' This R. S. A. Arises out of a suit filed by Karam Ali, who died during pendency of the litigation and was substituted by the respondents, for possession of Ahata No, 21, situate in Chak No, 61/5-L, Tehsil and District Sahiwal.
2. The facts giving rise to this litigation are that in the year 1929-30 the ahata in question was allotted to Noora, who built a house over the site which is in possession of his legal heirs, who on his death, were impleaded as a party during the course of hearing of the instant R. S. A. Karam Ali (deceased), who was a lambardar of the village, filed an application for alienation of the ahata in his favour, on the ground that it was situate within the zamindara line and could not be allotted to Noora, who was a Moeen. Before the Revenue authorities, he contended that Noora was a man of bad character and was thus not entitled to retain the allotment. The Colony Assistant on the report of the Naib-Tehsildar by his order dated 1st September, 1952 cancelled the allotment of Noora (deceased) and allocated the ahata to Karam Ali. Simultaneously, two mutations were sanctioned on 15th May, 1953. By virtue of mutation Exh. P. 1 Noora's allotment was cancelled, whereas by mutation Exh. P. 2 ahata was allocated to Karam Ali. Noora then applied for review of the order dated 1st September, 1952 on which the Colony Assistant himself inspected the spot and found that Noora had built a house since long and that Karam Ali obtained the allotment by fraud and concealment of facts. He was of the view that Noora's allotment was cancelled without service of notice on him under section 24 of the Colonization of Government Lands (Punjab) Act, 1912. Thus he by his order dated 1st May, 1953 Exh. D. 3 reviewed his previous order and restored the allotment of Noora. The file was then sent to the Collector who by means of his order dated 20th July, 1953 Exh.
D. I maintained, that a reference be made to the Financial Commissioner, as he could not interfere without his permission.
3. In the course of these proceedings, Karam Ali got the sale deed executed in his favour on 3rd July, 1958 and moved the authorities concerned for delivery of the possession to him. On this, the cost of the malba of the house built by Noora was assessed by the Naib-Tehsildar at Rs, 448.
However, the Settlement Officer by his order dated 21st June, 1957 maintained that Karam Ali should seek his remedy for delivery of possession through the Civil Court.
4. Karam Ati (deceased) therefore, filed a suit for possession which was resisted by Noora inter alia on the ground that he was in possession of the ahata for the last 40 years ; Karam All got the allotment by fraud and by misrepresentation ; no notice in accordance with law was served on him and that his allotment was restored by the Colony Assistant, in review.
5. The learned Civil Judge was of the view that the order Exh. D. 3 was in the nature of a report on which the order Exh. D. 1 was passed by the Collector, for making reference to the Financial Commissioner. He held that no final order cancelling the allotment of Karam Ali (deceased) was passed and he had already paid the sale price and the sale deed was also executed in his favour.
He maintained that resumption of ahata from the Noora was not warranted by law, but as section 36 of the Colonization of Government Lands (Punjab) Act was a bar to the interference by the Civil Court, the remedy of the appellant's predecessor-in-interest lay under the Act. In this respect he relied on Ghulam Muhammad and another v. Allah Bakhsh and others (I). Accordingly, he decreed the suit in favour of Karam All on 1st October, 1960 subject to payment of Rs, 448 as compensation to Noora.
6. The learned District Judge, upheld the findings of the learned trial Court and further came to the conclusion that no fraud was proved against Karam All during the trial. The execution of the sale deed in favour of Karam All weighed heavily with him in rejecting the appeal of Noora. He also struck down the condition imposed by the learned trial Court, for payment of compensation to Noora. The validity of the judgment and decree dared 3rd March, 1961 dismissing the appeal of Noora was questioned by him through the instant R. S. A. (1) AIR 1937 Lah. 78
7. The learned counsel for the appellant submitted that Noora was in possession of the ahata as an allottee since the year 1929-30 ; he had built a house and did not commit any breach of the conditions of allotment. No notice as required by section 24 of the Colonization of Government Lands (Punjab) Act, 1912, was served on him and opportunity given to rectify the breach of condition of allotment, if any. In this regard he heavily relied on the Colony Officer's order Exh. D. 3 to contend that the resumption of ahata from the name of Noora was void and the subsequent orders as to the allotment in the name of Karam Ali, attestation of mutation and execution of sale- deed in his favour, which were based on a void order, suffered from the same legal infirmity. In his submission, the respondents' predecessor-in-interest could not be deemed to have validly acquired proprietary rights in the ahata in dispute. The propriety of the findings of the learned two Courts below against Noora in this respect, was seriously questioned by the learned counsel.
8. The respondent's learned counsel, on the other hand, adopted the reasoning which found favour with the learned two Courts below and further urged that under section 36 of the Colonization of Government Lands (Punjab) Act, the orders passed by the authorities below could not be assailed for want of notice, before the civil Court. According to the learned counsel, the question of legality of allotment of Karam Ali could not be gone into by the civil Court. He also referred to Ghulam Muhammad's case cited in the trial Court's judgment.
9. As the main attack of the learned counsel for the appellant, on the validity of the allotment made to Karam Ali (deceased), was anchored on section 24 of the Act it became necessary, to examine the contention of Mr. Abid Minto as to whether or not this issue was justiciable before the civil Court.
Undeniably, section 36 of the Colonization of Government Lands (Punjab) Act, ousts the jurisdiction of the Civil Court in all those matters which the Collector is empowered to dispose of under the Act.
Section 24 casts an obligation on the Collector to give an opportunity to a tenant in possession of the land, to state his objection before resumption of his allotment and imposing penalty on him.
But it is well established that though a Court may not be competent to entertain a suit, yet the plea raised in the written statement may be adjudicate upon, if the suit in which the written statement is filed, can be heard by the Court. In this connection a reference to Mst. Fahmida Bibi v. Mukhtar Ahmad and another (1) will provide assistance :- "...It is one thing to say that a Court has no jurisdiction to entertain a suit in respect of a particular matter and quite another that he cannot in respect of that matter raise a plea in defence in a suit which is within the competence of the Court. It is well settled law that though a Court may not have jurisdiction to entertain a suit in respect of a certain matter, yet it I competent for the Court to entertain a plea based on that in defence, when the determination of that question is necessary for the decision of the suit itself which is within its exclusi1/44 jurisdiction..."
' The objection of the respondent's learned counsel is thus without any merit.
10. As observed above, the Collector was under a statutory obligation to serve a notice on the appellant's predecessor-in-interest and give him an opportunity of being heard before resuming the ahata from his name. The Colony Assistant's order dated 1st May, 1953 establishes beyond doubt that requirements of section 24 were not complied with. In Mst. Zainab Bibi and 3 others v.
Commissioner, Lahore Division, Lahore and 3 others (1) the resumption of ahata without complying with the pro visions of section 24 was held without lawful authority. It is now well settled on the basis of a long line of authorities that an order passed without notice and without hearing the affected party is void and no legal sanction attaches to the superstructure based on a void order.
In this connection, reference may be made to Yousaf All v. Muhammad Islam Zia and 2 others (2).
In Atta Muhammad Qureshi v. The Stttlemeut Commissioner, Lahore Division, Lahore and 2 others
(3) it was laid down :- "The argument that the appellant had an opportunity of being heard by the Settlement Commissioner, which is a sufficient redress for his grievance, may be well-founded when the grievance is made to rest on the principle of natural justice, viz., audi, alteram partem (nobody is to be condemned unheard). But when, as already stated above, an absolute requirement of the statute has been defied, the order passed is a nullity."
11. There is thus much force in the submissions, of the appellants' learned counsel that the order of resumption passed against Noora in violation of section 24 of the Act, was a void order and consequently the allotment made in favour of Karam Ali and the subsequent order passed in this respect could not be sustained. It may be observed that under Para. 47(7) of the Standing Order No, 67 issued by the Board of Revenue the mutation in the name of Karam All regarding alienation of the ahata could only be sanctioned and change made in the revenue record, after the execution of sale-deed in his favour. But, in the instant case Exh. P. 2 was sanctioned long before the execution of the sale-deed. In the circumstances of the case, no valid title was conferred on the respondents' predecessor-in-interest. In Ghulam Muhammad's case referred to above by the respondents' learned counsel, the alienation made by a widow of an allottee, who had had acquired occupancy rights, was challenged by the heirs of the allottee through a civil suit. The suit was decreed on the ground that the proprietary rights were conferred on the widow.In violation of the rules framed under Act 5 of 1912. In second appeal, the High Court took the view that under section 36 of the Colonization of Government Lands (Punjab) Act, 1912, the civil Court could not examine the issue as to whether or not the requirements of the rules were complied with. In the case in hand, the plea based on section 24 of the Act was raised in defence. Ghulam Mohammad's case is thus distinguishable and this case is not hit by the ratio of that judgment.
12. For the foregoing reasons, this appeal is accepted, the judgment and decree under appeal are set aside and the respondent's suit dismissed leaving the parties to bear their own costs.
(1) PLD 1976 Lab, /320
(2) PLD 1958 SC (Pak.) 104
(3) PLD 1971 SC 61