan and others (1986 SCMR 962). Learned counsel has stressed that if an order is passed without hearing and notice to a party, whose presence is otherwise necessary, such order would be a nullity in the eye of law, and no question of limitation would arise.
Further reliance has been placed on the case-law of "Bahadur v. Collector Jhang and another"
(1984 CLC 2955). Learned counsel has further contended that the petitioner had not made trial boring in spite of deposit of fee and for this reason sinking of tubewell could not be effected. It was thus urged that the breach of condition is not attributable to respondents Nos. 1 to 9. Learned counsel in this respect found support from the dictum laid down in "Zaheer ud Din Khan and another v. T.D.A." (1988 MLD 1690) and "Administration Thal, Bhakhar v. Mst. Zakia Bibi and others"
(1988 MLD 2154). Learned counsel, in order to meet the objection of limitation, contended that the suit having been filed within one year of the gaining of knowledge of the resumption of the disputed land was within time. Learned counsel added that the order of cancellation of allotment of the disputed land being void was rightly struck down by learned Addl. D.J. And argued that the impugned judgment is unexceptionable. Learned counsel for respondents Nos. 11 to 20 who have now been transposed as petitioner has toed the case of the petitioner and stood behind the judgment and decree, dated 2-10-1997, passed by learned Civil Court.
8. I have given my serious and earnest considerations to the contentions of learned counsel for the parties.
9. What falls for determination is whether the order of resumption of the disputed land Exh.D/10 is justified, valid and unassailable. As noted earlier the plank of the petitioner's case is that Nazir Ahmad, allottee vide his application Exh.D/11 had himself applied for the cancellation of allotment of the disputed land from his name. Exh.D/11 has not been seriously disputed by respondents Nos. 1 to 9. In any eventP.W.2 Allah Wassaya tubewell clerk proved the authenticity of Exh.D/111 Respondents Nos.1 to 9 are of course bound by the testimony A of their witnesses. Not only this vide refund voucher of Exh.D/12 the amount of Rs,1350 was sent to the allottee at his given address. As such it does not lie in the mouth of respondents Nos. 1 to 9 to claim the order of resumption of the disputed land was illegal and unjust.
10. Reverting to the objection of respondents Nos. 1 to 9 regarding affording an opportunity of being heard before resumption of the disputed land. The copies of various letters/notices are available on record, i,e, Exhs.D/I to D/8, which were issued to the allottee at his given address. Presumption of correctness and regularity is attached to these documents which are copies of official record. If any case law is needed, reference can be made to the cases of "Harihar Banerji and others v.
Ramshahshi Roy and others" (AIR 1918 PC 102), "Bashir Ahmad v. Mumtaz Khan" (PLD 1965 (W.P.)
Lahore 126), "Messrs Industrial Development Bank of Pakistan v. Messrs Sarela Cement Limited Company" (1993,CLC 1540) and "Messrs Waqas Enterprises and another v. Allied Bank of Pakistan Ltd., Lahore and 2 others" (1997 CLC 675).
11. The contention of respondents Nos. 1 to 9 that the revision petitioners had not made trial boring in spite of receipt of fee. No payment of fee is shown to have been made. P.W.1 Iqbal Hussain Ledger Clerk minced no words in deposing that there was no trace of the payment of the trial boring fee.
12. Notwithstanding the above, it has to be seen whether the allottee had contravened the conditions of the allotment. As is discernible from the evidence of P.W.1. Iqbal Hussain Ledger Clerk that the allottee had made advance payment of Rs,1350 at the time of allotment and thereafter, on 28-7-1956 had deposited Rs,371.25. Afterwards not a single penny was deposited by the allottee.
Repeat no amount was deposited by the allottee. As such by making default in payment, the allottee had contravened the conditions of the allotment. The period of limitation under Article 14 of the Limitation Act is one year. But the suit was filed after thirty years of the resumption of the disputed land. As such the suit was barred by time. The evidence on record does not prove that respondents Nos. 1 to 9, remained unaware of order of resumption, despite lapse of 30 years and in the circumstances that the land was subsequently allotted to respondents Nos. 11 to 20. There is no evidence on the record to prove that deceased Nazir Ahmad during his life time, remained unaware of the order of resumption. Application for refund of deposit, withdrawal and issuance. Of refund voucher proves that the allottee had the knowledge of resumption.
13. In view of what has been discussed above, learned Addl. District Judge, Bhakkar committed illegality, and material irregularity in accepting the appeal and reversing the decision of the learned Civil Judge. Thus the impugned judgment is not sustainable and is liable to be set aside in the revisional jurisdiction of this Court. Resultantly, the petition in hand is accepted and impugned judgment and decree of the learned Addl. District Judge, Bhakkar is set aside. Consequently, judgment and decree of the learned Civil Judge, Bhakkar, whereby he dismissed the suit of respondents Nos. 1 to 9 stands restored. No order as to costs.