' IJAZ AHMAD CHAUDHRY, J.- B This order will dispose of- ' P.N0.176-C of 2007 filed by Muhammad Sarfraz etc. Against the order dated 17-9-2007 passed by the Chairman, PCBL whereby the application moved by them alleging that property in dispute was purchased one Sardara, their grandfather and they were putting on in the property in dispute in their own rights, but in the titled "Raja etc. v. PCBL etc." they were not impleaded party to the proceedings by the said Raja etc. In spite of that they being successors of late Ahmad Yar sons of Sardara were also entitled to inherit the rights involved in the property, whose names be mentioned in the main petition and as well as judgment 28-6-2006 was dismissed; and P.No,9-C of 2009 filed by Raja respondent No,2 against the order dated 20-12-2008 whereby the application moved by said Raja for making amendment in the previous order dated 28-6-2006 praying that the name of the petitioner Raja s/o Sardara only be got mentioned as the only heir so that the order of depositing the instalments be complied with according to the first order passed on 28-6- 2006 was dismissed with the observations that *** in order to revive the deal between NICFC and Zahir ud Din, Anwar ud Din sons of Salim ud Din, Aziz ud Din and Tamiz ud Din sons of Ikram ud Din it could only be in favour of all the successors of Sardara according to their shares. It is further observed that the applicant on the basis of the possession otherwise cannot deprive the other successors, the concept of adverse possession does not at all arise when the possession with the applicant was continuing as successors of Sardara.
' Jointly as common questions of facts and law are involved and both the above said petitions have been filed in continuation of the orders dated 28-6-2006 passed on an application filed by Raja etc. Being successors-in-interest of Sardara whereby their claim that said Sardara had been the owner of the said land having purchased from the original owners, who latter on sold it to defunct NICFC was not accepted and it was directed that- ***Anyhow keeping in view* the prolonged possession of the petitioners, in the light of reserve price assessed by Messrs Nespak at Rs, 12.78 and the average price Rs, 14.20 Millions some in between device is to be determined. Hence Rs, 13.56 Millions is fixed as price of land in dispute. The payment as per request by the petitioners shall be made in four equal instalments. The first instalment is required to be paid till 30th September, 2006, the second instalment shall be paid by 31st December, 2006, 3rd instalment shall be paid by 31st March, 2007 and 4th instalment shall be paid by 30th June, 2007 along with 2% liquidation charges Rs,2,71,200. In case of default in payment of any instalment or portion thereof the application shall be deemed to have been dismissed and the amount so deposited shall be assumed to have been forfeited. NOC shall be issued after the deposit of total amount of Rs,13.56 million plus 2% liquidation charges, copy of the order be communicated to the Property Section for information and strict compliance. The application is disposed of accordingly."
6(sic). The learned counsel for the petitioners Sarfraz etc . In Petition No,l76-C of 2007 has contended that Raja one of son of Sardara on the basis of previous sale in favour of Sardara had taken the possession over the said land; that respondent No,l while passing the impugned order has also not taken into consideration the Khasra Girdawari filed with the application which clearly shows that Ahmad Yar predecessor-in-interest of the petitioners was in possession of the land and the record shows that they are in possession; that the petitioners are legal heirs of Ahmad Yar son of Sardara, but in order to deprive them from the benefit of sale in favour of Sardara a false story has been concocted by the Raja; that the sale has been made on the ground that successors-in- interest of Sardara were still in possession of the property; that Raja cannot take benefit of his fraud by deleting the names of Sarfraz etc. And the order impugned in P.No,l76-C of 2007 discloses that the same was passe I only on surmises and conjectures; that Raja claimed that he was in possession when Sardara had died in 1989; that Khasra ^Girdawari also supports the claim of petitioners that they were also in possession of the said land. Also contends that even at the lower level on reconsideration the matter on an application moved by Raja to deprive the other legal heirs of Sardara from their rights in the property, the Chairman, PCBL has passed the fresh orders declaring that it could only be in favour of all the successors of Sardara and the petitioners have already deposited the amount of their share in the account of PCBL and the Order dated 20-12- 2008 impugned by Raja in Petition No,9-C of 2009 may be maintained while the order dated 17-9- 2007 be set aside. Relies upon AIR 1962 ALLA ABAD 684. Learned counsel appearing on behalf of Jhallan Bibi daughter of Muhammad son of Sardara, who had allegedly sworn an affidavit in favour of Raja shows that he had withdrawn the claim is present in the Court, who states that affidavit is forged one and she had never sworn any such affidavit and this all shows that land has been sold by PCBL on the basis of possession of Sardara over the said land and she is one of the legal heirs.
5. On the other hand learned counsel for Raja in Petition No,9-C of 2009 has contended that he had not offered the sale of land on the basis of the sale agreement between Sardara and the original owners, but he had offered payment of price of the land on the market value and Sarfraz etc. Cannot claim the share of land as successors of Sardara, which has been purchased by Raja; that the land has been purchased on the market value and Sarfraz etc. Have no concern; that PCBL earlier dismissed the application and appeal filed by Sarfraz and subsequently Raja has paid the total amount; that affidavits have been filed by Jhailan Bibi, Nooran Bibi and Muhammad Ishaq legal heirs of Muhammad in favour of Raja while Ahmad Yar had died in 1995 and Muhammad died on 1996 whereas in the affidavits Nooran Bibi and Muhammad Ishaq have clearly stated that they had withdrawn their claim and the total amount was paid by Raja, that now it has become sale and no matter was pending before PCBL; that all the amount has been deposited and now Raja respondent No,2 is owner of the said property. Relies upon PLD 1994 Lahore 108. Also contends that the order has been passed on presumptions, which is not sustainable as laid down in PLD 1989 SC 166.
6. On the other hand learned counsel for the petitioners Sarfraz etc. In Petition No,l76-C of 2007 has contended that Raja one of son of Sardara on the basis of previous sale in favour of Sardara and took the possession over the said land; that respondent No, 1 while passing the impugned order has also not taken into consideration the Khasra Girdawari filed with the application which clearly shows that Ahmad Yar predecessor in interest of the petitioners was in possession of the land and the record shows that they are in possession; that the petitioners who are legal heirs of Ahmad Yar and in order to deprive them from the benefit of sale in favour of Sardara a false story has been concocted by Raja; that the sale has been made in favour of petitioners on the ground that successor in interest of Sardara were still in possession of the property and due to this reason the land has been sold; that Raja cannot take benefit of his fraud by deleting the names of Sarfraz etc. And order disclosed that the said order has been passed only on the basis of assumption; that Raja claimed that he is in possession when Sardara was died in 1989; that Khasra Girdawari also supports the claim of petitioners and they were also in possession of the said land and impugned order challenged by the petitioners and Raja in Petition No,9-C of 2009 is liable to be maintained; that order dated 17-9-2007 may be dismissed and relies upon AIR 1962 All. 684; that earlier lease for less than a year and tenancy continued till the expiry of tenancy and tenancy become monthly tenant and his rights vested to his heirs. Learned counsel appearing on behalf of Jhallan Bibi daughter of Muhammad one of son of Sardara* they had sworn affidavit in favour of Raja showing that he had withdrawn the claim and she was present in the Court; she states that affidavit is forged one and she never sworn any affidavit and this all shows that land has been sold by PCBL on the basis of possession of Sardara over the said land and she is one of the legal heirs.
7. I have heard the learned counsel for the parties and perused the documents attached with this petition and also perused the impugned orders.
8. Firstly Petition No,854-C of 2002 on behalf of the Raja son of Sardara, Muhammad Ishaq son in law of Sardara and Sakina daughter of Sardara on 29-5-2002 had been moved before the then Cooperative Judge of this Court alleging therein that agricultural and measuring 71-Kanalas 1- Marla situated at Chak Janoobi Maoza Jhang had been purchased by their predecessor in-interest Sardara son of Jhana for consideration from Messrs Anwaruddin, Zaheer-ud-Din and Ikfamuddin, sons of Saleemuddin and on receiving the total consideration, the possession of the land in dispute was delivered and ever since they were in lawful possession of the same, which fact can be verified from the Khasra Gardawari, copied of which were attached with the petition. It was prayed that the process for the sale of the land in dispute as shown in the proclamation published in Daily Jung dated 11-5-2002 be stayed immediately and also the impugned notice dated 24-5-2002 for their dispossession from the land in dispute be declared to be without lawful authority and they be declared lawful owners in possession of the land in dispute and entitled for the transfer of title in their names. From the perusal of these facts narrated in the application, it is clear that Raja sons of Sardara, Muhammad Ishaq son of late Muhammad brother of Raja and Sakina their sister being legal heirs of Sardara had intentionally and with mala fide intention excluded all the other legal heirs of Sardara and deceived them by filing the petitioner before the then Cooperative Judge showing themselves only legal heirs of Sardara and in possession of land which was purchased by Sardara. However, vide orders dated 31-5-2002 passed by the then Co-operative Judge as follows:- "1. Petitioner feels aggrieved against the issue of notice of eviction Annexure-H, as also the proclamation of sale as appearing in the newspaper Annexure-J. It is claimed that under an agreement to sell within the owners entered way back in the early seventies, the petitioners are in possession of the land which possession cannot be described as unlawful by virtue of section 53-A of the Transfer of * Property Act, 1882. Learned counsel also pointed out that petitioner's plea for grant of title deed/NOC is already pending but is not being decided.
2. As his matter is sequel to the earlier pending claim, it does not seem proper for me to entertain this plea and adjudicate the same. It may lead to contradictory decisions.
3. Let the petitioner contest this notice as well before the respondent Board. I have been informed that learned acting Chairman is available to hear case. Petitioner may file petition before the Board, which is directed to be listed for hearing before the acting Chairman. It is expected that the matter will be dealt with expeditiously and appropriate orders including interim order, if required, will be passed. "
' The matter was remanded to the PCBL and during the pendency of the said proceedings, on an offer made for the purchase of the land the order dated 28-6-2006 was passed, which is reproduced as follows:- "***Anyhow keeping in view the prolonged possession of the petitioners, in the light of reserve price assessed by M/s. Nespak at Rs, 12.78 and the average price Rs, 14.20 Millions some in between device is to be determined. Hence Rs, 13.56 Millions is fixed as price of land in dispute. The payment as per request by the petitioners shall be made in four equal instalments. The first instalment is required to be paid till 30th September, 2006, the second instalment shall be paid by 31st December, 2006, 3rd instalment shall be paid by 31st March, 2007 and 4th instalment shall be paid by 30th June, 2007 along with 2% liquidation charges Rs,2,71,200. In case of default in payment of any instalments or portion thereof the application shall be deemed to have been dismissed and the amount so deposited shall be assumed to have been forfeited.
' NOC shall be issued after the deposit of total amount of Rs, 13.56 million plus 2% liquidation charges, copy of the order be communicated to the Property Section for information and strict compliance. The application is disposed of accordingly."
9. On having knowledge of the said orders, Muhammad Sarfraz etc. Petitioners in P.No,l76-C-2007 had moved an application before the PCBL they being legal heirs of Sardara were also entitled to their share in the property and their names were wrongly excluded from the heirship of Sardara.
However, their claim was rejected vide orders dated .17-9-2007 as follows:- "The petitioners did not contest the entries in the Khasra Girdwari. They kept silent for a long time during and after the proceedings before the Liquidation Board. No reason has been advanced by them for the delay in the circumstances of the case. Assumingly they are guilty of laches. This fact is also to be kept in view that already three instalments have been paid by the petitioner of the main petition. The application in the circumstances is not sustainable in the eyes of law and is dismissed accordingly".
' From the perusal of the above said order it is clear that it was never claimed that Muhanlmad Sarfraz etc. Were not the heirs of Sardara and their claim was rejected on flimsy grounds as they being successors of Sardara could not be deprived of their rights in the disputed land subject to payment of price of the land falling in their share as determined vide orders dated 28-6-2006. It was omitted to take notice that Raja etc. Had illegally and intentionally struck off the names of other legal heirs of Sardara, who could not be deprived of their legal rights on the basis of playing fraud with them. Bare perusal of application and order reveals that there was no dispute that Raja etc. He claimed the ownership of the land in dispute firstly on the basis of sale in favour of Sardara deceased and simultaneously on the basis of possession over the disputed property since long by their predecessor in interest Sardara, as is apparent from para 6 of the order dated 28-6-2006, which is reproduced as under for ready reference:- "Insofar the merits of the case are concerned, the claim of the petitioner dated back to the year 6- 11-1970 and onward to 4-2-1978, when the alleged payments were made to the respondent regarding the price of land in dispute. It is the contention of the petitioner that since then they are in possession of the land in dispute in the capacity as owner. On the record there is copy of Khasra Girdawari Annexure-E for the year Rabi 1989 and Kharif 1989, which does hot disclose as if the petitioners are in possession of the property in dispute as owners or in anticipation as owner, rather Provincial Government through Ikram ud Din, Anwar ud Din etc. Are in possession under cultivation of Mst. Bushra etc. The Khasra Girdawari Annexure-E also does not relate to the period when they claim to have purchased the property in the year between 1970- 1978 rather relate back to Kharif 1997, on ward. What I want to assert is that had the petitioner purchased the property in between 1970 to 1978, their names would find mention as tenant, or the prospective owner in the relevant Khasra Girdawari. Khasra Girdawari for the period 1970, and onward till 1987 were not produced the Girdawari Annexure-A and # do not help to arrive at just conclusion. The agreement produced by the petitioner are not duly registered, also it'cannot be inferred from any document as if the vendor had previously any Claim over the property in dispute so as to assume me that they could enter into some agreement for the transfer of the land in favour of the petitioner."
' It is found that the mere consideration for selling the land to Raja etc. Was that they were in possession of the property being legal heirs of Sardara who was the alleged original claimant of the property having purchased the same from the legal heirs and being in possession of the land since long. This fact has been concealed by Raja etc. That Sarfraz etc. Being successors of Ahmed Yar son of Sardar were also legal heirs along with others. It is relevant to point out that all the legal heirs of Muhammad son of Sardara were also not impleaded by Raja etc., who are respondents No,3 to 5, namely, Mst. Moodran Bibi widow, Muhammad Ishaq son and Mst. Jallan Bibi daughter, Similarly, Sakina Bibi daughter of deceased Sardara survived through Kandar, Sakindar, Khizar Hayat, Noor Akbar, Fatima Bibi Hakim Bibi and Mst. Sahib Bibi (respondents No,6 to 12) were not impleaded as party in the said petition. The learned counsel for the petitioners in Petition No,176-C of 2007 has also placed on record an agreement arrived at by Raja, Muhammad Ishaq, Farzand Bibi and Jhallan Bibi with Tahir Imran in order to claim for the payment. Raja etc. Cannot get benefit of their concealment by excluding other legal heirs of Sardara as they had raised their claims on the basis of possession of Sardara due to which property instead of putting to open auction had been sold to them vide A orders dated 28-6-2006. The contention of the learned counsel for Raja that PCBL could not review order dated 17-9-2007 vide order dated 20-12-2008 is repelled as it was not reviewing order, but it was continuation of order which has been obtained through fraud and misrepresentation.
10. For the foregoing discussion, P.No,176-C of 2007 is accepted, the order dated 17-9-2007 is set aside while P No,9- C of 2009 filed by Raja is dismissed. It is directed that in continuation of the orders dated 28-6-2006, the disputed property shall be devolved upon all the legal heirs of Sardara according to their respective shares subject to the deposit of the amount falling in their share with the PCBL.