JUDGMENT AMIN-UD-DIN KHAN, J.---This Regular Second Appeal has been directed against the judgments and decrees passed by the learned Additional District Judge, Rahimyar Khan dated 4- 3-2005 whereby he dismissed the appeal filed against the judgment and decree passed by the learned Civil Judge on 8-3-2004 whereby the suit of the plaintiff/appellants was dismissed.
2. The brief facts as narrated in the plaint are that the predecessor of the appellants namely Ch. Fazal Hussain was the highest bidder for the purchase of lot No.1 measuring 20 Acres, lot No.3 measuring 11 Acres, 6 Kanals and 4 Marlas situated in Chak No.37-P, Tehsil Khanpur, District Rahimyar Khan. The said auction was held on 18-5-1963. The Board of Revenue confirmed the sale of the land on 7-10-1963. The predecessor of the appellants deposited the entire, amount of Rs.25820 and he became the full owner of the suit land. The Possession of the suit land was given to Ch. Fazal Hussain who spent a huge amount for its levelling, development etc. But unfortunately, it was declared as un-commanded by the Canal Authorities and the water was not available as declared by the Irrigation Department. Therefore, Ch. Fazal Hussain filed an application before the Board of Revenue that the land being un-commanded area, therefore, it is not possible for the said transferee to make this land cultivable and therefore he be adjusted with the alternate land or his money be refunded along with the expenses he incurred on the land and also the interest be given to him for the money he deposited with the government. Further contended that the Commissioner suo motu without consulting with the predecessor of the appellants cancelled the land on the name of Ch. Fazal Hussain. It is also mentioned in the plaint that Ch. Fazal Hussain demanded the cost till the alternate land is allotted or refund Rs.83,700. In the suit, plaintiffs prayed for the declaration that they be declared the owner of the suit land and challenged all the orders passed by the respondents for cancelling the land and dismissing applications of their predecessor.
3. The history of this case is very lengthy because in the first round of litigation it is on the record that the appellants went upto the Board of Revenue, then in the second round after an order was passed by this Court in a writ petition i.e. Writ Petition No.8285 of 89 in the second round of litigation they also went up to the Board of Revenue but failed, therefore, they filed a suit before the Civil Court. The suit was dismissed and the appeal filed by the appellants met the same fate. The questions involved in this litigation are not very complicated. The main questions are:
(a) Whether after the conferment of the propriety rights the defendants were entitled to cancel the land?
(b) Whether the civil court was not having jurisdiction as bar contained under section 36 of the Colonization of Government Lands (Punjab) Act, 1912?
(c) Whether the suit was timed-barred?
(d) Whether Ch. Fazal Hussain received the amount of sale deposited by him through a voucher?
4. I have heard learned counsel for the parties and have gone through the record with their able assistance.
5. Both the parties produced their evidence in support of their respective claims. The application filed by Ch. Fazal Hussain for the alternate land dated 11-5-1972 is Exh.P.1. This application clearly shows that the predecessor of the appellant has prayed for the alternate land and not for the cancellation of the land, otherwise what his demand was, if defendants/respondents were agreed for the demand that could be offered to the predecessor of the appellants in clear words but the defendants-respondents were not entitled to unilaterally cancel the land from the name of said Ch. Fazal Hussain predecessor of the appellant. Further once the propriety rights of the land has been transferred under any scheme of the Colonization of Government Lands (Punjab) Act, 1912 that can be cancelled only under the powers given under section 30(2) of the Colonization of Government Lands (Punjab) Act, 1912. In the case in hand, there is absolutely no allegation that the auction was procured through fraud or misrepresentation, therefore, nowhere else the power for the cancellation of the propriety rights of the land which has been transferred is with the respondents-defendants. Therefore, there was no power with the respondents to cancel the propriety rights of the land which were once given to Ch. Fazal Hussain predecessor of the appellants.
6. The other point that the voucher sent to the predecessor of the appellants for Rs.26820 is not proved on record that it was encashed. Even otherwise, the demand of the predecessor of the appellants was Rs.83700. This being so, if the voucher was issued in the name of the predecessor of the appellants it is also no hurdle in the way of the appellants.
7. As far as the point of limitation is concerned, it is settled law when an order passed without jurisdiction is coram non judice, therefore, the limitation does not come in the way of a person against whom that order has been passed illegally. An illegal order can be got set aside by a person against whom that has been passed when that order injures his right. In the case in hand, the possession of the land is with the appellants, therefore, after exhausting the remedies before the revenue hierarchy and that too as discussed above two rounds of litigation they have suffered.
Therefore, filing of suit in civil court was not time-barred.
8. The learned Assistant Advocate-General has argued that the Civil Court has no jurisdiction to entertain the suit as bar contains under section 36 of the Colonization of Government Lands (Punjab) Act, 1912.
9. So far as the hurdle of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 is concerned, it is well settled that when the order passed by any authority or Tribunal is within his jurisdiction or within his competence then the bar contained in that legislation is available. If the order passed by the authority or Tribunal is not within his competence or within his jurisdiction, given to it by the legislation in which the bar has been imposed or entertaining the suit by the civil court then that bar has absolutely no weight and the civil court/the court of alternate jurisdiction has the jurisdiction to entertain the suit against the orders passed without jurisdiction. The rights of the propriety have been protected under Article 24 of Chapter-1 which relates to the fundamental rights of the Constitution of Islamic Republic of Pakistan, 1973.
10. In the circumstances, about fifty years have passed when a person validly got the land in open auction and that was confirmed by the Board of Revenue validly, that land cannot be taken from that person even when there has been alleged no fault on part of that person. In this litigation even if there were some technicalities involved, both the learned courts below were bound to ignore those technicalities. The jurisdiction vested in both the courts was not exercised by both the courts below in accordance with law. The Commissioner was not having any power to cancel the land on the name of the predecessor of the appellants.
11. In the light of what has been discussed above, I set aside the judgments and decrees passed by both the courts below and decree the suit of appellants with cost throughout..