SULTAN MUHAMMAD and another vs MUHAMMAD QASIM and others

' ANWAR ZAHEER JAMALI, J.---These two appeals with the leave of this Court, vide order dated 22- 10-2002, have somewhat complexed facts, and chequered history of litigation, which may be summarized as under:--

2. Evacuee property katcha superstructure of shop over Survey No,513, (Original No,275) situated over khewat No,1, khatooni No,489, having area of 394 sq. Ft., Trench Road, Chaman City; hereinafter referred to as "disputed property", according to the case of the appellants, was originally owned by Evacuee "Kishan Dass" and since pre-partition days, it remained in occupation of Chargul (father)/ predecessor-in-interest of appellant Abdul Haleem, as tenant uptil his death in the year 1955. Rent of disputed property, which was later on assigned new No,601, was paid by Chargul to the Custodian Department, and thereafter by his legal heirs. Since the land underneath the disputed property was owned by Municipal Committee, Chaman, therefore, later on legal heirs of Chargul continued making payment of its rent to the Municipal Committee, Chaman.

3. Under the Settlement Scheme No,VII of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (in short "Act of 1958"), (as reconstituted on 16-4-1966), the evacuee properties valuing less than Rs,10,000 in occupation of a claimant/non-claimant or a local before 1- 1-1961 were to be transferred to its occupants, subject to fulfilment of certain other conditions, free of charge, on application submitted to the Tehsildar of the area, who at the relevant time, was acting as assistant Rehabilitation Commissioner. As per further case of appellants, the disputed property, being one of such properties, therefore, respondent No,1 Muhammad Qasim, who was actually inducted in the disputed property by one of the legal heirs of Chargul as tenant, in the first instance, by misrepresentation of facts, managed issuance of transfer order dated 1-3-1972, in respect of residential portion of disputed property bearing khasra No,513, under the said scheme in his favour. However, when this fact came to the knowledge of the legal heirs of Chargul, having recourse to rule 6 of Permanent Transfer rules framed under section 35 of the Act 1958, they made application/ complaint against such transfer order before the Tehsildar/Assistant Rehabilitation Commissioner, who, in its response, cancelled the earlier transfer order dated 1-3-1972 in favour of Muhammad Qasim, vide order dated 19-5-1972, and issued fresh transfer order of the whole disputed property as shop in favour of Sultan Muhammad son of Haqdad on 27-5-1972, who was one of the grandsons of Chargul. Subsequently, through family arrangement, Sultan Muhammad surrendered this shop in favour of his uncle Abdul Haleem son of Chargul, who also submitted an application before the Municipal Committee for transfer of underneath land of the disputed property to him. This matter was accordingly processed and on 27-8-1973, thirty years lease/patta of land was also granted in his name.

4. After a period of more than twelve years, on 6-2-1986, Respondent No,1 Muhammad Qasim filed Civil Suit No,95 of 1986 (Original No,30 of 1986) before the Court of Civil Judge, Quetta, to challenge the title of the appellant Sultan Muhammad in the disputed property, transferred to him by the Settlement Department on 27-5-1972 as well as subsequent lease of the land underneath the disputed property for a period of thirty years, vide lease deed dated 27-8-1973. His case before the Civil Court was that the transfer of disputed property in his favour, vide transfer order dated 1-3- 1972, was a valid transfer, which was cancelled without any notice or opportunity of hearing to him, thus, ab initio void. His further case was that he had been pursuing the matter before the Municipal Committee for grant of lease of the land underneath the disputed property, but he was kept under false hopes, and it transpired to him only in the month of October 1985 that grant of lease for a period of thirty years was managed by Abdul Haleem in his favour as back as in the year 1973.

Based on such assertions, relief claimed by respondent No,1 (Muhammad Qasim) in his suit was to declare that the permanent transfer deed of disputed property No,513, dated 27-5-1972, and patta/lease dated 13-11-1972 (correct dated 27-8-1973) of the land underneath the disputed property issued in favour of Abdul Haleem by other defendants in the suit, were without lawful authority. Further relief sought in the suit were directions against the Municipal Committee and Deputy Commissioner, Pashin to grant patta of the land underneath the disputed property in favour of the plaintiff.

5. As against the above claim of respondent No,1, case of two appellants, inter alia, was that: (a) transfer order dated 1-3-1972, was a managed and forged document, which was rightly cancelled by the competent authority, vide order dated 19-5-1972; (b) after issuance of final transfer document in favour of Appellant Abdul Haleem, on 27-5-1972, which remained unchallenged, even after the repeal of settlement laws, jurisdiction of the civil Court was barred under sections 22 and 25 of the Act of 1958; (c) due to non-challenging of cancellation order dated 19-5-1972, passed by Assistant Rehabilitation Commissioner & Tehsildar, Chaman, and non-seeking of relief of restoration of transfer order dated 1-3-1972, the suit was barred by section 42 of the Specific Relief Act, 1877; (d) the suit was hopelessly time barred; and (e) Muhammad Qasim was in possession of the disputed property as tenant of predecessor-in-interest of the appellants under a written tenancy agreement, thus, he was estopped from challenging the title of the appellant Abdul Haleem over the disputed property.

6. In the first round of litigation, suit filed by respondent No,1 Muhammad Qasim, being suit No,95 of 1986, was dismissed by the Civil Judge, Quetta on 31-3-1992, holding in the judgment that, inter alia, the suit was barred by time. However, appeal against such judgment filed by him before the Court of Additional District Judge-III, Quetta, being Appeal No,34 of 1992, was allowed, vide judgment dated 23-9-1992. Against such judgment of the appellate Court in favour of respondent No,1 (Muhammad Qasim) appellants preferred Civil Revision No,278 of 1992, before the High Court of Balochistan at Quetta. At the time of hearing of this civil revision, it was brought to the notice of the High Court that another Civil Suit No,66 of 1991 for declaration and permanent injunction in respect of the disputed property, instituted by appellant No,2 Abdul Haleem, was also pending before the Civil Court at Quetta. Therefore, keeping in view this aspect of the case, the two earlier judgments of the Civil Judge dated 31-3-1992 and the appellate Court dated 23-9-1992 were set aside by the High Court, vide its order dated 16-5-1993 and the case was remanded to the Civil Judge at Quetta to proceed with both the suits simultaneously.

7. It will be pertinent to mention here that on 6-2-1986, at the time of institution of suit No,30 of 1986 (new No,95 of 1986) before the Court of Civil Judge, Quetta, respondent No,1 Muhammad Qasim, as plaintiff in the said suit, had only impleaded Sultan Muhammad son of Haqdad and three official respondents as defendants in the suit, to the exclusion of main contesting party to this litigation i,e, Abdul Haleem son of Chargul, who, held the transfer documents of the disputed property issued from the Settlement Department in his name, so also the patta/thirty years lease of land from respondent No,2, Municipal Committee, Chaman. Careful perusal of case record reveals that said Abdul Haleem was joined as defendant in the suit through an application to this effect moved by appellant No,1 Sultan Muhammad on 13-2-1990, which was allowed on the same day, and accordingly such amended plaint was filed in the suit on 21-3-1990, but without claiming any relief against him. To this plaint, however, corresponding written statement on behalf of appellant No,2 Abdul Haleem was filed on 7-4-1990. Case record further reveals that on 29-8-1994 with the leave of the Court another amended plaint, for the first time containing any relief against appellant Abdul Haleem was filed by respondent No,1 Muhammad Qasim, to which detailed written statement was filed by appellant Abdul Haleem on 19-9-1994, on the same lines, also disputing the maintainability of the suit on various legal grounds.

8. Before proceeding further, it would not be out of place to mention here that before the institution of Suit No,66 of 1991, for declaration and permanent injunction, appellant Abdul Haleem had also filed ejectment application No,50 of 1986, under the Balochistan Urban Rent Restriction Ordinance 1959 (Act VI of 1959), against respondent No,1, which was contested by respondent No,1 on the plea of non-existence of relationship of landlord and tenant between the parties. This ejectment application was dismissed by the Rent Controller, vide order dated 18-4-1990, which was challenged by appellant Abdul Haleem in appeal. However, that appeal was also later on withdrawn by him, with the permission to file a civil suit. It was in this background that Civil Suit No,66 of 1991, was instituted by appellant Abdul Haleem on 12-9-1990 with the following prayers:-- "(a) Declaring that plaintiff is owner and landlord of the premises shop No,601 (Now Number) old No,513 situated on Tranch Road, Chaman.

(b) Declaring that the document dated 1-3-1972 is a fraudulent document having been obtained illegally and unlawfully, having no force of law.

(c) Directing the defendant to hand over vacant possession of the shop.

(d) Restraining the defendant No,1 permanently from claiming right, title over the suit property.

(e) Directing cancellation of the document dated 1-3-1972. (0 Any other relief which may be deemed appropriate. (g) Costs of the proceedings may also be awarded."

9. After the remand of earlier Suit No,95 of 1986, instituted by respondent No,1 Muhammad Qasim on 6-2-1986, both the suits were consolidated and proceeded with together before the same Court and after recording of parties evidence, and production of certain documents by them in respect of their respective claims, through common judgment dated 31-7-1995, Civil Suit No,95 of 1986, filed by respondent No,1 Muhammad Qasim against the appellants and respondents Nos.2 to 4 was decreed, whereas suit No,66 of 1991, instituted by appellant Abdul Haleem against respondent Na.1 and respondent No,4 Assistant Rehabilitation Commissioner, Chaman, was dismissed. The appellants, therefore, preferred two separate appeals bearing Nos.68 of 1995 and 69 of 1995 against such consolidated judgment of Civil Judge-I Quetta, before the Court of District Judge, Pashin, where they remained unsuccessful, as both these appeals were dismissed vide judgment dated 30-3-1996. Appellants being dissatisfied by the concurrent findings of the two Courts against them, preferred two civil revision applications under section 115, CPC, being Civil Revisions Nos.160 of 1986 and 161 of 1996, before the High Court of Balochistan, which were heard together and dismissed by the learned single Judge in the Chambers of Balochistan High Court by common judgment dated 17-7-1998. It is against such judgment of the Balochistan High Court that after grant of leave by this Court, in both the petitions, vide order dated 22-10-2002, these two appeals have come up before us for arguments.

10. Mr. Basharatullah, learned Senior Advocate Supreme Court representing appellants in these two appeals made an elaborate discussion on the facts and the relevant provisions of Settlement laws, in particular, Scheme No, VII of the Act of 1958, to explain, as to how in a lawful manner the disputed property was transferred to the appellant Abdul Haleem, under such Scheme, vide transfer order dated 27-5-1972, in favour of Sultan Ahmad, from whom it was later on legally transferred in the name of appellant Abdul Haleem son of Chargul. He vehemently contended that under a written tenancy agreement, respondent No,1 Muhammad Qasim was put in possession of the disputed property as tenant, whereafter in a fraudulent manner, through fraud, misrepresentation and in connivance with the Settlement and Rehabilitation staff, he succeeded to manage a forged transfer order dated 1-3-1972 in his favour to acquire ownership of the disputed property. However, on timely application/complaint made by the legal heirs of Chargul, who were in occupation of the disputed property through their father since pre-partition days and were making its regular payment of rent to Municipal Committee, Chaman, such illegality was detected, rectified, transfer order in favour of Muhammad Qasim was cancelled, vide order dated 19-5-1972, and proper transfer order was issued in their favour on 27-5-1972. Further submission of Mr. Basharatullah was that transfer of disputed property from the Settlement department under Scheme No,VII to Sultan Muhammad and thereafter to appellant Abdul Haleem is a separate and distinct part of this litigation, which has nothing to do with the second limb of dispute, through which the lease/patta of such land for a period of thirty years was lawfully granted by Municipal Committee, Chaman in favour of Abdul Haleem on 27-8-1973. In this regard, further submission of the learned counsel was that, mere "ipse dixit" of Muhammad Qasim, that he was pursuing the matter for grant of such lease/patta of shop with the Municipal Committee since the year 1973, was of no legal significance, as this fact was also belied from the bunch of documents brought on record by appellants (Ex.D/1 to D/9), in Suit No,95 of 1986 and Ex.P/1 to P/25 in Suit No,66 of 1991, showing, amongst others, regular payment of rent to the Custodian Department and thereafter lease money "Bhom Bhara" by appellant Abdul Haleem in respect of the disputed property from time to time. Learned counsel further submitted that a presumption of correctness in the performance of official functions is attached by virtue of Article 129 of the Qanun-e-Shahadat Act of 1984, therefore, mere words of respondent No,1 about alleged transfer of disputed property in his favour through transfer order dated 1-3-1972, qua its cancellation without any notice and behind his back were not sufficient, unless firstly, he could show that any such transfer order in respect of disputed property, if passed, was ever implemented in his favour by issuance of PTD; secondly, whether the cancellation order dated 19-5-1972, was passed without any notice or opportunity of hearing to him; and thirdly, whether for a long period of almost 13 years he had no knowledge as to who owned the disputed property in his possession. He continued with his submissions that in such circumstances, proper course available to respondent No,1 was that he should have summoned, the original record from the Settlement and Rehabilitation Department to show that (a) transfer order dated 1-3-1972 in his favour was actually subsisting and it was a lawful transfer order; and (b) it was cancelled on 19-5- 1972, without any notice or opportunity of hearing to him, but all this was not done. He also contended that the only document to show possession of respondent No,1 over the disputed property was a photostat copy of receipt regarding payment of rent to the Custodian Department, which, according to the appellants, was a bogus document and was not proved in accordance with law as nobody was summoned from the Custodian/ Settlement departments to prove its authenticity. In the same context, he further submitted that question of payment of rent to the Custodian Department by respondent No,1 does not arise, as except Chargul no one ever remained recorded tenant of the disputed property with the Custodian Department, which is an undisputed position on record. He also argued that to overcome the question of limitation, which, by virtue of section 3 of the Limitation Act, was statutory duty of the Civil Court to examine, respondent No,1 has made a bald statement before the Civil Court about his lack of knowledge of all these material events, which have occurred in the years 1972, and 1973. He emphasized that such bald assertion by respondent No,1 was not sufficient to overlook all other material facts and salient features of the case and to condone in this way such inordinate delay in the filing of civil suit, after lapse of more than twelve years. Further dilating upon the question of limitation, learned counsel pointed out that period of limitation against the main contesting defendant Abdul Haleem was to be computed from the date when at the instance of appellant No,1, as per Court order dated 13-2-1996, for the first time on 21-3-1990, he was arrayed/joined by respondent No,1 in his Suit No,95 of 1986, as defendant No,2. Thus on this count too suit instituted by the respondent No,1 was hopelessly time- barred against him, but this aspect of the case was not even adverted to by any of the three Courts below. Advancing his argument, Mr. Basharatullah, candidly concluded that in exercise of revisional jurisdiction under section 115, C.P.C., concurrent findings of fact recorded by two Courts below are not open to question, even if on facts another view of the matter was possible on the same set of evidence. However, he further argued that if such concurrent findings are based on patent misreading or non-reading of evidence or are against the statutory provisions or settled legal principles, as in the instant case, then the same are not immune from interference by the revisional Court in exercise of its jurisdiction under section 115, C.P.C. Or by this Court in exercise of its jurisdiction under Article 185 (3) of the Constitution. Further arguing the point of limitation, learned counsel contended that respondent No, 1, at the time of filing his declaratory suit on 6-2- 1986, was required to be specific in his pleadings in terms of Order VII rule 6, CPC, about the narration of relevant facts of acquiring knowledge, to avoid the bar of limitation in following up his remedy after lapse of over twelve years, explaining the happening of relevant events of transfer of disputed property by Settlement Department in favour of Sultan Muhammad and thereafter its transfer to appellant Abdul Haleem and grant of patta/lease of thirty years in his favour, but plaint in the suit was absolutely silent on these material aspects, regarding which burden of proof squarely lay upon respondent No,1, and during evidence also it remained undischarged. He further made reference to rule 6 of the Permanent Transfer Rules to give legal justification of the order dated 19-5-1972, whereby transfer order in favour of Muhammad Qasim was cancelled.

11. Lastly, he made reference to the provisions of sections 22 and 25 of the Act of 1958 to show that after issuance of permanent transfer document of disputed property in favour of appellant No,2 through his predecessor on 27-5-1972; cancellation of transfer order dated 1-3-1972, in favour of respondent No,1, vide order dated 19-5-1972, and non-challenging of all these proceedings and orders before Settlement authorities, having lawful jurisdiction in respect of disputed property, being evacuee, such actions/ orders of the Settlement authorities in particular, after he repeal of Settlement laws, attained finality, and thus, the same were not open to question through proceedings before the Civil Court due to the bar of jurisdiction under these sections of the Act of 1958. Similarly, grant of lease of land a period of thirty years by Municipal Committee, Chaman in favour of appellant No,2 on 27-8-1973, was an independent, past and closed transaction between the appellant No,1 and respondent No,2 (Municipal Committee Chaman), for which respondent No,1 never agitated before any forum, nor has locus standi to question the validity of such transaction as admittedly he never applied to the respondent No,2 for this purpose. In support of his arguments, learned counsel placed reliance on the following cases:--

(1) Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698)

(2) Anwar Hussain v. Sarfraz Ahmad (PLD 1971 SC 669)

(3) Zafarul Hassan v. Muhammad Kalim (1993 SCM R 2028)

(4) Muhammad Ramzan v. Bashir Ahmad (PLD 1981 SC 340)

(5) Sher Afzal Khan v. Razi Abdullah (1984 SCM R 228)

(6) Ghulam Rasul v. Jannat Bibi (1990 SCM R 744) A review of these cases reveals that:--

(a) In the case of Muhammad Jameel Asghar (supra), dilating upon the jurisdiction of Settlement Authorities qua bar of jurisdiction under sections 22 and 25 of the Act of 1958, it was held by this Court that the Settlement Authorities could only exercise jurisdiction in respect of the properties, which are evacuee in nature, thus order of Settlement Authorities relating to the determination of status of a property was open to challenge before the Civil Court only on the ground that the property was non-evacuee and thus Settlement Authorities lacked jurisdiction in respect thereof.

(b) In the case of Anwar Hussain (supra), the principle laid down by this Court was that after issuance of PTD, the Settlement Authorities become functus officio to deal with that property.

However, Permanent Transfer Rules, 1961, framed by the Central Government, in exercise of powers conferred on it by section 35 of the Act of 1958, were an exception to it, as two types of cases are envisaged in the rules in which Settlement Authorities may interfere even after issuance of PTD.

Firstly, the cases which suffer from an error of type, which can be corrected without embarking upon a formal inquiry or holding adverse proceedings. Cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rules 6 and 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement Authorities may under the second part of rule 6 or 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard, it is found that he has been guilty of misrepresentation and fraud.

(c) In the case of Zafar-ul-Hassan (supra), taking into account the provisions of sections 22 and 25 of the Act of 1958, it was held that jurisdiction of Civil Court was barred in the matters wherein it vested with the Settlement Authorities under the Act of 1958.

(d) In the case of Muhammad Ramzan (supra), while dealing with the question of service of notice under section 30 of the Act of 1958, qua the effect of section 6 of the General Clauses Act, 1897, it was held that after the repeal of Act of 1958 by Act XIV of 1975, service of such notice to the tenants of evacuee property was no more a requirement of law.

(e) In the case of Sher Afzal Khan (supra) it was held that after the issuance of PTD, the Settlement Authorities become functus officio, therefore, even after coming into force of repealing Act XIV of 1975, no powers could be exercised to review or reopen such past and closed transaction.

(f) In the case of Ghulam Rasul (supra), while refusing leave to appeal against the judgment of the High Court, it was observed by this Court that after the issuance of PTD by the Settlement Authorities, the proceedings shall be deemed to have become final, therefore, by virtue of section 25 of the Act of 1958 Civil Court will have no jurisdiction to correct the orders of the Settlement Authorities, which have attained finality.

12. Conversely, Mr. S. A. M. Quadri, learned ASC for respondent No,1, who has also submitted concise statement of his submissions, contended that after issuance of permanent transfer deed (PTD) in favour of respondent No,1 by the Assistant Rehabilitation Commissioner, Chaman, on 1-3-1972, the disputed property was no more available for transfer to any other person, thus, its cancellation by the same officer, vide subsequent order dated 19-5-1972, and its transfer in favour of appellant Abdul Haleem was ab initio void, hence no period of limitation would run against such illegal action. He further contended that respondent No,1 was recorded tenant of Custodian Department in respect of the disputed property, which is evident from the receipt of payment of rent to them, dated 23-9-1957, therefore, any factual plea raised by the appellants about the possession of the disputed property with their predecessor-in-interest Chargul since pre-partition days is false; so also is the plea of induction of respondent No,1 as their tenant in the disputed property through a written tenancy agreement. Replying to the arguments of Mr. Basharatullah, with reference to grant of thirty years patta/lease of land in favour of appellant Abdul Haleem on 27-8-1973, Mr. Quadri, argued that this lease and regular payment of lease money "Bhom Bara" by the appellant Abdul Haleem to Municipal Committee, Chaman was kept secret from respondent No,1, therefore, despite his efforts, he could not pursue his claim in this regard before the concerned forum in time, but no benefit of such concealment of facts can be given to the appellants. However, he did not dispute that no written application for grant of patta/lease of land was ever submitted by the respondent No,1 before the respondent No,2 for this purpose. Replying to the question of limitation, learned counsel reiterated that it was a mixed question of law and fact, regarding which three Courts below have already decided in favour of respondent No,1, therefore, at this stage this issue cannot be re- agitated by the appellants. He also argued that after the repeal of settlement laws with effect from 1-7-1974, the only forum available with the respondent for seeking his remedy was before the Civil Court, and thus, bar of jurisdiction under sections 22 and 25 of the Act of 1958 was not applicable to his case. Highlighting other shortcomings in the case of appellants, learned counsel also made reference to the order of the Rent Controller against them, whereby ejectment application filed by appellant Abdul Haleem against respondent No,1 was dismissed and subsequent appeal against such order was also withdrawn by him. As regards the claim of the appellants made in Suit No,66 of 1991, he contended that this suit was nothing, but a counterblast to the proceedings commenced by respondent No,1 to challenge their title, thus, rightly dismissed by all the three Courts below. He summed up his arguments with a note that these two appeals, being devoid of merits, shall be dismissed with costs. In support of his submissions, learned counsel cited the following reported judgments of this Court:--

(1) Settlement and Rehabilitation Commissioner, Hyderabad v. Mannu Khan (1973 SCM R 62)

(2) Syed Murid Hussain Shah v. Mufti Muhammad Yousaf Ali (1974 SCM R 8)

(3) Sh. Fazal Karim v. Settlement and Rehabilitation Commissioner and 3 others (1981 SCM R 628)

' A glance of these cases shows that:--

(i) In the case of Settlement and Rehabilitation Commissioner, Hyderabad (supra), it was observed by this Court that the jurisdiction of a Tribunal was to be detriment at the commencement and not at the conclusion of the inquiry/proceedings. Thus any action taken by the Tribunal at the time when it had no jurisdiction, will not be protected if the tribunal was subsequently vested with such jurisdiction.

(ii) In the case of Syed Murid Hussain Shah (supra), the earlier view that after the issuance of PTD the Settlement Authorities become functus officio was reiterated, with reference to the facts of that case.

(iii) In case of Sh. Fazal Karim (supra), which related to Settlement Scheme No,VII under the Act of 1958, it was held that when the order of Settlement Commissioner, holding both shops as constituting one unit, was not shown to be erroneous and as a consequence nothing was found available for transfer under Settlement Scheme No,VII. Such order was unexceptionable and not open to challenge in writ petition.

13. We have carefully considered the arguments advanced before us by the parties' counsel, except the official respondents Nos.2 to 4, who opted not to contest these proceedings, after the filing of written statement by respondent No,2, supporting the claim of appellants. Upon careful reading of the pleadings of the parties in their respective plaints and written statements in the two suits, we find that, in brief, case of respondent No,1 Qasim in the plaint of his Suit No,95 of 1986 and written statement in Suit No,66 of 1991, was that he was in possession of disputed property since last about thirty years. The disputed property (shop) originally belonged to a Hindu Kishindas son of Virbhan, who migrated to India, and thus, it became evacuee and he came in its possession and paid rent to the Custodian department. On introduction of Settlement Scheme No,VII under the Act of 1958, he, being entitled for the transfer of disputed property on the basis of possession, was issued permanent transfer document (PTD) dated 1-3-1972, and since thereafter he remained in undisturbed possession of the disputed shop, also paying Bhom Bara to Municipal Committee, Chamman. It was only in the month of. October, 1985 when he approached respondent No,2 for grant of patta of the land under the disputed property in his favour that he came to know that his transfer document was cancelled by the Settlement Authorities on 19-5-1972 and further the lease of the land was granted to the appellant Abdul Haleem on 13-11-1972. He, therefore, instituted suit against the appellant Sultan Muhammad, Settlement Department and Government, with the prayer to declare permanent transfer deed dated 27-5-1972 and patta dated 13-11-1972 issued in favour of private defendant to be without any lawful authority and further directions against the official defendants in the suit for grant of patta/lease of the land under the disputed property in his favour.

14. As against it, case of appellants Abdul Haleem and Sultan Muhammad in their written statement in Suit No,95 of 1986 and plaint of Suit No,66 of 1991 (filed by Abdul Haleem) was that disputed property (shop), with katcha superstructure, was original owned by Kishandas, who had let out the same to their predecessor-in-interest Chargul in pre-partition days. When the disputed property was taken over by Custodian Department as evacuee property, their predecessor (Chargul) was treated as its recorded tenant, therefore, he continued its payment of rent to them upto the year 1955, when he died, and property devolved upon his legal heirs, who thereafter continued payment of Bhom Bara to the Municipal Committee Chamman. On introduction of Settlement Scheme No, VII (supra), they being the legitimate occupant/recorded tenant of the disputed property were issued its permanent transfer document on 25-7-1972, after the cancellation of earlier managed transfer order dated 1-3-1972 in favour of respondent No,1, which was obtained through fraud and misrepresentation. The cancellation of transfer order in favour of respondent No,1 was made, vide order dated 19-5-1972, which remained unchallenged throughout.

Further the patta/thirty years lease of the land underneath the disputed property was executed by the Municipal Committee Chamman in favour of appellant Abdul Haleem on 27-8-1973. The respondent No,1, who was their tenant in the shop underwritten tenancy agreement later on turned hostile and claimed adverse title in the disputed property by filing declaratory suit against the appellant No,1 Sultan Muhammad and three other official defendants, wherein later on Abdul Haleem was also joined as defendant No,2 on 21-3-1990.

15. After the order of remand passed by the High Court in Civil Revision No,278 of 1992 on 16-5-1993, both the suits were consolidated and proceeded with simultaneously. At the stage of evidence both the parties lead their respective evidence in the manner that plaintiff in Suit No,95 of 1986 examined himself and P.W.1 Inayatullah, P.W.2 Muhammad Anwar, P.W.3 Nadir Khan, P.W.4 Sharbat.

In rebuttal private defendants examined their attorney Abdul Aleem and D.W.1 Khair Ullah, D.W.2 Siraj Ahmed, D.W.3 Hayat Khan, D.W.4 Khair Ullah D.W.5 Haji Muhammad Alam and D.W.6 Alam Gul Parties produced documentary evidence marked as Exh.P/1 to Exh.P/9 and Exh.D/1 to Exh.D/9.

Plaintiff in Suit No,66 of 1991 examined himself and P.W.1 Afghan, P.W.2 Abdul Samad, P.W.3 Abdul Rehman, P.W.4 Abdul Jabbar, P.W.5 Muhammad Essa, P.W.6 Abdul Samad and P.W.7 Lotafullah. He also produced documentary evidence marked as Exh.P/ 1 to Exh.P/25. In rebuttal the defendant No,1 relied upon the evidence produced by him in Suit No,95 of 1986.

16. After completion of post remand proceedings in the two suits, the Civil .Judge, Quetta by his consolidated judgment dated 31-7-1995, precisely, sustained the claim of respondent No,1, and thus, decreed his Suit No,95 of 1986, and dismissed the other Suit No,66 of 1991, filed by appellant No,2. In the appeals, such judgment of the Civil Judge, 1st Class, Quetta was maintained; so also at the revisional stage.

17. Indeed, the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case, are not open to question at the revisional stage, but where on record the position is contrary to it, then the revisional Court in exercise of its jurisdiction under section 115, C.P.C. Or this Court, in exercise of jurisdiction under. Article 185 (3) of the Constitution, are not denuded of their respective powers to interfere and upset such findings.

18. In the instant appeals, besides various contentions factual aspects of the case, which will be discussed in the later part of this judgment, there are three crucial legal points involved in the matter about the maintainability of Suit No,95 of 1986, which need detailed consideration by this Court.

19. The first legal point, which needs to be addressed here is "whether Suit No,95 of 1986 (Original No,30 of 1986) instituted by respondent No,1 on 6-2-1986, challenging the transfer document dated 27-8-1972, in favour of appellant No,2, (Abdul Haleem) and subsequent grant of lease/patta dated 27-8-1973 in his favour was not barred by time". Moreso, when the main contesting party the appellant No,2 was not party to such litigation upto 21-3-1990, when first amended plaint, joining him as defendant No,2 in the suit was filed in compliance of the order dated 13-2-1990. The second legal point worth consideration is, whether after the repeal of settlement and rehabilitation laws with effect from 1-7-1974, the bar of jurisdiction provided under sections 22 and 25 of the Act of 1958 read with section 6 of the General Clauses Act ceased to have force, and thus, the civil Court had jurisdiction to adjudicate the controversy as regards the validity or otherwise of the transfer document of an evacuee property, issued in favour of appellant No,2 on 27-5-1972, as well as Patta/lease of land for thirty years dated 27-8-1973. Third legal point for consideration is whether, keeping in view the prayers made in the plaint of Suit No,95 of 1986, the said suit was barred under section 42 of the Specific Relief Act or not.

20. In order to examine these material legal aspects of the case, touching the very root of the case, it will be necessary to examine in some detail respective case of the parties' on these points. As regards Suit No,95 of 1986, instituted by respondent Muhammad Qasim on 6-2-1986, from the contents of its plaint, one can see that the two actions challenged by respondents No,1 in this suit were regarding the issuance of transfer order dated 27-5-1972 in respect of the disputed property in favour of appellant Abdul Haleem and thereafter patta/lease of the land dated 13-11-1972 (correct dated 27-8-1973) issued by Municipal Committee, Chamman, in his favour. Since it was a suit for declaration and injunction seeking declaration in respect of two orders passed by the official defendants, for the purpose of limitation, it would be governed by Article 14 of the Limitation.

Act, providing one year period of limitation, computable from the date of the action or order of the government officials challenged in the suit. Thus, it is clear that on expiry of period of one year in the year 1973/1974, the claim of respondent No,1 for seeking such declaratory reliefs against the actions/orders of official defendants became barred by time, as the period of limitation was to be computed from the date of action or order of the concerned government officials challenged in the suit and not from the date of knowledge. The plea of ignorance about these two orders pressed by respondent No,1 is also without any force, as no relevant details to this effect as required under Order VII, rule 6, C.P.C. Were B unfolded by him, either in the plaint of the suit or even in the evidence recorded therein, though for this purpose heavy burden of proof was upon him, which he failed to discharge.

21. Besides, considering the question of limitation, with reference to the newly joined defendant No,2/appellant No,2, (Abdul Haleem) who was arrayed as party to Suit No,95 of 1986 in terms of the Court order dated 13-2-1990, a reference to the provisions of section 22 of the Limitation Act will be appropriate, which reads thus:- "22. (1) Effect of substituting or adding new plaintiff or defendant. - Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.

(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of made a defendant or a defendant is made a plaintiff." any interest during the pendency of a suit or where a plaintiff is C ' A bare reading of above reproduced provision of law reveals that against appellant No,2 Abdul Haleem, the period of limitation in Suit No,95 of 1985 was, at best, to be computed from 13-2-1990, when, for the first time, at the instance of appellant No,1, Sultan Muhammad, an order for his impleadment as defendant No,2 was passed in the suit, instituted by respondent Muhammad Qasim. Thus, it is clear from the record that even if the period of limitation for filing the suit for declaration and injunction was to be reckoned from the date of alleged knowledge of respondent No,1 Muhammad Qasim, then too the suit filed by him after more than four years from the date of knowledge (October, 1985) was hopelessly time-barred, and thus it was liable to be dismissed, as the whole relief in the suit claimed by respondent No,1 was only against appellant No,2 Abdul Haleem, who was earlier not party to the suit, and thus no relief could have been granted in the suit in his absence.

22. Moving to the next legal question about the bar of jurisdiction of civil Court under the repealed Settlement and Rehabilitation Laws, a close look at the relevant provisions of sections 22 and 25 of the said Act read with section 6 of the General Clauses Act, 1897 will be useful. For ease of reference, the same are reproduced as under:-- `"Displaced Persons (Compensation and Rehabilitation) Act, 1958.

' SECTION 22. FINALITY OF ORDERS.

' Save as otherwise expressly provided in this Act, every order made by any officer appointed under this Act, shall not be questioned in any court.

' SECTION 25. BAR OF JURISDICTION:-- ' Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Central Government or the Provincial Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

' General Clauses Act 1897: ' Section 6. Effect of repeal. Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not;

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; ' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

23. A combined reading of these two provisions, which, even after repeal of the Settlement and Rehabilitation law, w,e,f, 1-7-1974, enjoy full legal protection, by virtue of section 6 of General Clauses Act, makes it abundantly clear that the proper remedy to challenge the cancellation of transfer documents of respondent No,1, vide order dated 19-5-1972 or to challenge the subsequent issuance of transfer document in favour of appellants on 27-5-1972, was provided under the said Act (even under Scheme No, VII ibid), which respondent No,1 miserably failed to avail, enabling such orders to attain finality. It will be seen that it is nobody's case that the disputed property was not an evacuee property available for transfer/disposal under Scheme No,VII and thus for its disposal exclusive jurisdiction vested with the Settlement authorities, which was accordingly exercised without any objection from any corner, before filing of declaratory suit to this effect on 6-2-1986. It will be pertinent to mention here that a distinction is to be drawn between an order passed by a Tribunal having jurisdiction in the matter, though the said order may be, for other reasons, erroneous or illegal, and an order without jurisdiction. It is only in the latter case that the jurisdiction of the civil Court can be invoked on the ground of lack of jurisdiction of the Tribunal in passing such order, but not in the former case, as in the instant matter.

24. When we proceed further to examine the question of validity of the order dated 19-5-1972, regarding cancellation of transfer order dated 1-3-1972 in favour of respondent No,1 and issuance of transfer order dated 27-5-1972, in favour of appellants, we cannot loose sight of the fact that a presumption of correctness is attached to all functions performed by Government functionaries having jurisdiction in the matter. Thus, mere bald statement of respondent No,1 that the transfer order dated 1-3-1972, in his favour, was cancelled without any notice or opportunity of hearing to him, vide order dated 19-5-1972, and subsequent transfer order was issued in favour of appellants on 27-5-1972, again behind his back, and without his knowledge, has no force as for this purpose heavy burden of proof was placed squarely upon him, but he failed to bring on record any material to substantiate such allegations. It is also worthwhile to mention here that in the case in hand respondent No,1 did not even bother to place on record his own permanent transfer document (PTD), if any, to show as to how and in what manner, and on what basis he was found eligible to acquire transfer of disputed property in his favour, and on what terms; otherwise, in what manner the Settlement authorities had become "functus officio" in the matter, when no PTD was ever issued in his favour. Photocopy of order dated 1-3-1972, Exh.P/1, is simply a depiction of the fact that at some point of time transfer of disputed property was ordered in favour of respondent No,1, but it does not show that to what extent that matter was pursued by him and whether it ever matured/materialized in his favour. The principle, that Settlement authorities become functus officio after issuance of PTD is a well recognized one, fortified by a number of Supreme Court judgments, referred to above, but this principle cannot be made applicable to the instant case blindly on mere assertion of respondent No,1, who did not even bother to summon any witness from the Settlement Department to produce the relevant record regarding the issuance of any transfer document in his favour. As a matter of fact, such inaction justified an adverse presumption against respondent No,1 that, had he taken steps to bring to table such relevant record, which might have exposed the weaknesses in his claim, for which the appellants are agitating, being based on fraud and misrepresentation. The above observations against respondent No,1 are in line with the well recognized legal principle about the discharge of burden of proof that a party approaching the Court of law for grant of relief has to discharge its own burden and has to stand on its own legs to succeed, and no benefit of any weaknesses in the case of opposite party can be availed by him.

25. In the present litigation between the parties, it is an admitted position that the disputed property was an evacuee property, which was accordingly taken over by the Custodian Department and made available for transfer under Scheme VII of the Act of 1958. As per claim of respondent No,1 Muhammad Qasim under Scheme No,VII of Act of 1958, PTD of this property was issued in his favour on 1-3-1972, but behind his back, it was cancelled on 19-5-1972, and thereafter another transfer order of disputed property was issued in favour of appellant No,1 on 29-5-1972.

Thus, it is also an admitted position from the record that the Settlement authorities under the Act of 1958 had exclusive jurisdiction to deal with the transfer of disputed property under Scheme No,VII (ibid). In so far as the claim of respondent No,1 regarding the cancellation of his transfer order dated 1-3-1972, without any knowledge or notice to him is concerned, in order to rebut these submissions, Mr. Basharatullah had made reference to rule 6 of Permanent Transfer Rules framed in exercise of powers under section 35 of the Act of 1968, which reads thus:-- "6.(1) Any person through an unstamped application in writing may inform the Settlement Authority concerned of the discovery of any error in an entry or about fraud or misrepresentation in obtaining Permanent Transfer of the Property.

(2) On receipt of such information, the Settlement Authority shall check the record and if he is satisfied that the information is false, he may record his order on the application to that fact.

(3) If the Settlement Authority is of the opinion that an error exists for which the transferee is not responsible, he may correct it and authenticate the correctness with his signature and in such a case all attested copies of the record issued to the transferee shall be withdrawn from him: ' Provided that no such correction shall be made unless the transferee has been given a reasonable opportunity of being heard.

(4) If the information discloses prima facie serious allegations against the transferee, then the Settlement authority may, in his discretion, require the informant to deposit an amount not exceeding two months rent of the house or the shop transferred subject to the condition that if on enquiry the allegation proves to be substantially false the amount so deposited shall be forfeited.

An enquiry into the allegations shall then be made by the Settlement Authority and a reasonable opportunity shall be given to the parties for being heard: ' Provided that where it appears to the Settlement Authorities that it is in the interest of the Government that an inquiry should be held, the Settlement Authority may hold an enquiry under this Sub-rule without requiring the person who gave the information to deposit any sum.

(5) In all cases where a record of Permanent Transfer is required to be amended, verified or cancelled, a carbon copy of the order passed shall, at the time of passing the order, be issued to the transferee free of cost and if he does not desire to file an appeal or Revision, as the case may be, against the order, the record shall be amended, varied or cancelled by the Settlement Authority who shall withdraw all attested copies of the record previously issued to the transferee.

(6) If the transferee desires to file an appeal or Revision, as the case may be, then the entry shall, not be amended, varied or cancelled until the expiry of a period of fifteen days of the passing of the order or the disposal of the appeal or Revision, whichever is latter."

26. Therefore, it appears that it was on the complaint/application of the appellants that proceedings for cancellation of transfer order dated 1-3-1972, in favour of respondent No,1 were initiated by the Settlement authorities, wherein it was found that such transfer order was procured by him through fraud and misrepresentation. Thus, in exercise of such powers the transfer order in favour of respondent No,1 was cancelled in a lawful manner, vide order dated 19-5-1972, which remained unchallenged from the side of respondent No,1 despite availability of remedy under sections 19 to 21 of the Act of 1958, which were in force at the relevant time. As a matter of fact non- production of PTD by the respondent No,1 gives an impression that, if any PTD was issued in his favour on 1-3-1972, the same was surrendered, upon passing of cancellation order dated 19-5-1972, and it was for this reason that respondent No,1 was not in possession of original PTD nor did he bother to summon the original record from the Settlement department.

27. Leaving apart the contention of Mr. Basharatullah with reference to the proceedings under rule 6 (ibid), one fact is evident from the above discussion that the authority which had passed the order of cancellation dated 19-5-1972 against respondent No,1 had exclusive jurisdiction to do so, thus, it cannot be said that such order was ab initio void so as to overcome the question of limitation on this count or to invoke the jurisdiction of civil Court by ignoring the barring provisions of sections 22 and 25 of the Act 1958.

28. Coming to the last legal question about the non-maintainability of Suit No,95 of 1986, due to the bar under section 42 of the Specific Relief Act, in the first place it would be useful to reproduce hereunder the whole prayer made by respondent No,1 in the plaint of his Suit No,95 of 1986, which reads as under:-- "It is humbly prayed that this Honourable Court may be pleased to declare the. Permanent Transfer Deed dated 27-5-1972 of shop No,513 and Patta dated 13-11-1972 of the said shop issued in favour of the first defendant by the remaining defendants to be without any lawful authority and also direct the second and the third defendants to issue Patta of the Land beneath the shop in favour of the plaintiff with costs."

' A combined reading of all the above noted facts, keeping them in juxtaposition, with the above prayer made by respondent No,1 in his suit go to show that neither respondent No,1 had sought any relief as regards the restoration of his own transfer order (alleged PTD) dated 1-3-1972, which was admittedly cancelled by the Settlement authorities, vide order dated 19-5-1972, nor such order was challenged by him at any stage of the proceedings. As regards the challenge to thirty years lease/patta dated 13-11-1972 (correct date 27-8-1973), again respondent No,1 had no locus standi in the matter for the simple reason that as per his own case he never applied for grant of such lease in his favour. From this discussion, it can be safely concluded that the Suit No,95 of 1986, instituted by respondent No,1 Muhammad Qasim, was barred and not maintainable in law on all the three legal points, as discussed above.

29. Another important feature of the case, relevant to examine the merits and authenticity of the claim of respondent No,1 in respect of disputed property, but had skipped the sight of all the three Courts below, is in relation to the terms of transfer under the Settlement Scheme No,VII of Act of 1958, under which both the parties to this litigation claimed transfer of disputed property in their favour. For ease of reference, sections-3 and 5 of the said Scheme, which are relevant for this purpose, may be reproduced as under:--

3. Manner of disposal - (1) Notwithstanding anything contained in any other Settlement Scheme, a claimant, a non- claimant displaced person or a local who has been in occupation of a rural property of any value situated within an extended area, or a house or a shop of the value of Rs,10,000 or more in a rural area since before the 1st day of January, 1961, shall, if he applies in this behalf, be entitled to its transfer on payment of the price hereinafter provided:--

(a) A claimant shall be charged the evaluation price of the property determined on evaluation basis and shall be entitled to pay the price so determined through his own Compensation Book/Rehabilitation Book.

(b) A non-claimant displaced person or local shall be charged the prevailing market value which shall be paid by him in cash:- ' Explanation- "prevailing market value means price determined on evaluation basis payable by claimants, plus:--

(i) thirty per cent for houses and shops in Karachi.

(ii) fifteen per cent for houses and shops in Lahore, Lyallpur, Rawalpindi, Peshawar, Multan and Hyderabad;

(iii) five per cent for houses and shops in all other areas.

(2) Subject to the provisions of sub-paragraph (1) rural properties situated in extended areas shall be disposed of by the concerned competent authorities as urban properties in the manner laid down in the Act and the Schemes made thereunder.

(3) A rural property situated in a major village; other than a house or a shop of the value of Rs,10,000 or more will be disposed of in the following Manner:--

(a) A pacca residential or business building or premises or a building site in the occupation of a person, who is the allottee of agricultural land, within the village, will be transferred to him free of charge.

(b) A pacca residential or business building or premises or a building site in the occupation of a displaced person; who is not allotted of agricultural land within the same village shall be transferred to him free of charge, if he applies in this behalf and has proved by affidavits to the satisfaction of Assistant Settlement Commissioner (Tehsildar Mukhtiarkar) of the area, that he has abanaoned in a rural area now forming part of or occupied by India, a house or a shop of the value of less than Rs,10,000.

' Explanation - Abandonment of property as aforesaid may generally be proved by affidavits.

(c) A pacca residential or business building or premises or a building site which is in the occupation of a displaced person or local shall, if such person applied in this behalf, be transferred to him on payment of the price as assessed in accordance with the formula as laid down in Appendix II of this scheme, provided that the competent authority may reduce the price so assessed or calculated to a reasonable level considering the condition of the property and its location. The price of a building site may also be determined by the competent authority by oral local inquiries.

(d) A pacca residential building or premises or a building or site which remains undisposed of under clauses (a); (b) and (c) may be transferred, to a displaced person from Jammu and Kashmir free of charge if such person applied in this behalf.

(e) A pacca building or premises or a building site which remains undisposed of under clauses (a), (b), (c) and (d) may be disposed of by public auction restricted to the residents of or land owners or allottees of agricultural land in the same village.

(f) A pacca rural building or premises or a building site which remains undisposed of may be transferred to the Local Council free of charge. Kacha rural buildings, together with courtyards, will be transferred to the occupants free of charge and where there is more than one occupant, the property will be divided in accordance with the principle laid down in paragraph 4, and be transferred to them.

3. All rural properties situated in minor villages other than pacca houses and shops of the value of Rs,10,000 and above, will be transferred to the occupants free of charge but other provisions for the transfer of properties in the proceeding subparagraph regarding disposal of rural properties in major village, shall mutatis mutandis apply to the disposal of unoccupied rural properties in minor villages."

5. Application for transfer - (1) As rural properties (other than those situated in extended areas) are situated in rural areas. Revenue Officers who have already been invested with the powers of Settlement Authorities under the Displaced Persons (Land Settlement) Act 1958, are hereby appointed as Settlement Authorities of the same denomination under the Act for the purpose of disposal of such properties under this scheme.

(2) An application for the transfer of a rural property shall be submitted to and be disposed of by:-

(a) the Assistant Settlement Commissioner (Tehsildar/Mukhtiarkar) of the area, if the price of the property determined on the evaluation basis, does not exceed Rs,10,000; and

(b) the Deputy Settlement Commissioner (Revenue Officer) of area, if the price of the property determined on evaluation basis exceeds Rs,10,000.

(3) Aggrieved party may file an appeal:--

(a) Where an order has been passed by an Assistant Settlement Commissioner (Tehsildar/Mukhtiarkar) of the area to the Settlement Commissioner (Revenue Officer) of the area Deputy within fifteen days of the order.

(b) Where an order not being an order passed in appeal under clause (a), has been passed by Deputy Settlement Commissioner (Deputy Commissioner) within fifteen days of the order."

30. A plain reading of these provisions from the Settlement Scheme No,VII goes to show that they had overriding effect on other Settlement Schemes earlier introduced in respect of the properties covered under this Scheme and besides, providing conditions/qualifications for entitlement and transfer, section-5 also provided for a remedy of appeal to any aggrieved party.

31. It is a matter of common knowledge that when evacuee properties were taken over by the custodian department, its occupants were treated as tenants and such relevant entries were made in the custodian record wherein they were technically termed as 'recorded tenant'. In the instant case, it is only the case of appellant Abdul Haleem that his father Chargul was the recorded tenant of Custodian department in respect of disputed property being in its possession since pre- partition days through its evacuee owner, and he had paid rent to the Custodian department uptill his death in the year 1955. For this purpose, the appellants have also produced several rent receipts. On the other hand. Counter-claim of respondent No,1 is solely based on a photocopy of receipt dated 23-9-1957 (with overwriting) which even lacks material particulars about its connectivity with the disputed property and even the rate of rent or period of payment of rent. This receipt has even otherwise no legal value to support the claim of the respondent No,1 that he was in possession of the disputed property before the target date i,e, 1st January, 1961 being a doubtful document. In case there was any authenticity in the claim of respondent No,1 about his possession over the disputed property before the target date, the burden was on him to discharge by examining some employee/official of the Settlement Department to produce the relevant custodian register or original payment receipts to substantiate his assertion, but he miserably failed to do so.

32. Keeping in view these material weaknesses in the case of respondent No,1 qua the counter- claim of appellant Abdul Haleem, we find no reason to hold that the respondent No,1 had any lawful claim under Scheme No,VII for transfer of disputed property in his favour.

33. In addition to it, instructions under Settlement Scheme No,VII, issued for the guidance of concerned Settlement officials, further contained instruction No,3 providing for documented disposal of the properties falling under the category of disputed property, which reads as under:-- "3. Rural properties will be disposed of by the Assistant Commissioner (Tehsildar/Mukhtiarkar), or the Deputy Settlement Commissioner (Revenue Officer) of the area as laid down in paragraph 5 of the Scheme. Procedural formalities in the disposal of rural properties should be freely relaxed and prescribed forms, applications and time limit need not be insisted upon. It may however, be necessary to make documented disposal of all properties and order of transfer in favour of the entitled person may be passed in each case by the concerned authority on an application made in this behalf. The form in which such entitlement orders are to he issued may be devised locally by the concerned authority. Where a building is deemed to have been transferred to the entitled person by the process of law an entitlement order may be issued in an appropriate form on demand by the person concerned."

34. Keeping in view this legal position in mind, when we scan the facts of the present case, it is surprising to notice that respondent No,1 0 Muhammad Qasim, who all along claimed transfer of disputed property in his favour vide permanent transfer deed (PTD) dated 1-3-1972, did not bring on record any such document to substantiate his claim, except a copy of order of the same date, which was subsequently cancelled by the same officer/ authority vide order dated 19-5-1972.. In this regard too, 0 the casual attitude of respondent No,1 is apparent from the fact that no explanation whatsoever has come from his side, despite making specific reference about the issuance of so-called PTD in his favour at the bottom of paragraph No,3 of his plaint in Suit No,95 of 1986.

35. During the course of their arguments, when, with reference to the observation of the revisional Court as regards discrepancy/ difference in the number of disputed property in the two transfer documents qua dispute, between the parties about its identity, a specific question was put to both the learned counsel that whether, at any stage of the proceedings, due to assignment of different numbers in some documents or otherwise, there was any dispute between the parties about the actual identity of the disputed property, they candidly answered that irrespective of numbers, right from the date of commencement of litigation between the parties till to date, there is no dispute between the parties about its identity. This being the position, conceded by the parties' counsel, whole discussion made by revisional Court to this effect seems to be based on misreading of record and thus of no legal significance. Apart from it, it has also been noted from the judgment of the Revisional Court that there are many other material factual errors in the recording of facts in the impugned judgment; for instance, repeated reference has been made to the PTD dated 19-5- 1972, having been issued in favour of respondent No,1 Muhammad Qasim, though, in fact, as also conceded by the learned counsel for respondent No,1 before this Court, the alleged transfer order of disputed property in favour of respondent No,1, was issued on 1-3-1972 (see page 137 of paper book of CA 1669 of 2002), which was cancelled by the Assistant Rehabilitation Officer/Tehsildar, Chaman on 19-5-1972 (see page 141), while transfer order in favour of appellant Sultan Muhammad, son of Haqdad, was issued on 27-5-1972 (see page 145). Similarly, the conclusion recorded by the three Courts below that at no point of time the alleged transfer document in favour of respondent No,1 was cancelled by the concerned competent authorities, is yet another instance of gross-misreading of evidence, which is even contrary to the case of respondent No,1, who had only pleaded his ignorance about the passing of any such order, having been allegedly passed without notice or proper opportunity of hearing to him, but has not denied the existence of such order.

36. When we examine the case of grant of Patta/Lease fora period of thirty years, in favour of appellant Abdul Haleem, vide agreement between him and Municipal Committee, Chaman dated 27-8-1973, again it is clear from the record that the claim of respondent No,1, that for this purpose he had been pursuing his case before Municipal Committee, Chaman, is without any basis, hanging in mid air, as, not a single correspondence to this effect was brought on record by respondent No,1 to substantiate his claim. At this juncture, we also cannot loose sight of the fact that a presumption of genuineness and correctness is attached to all functions/actions performed by Government functionaries, and thus, mere "ipse dixit" of respondent No,1 about his lack of knowledge about the grant of patta/thirty years lease of land to Abdul Haleem on 27-8-1973 is of no consequence and makes his claim, to challenge such transaction, devoid of merits and also hopelessly barred by time. In the light of discussion made in the preceding part of this judgment, the case law cited on behalf of respondent No,1 Muhammad Qasim also does not come to his rescue.

37. At the cost of repetition, it is reiterated that mere words from the mouth of respondent No,1 that before obtaining the certified true copy of patta/lease agreement in favour of appellant Abdul Haleem, he had no knowledge of such developments in the record of Municipal Committee, Chaman or before the Settlement Department, are not sufficient to overcome the legal bar of limitation involved in the suit. In this regard, a reference to section 3 of the Limitation Act will be relevant, which makes it bounded duty of the court to examine the question of limitation in every proceeding/case irrespective of the fact, whether such plea/objection is raised by the opposite party or not.

38. In so far as the merits of other connected Suit No,66 of 1991, instituted by the appellant Abdul Haleem are concerned, at the outset, it may be mentioned here that dismissal of his earlier ejectment application No,55 of 1986, by the Rent Controller, vide his order dated 18-4-1990, has only decided the issue of existence/non-existence of relationship of landlord and tenant between the parties in favour of Muhammad Qasim, but not the title of the disputed property, having no jurisdiction for this purpose, thus, the withdrawal of rent appeal No,76 of 1990, against such order by appellant Abdul Hameed, vide order dated 31-7-1990, has no adverse effect to the maintainability of his suit for declaration, possession and injunction. In the plaint of his suit, which seems to have been instituted on 2-8-1990, in simple words, Abdul Haleem has disclosed his title in respect of disputed property, vide PTD dated 27-5-1972, and thirty years lease from Municipal Committee Chaman, vide lease deed dated 27-8-1973. The existence of both these documents in favour of Abdul Haleem, though challenged, but not disputed by Muhammad Qasim, thus, his title in the disputed property and the land underneath it, is fully established. On the other hand, it is Muhammad Qasim's own case that he is in possession of disputed property, without any issue about its identity, though claiming its possession to be in his own rights. Admittedly, after the judgment in the case of Maqbool Ahmad v. Hakoomat-e-Pakistan (1991 SCMR. 063), whereby section 28 of the Limitation Act was declared against the injunctions of Islam, the right to claim adverse possession has vanished, and no more available to a party, thus, for the purpose of limitation, as regards the suit instituted by appellant Abdul Haleem, only it is to be seen whether he has approached the Court within time from the date when the cause of action accrued to him for institution of such suit. A suit for possession, for the purpose of limitation is governed by Article 120 of the Limitation Act, S 1908, prescribing six years period, which is to be computed from the date when the right to sue accrues to the owner of the property. In the instant case, respondent No,1 has challenged the title of appellant, Abdul Haleem over the disputed property for the first time in the year 1986. Soon thereafter, the appellant had earlier followed the remedy for his ejectment, under the Balochistan Rent Restriction Ordinance 1959, and after his failure in those proceedings in the year 1990, he had filed the instant suit, inter alia, for the relief of possession on 12-9-1990. In view of the above discussion and admitted position regarding the title of appellant Abdul Haleem over the disputed property qua thirty years lease of the land in possession of respondent No,1, he has succeeded to establish his claim for the reliefs claimed in the suit and for this purpose filed his suit within time. Accordingly, there is no reason to withhold such reliefs, and decree the suit in favour of appellant Abdul Haleem.

39. The upshot of the above discussion is that both the Civil Appeals Nos.1668 of 2002 and 1669 of 2002, filed by Abdul Haleem and Sultan the appellate Court and the civil Court are set aside.

Consequently, Suit Muhammad are allowed, and the impugned judgments of the High Court, No,95 of 1986, filed by respondent No,1 Muhammad Qasim is dismissed, while Suit No,66 of 1991, filed by appellant Abdul Haleem is decreed, as prayed. Parties are left to bear their own costs.