Muhammad Khalid Mehmood Khan, J. The respondents filed a suit against the petitioners for perpetual mandatory injunction with consequential relief praying as under:- "In view of the submissions made above, it is most humbly prayed that a decree for permanent and mandatory injunction restraining the defendants from interfering in to the lawful possession of the plaintiffs over the suit land, in any manner and also cutting down the trees and taking the same from the suit land detailed in para No.1 of the plaint, in any manner, may kindly be passed in favour of the plaintiffs against the defendants with costs".
The petitioners filed written statement and controverted the respondents' assertions and raised the objection that an earlier suit titled Muhammad Hussain V. Province of Punjab, etc qua the same property was finally decided when the plaint of earlier suit was rejected under Order VII Rule 11 CPC on 16.5.1990. It was further asserted that the Forest department has purchased the suit land from Settlement & Rehabilitation Department and as such the respondents have no concern what so ever with the suit land. The learned trial court, out of divergent pleadings of the parties framed the following issues:- "ISSUES:
1. Whether the plaintiffs are owner in possession of the suit property? OPP
2. Whether the claim of the previous owner of the suit property was sanctioned/verified by the competent Rehabilitation authority? OPP
3. Whether the plaintiffs have not come to the court with clean hand? OPD
4. Whether the plaintiffs have no locus standi to file the present suit? OPD
5. Whether the suit of the plaintiff is hit by principle of resjudicata? OPD
6. Whether the disputed land was reserved for forest department and thus could not be allotted?
OPD
7. Relief".
Both the parties adduced their respective evidence. The learned trial court vide judgment and decree dated 19.10.2011 decreed the suit. The petitioners filed appeal against the judgment and decree dated 19.10.2011. The learned appellate court vide judgment and decree dated 13.10.2012 dismissed the appeal. Hence, the Civil Revision.
2. Malik Abdul Aziz Awan, learned Additional Advocate General submits that Custodian of Evacuee Property vide letter No. CEP/1824 dated 10.2.1948 allotted land measuring 148 Acres and 7 Kanals situated at Pairra, Tehsil Pasroor District Sialkot to Forest department, the land measuring 148 Acres 7 Kanals includes the suit land as well, Respondent No.2 finally purchased the above land on 20.1.1965 from Settlement & Rehabilitation Authorities against valuable consideration. The learned courts below have failed to appreciate that petitioner become the owner of land on 10.2.1948 and as such the suit land came out of the compensation pool. Sultan Muhammad and Ramzan both sons of Karim Bakhsh, fraudulently managed the allotment of land measuring 136 Kanals 7 Marlas from Settlement & Rehabilitation Department in their favour. As soon as the fact of fraudulent and illegal allotment transfer came in to the notice of petitioner Forest department, they filed application under Section 10-11 of the Settlement & Rehabilitation Act, 1958. The then Chief Settlement Commissioner vide order dated 04.9.1979 cancelled the land from the name of Sultan Muhammad and Ramzan both sons of Kareem Bakhsh. Sultan Muhammad and Ramzan and all the subsequent purchasers including the respondents have not assailed the order dated 04.9.1979 till today, hence the order dated 4.9.1979 attained finality. Inspite of the cancellation of the land from the name of M/s Sultan Muhammad and Ramzan they sold the land measuring 100 Kanals to Muhammad Hussain s/o Veeru. Muhammad Hussain filed a suit for permanent injunction titled Muhammad Hussain Vs. Province of Punjab, etc. the plaint of which was rejected under Order VII Rule 11 CPC on 16.5.1990, the order dated 16,5.1990 remained unchallenged, hence it attained finality.
The respondents inspite of the knowledge of the cancellation of suit land from the name of Sultan Muhammad and Ramzan purchased the suit land from Muhammad Hussain in the year 1992 and got the mutation attested in his favour at No.95 on 30.6.1992 with the collusion of revenue staff, as the land was cancelled in the year 1979, the respondents have not acquired any valid and legal title and interest in the suit property, the suit thus was not maintainable. The impugned judgments and decrees are illegal and is an outcome of misreading and non reading of record. The findings on issues No.1 and 2 are against the facts. The learned courts below have failed to appreciate that the respondents are not the owners of suit land nor they are in its possession.
3. Learned counsel for respondents submits that the respondents' predecessor in interest Sultan Muhammad and Ramzan were allotted land measuring 136 Kanals 7 Marlas against their verified claim on 15.12.1964 as per their entitlement. The allottees i.e Sultan Muhammad and Ramzan sold the land to Muhammad Hussain who further sold the suit land to respondents who are in peaceful physical possession of the suit land. The respondents have become the owner of the suit land in execution of a decree 17.6.1992 and mutation in their favour was attested at No.95 on 30.6.1992, the decree and mutation have not been set-aside or cancelled by any competent court of law so far, hence, the learned courts below have rightly decreed the suit in their favour. Learned counsel further submits that after the repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act of 1975, (hereinafter referred to as the Repeal Act.), the Chief Settlement Commissioner has no authority and jurisdiction to cancel the land except where there is allegation of fraud in the transfer or allotment of land that too through civil court. Learned counsel for respondents has relied on Pakistan Transport Company Ltd V. Walayat Khan through Legal Heirs (2002 SCM R 1470), Province of Punjab V. Muhammad Mahmood Shah (1991 SCM R 1426), Masooda Begum through Legal Heirs V.
Government of Punjab through Secretary Forest, Lahore and 9 others (PLD 2003 Supreme Court 90) and The Chief Settlement Commissioner, Lahore V. Raja Mohammad Fazil Khan and others (PLD 1975 Supreme Court 331).
4. Heard. Record perused.
5. It is an admitted fact that the suit land is an evacuee land, On 15.12.1964 Land measuring 136 Kanal 7 Marla was allotted to M/s Sultan Muhammad and Ramzan both sons of Kareem Bakhsh at Khata No.17 of RL-II (Exh.P-1), the said allottees sold the land to Muhammad Hussain s/o Veeru who sold the land to respondents through a decree and the respondents become the owners of land measuring 100 Kanals (hereinafter referred to as the Suit Land) vide mutation No.95 attested on 30.6.1992 in execution of decree passed against Muhammad Hussain. The respondents' suit was a suit for perpetual injunction and the respondents were praying a decree for permanent and mandatory injunction restraining the petitioners from interfering in their lawful possession over the suit land and to refrain from cutting down the trees. The respondents have not prayed for declaration of ownership of the suit land as their claim is that they are the owners of suit land. It is the respondents who raised the objection that respondents are not the owners of the suit land and that is the reason the Learned trial court framed issue No. 1and 2 and the onus to prove the above two issue was placed on petitioners, the petitioners have examined Forest Officer Pasroor as DW-1 who deposed that Custodian of Evacuee Property allotted suit land to Forest department in the year 1948, the Forest department after huge plantation on the allotted land established a Forest after investing substantial money, the Forest department is owner of suit land and suit land is in its possession, in 1955 the suit property was Notified as Forest, the Forest Department filed an application before Chief Settlement Commissioner for cancellation of allotment of suit land from the name of Sultan Mehmood and Ramzan, the Chief Settlement Commissioner vide order dated 4.9.1979 cancelled the allotment from the name of Sultan Mehmood and Ramzan, the trees on the suit property are 50/60 years old, the Forest under the name of Rachna Doaab Project is in the possession of Army and the petitioners are its owners. In cross examination he admits that it is correct the suit property was allotted to Sultan Mehmood and Ramazan at RL-II on 15.12.1964, when the department came to know about the said allotment they filed an application under Section 10/11 of the Settlement and Rehabilitation Laws, the Settlement Commissioner cancelled the allotment in the year 1979, he has not seen the revenue record, he denied the respondents possession on suit land, he deposed that it is wrong to suggest that Custodian has not allotted the suit property to petitioner in 1948. He placed on record documents Ex.D-1 Policy CEP/1824 dated 10.2.1948, Ex.D-2 minutes of meeting dated 29.6.1965, Ex.D-3 Sanction/permission of Government of West Pakistan to purchase property dated 20.7.1965, Ex.D-4 mutation No.391 dated 3.7.1966 EX.D-5 Certificate of payment of price of the property minutes of meeting dated 4.10.1979, Ex-D-7 Letter from Board of Revenue to Deputy Commissioner's of the province. Ex.D-8 the cancellation order dated 4.9.1979 of Chief Settlement Commissioner. From the above said documents it is established that Custodian decided to allot evacuee land to Forest department but specific Transfer order is not in possession of the petitioner except a certificate of Divisional Forest Officer Sialkot Forest Division confirming that Forest department has paid Rs.229,460/- and Rs. 2,140,924/- through two Cheques to the Chief Settlement Commissioner West Pakistan on 27.6.1970 and 29.6.1974. Ex.D-8 however confirms that Forest Department in terms of letter CEP/1824 dated 11.2.1948 has paid the price of 1271 Kanal 14 Marla land at the rate of Rs.14/- per PIU through two Cheques referred to above, out of the land allotted to Forest department on 15.12.1967 Deputy Settlement Commissioner allotted land measuring 136 Kanal 7 Marla in the name of Sultan Muhammad and Ramzan both sons of Kareem Bakhsh against their verified claim. The Chief Settlement Commissioner passed the following order on 4.7.1979:- {{URDU TEXT}} The respondents are relying on the allotment order in favour of Sultan Muhammad and Ramzan but they have not claimed that they are bonafide purchaser for value without notice. Whereas it is proven fact on record that allotment in fvaour of Sultan Muhammad and Ramzan was canceled on 4.9.1979 and the respondents admittedly become the owner of suit land on 30.6.1992 through mutation No.95.
6. Now the question is what is the effect of cancellation of the allotment of Sultan Muhammad and Ramzan? It is an admitted fact that order dated 4.9.1979 is an ex parte order and it came into the knowledge of the respondents when the respondent filed the written statement but it is an admitted fact that respondents have not challenged the order dated 4.9.1979 till today nor they amended their plaint claiming that they are bonafide purchaser for value without notice. No doubt order dated 04.9.1979 is an ex parte order but it will remain operative unless set aside. In The Chief Settlement Commissioner, Lahore V. Raja Mohammad Fazil Khan and others (PLD 1975 Supreme Court 331) the Hon'ble Supreme Court of Pakistan has held as under:- "The first question which arises in this connection is whether an order obtained by practicing fraud on the Court, tribunal or authority concerned is a void order or only voidable. We are in respectful agreement with the view expressed by Waheeduddin Ahmed, J., in the case of Ali Iqtidar Shah Dara, that an order obtained by fraud id not void, but only voidable. It remains operative as long as it is not set aside, rescinded, or recalled, by a competent authority in proper proceedings. An order is to be treated as void only when it is made by a Court, tribunal, or other authority, which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. Such an order would amount to "s usurpation of power unwarranted by law", and accordingly it would be a nullity.
If, on the other hand, an order is made by a Court or authority having the necessary jurisdiction, it is not an order void ab initio, but an order which may be set aside on sufficient cause being shown in this behalf. While it is true, as has been so often stated, that fraud vitiates all proceedings, it must nevertheless, be borne in mind that allegations of fraud generally raise mixed question of law and fact which can only be established in an elaborated inquiry. It is for this reason that an order obtained by fraud can be regarded as only being voidable at the instance of any party adversely affected by it".
7. As far as the possession of the suit land is concerned the respondents have failed to establish on record their possession, as is evident from Khasra Girdawry Exh.P-1 and Exh.P-2 which shows that suit land is Jungle. Exh.P-3 is copy of Jamma Bandi which shows that respondents are the owners of suit property but the kind of land is "Ghair Mumkin Jungle". Exh.P-5 is the mutation No.95 attested on 17.5.1992, Exh.P-6 is a mutation attested in favour of Muhammad Hussain, the respondents' vendor, Exh.P-7 is a copy of Jamma Bandi which shows that Muhammad Hussain was the owner of suit land. From the above said documents the possession of the respondents is not established but it is established their names are shown in the column of ownership.
8. All the above said documents show that after attesting the mutation in favour of respondents the name of respondents was entered in column of ownership but the kind of land remained "jungle", hence the respondents' possession is not proved.
9. As far as issue No.2 "whether the claim of the previous owner of the suit property was sanctioned/verified by he competent Rehabilitation authority, is concerned, at the relevant time the land was not the part of compensation pool, hence it could not be allotted to any one, the initial order in favour of Sultan Muhammad and Ramzan both sons of Karim Bukhsh was not valid or legal as discussed above.
10. The upshot of the above said discussion is that the petitioners have successfully proved that the suit land is a jungle allotted to Forest department, the predecessor in interest of respondents, no doubt was allotted the land but the same was cancelled and that cancellation is still operative and has not been set aside. The Civil Revision succeeds and the impugned judgments and decrees of both the courts below dated 19.10.2011 and 13.10.2012 are set-aside and the respondents' suit is dismissed.