' MIAN FASIH-UL-MULK, J.--- This revision petition under section 115, C.P.C. Is directed against the judgment and decree dated 10-7-2006 whereby learned District Judge, Mansehra accepted the appeal of respondent, set aside judgment and decree dated 13-11-2002 passed by learned Civil Judge-III, Mansehra and decreed suit of respondents Nos.1 to 3
3. Respondents Nos.1 to 3 instituted a suit for declaration and perpetual injunction against petitioners regarding property fully described in the heading of plaint. Petitioners contested the suit by filing written statement and learned Civil Judge-III, Mansehra after recording evidence and hearing the parties dismissed the suit vide judgment and decree dated 13-11-2002. Feeling aggrieved respondents Nos.1 to 3 preferred appeal which was allowed by learned District Judge, Mansehra vide impugned judgment dated 10-7-2006 and suit of respondents was decreed. Hence, this revision petition.
3. Learned counsel for petitioners contended that neither respondents Nos.1 to 3 are Kashmiri refugee nor they or their predecessor-in-interest namely Sardar Muhammad had ever been allotted the suit-land. The predecessor-in-interest of respondents Nos.1 to 3 namely Sardar Muhammad died in 1987-88. Sardar Muhammad has never challenged the allotment made in favour of Habib Shah and Khani Zaman and the subsequent purchase in favour of petitioners in his life time. The instant suit was filed on 26-7-1995 by his successors-ininterest therefore, it is hopelessly barred by time. The property is not alienable nor heritable and the petitioners rights are protected under section 41 of the Transfer of Property Act. The impugned judgment of appellate Court is the result of misreading and non-reading of material documentary as well as oral evidence. It was further argued that learned trial Court while deciding Issues Nos.8 and 14 had extensively discussed entitlement of respondents as per their claim of being Kashmiri refugee in juxtaposition of the entries made in Revenue Record and RL-II Nos.9 and 11 but the learned appellate court while deciding the appeal had not even adverted to the aformentioned material available on record. He concluded that judgment of learned appellate Court is in violation of relevant provisions of law and is liable to be set aside by restoring judgment and decree of trial Court.
4- Learned counsel for respondents refuted the arguments of petitioners and ,supported the impugned judgment of appellate court It was argued that the question of limitation has been decided by the trial court in favour of respondents which findings were not assailed before appellate as well as this court. It was contended that since the property in question was not available in compensation pool, the same could not he reallotted. It was further argued that protection of section 41 of Transfer of Property Act is not available in the settlement laws or schemes made thereunder. Responding to the arguments that the temporary allotment is not alienable nor heritable it was submitted that a point, which is not urged before any court cannot be raised for the first time at revisional stage. This objection was never raised in the written statement nor in memo of appeal or grounds of revision petition. In any case the temporary allotment in favour of Sardar Muhammad was made for his and his family members maintenance, therefore, question of inheritance does not arise. A plethora of case-law was cited from either side.
5. Arguments heard and record perused.
6. A perusal of record would show that Sardar Muhammad a refugee from Kashmir had applied for allotment of certain land from compensation pool where certain land in Mauza Baffa per details in the heading of plaint with proper endorsement in the Register of Temporary Allotment at Sr.No,232 and similar land fully described in the heading of plaint in Mauza Chitti Gatti vide endorsement in Register of Temporary Allotment at S.No,254 was allotted to him about some fifty years back. The same property was again allotted vide R-L-II No,9 and vide RL-II No,11 on the application of some of petitioners which re-allotment has been challenged through the instant suit. Record further shows that a similar situation arose when certain land was allotted to Sardar Muhammad, which allotment was cancelled by Secretary Rehabilitation Central Government of Pakistan Islamabad which instead was allotted vide R.L.II to some of petitioneRs, He approached for rectification correction to the authorities concerned but failed and thus he was obliged. To file Writ Petition No,12 of 1990 before this Court wherein their Lordships held "that when once certain evacuee-land was allotted to Sardar Muhammad the predecessor-in-interest of plaintiffs appellants (petitioners therein) could not be cancelled by the respondents (therein)". Joint Secretary Ministry of Religious Affairs and Minorities Affairs Government of Pakistan Islamabad filed Civil Petition No,221 of 1995 before august Supreme Court which was dismissed on 15-11-1995 by maintaining judgment of this Court.
' In the case of Noor Muhammad through L. Rs, v. Mst. Muzaffar Bibi and others (2006 SCM R 25) their lordships of apex Court held that "land allotted on temporary basis to Jammu and Kashmir refugees stood excluded under para.4-A(ix) of Rehabilitation Scheme Legislative intent was further classified by para 44-A of the Scheme Competent `authority, while making allotment in favour of defendant, failed to realize that the suit-land was, no longer available for allotment as it stood excluded from the compensation pool after its temporary allotment in plaintiff's name."
' Similarly. In the case of Muhammad Bibi v. Province of Punjab through Collector, Gujranwala and others (2006 CLC 586) it was observed in para-6 as under:--- "Heard. As regards the question about the transfer of the allotment in favour of Ramzan is concerned, it is established on the record that Hassan Muhammad was the prior allottee of the suit-land measuring 44 kanals and 8 marlas, which was given to him for his and the mainatenance of his other members of the family, being the refugee from the Azad Jammu and Kashmir. Therefore, as per the ratio of the judgments cited by the learned counsel for the petitioner, referred to in paragraph No,4 of the judgment, it is settled that the property once allotted for the above purposes,, goes out of the compensation pool and exclusively vests in the Ministry for the Azad Jammu and Kashmir and thereafter any allotment made by the Settlement Authorities, treating it to be an evacuee property is without jurisdiction, shall be void and of no legal effect."
' In Para-7 of the judgment some questions were formulated examined and while answering these questions it was concluded that despite the legal position that a void order has no legal effect and the significance yet vis-a-vis a person who is affected on account of such order when he comes to know of the same, he cannot he allowed to remain silent and allow the prescribed period of limitation for challenging the order affecting his rights, to pass and thereafter to initiate a cause as per his convenience after the expiry of limitation.
' In the case of Ghulam Muhammad add another v. Ahmad Khan and another (PLD 1991 SC 391) it was held that "land temporarily transferred to Jammu and Kashmir Refugees for purpose of their maintenance could not be cancelled in Chief Land Commissioner, such land in fact having become the property of Ministry of Kashmir Affairs in 1960 and excluded from the compensation pool. Neither Chief Settlement Commissioner nor his delegate thus had any jurisdiction to cancel such allotment and allot it to informant."
' In the case of Talib Hussain and others v. Member Board of Revenue and others (2003 SCM R 549) it was observed that "allotment in favour of vendor not being a Mukhbar was found to be fraudulent and was cancelled---Vendees claimed protection of S.41 of Transkr of Property Act, 1882, for having purchased land from vendor who was its ostensible owner---Validity--- Entitlement of vendees was based upon entitlement of vendor---Vendees were to survive or sink with vendor depending upon determination of legal, status of the property transferred to vendor-- -Vendor having failed to keep his entitlement alive, vendees claim was hound to be rejected.
It was further held that "fraudulent transaction vitiates even most solemn proceedings. Such transaction has no foundation to, stand upon---Whenever, Such transaction is declared null and void then whole series of such order along with structure built upon, same is bound to collapse".
7. In view of above judgments it is clear that once certain evacuee property/land is allotted even temporarily to a refugee could not be cancelled being no more ownership of Government of Pakistan and being out of compensation pool. The Settlement Department and others could neither have cancelled the temporary allotment made in the name of Sardar Muhammad nor could re-allot the same to some one else. Learned counsel for respondent has informed that the re-allotment vide RL.-II 9 and 11 has already been cancelled. Therefore, the petitioners cannot have better title than the original allottee. Petitioners as observed in the referred case reported in 2003 SCM R 549 shall survive or sink with vendor depending upon determination of legal status of the property transferred to vendor. Vendor having failed to keep his entitlement alive vendee's claim is bound to be rejected. In this view, of the matter learned appellate court has rightly allowed the suit of respondents Nos. I to 3 and passed impugned judgment and decree.
8 Consequently this revision petition being bereft of merit is hereby dismissed with no order as to costs.