1. ' ARSHAD NOOR KHAN, J.--- This High Court Appeal has been directed against the order, dated 4-4- 1996 passed by the learned Single Judge of this Court in Suit No,245 of 1995 Farooq Inayat and others v. Haji Abdul Sattar and others 'whereby the plaint has been rejected under Order VII, rule 11, C.P.C.
2. ' The facts leading to the present appeal in brief are that the appellants filed suit for declaration, injunction, cancellation and damages against the respondents stating therein that the appellants are the legal heirs of Shaikh Inayatullah and Muhammad Yousuf Barlas non-claimant displaced persons from India who were the joint allottees of Property bearing No,SR-519, 181, Corner Chambers, I. I. Chundrigar Road, Karachi, which property initially was leased out by the defunct Government of India to some Mahata family for 99 years in 1862 for the purpose of rest house for Hindu Marvari and the said property is popularly known as Marvari Dharmshala. The said property subsequently after creation of Pakistan was claimed by the evacuee trustee who migrated to India by way of filing Suit No,216 of 1949 for sale or exchange of the said property which was decreed on 1-2.1950 and were allowed permission to sell or exchange the disputed property without prejudice to the right of Custodian of Evacuee Properties, since the property was in dilapidated condition, the K.M.C. Declared it dangerous and ordered for its demolition, but the Custodian Evacuee Properties vide order. Dated 2-61950 authorized the deceased allottees (predecessors in interest of the appellants) to reconstruct it on approved cost of Rs, _125,935 with 6% interest thereon which amount was declared to be a charge on the property in favour of the allottees, which order was challenged by Manager, Sharoof who subsequently did not pursue the said review petition, as such, the Custodian Properties restored the order, dated 19-7-1951 in favour of the deceased allottees (predecessors in interest of the appellants). The Custodian department also issued clearance certificate dated 11-12-1951 in favour of the deceased allottees stating therein that the property has been treated as evacuee property. The deceased allottees reconstructed the building as per order of the Custodian Evacuee Properties dated 19-7-1951 at the cost of Rs,142,945. The property was then initially transferred in favour of predecessor in interest of the parties namely Inayatullah and Muhammad Yousuf vide PTD dated 29-1-1964 by the Deputy Settlement Commissioner, Karachi as well as in favour of Haji Abdul Karim son of Tayyab in an open auction vide PTD dated 28-6-1963 thereafter the parties continued their possession over the property allotted to them and meanwhile the original allottees expired, therefore, the appellant No,2 in order to transfer the property amongst the legal heirs of deceased Muhammad Yousuf Barlas traced PTD for mutation but did not succeed and applied before respondent No,7 for issuance of copy of PTD and the respondent No,7 instead of issuance of copy of the PTD pointed out that the entries in the C.S.C.IV, V and "F" registers were checked and did not tally with the other registers and further noted that applicant Khalid Barlas expressed his ignorance of the fact whether or not PTD was issued in favour of his father, as such, he recommended to Settlement Commissioner for cancellation of PTD vide his order, dated 29-7- 1979. According to the appellant the said order was never communicated to them and they came to know about the said order as well as cancellation of the PTD issued in favour of their deceased father in some other proceedings as such they filed the present suit for declaration, injunction, cancellation as well as for damages. All the respondents have been served and filed their respective written statements before the learned Single Judge. The learned counsel for the respondents Nos.1 to 6 filed application under Order VII, rule 11 read with section 151, C.P.C. Being C.M.A. No,3782 of 1995 for rejection of the plaint on the ground that the suit was barred under the law of limitation as well as under the provisions of sections 10 and 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, hereinafter shall be referred to as "the Act 1975". The appellant contested the said application and the learned Single Judge after hearing the learned counsel for the parties allowed the application and rejected the plaint mainly on the ground that, the suit filed by the appellant was barred under Article 91 of the Limitation Act as well as under section 14 of the Act, 1975. Being highly aggrieved and dissatisfied with the order passed by the learned Single Judge, the appellants have preferred the present appeal to question the sanctity of the order passed by the learned Single Judge.
3. ' We have heard Mr. Khalid Farooqui, Advocate and Mr. M. Asif Malik, Advocate for the appellants and Mr. Khalil-ur-Rehman, Advocate, Mr. Anjum Ghani, Advocate, Mr. Haider Shaikh, Advocate, Mr. Ashiq Ali Anwar Rana, Advocate and Mr. Umer Hayat Sandhu, D.A.-G. For the respondents.
4. ' Mr. Khalid Farooq, Advocate for the appellants vehemently contended that the learned Single Judge wrongly rejected the plaint under Order VII, rule, 11, C.P.C. On the ground that it was barred under Article 91 of the Limitation Act whereas the appellants were not in knowledge about the order of cancellation of PTD issued in favour of their father and the said fact enlighten to them in the proceedings initiated before the respondents Nos.8 and 9 by one tenant Saifur Rahman and they immediately filed the present suit as such the limitation should be computed from the date of knowledge acquired by the appellants. He further contended that PTD was issued prior to 30-6- 1964 as such the property in any way could not be treated as evacuee trust property but falls under the compensation pool and was available for disposal by the Settlement Department and was rightly purchased by the predecessor-in-interest of the appellants and since the Evacuee Laws were repealed by the Act 1975, therefore, subsequently the property in question was neither pending for disposal nor was remanded by the superior Courts for adjudication before the Authorized Officer appointed by the Government under the repealed laws, therefore, the order regarding cancellation of the PTD was void, coram non judice and the Settlement Commissioner/Deputy Settlement Commissioner in any way were not competent to cancel the PTD already issued in the year 1964. He further pointed out that the suit filed by the appellant was not only filed for declaration but the suit was also filed for injunction, cancellation of documents and damages against the respondents and the suit could not be rejected without recording of evidence as such order passed by the learned Single Judge is illegal and contrary to the provisions of repealed D.P. Laws. In support of his contention, learned counsel for the appellant has relied upon the case of Tariq Mahmood Chaudhry v. Najamuddin reported in 1999 SCM R 2396, case of Nawab Syed Raunaq Ali v. Chief Settlement Commissioner and others reported iti PLD 1973 SC 236, case of Deputy Administrator, E.T.P.B. v. Badal and others reported in 2005 SCM R 1286, case of Ghafoor Bukhsh v. Haji Muhammad Sultan and others reported in 2001 SCM R 398, case of Khawaja Bashir Ahmed v. The Additional Settlement Commissioner, Rawalpindi and others reported in 1991 SCM R 1604, case of Muhammad Younus and others v. Muhammad Younus Khan reported in 1981 SCM R 899, case of Sher Afzal Khan and others. v. Haji Razi Abdullah and others reported in 1984 SCM R 288, case of Khyber Tractors (Pvt.) Ltd. v. Pakistan through Ministry of Finance, Revenue and Economic Affairs Islamabad reported in PLD 2005 SC 842, case of Federal Government of Pakistan v. Khurshid Zaman Khan and others reported in 1999 SCM R 1007, case of Sardar Ahmed Yar Khan Jogezai and others v. Province of Balochistan through Secretary, C&W Department reported in 2002 SCM R 122, case of Muhammad Shafi v. Mushtaq Ahmed and others reported in 1996 SCMR 865, case of Sultan Hassan Khan and others v. Mst. Nasim Jahah and others reported in 1994 SCM R 150, case of Hamid Hussain v. Government of West Pakistan and others reported in 1974 SCM R 356, case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi reported in PLD 1965 SC 698, case of Abbasia Cooperative Bank (Now' Punjab Provincial Cooperative Bank (Ltd.) through Manager and others v. Hakeem Hafiz Muhammad Ghaus and others reported in PLD' 1997 SC 3, case of Jan Muhammad through Mubarik Ali and others'v. Nazir' Ahmed and others reported in 2004 - SCMR 612, case' ofWali and others v. Akbar and others reported in 2005 SCM R 284, case of Abdul Waheed v. Mst. Ramzanu and others-reported in 2006 SCM R 489, and the case of Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi reportectin PLD 1976 SC 785.
5. ' Mr. Khalil-tivitehman, Advocate for respondents Nos.1 td vehemently contended that die property in, dispute originally was the evacuee trust property which was not available for transfer by the Settlement Authorities and the Settlement Authorities issued the PTD in excess of their powers, and was rightly cancelled by the Settlement Department. He further contended that the appellants themselves have also submitted to the jurisdiction, of Chairman(Evacuee Trust Board by filing of appeal before Chairmaii Evaenee Trust Board as well as revision before the Goveiiiment under the evacuee trust laws, therefore, it does not lie in their mouth to question the jurisdiction of the Chairman, Evacuee Trust Properties at this belated stage and since revision filed by the appellants was initially decided by the Evacuee Trust Board, therefore, the suit was completely barred under sections 10 and 14 of the Act, 1975. He further contended that the order impugned was passed by the Deputy Settlement Commissioner on 29-7-1979 and the suit has been filed in the year 1995 as such the suit was hopelessly barred by limitation and the learned Single Judge rightly rejected the plaint under Order VII, rule 11, C.P.C. In support of his contention he has relied upon the case of Khalid Mahmood and others v. Chaudhry Ghulam Muhammad reported in 1982 SCM R 557, case of Wali and others v. Akbar and others reported in 1995 SCM R 284, case of Evacuee Trust Properties Board and another v. Akhtar and others reported in 2004 SCM R 440, case of Federation of Pakistan through Secretary, Ministry of Finance, Government of Punjab and others v. United Sugar Mills reported in PLD 1977 SC 397, case of Deputy Commissioner Pasheen v. Abdul Salam and others reported in PLD 1991 Quetta 121, and the case of Dr. Syed Raza Gardezi v. Nazad Ali reported in PLD 2004 Kar.
6. 143.
7. ' The learned counsel for remaining parties have adopted the arguments advanced by Mr. Khalil- ur-Rahman, Advocate.
8. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us as well as the case-law on the subject.
9. ' The fact as emerged out from the record is that the Settlement Department issued PTD in respect of disputed property in favour of predecessor-in-interest of the appellant on 29-1-1964 and by that time the property was not treated to be trust property and the said PTD remained intact in the name of predecessor-in-interest of the appellants till 1979 when on the application of the appellants regarding issuance of true copy of PTD, the Deputy Settlement Commissioner recommended for cancellation of PTD in favour of the father of appellants vide order, dated 29-7- 1979. Admittedly the D.P. Laws have been repealed by promulgation of the Act, 1975 and by virtue of section 2(2) of the Act, 1975 all the matters in which proceedings pending before such repeal, before the authorities appointed thereunder shall stand transferred for final disposal to such officers as notified by the Provincial Government in the official gazette including all the cases decided by the Honourable Supreme Court and High Courts after such repeal which would have been remanded to any such authority in the absence of such repeal shall be remanded to the officers notified by the Government and on receipt of such matters either from the Settlement Department or from the Supreme Court the said Notified Officers shall adjudicate upon the said matters. It is abundantly clear that on 29-7-1979 when the Deputy Settlement Commissioner passed the order regarding the recommendation to the Settlement Commissioner for cancellation of the property in dispute, admittedly matter in respect of the property was neither pending for disposal nor any litigation in this respect was pending before the settlement authorities nor the matter was remanded to the Notified Officer for disposal according to law, as such for all practical intent and purposes the property in question was neither available for transfer nor the Settlement Authorities had powers to cancel the PTD issued in the year 1964 in favour of the predecessors-in- interest of the appellants on any ground including the non-availability or traceability of the record in the office of the Deputy Settlement Commissioner.
10. ' Admittedly the PTD has been issued in favour of the predecessors-in-interest of the appellants in the year 1964 as such subsequent claim of the Evacuee Trust Board is illegal in view of section 10 of the Act, 1975, which speaks about the proposition that in case an immovable evacuee trust property if situated in a rural area and utilized bonafidely prior to June, 1964 for allotment against the satisfaction of verified claim and if the property situated in urban area and utilized bonafidely for transfer against satisfaction of verified claim in respect of which PTD issued prior to June, 1968, shall be revealed to have been validly transferred to sale to the Chief Settlement Commissioner and the sale proceeds thereof shall be reimbursed to the board and shall form part of the trust pool. Section 10 (ibid), therefore, postulates that, in case, if the property has been bonafidely transferred prior to target date viz. June, 1964 and June, 1968, in the case of situation of properties in rural and urban areas, the same should be treated as validly transferred against the satisfaction of the claim. Admittedly in the present case, the PTD was issued prior to the target date mentioned in section 10, (ibid), therefore, subsequently the respondents Nos.8 and 9 could not claim the said property to be the property of Evacuee Trust Property Board.
11. ' The PTD issued in favour of the predecessor-in-interest of the appellants has been cancelled on the recommendation of Deputy Settlement Commissioner vide his order, dated 29-7-1997 by the Settlement Commissioner but at the relevant time of cancellation of PTD, it is not borne out from the record that Deputy Settlement Commissioner and the Settlement Commissioner were the Notified Officers in view of section 2(2) of the Act, 1975 as such the order passed by respondents Nos.8 and 9 appears to have been passed by the authorities who possess no powers or lawful authority to pass such order in absence of their appointment as Notified Officers after repeal of D.P.
12. Laws. The same point as involved in the present case came for consideration before the Honourable Supreme Court in the case of Deputy Administrator, ' E.T.P.B. 2005 SCM R 1286, wherein while considering the scope of section 10 of the- Act, 1975, the Honourable Supreme Court was pleased to observe that PTD could not be cancelled by the Settlement Authorities after they had become functus officio and such transfers were validated by operation of section 10 (ibid). The authorities at no point of time had raised- the question that the property had not been utilized bonafidely by the Settlement Department. In the present suit also nowhere the official respondents' have claimed that the property was not utilized at the time when PTD issued in favour of the predecessors-in-interest of the appellants, as such, the observations made by the Honourable Supreme Court in the case of Deputy Administrator, E.T.P.B. (supra), are fully attracted to the circumstances of the present case.
13. ' Same observation has also been made by the Honourable Supreme Court in the case of Khawaja Bashir Ahmed 1991 SCM R 1604 wherein in similar circumstances The Honourable Supreme Court .`was pleased to observe that the property was transferred to the appellant in the year 1964 after depositing the transfer price, transfer of property in favour of the appellant, thus, attained finality, in view of section 2(2) of the Act, 1975.
14. ' In the case of Muhammad Younus 1981 SCM R 899 the Honourable Supreme Court reiterated the same view as has been expressed in the aforesaid cases by observing that on any target date it was not shown that the property was available for transfer.
15. ' The learned Single. Judge has alsornoWsuited the-appellants on, the ground that the suit was barred undei Article 91 of the Limitatiori Act which provides three years time of cancellation of the documents, in the present case the appellants are claiming the knowledge of the cancellation of PTD in a proceeding initiated because of claim of arrears_ from one tenant Saifur Rahman and the matter was taken up before the Board of Evacuee Trust Property and in these proceedings the appellants came to know about cancellation of PTD, therefore, they filed present suit and Article 120 of the Limitation Act applies to the circumstances of the present case as the order passed by the respondent No,7-is void ab, initio and having no lawful authority vested in him. The proceeding, regarding cancellation of PTD in favour of the predecessor-hi-interest of.` the appetent was initiated when order of the Deputy Settlement Commissioner-dated 29-7-1979 was passed and Settlement Commissioner in pursuance, of recommendation of Deputy Settlement Commissioner, cancelled the PTD and nowhere it has been borne out from the record that the appellants were in knowledge about the cancellation of their PTD nor the appellants being, successors-in-interest of the original allottees were heard prior to passing any order adverse to their interest by the respondent No,7.
16. ' As discussed above on the relevant date when Deputy Settlement Commissioner recommended to Settlement Commissioner for cancellation of PTD, admittedly no case was pending hearing before the Settlement Authorities nor it is borne out from the record that Deputy Settlement Commissioner or Settlement Commissioner were Notified Officers in view of section 2(2) of the Act, as such, the proceedings before them were coram non judice, and if any order passed by them, was passed in excess of their powers vested in them as such, they become functus officio and order passed regarding cancellation of PTD seems to be a void order.
17. ' In the case of Muhammad Shafi 1996 SCM R 856 the Honourable Supreme Court while distinguishing in between void order and erroneous order was pleased to observe that there is vast difference in between void order and erroneous order. The bar of limitation can be ignored in respect of void orders but not in respect of erroneous orders. The question of limitation would not arise in respect of judgments which were nullity in the eye of law, void or ultra vires, as a matter of fact, if order is without jurisdiction, it need not be formally set aside. The Honourable Supreme Court while observing that the void order need not to be set aside and no limitation raised against the void order, had also relied upon its earlier judgment reported in the case of Ali Muhammad v.
18. Hussain. Bakhsh reported in PLD 1976 SC 37, case of Chaudhry Altaf Hussain v. The Chief Settlement Commissioner reported in PLD 1965 SC 68, case of Syed Ali Abbas and others v. Vishan Singh and others reported in PLD 1967 SC 294, case of Malik Khawaja Muhammad and others v. Marduman Baber Kahol and others reported in 1987 SCM R 1543.
19. ' The case of Dr. Syed Raza Gurdezi and others PLD 2004 Kar. 143 relied upon by the learned counsel for the respondents, in our humble opinion is supporting and advancing the case of the appellant.
20. The relevant observation made by this Court, is usefully quoted herein below for the sake of convenience:- "After a careful consideration of the principles laid down by the Honourable Supreme Court, in the above judgments. The principles which can be deduced are that the period of limitation shall be applicable to the erroneous orders and even in cases of void orders and the decrees obtained through fraud, the period of limitation shall start running when the person adversely affected factually comes to know about the same. In the words of Honourable Supreme Court, therefore, in all fairness terminus a quo will have to be fixed, the date of knowledge of alleged void order which too must be independently established on sound basis."
21. 'The observations made in the above cases are also fully applicable under the peculiar circumstances of the present case as at the relevant time, the Deputy Settlement Commissioner or Settlement Commissioner had no lawful authority or powers to cancel the PTD issued earlier in the year 1964. Even otherwise the appellants have relied upon the applicability of Article 120 of the Limitation Act and not Article 91 of the Limitation Act on the premises that they came to know about the order regarding cancellation of their PTD in some proceeding before evacuee trust board and the applicability of question of limitation being mixed question of law and facts requires evidence.
22. The question of applicability of Article 91 or 120 of Limitation Act could only be considered if the parties are allowed an opportunity to lead their evidence on this aspect of the matter.
23. ' The appellants have filed suit for declaration, injunction, cancellation and damages and in support of their plea of damages the appellants have relied upon the facts that the custodian Evacuee Property allowed their predecessor-in-interest to get the property repaired to the tune of Rs,125,935 and the said expenses will create a charge over the disputed property. The said proposition advanced by the appellants in their plaint is of much significance as if they have been lawfully allowed to get the property repaired from the funds of their predecessors-in-interest which will create a charge over the property, the said charge could not be ignored or brushed aside without its proper examination and applicability. The appellants have pleaded such permission and expenditure incurred by their predecessor-in-interest, in paras.5, 6 and 7 of the plaint and the respondents Nos.8 and 9 have admitted the said stance taken by the appellants in their written statement. The respondent No,7 has simply denied the said assertion for want of knowledge, which is not a proper denial of the specific stance taken by the appellant in their plaint and similarly the respondents Nos.1 to 6 in their written statement have also not controverted the said stance of the appellants and have simply shown their ignorance to the said plea of the appellants, as such said stance as well as prayer made in the plaint require consideration which could only be considered by adducing evidence by the parties, as such, in our humble opinion, the suit could not be rejected under Order VII, rule 11, C.P.C. Prayer clauses contained multiple prayers including the prayer of refund of repair amount incurred by the predecessor-in-interest of the appellants against the respondents Nos.7, 8 and 9 which could only be considered on adducing evidence by the parties or admission of these respondents in their written statements. The case-law relied upon by the learned counsel for the respondents in our humble opinion are entirely distinguishable from the circumstances of the present case and are inapplicable.
24. 'For the reasons and circumstances discussed above, we are of the firm opinion that the order passed by the learned Single Judge could not be sustained. The appeal is, therefore, allowed. The order passed by the learned Single Judge, impugned herein, is set aside and the suit is remanded to the learned Single Judge for decision afresh. Cost to follow the final" event. Needless to state, that the above findings are purely tentative in nature and will not influence to the learned single Judge while deciding the matter on merits.