' SHAHID ANWAR BAJWA, J.--- Civil Suit No,65 of 1989 was filed by predecessor-in-interest of present respondents Nos.1 and 2 (hereinafter, for the sake of brevity, referred to as the plaintiffs) against the present petitioner (hereinafter referred to as the defendants) and present respondents No,3 to 8 (hereinafter referred to as the formal defendants). However, respondent No,8 in this revision petition is described as "Province of Sindh, Revenue Department, through its Secretary, Sindh Secretariat, Karachi" but in the suit it was described as "Province of Sindh, through Deputy Commissioner, Larkana".
2. It was pleaded in the plaint that the following agricultural land was originally owned by six Hindu persons.
(1) Survey No,3 area 17 acres 13 Ghuntas
(2) Survey No, 1 area 1 acre 38 Ghuntas
(3) Survey No,102 area 2 acres 12 Ghuntas
(4) Survey No,355 area 0 acre 31 Ghuntas ' In the case of last two mentioned survey numbers share of six Hindu persons was 75 Paisa. The agricultural land is situated in Deh Tapo Taluka Kamber, the then district Larkana. It was pleaded in the plaint that Muhammad Siddique father of plaintiffs purchased the property from said six Hindu persons on February 1, 1946 (Exh.75). Agreement of sale executed on Rs,4 stamp paper was produced. It is an unregistered document. It was further claimed that the said Hindu migrated to India in 1947 and the sale was confirmed by Deputy Custodian, Larkana vide his order dated 5-4- 1965 (Exh.76). It was further pleaded that father of the plaintiffs remained in occupation till his death in 1969 and thereafter occupation passed on to the plaintiffs. It was further stated that a month back the defendant declared that he had purchased the following area from one Saleem Ahmed son of Rasool Bux:---
(1) Survey No,102 area 8 acres
(2) Survey No, 355 area 0 acre 31 Ghuntas
(2) Survey No, 2 area 2 acres 12 Ghuntas
3. It is further pleaded in the plaint that thereafter the plaintiffs went before the Mukhtiarkar Taluka Kamber and obtained from him copy of record of rights which showed that the above referred three survey number properties had been illegally mutated in the name of defendant on the basis of allotment to one Saleem Ahmed by the Rehabilitation Authorities and thereafter sale by the said Saleem Ahmed to the defendant. Consequently, suit was filed by the plaintiffs with the following prayers:---
(a) That this honourable Court be pleased to declare that the plaintiffs are lawful owners of agricultural land bearing S.No,3 area (17-3 acres), S.No,1 area (1-38 acres), S.No,102 area (2-12 acres) out of which share 0-75 Paisa and S.No355 area (0-31 Ghuntas) out of which 0-75 Paisa total area (22-01-1/4 acres), situated in Deh Tapo, Taluka Kamber, District Larkana.
(b) That this honourable Court be pleased to declare further that the allotment of S.No,3 area (8 acres), 102 area (2-12 acres) and 355 area (0-31 Ghuntas) of Deh Kamber, Taluka Kamber in favour of defendant No,2 by defendant No,3 and 4 is illegal, void and without jurisdiction.
(c) That this honourable Court be pleased to order the defendant No,1 to produce the registered sale-deed dated 18-9-1985 in original before this honourable Court and cancel the same.
(d) Directing the defendant No,5 to make mutation in record of rights in respect of suit-land in favour of plaintiffs.
(e) Permanent injunction against the defendants restraining them from threatening, adopting coercive methods and from interfering with the peaceful possession of plaintiffs over the suit-land.
(f) Costs of the suit be awarded to the plaintiffs.
(g) Any other relief be granted to the plaintiffs."
4. The trial Court, after written statement was filed, framed the following six issues:--- "Issue No,l. Whether the plaintiff had purchased suit-land from Hindu owners, if so, what effect?
' Issue No,2. Whether the Deputy Custodian E.P. Has confirmed the sale?
' Issue No,3. Whether this Court has no jurisdiction to hear the suit? Issue No,4. Whether defendant No,1 is owner suit property? ' 'Issue No,5. Whether defendant No,1 in possession of suit property? ' ' ' '
Issue No,6. What should the decree be?"
5. On the basis of these issues, the trial Court passed the judgment and decree. The matter was taken in appeal and the appellate Court remanded the matter to the trial Court with the direction to frame an additional issue and thereafter decide the matter. The additional issue was in the following words:--- "Additional Issue: --- Whether the allotment of land bearing S.No,3 (08-00 acres). 102(0-12 acres) and S.No,355 (00-31 Ghuntas) of Deh Kamber in favour of defendant No,2 by the Rehabilitation Authorities is illegal, void and without jurisdiction.
6. Thereafter the trial Court vide judgment dated 11-8-1994 dismissed the suit.
7. Being aggrieved by the order of the trial Court, an appeal was filed and the appellate Court vide impugned order dated 21-11-1996 allowed the appeal and decreed the suit of the plaintiffs. This revision application has been filed to challenge and impugn the order of the appellate Court passed on 21-11-1996.
8. Learned counsel for the defendants made the following submissions:---
(i) The plaintiffs claimed title on the basis of an order stated to have been passed by the Deputy Custodian of Evacuee Property on 5-4-1965 (Exh.76). This order refers to as having been passed under the provisions of section 3 of the Confirmation of Sale Act, 1957. In the first line it states that it is dated 7-4-1965 and at the beginning the order states that it is dated 5-4-1965. It all creates doubt about authenticity of the order besides there is no law under the name of Confirmation of Sale Act, 1957.
(ii) That Exh.76 was not proved by producing any State functionary to vouch for its genuineness and authenticity. Mere production of it by the plaintiff did not prove (as it could not have proved) existence or authenticity of this document.
(iii) The defendant for his claim relied upon extract of Khatooni (Exh. 104) certified by Rehabilitation Mukhtiarkar dated 19-7-1973 (Exh.105). Record of Rights (Exh.78). These were proved through Production of Occupation clock of Larkana Taluka, one Inayat Ullah Jokhio who was produced as witness by the plaintiffs.
(iv) The defendant has been in occupation till a month before filing of suit when the plaintiffs illegally dispossessed the applicants. The plaintiffs have not produced any Khasra Girdawari or any record from the Revenue Department to prove their possession.
(v) The sale-deed (Exh.75) is an unregistered document and in terms of provisions contained in the Registration Act, it cannot create any right. Moreover, neither any executor of document nor any marginal witness nor any person claiming to be familiar with the signature or handwriting of the executants of Exh.75 has been produced.
(vi) The suit is time-barred. It was filed in 1991 with a prayer of declaring as null and void order issued in 1973.
(vii) That order dated 5-4-1965 is not available in any record of Revenue Department.
(viii)That judgment passed by the learned appellate Court is in violation of Order XLI, rule 31, C.P.C.
And Order XX, rule 5, C.P.C. Because the appellate Court has not discussed the issues and has merely passed an order in a slipshod manner.
' Learned counsel relied upon Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 25 to contend that in case of entry in the Revenue Record, right to sue for declaration of title would accrue to affected persons within six years of such entry/order under Article 120 of the Limitation Act, 1908. Learned counsel relied upon Muhammad Ibrahim v. Mst. Mehmooda 1991 CLC 1795 in support of his contention that appeal cannot be disposed of without adequately expressing on controversies between the parties. He relied upon Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 to contend that an unregistered sale-deed does not confer any right. Government of Pakistan v. Sardar Ahmed Ali PLD 1965 Kar. 1 was relied upon by the learned counsel in support of his contention that oral evidence is to be accepted only if it inspires confidence and mere fact that such evidence stands unrebutted would not be sufficient for accepting the same to be true.
Allandad v. Government of Pakistan and 53 others 1989 CLC 1571 was relied upon by the learned counsel in favour of his contention that a party producing a witness is bound by the deposition of the witness. Muhammad Akbar alias Akan v. Mst. Pathani through legal heirs and 5 others 2001 MLD 1037 was relied upon by the learned counsel in support of the proposition that a party approaching the court has to stand on its own legs and any weakness of the other side neither improves his case nor such a party is entitled to any relief on that basis. Anjuman Araian, Bhera v. Abdul Rasheed and others PLD 1982 SC 308 and Wallayat and others v. Muhammad Shafi and others PLD 1965 SC 278 to contend that a trespasser being neither allottee nor entitled to transfer of property could not dispute transfer made in favour of someone else. Muhammad Siddique and 2 others v.
Fakir Muhammad and another 1993 CLC 1158 was relied upon by the learned counsel to contend that it is duty of the Court to discourage dishonest litigation.
9. Mr. Gulab Rai Jessrani, learned Advocate for the plaintiffs made the following submissions:---
(i) He referred to deposition of Arbab Ali, attorney of the plaintiffs to point out that the attorney had stated that one month prior to the filing of the suit. The defendant informed the plaintiffs that the suit-land was granted to him in a claim by the Rehabilitation Department. It was thereafter that the plaintiffs obtained certified copies of Form VII from the office of Mukhtiarkar (Exh.78). He submitted that this part of the deposition has gone unrebutted in .Cross-examination and therefore, must be accepted.
(ii) The defendant has not filed appeal on such a finding by the two Courts below. He is, therefore, barred by res judicata.
(iii) The plaintiffs have been in possession all along and the two Courts below have concurrently held that the plaintiff was in possession and this aspect has gone unchallenged in the cross- examination.
(iv) The land is uncultivated but there was a fishpond and this suggestion was specifically put in the cross-examination of plaintiff's witness.
(v) He referred to record of rights and pointed out that there were two entries, one dated 6-1-1982 and other 23-11-1985. The first entry is in respect of 3 acres in Survey No,3 and second entry in respect of 14 acres 21 Ghuntas in Survey No,3. He submitted that no record of right in respect of other two survey numbers claimed by the defendant has been produced. He further submitted that only sale-deed of 1985 has been produced and no sale deed of 1982 has been produced. He referred to record of rights and 3rd entry therein where it is recorded that the same Saleem Ahmed son of Rasool Bux transferred the property in Survey No,102 to one Ghulam Nabi son of Muhammad Panah Magsi.
(vi) He referred to Exh.77 which is a letter written by Rehabilitation Mukhtiarkar stating that in respect of the survey numbers there is no record of allotment to any plaintiff.
(vii) In respect of Exh.76 the learned counsel submitted that citation of wrong law does not wipe out the document itself.
(viii)Learned counsel referred to deposition of Muhammad Saleh who stated that father of the plaintiffs purchased land from six Hindus and that the defendant had never been in possession of the land in question. He submitted that no question regarding challenging such possession had been asked in the cross-examination.
(ix) In respect of Exhs.104 and 105 learned counsel submitted that these documents are not genuine as no details have been stated in respect of property in India of the predecessor in interest of the defendants.
(x) Learned counsel submitted that defendants has not produced any proof of possession or any proof of dispossession. No allotment order has been produced by the defendants evidencing that the property in question was allotted to Saleem Ahmed son of Rasool Bux. No proof has been produced that the land was included in the allotment pool in the first place.
' Learned counsel relied upon Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21 and Ehtram Ali and others v. Custodian of Evacuee Property and others 1975 SCMR 431 to contend that the property must go to the evacuee to the compensation pool in the first place and also it must have been declared as evacuee property before 1-1-1957 and only then it can be allotted to anyone in compensation. In this connection he also relied upon Karamali Jamali and 5 others v. Federal Land Commission 1982 CLC 689 to support his proposition that undisputed and undisturbed possession created a right in favour of the petitioner and sale transaction would be proper instances. Muhammad Essa v. Board of Revenue, West Pakistan Lahore and 2 others PLD 1979 Kar. 783 to contend that mutation cannot be held to be an order creating any right or interest in any evacuee property. On the principle of res judicata learned counsel relied upon Muhammad Saleem and others v. Rasheed Ahmed and others 2004 SCMR 1144 and Pir Bux represented by his legal heirs and others v. The Chairman Allotment Committee and others PLD 1987 SC 145. Learned counsel relied upon Mst. Mumtaz Begum v. Allauddin and 2 others PLD 1993 Quetta 37 and Lal Khan v. Faiz Ahmed and another 1986 SCMR 1962 to contend that where appellate Court has assessed evidence and based conclusion on cogent reasons then findings of appellate Court should be given greater weight by the revisional Court. Lastly the learned counsel relied upon Muhammad Yasin v. Bashir Ahmed 1985 CLC 2111 to contend that if a witness is not cross-examined on a particular point which it deposed in examination-in-chief, presumption would be that evidence had been accepted by party against whom it was given.
10. Mr. Abdul Hamid Bhurgri, Additional Advocate-General referred to section 20 of the Pakistan (Administration of Evacuee Property) Act, 1957 and pointed out that the material date is March 1, 1947 in respect of requirement of confirmation by the Custodian of any sale transfer or creation of any right or interest or encumbrance upon any property. His submission was that since the plaintiffs claimed purchase on 1-2-1946, therefore, there was no requirement for it to be confirmed by any authority under the evacuee property laws and confirmation, without going to the question of genuineness or otherwise of it, granted vide Exh.76 is without any lawful authority and of no legal effect. In fact it smeaks mala fides.
(ii) While referring to the same order of 1965 the learned A.A.-G. Pointed out to section 16 of the Act of 1957 and submitted that the Custodian had no authority to order or grant specific performance which authority vested with the Civil Court.
(iii) No allotment order has been produced by the defendant to establish that Saleem Ahmed son of Rasool Bux was a lawful and bona fide allottee of the property.
(iv) Neither Khatooni nor any entry in the record of rights confers any title in this regard. Mr. Bhurgri relied upon Ghulam Hussain Arshad and another v. Allah Ditta and others 1990 CLC 1819.
(v) Evacuee properties are controlled and managed by the Federal Government and Federal Government has not been made a party.
(vi) It is well-settled law that if the Provincial Government is to be made a party it must be made a party through Secretary of the concerned department. In this regard he relied upon Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar 1999 SCMR 16. He submitted that both the parties had no right over the property. He relied upon Qutub Ali v. Custodian Evacuee Property, Lahore and others PLD 1964 SC 58 in respect of date 1-3-1947 in support of his contention that unregistered document does not create any title, learned A.A.-G. Relied upon Mst. Bibi Ameena v. Ikramullah 1989 CLC 698.
11. Learned counsel for the defendants who appeared to be quite relied by submission made by Mr. Bhurgri, in rebuttal, made the following submissions:---
(i) Functionaries of Provincial Government had been served. They had not filed written statement.
They were declared ex parte and were proceeded accordingly. The Provincial Government has remained silent for 20 years and therefore now it does not lie in its mouth to contend that suit was not filed against Provincial Government through proper officer. In any case, Government has remained silent for so long, therefore, it acquiesced in such entries.
(ii) Allotment of Saleem Ahmed is admitted in the plaint. In the presence of such admission it was not required to be proved. He referred to Article 113 of the Qanun-e-Shahadat Order, 1984 in this regard.
(iii) Although Khatooni and mutation are not documents of title but was the first step. Exh.77 is a bogus document. It is dated 7-101985. Had it been in existence on that day it would have been pleaded in the plaint.
12. I have considered the submissions made by the learned counsel and have also gone through the record. R&Ps of the Courts below as well as the extensive case-law cited by the learned counsel.
13. The first issue framed by the trial Court was whether the plaintiff had purchased suit-land from Hindu owners; if so, to what effect? Claim of plaintiff in respect of suit-land is based on primarily three documents; one agreement of sale dated February 1, 1946 (Exh.75). This is a document on a Rs,4 stamp paper and it is claimed that it bears signatures of all the six Hindu owners and the witnesses. It is a stamped document but is not a registered document. What is the legal effect of document which is not registered. In this connection I may refer to section 17 and section 49 of the Registration Act. The same are reproduced below:--- "17. Documents of which registration is compulsory.---(1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act, No,XVI of 1864, or the Pakistan Registration Act, 1866, or the Pakistan Registration Act, 1871, or the Pakistan Registration Act, 1877, or this Act came or comes into force, namely:---
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;"
"49. Effect of non-registration of documents required to be registered.---No document required to be registeree under this Act or under any earlier law providing for or relating to registration of documents shall:---
(a) operate to create, declare, assign, limit or extingt ,sh, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or
(b) confer any power to adopt, unless it has been registered."
14. Under section (2) of section 1 of Registration Act, 1908, the Act extends to the whole of Pakistan except such districts or tracts of country as the Provincial Government may exclude from its operation. It is one's case that Province of Sindh or any part thereof has been excluded from operation of the Act of 1908. A perusal of section 17 indicates that it is mandatory to register a non- -testamentary instrument which operates to create, declare, assign, limit or extinguish any right, title or interest of value of Rs,100 and upwards, in respect of any immovable property. The agreement dated 1-2-1946 states the consideration to be Rs,2,203. Therefore, it is for a value of more than Rs,100 and it aims to transfer title and interest in immovable property. Consequently, provisions of section 17 of the Registration Act, 1908 were fully applicable and the agreement dated 1-2-1946 it was mandatory to register. Section 49 states effect of non registration of a document which is mandatorily registerable under the provisions of the Act of 1908 and it says that such a document shall not operate to create or assign any right, title or interest to or in any immovable property. Therefore, agreement dated 1-2-1946 cannot be deemed to have created any title or right in favour of the stated purchaser of that document. Reliance by Mr. Bhurgri on Mst. Bibi Amina v. Ikramullah 1999 CLC 698 may be referred to at this stage. Facts of that case were that Mst. Bibi Amina, petitioner was a widow and claimed to have acquired property in dispute which comprised of residential house and agricultural land from her husband claiming it to have been transferred to her by her husband to satisfy dower debt under a written deed. Mutation, at her husband's instance, she stated that she was informed, was also entered in revenue papers. Couple was issueless and also did not have any male relation to pursue the mutation and Mst. Bibi Amina was stated to be. Parda Nashin lady. She assumed that transfer has taken place in the Revenue Record but this did not prove to be true. Upon her husband's death, she discovered that no such mutation had taken place. In support of her claim she produced the dower deed. The honourable Supreme Court held as under:--- "(10) There is another aspect of the dower deed which also deserves to be seen. It is that the deed is both unstamped and unregistered. A deed of this kind whereby interest in any immovable property valuing more than Rs,100 is sought to be created requires to be registered compulsorily under section 17 of the Registration Act and if it be unregistered it has to be ignored straightaway.
Accordingly, even if the dower deed he held to be validly executed it would not operate to create any right or interest in favour of the petitioner being unregistered. A similar question earlier arose in the case of Umar Bakhsh v. Mst. Zamrut Jan and 9 others PLD 1973 Pesh. 63 and was disposed of by Mr. G. Safdar, C.J. Holding that the deed being compulsorily registerable under section 17 of the Registration Act and having not been registered, would not convey any right or interest in the property to the plaintiff, though it could be received in evidence." (Underlining is mine)
15. Therefore, as far as legal effect of Exh.75 is concerned it has to be ignored straightaway. In view of such position I do not think it would be necessary to go' into the question whether the plaintiffs were able to prove due execution of Exh.75 through any of the modes prescribed for proving a document by Qanun-e-Shahadat, 1984. Second document relied upon by the plaintiff in respect of his claim to the title is deed of confirmation dated 5-4-1965 (Exh.76). This issued by Deputy Custodian of Evacuee Property on 5-4-1965 (or 7- 1-1965 depending upon which line is relied upon). It is stated to be issued under section 3 of the Confirmation of Sale Act, 1957 (Act 12 of 1957).
Mr. Rajput's contention was that there is no such Act on the statute books. And indeed there is no such Act on the Statue books. Act 12 of 1957 is the Pakistan (Administration of Evacuee Property)
Act, 1957. Consequently, Mr. Gulab Rai conceded that the title of the Act quoted in Exh.76 is wrong but his contention was that a wrong citation of law cannot deprive a document of its legal sanctity.
There is force in contention of Mr. Gulab Rai and I think this document may be read and treated as document issued under the provisions of the Pakistan (Administration of Evacuee Property) Act, 1957. The defendant cannot claim to be taken by surprise by treating this document as document issued under tlic Act of 1957. But sadly this does not solve Mr. Gulab Rai's problem because there are two aspects of this document that needs specific attention. It opens with the words saying that it was is a case for specific performance of agricultural land and in the end it says that sale-deed dated 1-2-1946 is hereby confirmed with retrospective effect and Taluka Mukhtiarkar is allowed to mutate the record of rights in favour of the applicant Muhammad Siddique, predecessor-in- interest of the plaintiffs. It may be advantageous to refer to section 16 of the Act of 1957 as well as to section 20 of the same Act. The provisions are reproduced as under:--- "16. Exemption from legal process.---(1) Property which has vested in, or of which possession has been taken by the Custodian shall be exempt from all legal process, including seizure, distress, ejectment, attachment or sale by any officer of a Court or any other authority, and no injunction or other order of whatever kind in respect of such property shall be granted or made by any Court or any other authority, and the Custodian shall not be divested or dispossessed of such property by operation of any law for the time being in force.
(2) Upon the commencement of this Act, any such legal process as aforesaid subsisting immediately before such commencement shall cease to have effect and all evacuee property in custody of any Court, or Receiver, guardian or other officer or person appointed by it, shall, upon delivery of the same being called for by the Custodian, be delivered to the Custodian.
(3) Nothing contained in the foregoing subsections shall:---(a) Prevent a Civil Court from ordering specific performance of any agreement to sell or exchange immovable evacuee property where such agreement has been approved by the Custodian, or a Registering officer from registering a deed of sale or exchange relating to such property where a certificate under section 20 has been granted by the Custodian; or
(b) Affect any power conferred on the Central Government by or under any law for the time being in force to requisition or acquire property and it is hereby declared that if by or under such law or any other law for the time being in force a like power is conferred upon or delegated to a Provincial Government, the Provincial Government may exercise the same in relation to evacuee property with and only with the previous approval of the Central Government and subject to such directions as the Central Government may at any time see fit to give."
20. Restriction on transfer by evacuee.---(1) No creation or transfer of any right or interest in or encumbrance upon any property made in any manner whatsoever on or after the first day of March, 1947, by or on behalf of an evacuee, or by or on behalf of a person who has become an evacuee after the date of such creation or transfer, shall be effective so as to confer any right or remedy on any party thereto or on any person claiming under any such party, unless it is confirmed by the Custodian.
(2) An application for confirmation of such creation of such creation of a right or encumbrance or transfer as aforesaid may be made to the Custodian within the prescribed period by any party thereto, or by any person claiming under or lawfully authorized by such party".
16. It may be of relevance to note that evacuee is defined in section 2(2) of the Act 1957 as a person who upon setting up of Pakistan, after 1st day of March, 1947 leaves or has left any place in the territories comprising in Pakistan and evacuee property under subsection 3 of section 2 is defined to include, inter alia, of property of an evacuee obtained by transfer on or after 1st day of March, 1947. If the agreement dated 1-2-1946 was duly executed and created legal rights then the property in question was not evacuee property. Secondly, under section 20 confirmations is required in respect of creation or transfer of any right or interest upon any property made after 1-3-1947. Since the agreement is claimed to have been executed on 1-2-1946 and possession taken at that time what was the need for going to the Custodian of Evacuee Property for confirmation. Whether there was jurisdiction with the Custodian of Evacuee Property to confirm or refuse to confirm such sale etc. Of such a property which had been sold by a person before 1-31947. Answer clearly and unambiguously is in the negative. Yet, another aspect is that under section 16 jurisdiction of specific performance is with the Civil Court. The Custodian or the Deputy Custodian had the authority to confirm or not to confirm an agreement of sale provided it created a right or interest starting from 1-3-1947, which, even if every contention made by the plaintiff is accepted as true in respect of agreement, dated 1-2-1946 event took place much before 1-3-1947. Therefore, neither was it evacuee property nor had the Deputy Custodian jurisdiction to confirm it and in any case Deputy Custodian has no right to order specific performance. Therefore, the document at Exh.76 is a document afloat with all manners of doubt. Thirdly this document was not proved by producing or summoning any one from the evacuee authorities. Therefore, issue No,1 i,e, whether the plaintiff had purchased the suit-land from Hindu owners per force had to be decided against plaintiffs and this is exactly what the learned Senior Civil Judge did and this discussion also leads me to agree with the learned Senior Civil Judge on issue No,2 that document produced as Exh.76 neither has been proved to be validly issued nor is of any legal effect.
17. Third document is Exh.77. I may also here mention in passing that I agree with Mr. Rajput that the document produced as Exh.77 since it is claimed to have been issued on 7-10-1985 it should have found a mention in the plaint. For this reason and for the reason that no official witness has been produced to prove this document no reliance whatsoever can be placed on Exh.77 and for the same reason on Exh.78.
18. Additional issue was framed by the appellate Court during the first round when the matter was remanded to it. There are two aspects. Firstly, the Federation of Pakistan has not been joined as party. Therefore, whether the Rehabilitation Authorities made the allotment or not could not have been decided in the absence of Federation of Pakistan. Secondly though the provincial government was made a party but initially it was made a party through Deputy Commissioner, Larkana. This position was maintained in the appeal. However, when revision was filed the Provincial Government was made a party through Revenue Department. In Haji Abdul Aziz v.
Government of Balochistan 1999 SCMR 16 suit was filed against the Government of Balochistan through Deputy Commissioner, Khuzdar the matter when reached the Supreme Court and leave to appeal was granted to consider the question whether although the suit had not been instituted through a proper party as required by the provisions contained in Order XXVII, rule 3, C.P.C..,however, in spite of the fact that suit filed suffered from initial defect, the same could not warrant any interference by the High Court in the exercise of its revisional jurisdiction. It may be of interest to point out that initially in the matter before the Supreme Court, suit was filed against Provincial Government through Deputy Commissioner, Khuzdar seeking that the plaintiff was owner and in possession of suit-land. Initially the suit was dismissed but in appeal the matter was remanded. Evidence was produced and thereafter the suit was decreed ex parte. The ex parte decree was challenged in appeal which was allowed purportedly under section 151, C.P.C. On payment of cost of Rs,700 and decree passed by the trial Court was set aside and the case was remanded for a fresh trial. This order was challenged in revisional jurisdiction and the revision was dismissed by the High Court holding that the provisions of section 79, C.P.C. And Article 174 of the Constitution had not been complied with by the appellant as the suit had been instituted through a wrong person. The Supreme Court held as under:- "(9). It, no doubt, follows from the said observations that the learned Judge in Chambers could have taken notice of the fact that the appeal in the present case had been entertained by the Appellate Court in spite of being barred by 55 days, but it appears that the learned Judge found it necessary to address himself to a more important question as it transpired that the plaintiff had failed to comply with the provisions of section 79 C.P.C. Or Article 174 of the Constitution, both of which require that in a suit filed against the Government, the authority to be named as a defendant is to be the Province. Since the suit was filed in the present case against the Provincial Government, the Province could be sued through the concerned Secretary to the Government.
Obviously, there had been no compliance with the said provisions when the suit was initially filed by the appellant. Unless the suit is filed through a proper person, any order directing ex parte proceedings against the defendant would be liable to challenge. Reference in this regard may be made to a judgment of this Court in Province of the Punjab v. Muhammad Hussain PLD 1993 SC 147, our attention to which has been invited by the learned counsel for the appellant himself. In this case, questions raised before this Court for the first time in regard to maintainability of the suit, its valuation or its being within time, which had not received due attention earlier by the Courts below while dealing with the case, were considered by this Court and the judgments and the decree passed by the Courts below were set aside and the suit filed by the plaintiffs was dismissed as barred by limitation. Therefore, there is no doubt that the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellate to sue through a proper person was a defect which went to the root of the matter and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge in Chambers is not open to exception". (Underlining supplied by me).
19. Although an issue was framed as to whether the defendant was owner of the property or not.
After having come to the conclusion that the plaintiff had no right or title in respect of the property in question per force the property becomes an evacuee property and whether it was rightly allotted or wrongly allotted or not allotted at all can be an issue which can only be decided if the Federation of Pakistan and properly impleaded Provincial Government had been parties. The suit was filed by the plaintiffs primarily for declaration in their favour and that declaration was primarily qua the defendants. Since I have come to the conclusion that the plaintiff had no right or title in respect of the property in question per force the suit had to be dismissed and the question regarding the allotment, no allotment or wrong allotment in favour of Saleem Ahmed from whom the defendant claims to have purchased the property can only be decided if appropriate proceedings are instituted by the present defendants against the Federation of Pakistan and the Provincial Government and such other parties as may be necessary and proper and then after evidence it is decided whether the defendant has any right or title to the property. I, therefore, deem it appropriate not to enter into the discussion regarding the title and entitlement of the defendants and leave that issue to be determined in appropriate proceedings.
20. Result of the above discussion is that the judgments and decrees passed by appellate Court on 20-11-1996 and the Civil Judge on 11-8-1994 are set aside, the suit filed by the plaintiff is dismissed and the defendant/present petitioner is left at liberty to institute appropriate proceedings for establish his right/title in respect of the suit property in accordance with the law. In the meanwhile Provincial Government is directed to dispossess the plaintiffs and to take over the land in question and thereafter deal with it in accordance with the law.
21. The Civil Revision Application No,1 of 1997 is disposed of in the above terms.