MUHAMMAD AMEER BHATTI, J. --- Through this C.R. The petitioner assailed the judgment and decrees dated 26.03.2005 and 22.06.2005 passed by the learned Trial Court and the learned District Judge respectively whereby the plaint of the petitioner was rejected by, accepting the application under Order VII, Rule 11, C.P.C. Filed by the respondents and the appeal of the petitioner was also dismissed.
2. The brief facts of the case are that the petitioner filed a suit for possession for six plots situated in Khawat No. .47 total measuring 1-Kanal, 7-Marlas and 76 Square Feet which were originally allotted to the occupants of the Katchi Abadi Scheme. The land originally belonged to respondent No. 2/the Provincial Government which was transferred in the name of Municipal Committee for its allotment to the occupant declaring it to fall in the category of Katchi Abadi Scheme. The respondent/defendant No. 3 transferred these plots through mutation to the six occupants. Out of these six allottees, five allottees transferred their plots through registered sale-deed Nos. 954/1., 955/1, 956/1, 957/1, 958/1 and Mutation Nos. 6041/25054 dated 08,11.1988 sanctioned in favour of Muhammad Hanif vendor. Subsequently, the remaining sixth allottee namely Iqbal Masih as well as Muhammad Hanif subsequent vendee sold these plots to the petitioner through a registered sale- deed Nos. 1201 and 1202, dated 20.12.1988 respectively after obtaining the necessary permission of respondent No. 3 which was granted by receiving the transfer fee and tax and possession was also handed over to the petitioner accordingly. On 22.01.1989, respondent No. 2 without summoning the petitioner issued the direction to respondent No. 3 for the cancellation of the original allottees and on 23.01.1989, by following the direction of respondent No. 2, the respondent No. 3. Cancelled. The allotment of the original allottees. From their names and took over the possession of the plots 'and also demolished the construction raised by the petitioner. The petitioner remained unaware about the proceedings initiated by the respondents. The Petitibner filed a suit for possession and for cancellation and declaration of the action taken by the respondents. The respondents Nos.4 & 5 filed an application under Order VII, Rule 11, C.P.C. For the rejection of plaint on the point of limitation.
The learned Trial Court after calling the written reply of the petitioner rejected the plaint of the petitioner summarily and appeal filed by the petitioner against the judgment of the learned Trial Court also met with the same fate, hence this Revision Petition.
3. The contention of the learned counsel for the petitioner is that the question of limitation is a mixed question of law and facts, therefore, it was mandatory for the learned Trial Court to frame the necessary issue and provide the opportunity to the parties to lead their evidence but by not adopting the procedure provided under the law, the learned Trial Court has committed the material illegality and irregularity, therefore, the judgments impugned are nullity in the eye of law.
Even otherwise, the order impugned passed by the respondent No. 2 dated 22.01.1989 was void ab initio as he had no authority to issue direction to respondent No. 3 for the cancellation of plots in the name of original allottee and cancellation of plots by respondent No. 3 are void as the petitioner has not been provided with any opportunity of hearing and against the void order, no limitation runs, therefore, both the learned Courts below have taken erroneous view by holding that the suit of the petitioner was time-barred.
4. Contrary to that the learned counsel for the respondents vehemently controverted the viewpoint taken by the learned counsel for the petitioner and supported the impugned judgment being free from any illegality or serious irregularity. Further contended that the concurrent findings of facts, which are in consonance with the provision of law, therefore, the same cannot be reversed by the learned Revisional Court in exercise of power conferred under Section 115, C.P.C. The learned counsel for the petitioner contends that even void orders have to be challenged within the limitation, therefore, the judgments rendered by the Courts below do not suffer from any illegality or irregularity. Reliance is placed on (PLD 1975 Lahore. 825) V.R. Mall v. Sh. Muhammad Yusuf and another. Further contends that the question of limitation becomes a question of law when the facts necessary for the resolution of the disputes were available on the record. Reliance is placed on (2007 YLR 2215) Mrs. Gulshan Afroze through Legal Heirs and 90 others v. Muhammad Jamal and 2 others. Further relied on (PLD 1964 S.C. 329) Muhammad Akbar Shah v. Muhammad Yusuf Shah and others and relying on (2008 SCM R 913) contends that since the contents of the plaint show that the suit is beyond the period of limitation prescribed under Article 113 of Limitation Act, 1908, therefore, there was no need to prolong the litigation.
5. I have considered the arguments of the learned counsel for the petitioners and gone through the record.
6. The most significant feature of this case is the cancellation to be judged first to find out whether it is void or voidable. Since it is a settled law that void document never affect any right, hence its cancellation is not as such required as it does not affect the title. The purported cancellation order does not exist in the eye of law and accordingly the claim for possession has to be judged independently. Clearly, the period of limitation in such a case will be governed by Article 144 of the Limitation Act but to adjudicate the order in dispute void or voidable, it would be necessary that the transaction be set aside and limitation will be governed by Article applicable to set aside the transaction. From the facts of the case, to determine whether the order was void or voidable, there was no evidence available on the record and recording of evidence was necessary for determination of the disputed question of facts raised in the application under Order VII, Rule 11, C.P.C., therefore, at this stage, by allowing the application of the respondents, both the Courts below have committed illegality, irregularity and the judgments rendered by both the Courts below suffer from legal infirmity.
7. Consequently, the orders of both the learned Courts below are hereby set aside and the case is remanded back to the learned Trial Court, which shall determine the disputed question of facts alongwith the questions raised in the application under Order VII, Rule 11, C.P.C. After framing the issues and providing the opportunity of adducing the evidence to the parties.
8. With this direction, this petition stands accepted.
Civil revision /case remanded.