MUHAMMAD SAJID MEHMOOD SETHI, J:- Through instant writ petition, petitioner has challenged the judgments and decree dated 23.12.1996 of learned trial Court and judgment and decree dated 24.10.2000 of learned appellate Court / Additional District Judge, Khanewal, whereby firstly petitioner's suit was dismissed by the trial court and subsequent thereto his appeal was also dismissed by learned Appellate Court.
2. Brief facts for the just and proper decision of revision petition in hand are that on 04.09.1988 petitioner/plaintiff filed a suit for declaration and permanent injunction asserting therein that agricultural land measuring 12 Acres, 6 Kanals and 12 Marlas situated in Chak No. 171/10-R was allotted to him under Grow More Food Scheme on 14.04.1958 and thereafter, under a general order issued by Board of Revenue, said allotments were cancelled in the year 1961-62. Later on, as per policy of the Board of Revenue prepared in the year 1971, it was decided to allot land under Grow More Food Scheme. Petitioner submitted an application before the Assistant Commissioner/ Collector, Khanewal for allotment of land under the said Scheme and after observing all the legal and necessary formalities, land in question as described in head note of the plaint, was allotted to the petitioner vide order dated 12.08.1974 by the Assistant Commissioner/ Collector Khanewal.
Physical possession was also delivered to him. One Muhammad Ilyas, son of Muhammad Ali, resident of Chak No. 171/10-R Tehsil and District, Khanewal, submitted an application before the District Collector, Multan that petitioner had fraudulently obtained the land in question. Whereupon, the District Collector, Multan, vide impugned order dated 04.11.1984, proceeded to resume the land in question. Petitioner preferred an appeal before the Governor of Punjab for setting aside the said order passed by District Collector Multan. The Governor of Punjab, vide order dated 22.01.1985, directed the Commissioner Multan Division, Multan to decide appeal of the petitioner on merits. In consequence thereof, the Commissioner Multan Division, Multan accepted the appeal of the petitioner vide order dated 19.01.1986 and allotment of land in question in favour of the petitioner was restored. Muhammad Ilyas filed a revision petition against the said order dated 19.01.1986, before the Member Colonies, Board of Revenue, Lahore, who accepted the same vide order dated 29.12.1987 and the land in question was again resumed. The petitioner also preferred a review petition before Member Colonies, Board of Revenue, Lahore for reviewing the above said order dated 29.12.1987. However, vide order dated 02.06.1988, his review application was rejected. Later on, petitioner filed suit before the Civil Court with the contention that order dated 04.11.1984 passed by District Collector, Multan and the order dated 29.12.1987 passed by the Member Board of Revenue be declared illegal, void and ineffective, as against the rights of the petitioner, and order dated 19.01.1986 passed by the Commissioner Multan Division, Multan is in accordance with the policy laid down by Government of Punjab and as such the same is correct one. As a consequential relief, it was prayed that defendant be restrained from dispossessing the plaintiff from the land in question on the basis of the above said impugned order.
3. Respondent contested the suit by filing written statement and raised a few preliminary objections that civil court has no jurisdiction to entertain the suit of the petitioner; that the suit is not maintainable in its present form and is bad for non-joinder of the necessary parties; that the land in question was not validly allotted to the petitioner and he fraudulently got the allotment order from Assistant Commissioner / Collector, Khanewal and the suit deserves dismissal.
4. Out of divergent pleadings of the parties, the trial court framed the following issues:- i. Whether the plaintiff is allottee of the suit land under Grow More food Scheme and the order dated 04-11-1984 passed by the District Collector, Khanewal and the order dated 29-12-1987 passed by the Member Board of Revenue, Punjab, Lahore are illegal, void and ineffective against the rights of the plaintiff? OPP. ii. Whether civil court has no jurisdiction to adjudicate upon this suit? OPD. iii. Whether the plaintiff is not entitled to the discretionary relief? OPD. iv. Whether the suit is bad for non-joinder of necessary parties? If so on its effect? OPD. v. Relief.
5. Petitioner produced two witnesses to prove his case and he himself appeared as PW-2. He also produced his documentary evidence, Exh.P-1 to P-20. No evidence of any kind was produced by the respondent and ultimately, vide order dated 28.03.1996, the evidence was closed by the learned trial Court. The said order was assailed by the respondent through an appeal and, vide order dated 07.10.1996, the said order was upheld by the learned District Judge, Khanewal. On culmination of trial, vide impugned judgment and decree dated 23.12.1996, the trial court proceeded to dismiss the suit of the petitioner. Feeling aggrieved, petitioner assailed the impugned judgment and decree dated 23.12.1996, before District Judge, Khanewal, who also dismissed the appeal of the petitioner vide impugned judgment and decree dated 20.10.2000, necessitating the filing of instant revision petition.
6. Learned counsel for the petitioner submits that it has been established on record that petitioner is regular allottee under Grow More Food Scheme. He was the person who not only made the land cultivable but is admittedly still in physical possession of the suit land since the year 1974. However, while passing both the impugned judgments and decrees, these facts have not been considered by both the courts below. He adds that Muhammad Ilyas had no locus standi to file the application/ appeal/ revision, thus, the same was illegally entertained and adjudicated upon by the revenue hierarchy in violation of law. This important aspect of the case has been omitted from consideration by the forums / courts below which goes to the root of the case.
7. Learned A.A.G., while representing the respondent, submits that impugned judgments and decrees have been passed strictly in accordance with law and petitioner has failed to point out any illegality or jurisdictional error in the impugned judgments and decrees, thus, the same are liable to be upheld.
8. Arguments heard and record perused.
9. It is evident from the contents of allotment order dated 14.04.1958 (Exh.P-3) that originally the land measuring 12 Acres, 6 kanals and 12 Marlas situated in Chak No. 171/10-R, Tehsil and District, Khanewal was allotted to the petitioner under Grow More Food Scheme and physical possession of the above-said land was also delivered to him. As per policy of the Government, under a general order, allotments of land given to allottees under Grow More Food Scheme were got cancelled in the year 1961-62 and as such the said land mentioned in order dated 14.04.1958 was also resumed.
Admittedly, as per policy of the Government of Punjab duly notified in the year 1971, it was decided to allot the land under Grow More Food Scheme to those persons who were already allottees under Grow More Food Scheme. As per policy of Government, petitioner submitted an application (Exh.P- 1) seeking allotment of under Grow More Food Scheme. After observing all the legal and proper formalities, vide order dated 12-08-1974, the land in question measuring 96 Kanals, 3 Marlas, described in the head note of the plaint, was allotted to the petitioner under the above said Scheme. Physical possession under Section 10(4), Colonization of Government Lands Act was also given to him. However, on application of one Muhammad Ilyas, District Collector, Multan cancelled allotment of the petitioner under Martial Law Order No. 14, vide order dated 04.11.1984 (Exh.P-7). The operative para of the said order of the District Collector, Multan reads as under:- "3. The parties are present alongwith their counsels. Heard the arguments and gone through the record. The original file of Grow More Food Scheme allotted for the year, 1958 clearly shows that the name of the respondent has been interpolated later-on and so is the case with the allotment order dated 14.4.1958. The Khasra Girdawari also shows that the name of the respondent is added later- on in Khasra Girdawari for Kharif, 58-59. This clearly shows that the respondent got allotted alternate lot by fraud, forgery and mis-representation of facts. It is hereby cancelled under MLO 14."
10. Perusal of impugned judgments and decrees shows that learned trial Court has dismissed the suit of the petitioner mainly on the ground that petitioner failed to challenge the validity of the order dated 02-06-1988 passed by the Member Board of Revenue in review petition filed by the petitioner, and without challenging that order the learned triail Court could not pass any order in connection with impugned order, as assailed by the petitioner in the plaint. The learned trial Court has held the impugned orders passed in accordance with law, and the learned appellate Court has upheld the findings of the learned trial Court.
11. While passing the impugned judgments and decrees, the learned Courts below have not even bothered to consider this material fact that the basic order dated 04.11.1984 passed by the District Collector, Multan was passed on an application moved by a third person, namely, Muhammad Ilyas who had no locus standi to file application before the revenue authorities against the allotment of land in question to the petitioner. It is now well established proposition of law that a third person who has no right, title and interest in the allotment / land in dispute, has no right to file an application / appeal / revision before the revenue authorities. In circumstances, the filing of application by Muhammad Ilyas and assumption of jurisdiction thereon by the District Collector, Multan was absolutely illegal and void-ab-initio. The revenue hierarchy and learned Courts below failed to appreciate this legal position and proceed on mere technicalities. In this regard, reference can be made to "Agha Fakhruddin v. Muhammad Faryal and others" (PLD 1989 SC 16), "Sardar Muhammad and another v. Akram and others" (2002 SCM R 807), "Fazl-I-Ezad Khan v. Board of Revenue, Lahore, etc." (NLR 1986 Revenue 240), "Anjuman Arian, Bhera v. Abdul Rashid and others"
(PLD 1982 SC 308), and "Nur Bakhsh and others v. The Crown" (PLD 1950 Punjab (Rev.) 73).
12. In Agha Fakhruddin's case supra, the Hon'ble Supreme Court of Pakistan, while discussing the locus standi of third person to challenge the allotment of land, observed as under: "There is yet another aspect of the case which was examined by us and that was as to what was the locus standi of the appellants to challenge the transfer in favour of the aforesaid respondents when they had neither any personal interest in the property nor were applicants for the allotment.
The appellants claimed to be neighbours and that the right asserted by them was in the nature of a right which they enjoyed with all the other citizens of Sukkur. In other words they had claimed that they were acting pro-bono-publico, but even so their claim may have been justified if the 'plots in dispute were amenity plots reserved for children's park. Since this was not so the Provincial Government was entitled to dispose them of either' for residential purpose or commercial purpose.
The appellants were not applicants for these plots nor had they been made such a grant, hence they had no interest in the same and therefore had no locus standi in the matter to challenge the allotment in favour of the respondents."
13. In Fazl-I-Ezad Khan's case supra, this Court while dilating upon the competency / maintainability of filing of an application by a third person held as under in para 10 of the Judgment:- "10. However the question which is decisive of this writ petition is whether Jan Muhammad, predecessor of the petitioner had any locus standi to become a party and there from to carry a second appeal before the Board of Revenue, meaning thereby that whether the appeal before the respondent Board of Revenue was competently brought. The position of Jan Muhammad was that he had after resumption of the tenancy from the name of the petitioner made an application for grant of lease under Horse Breeding Scheme. Mere filing of an application did not invest him with any interest for which he could claim legal protection, as such, he had no place within the proceedings which were between the petitioner and the Collector as by that time he had not acquired anything except his unilateral filing of the above said application and therefore, he could not claim a direct or indirect injury to himself because he happened to have no substantial interest in the subject-matter of the proceedings. Despite having been allowed to join as a party in the appeal filed by the petitioner before the Commissioner, an objection had been raised by the petitioner as to the locus standi of said Jan Muhammad, which remained undisposed of although the same was mentioned in the order of the Commissioner, Jan Muhammad had no locus standi before the Commissioner and as such, had no locus standi to carry an appeal from the order of the Commissioner to the Board of Revenue. The appeal taken to the Board of Revenue against the order of the learned Commissioner was not carried by an aggrieved person because in the language of the above quoted decision P.L.D 1973 Lahore-120, the order has not wrongfully refused him something which he had a right to demand. So the appeal filed before the Board of Revenue being incompetently made, the impugned order dated 14-10-1980 is without lawful authority and as such of no legal affect. The writ petition is accepted but in the circumstances without any order as to costs since the petition has succeeded on a technical ground."
14. Learned Courts below and the revenue hierarchy have also failed to consider that land in question was allotted to the petitioner vide order dated 12.08.1974 of the Assistant Commissioner / Collector, Khanewal, after observing all the legal and proper formalities, and the said Muhammad Ilyas challenged the allotment on 24.05.1983 i.e. After passing of a period of almost nine years on the allegation that the petitioner fraudulently obtained the allotment of land, and the said allotment was cancelled vide order dated 04.11.1984 passed by the District Collector, Multan on the ground that said allotment was obtained through fraud, forgery and misrepresentation as name of the petitioner was interpolated later on. Commissioner Multan Division, Multan accepted the appeal of the petitioner vide order dated 19.01.1986 (Exh.P-4) and allotment of land in question in favour of the petitioner was restored as no interpolation was found by the Commissioner in the original record. Relevant portion of order dated 19.01.1986 passed by the Commissioner Multan Division, Multan is as under:- "5. I have heard the arguments advanced by both the parties and perused the record of this case. I have seen the original record. Its reveals that the name of Badar Din and Inam-ul-Haw has not been interpolated but it appears to have been written on the original allotment order. Their names already existed and have bene overwritten to make them more legible.
6. The appeal is accepted and the impugned order is set aside. Allotment in favour of the appellant is restored under the original terms of Grow More Food Scheme."
15. Learned Courts below have also failed to take into account that the learned Member Board of Revenue did not set-aside the order dated 19.01.1986 of the Commissioner Multan Division, Multan on merits, but on the technical ground that the Commissioner could not take cognizance in appeal under Colinization of Government Lands Act against an order passed under MLO 14, and authority for such appeals vested with the Governor. Learned Member BOR, while passing the impugned order, and both the learned Courts below, while passing the impugned judgments and decrees, overlooked the fact that the petitioner filed the appeal (Exh.P-19) against the order of District Collector, Multan before the Governor, and it was the Governor who, vide order dated 22.01.1985 (Exh.P-20) directed the Commissioner to decide the appeal of the petitioner on merits.
16. Perusal of record reveals that respondent has failed to bring any material on the record to substantiate its plea of fraud, forgery or misrepresentation on part of the petitioner, which indicates that revenue hierarchy did not conduct any proper inquiry nor the matter was probed in presence of the petitioner, and allotment of the land in favour of the petitioner was cancelled through a non- speaking order dated 04.11.1984 which is an illegal and void order. The proper course to be adopted by the revenue hierarchy was to conduct a detailed inquiry in presence of the petitioner and only after consulting the relevant record proper judgment could have been passed.
17. Learned Courts below have also dismissed the suit and appeal of the petitioner on the ground that petitioner had not challenged the order dated 02.06.1988 passed by the learned Member Board of Revenue in Review Petition filed by the petitioner against order dated 29.12.1987 passed in the revision petition. It is settled principle of law that if on the basis of void order, subsequently orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have a little foundation as the void order on which they are based. It is also well-established that pure question of law can be raised at any stage of proceedings. In this regard, reference can be made to "Mustafa Lakhani v. Pakistan Defense Officers Housing Authority, Karachi" (2006 SCJ 702), "Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another" (2006 SCM R 783), "Muhammad Iqbal v. Muhammad Ahmed Ramzani and 2 others" (2014 CLC 1392), "Secretary Communication and Works Department Government of Balochistan and others v. Dad Baksh and other" (2013 CLC 343), "Yousaf Ali v. Muhammad Aslam Zia and others" (PLD 1958 SC 104), "Moulana Atta-ur-Rehman v. Al-hajj Sardar Umar Farooq" (PLD 2008 SC 663), "Faisal Jameel v. The State" (2007 M LD 355), "Talib Hussain v. Member, Board of Revenue" (2003 SCM R 549), "Muhammad Siddiq v. Ashraf Ali" (2000 M LD 781), "Abdul Hameed v. Deputy Commissioner / Administrator, Zila Council Mandi Baha-ud-Din" (1997 CLC 540).
18. In the case of Abdul Hameed supra, this Court made the following observations regarding a void order:- "9. ......... It is firmly settled law that if basic order or an act was void any superstructure based on such void act would automatically fall to the ground and will be of no legal efficacy. This principle has been settled by the Supreme Court in a case reported as Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104),as such, the confirmation of the auction which was ab initio void and execution of formal agreement were also equally void and of no legal effect, therefore, the Constitutional petition before this Court directly could be filed in respect of such acts and the remedy of appeal or revision, if any, if had not been availed, the same did not adversely affect the maintainability of the Constitutional petition particularly in view of the fact that the Chief Minister himself intervened and had cancelled the lease."
19. In the case of Faisal Jameel supra, the Hon'ble Division Bench of Sindh High Court, while discussing the jurisdiction of superior Courts against void orders observed as follows:- "17. It is pointed out that Acts or transactions of private and public can be found to be void.
Secondly an order passed by executive, quasi-judicial or judicial functionary can be found to be void in appropriate judicial proceedings. Thirdly an order or judgment passed by a Court of law can be found to be void by superior Court in, any judicial proceedings or under supervisory jurisdiction after the same is brought to the notice of such Court through any source. Normally the superior Courts have been extremely slow in determining purely judicial orders or judgments passed by subordinate Courts to be void ab intio. Nevertheless, it does not mean that the superior Courts have no jurisdiction or powers to remedy the situation after it has encountered with it. The superior Courts have various powers such as Revisional, inherent and Constitutional powers. These powers can be exercised in appropriate proceedings, either on the application of any party or under its Suo Motu jurisdiction."
20. In the case Muhammad Siddiq Supra, the Hon'ble Lahore High Court, after finding the basic order of the Collector as void, declared the orders passed by the Commissioner and Board of Revenue based on the void order as illegal and without lawful authority with the following observations:- "9. In the circumstances, this Constitution petition is allowed; the judgment and decree passed by the Collector/Assistant Commissioner dated 20-5-1979 in favour of the said Muhammad Siddique is illegal, void and without lawful authority, as the rival pre-emptors were not party to the suit, while the order passed by the Additional Commissioner dated 16-12-1980, is also void and without lawful authority, as the Additional Commissioner after accepting the appeal of rival pre-emptors, should have remanded the case back to the Collector for fresh decision of the suit after impleading rival preemptors as party; furthermore, the order of the Member, Board of Revenue dated 20-1-1981 i.e. Also illegal and void being superstructure based on void orders, therefore; the judgment and decree passed by Collector dated 20-5-1979 and orders passed by Additional Commissioner dated 16-12-1980 and order passed by Member, Board of Revenue dated 20-1-1981, are hereby declared as void and without lawful authority."
21. Learned Courts below ought to have discussed the entire evidence and then should have reached to a just conclusion. From the reading of the impugned judgments it appears that learned Courts below, after quoting the evidence of the petitioner have neither discussed the same nor have appreciated the material brought on record by the petitioner and have recorded their findings without application of judicial mind. The Findings of the learned Courts below are sketchy.
For the foregoing reasons, in exercise of jurisdiction vested under section 115, C.P.C., the findings recorded by the learned Courts below cannot be sustained as the same have not been recorded by considering the material evidence on record. The learned lower Courts have failed to exercise jurisdiction vested in it causing serious prejudice to the petitioner.
22. In view of the aforesaid, impugned orders dated 04.11.1984 and 29.12.1987 passed by the District Collector, Multan and Member Board of Revenue respectively, and order dated 02.06.1988 passed by the Member Board of Revenue are set aside, and the matter is remanded to the District Collector, Multan who will personally conduct a detailed inquiry and pass fresh order, without being influenced by the earlier orders, on the following questions:- i. Whether there is any interpolation in the revenue record? ii. Whether petitioner has any role in so-called interpolation in the revenue record?
As a matter of fact revenue authorities are the custodian of the record and, without fixing responsibilities of the involvement of the revenue authorities, petitioner cannot be held responsible.
If it is found that some interpolation has been made in the record, District Collector, Multan, will fix the liability and, thereafter, shall proceed, in accordance with law, against all concerned persons found involved in interpolation. The inquiry shall be completed within a period of three months from the date of receipt of this order under intimation of Deputy Registrar (Judicial) of this Court. Since the orders passed by the revenue hierarchy, which were subject matter of the suit filed by the petitioner have been set-aside, therefore the impugned judgments and decrees passed by both the learned Courts below have become redundant and of no legal effect.
23. This revision petition is accordingly allowed in the above terms.