ANWAR HUSSAIN, J.---By this Revision Application, the Applicant has impugned the Judgment and Decree of the Appellate Court, whereby dismissed the Civil Appeal, filed by Applicant/Plaintiff, and against Final Order of Civil Court, whereby rejected the Plaint in the Suit filed by the Applicant against the Respondents/ Defendants.
2. The brief facts of the case are that the Agricultural Land bearing Survey Nos. 171/1, 2, 7, 8 (4 acres) and Survey No, 172/1 to 8 (8.00 acres), in Deh 123, Taluka Hussain Bux Mari, District Mirpurkhas, (which herein after called in question), purchased by Applicant from the Khatedar/owner viz. Achar son of Qasim Mehar, against the sum of Rs,24,000/- through oral agreement and also paid Rs, 2978/- as Mutation Fee and mutation effected in favour of Applicant vide Entry No, 76, dated 21.11.1992, in Village Form-VII,
3. The Respondents Nos. 1 to 3, filed Appeal under Section 161 of the Land Revenue Act, 1967 bearing Case No, SRO/164/97, before the Respondent No, 07/Member (Land Utilization), Board of Revenue Sindh, Hyderabad, anly against the said Achar, thereby challenged the Grant of said and obtained Ex-parte Order dated 23.01.2002, whereby cancelled said Grant of Land in favour of Achar.
4. That on coming to know of the same the Applicant being aggrieved filed Review Application bearing Case No, S-Review-38 of 2002, before the Member (RS & EP), Board of Revenue, Sindh, Hyderabad, which was dismissed in default vide Order dated 19.08.2003.
5. Thereafter, on 14.11.2005, the Applicant filed the F.C. Suit No,161/2005, (New No, 44/2006), for Declaration and Permanent Injunction, along with Stay Application, against the Respondents, before the 1st Senior Civil Judge, Mirpurkhas, Sindh, wherein the Applicant contended that at the time of filing of Appeal under section 161 of Land Revenue Act, by the Respondents Nos.1 to 3, and the land in question was private land standing in the name of Applicant, who was not made party therein, rather the same was filed only against the said original Grantee viz. Achar, who was not the Owner at that time, which fact was suppressed by the Respondents Nos.1 to 3 and the Respondent No,4, resumed the land without observing the legal formalities under the provisions of Land Acquisition Act. It was further the case of Applicant that Respondents Nos.1 to 3, have played fraud and misrepresentation before the Member, Land Utilization/Respondents No,7, by mala fide suppressing the said factual and legal aspects and obtained Ex parte Order dated 23.01.2002, for cancellation of said Grant of land, the Applicant was not been heard rather condemned unheard, and sought following prayers:-- "a) Declaration that the plaintiff is an absolute owner of the suit land and the defendants have got no right or authority to interfere in the peaceful possession and enjoyment of ownership of suit land.
(b) To declare that the impugned order dated 23.01.2002 of the Member Land Utilization Board of Revenue Sindh, Hyderabad, being a government functionary, is illegal, unfounded and excess of jurisdiction and powers but is also arbitrary fanciful and suffers from infirmity of law, the same may be declared to be void and nonexistence with the result that the plaintiff, has become owner/ proprietor of the suit land as the plaintiff had purchased the same on payment of valuable cost of the land. c) It may further be declared that the suit land is a private land which cannot be resumed for village site under ex parte order which is null and void. d) To grant permanent injunction against the defendants restraining them from interfering in the title and possession of the plaintiff regarding suit 'land themselves or through their agents, servants, whatsoever, in any manner till final decision of the suit. "
6. The Respondent No,1, filed Written Statement, which was adopted by the Respondents Nos. 2 and 3, vide Statement dated 27.02.2006, filed under the signature of Advocate for Respondents Nos. 1 to
3. The Respondent No,1, contended that said Achar was legally not entitled for such Grant of land and the Respondents Nos. 1 to 3, being Villagers and also on behalf of other Villagers have challenged the said Grant of land to Achar, which has been cancelled, but the Respondents Nos. 1 to 3, have not denied the sale and mutation in the name of Applicant, who after Cancellation Order dated 23.01.2002, filed the Review Petition, which was dismissed on 19.08.2013, on account of non- prosecution and the Suit was to be filed before 19.8.2013, as such Respondents Nos. 1 is 3, prayed for dismissal of the Suit as time barred and pleaded other grounds also.
7. The respondents Nos. 1 to 3, filed Application under Order VII Rule 11, C.P.C., for rejection of Plaint, in the said Suit on grounds, inter alia, that the suit is not maintainable in law and barred by time, and after notice the Applicant filed Counter Affidavit thereby opposed the said Application and stated that the Suit is within time and maintainable in law and facts.
8. After hearing the learned Counsel for the parties the learned IIIrd Senior Civil Judge, Mirpurkhas, treated the Applicant's Suit as barred by time, as per Article 14 of the Limitation Act, 1908, and rejected the Plaint vide Order dated 8.9.2006, which was challenged by way of Civil Appeal No,61 of 2006, filed by Applicant, in the Court of District Judge, Mirpurkhas, and after hearing the learned Counsel for the parties the said Civil Appeal was dismissed by the learned 1st. Additional District Judge, Mirpurkhas, vide Judgment and Decree impugned in this Revision Application before this Court.
9. I have heard the learned Counsel for the parties, perused the record in the matter, and gone through the Impugned Judgments.
10. The Learned Counsel for the Applicant submits that when the Respondents Nos.1 to 3, challenged said in question Gant of land before the Respondent No,7, by way of Appeal, only against said Achar/Original Grantee, they malafidely suppressed the name of Applicant, who was recorded Owner, and obtained Ex-parte Order for the cancellation by playing fraud and misrepresentation, whereby the Applicant's property rights in respect of Land in question was effected. The Applicant on coming to know of the such Order filed Review Petition, which was dismissed in default. As such the said orders passed behind the back of the Applicant, are without hearing the aggrieved party i,e, Applicant and as such the same are null and void and rejected the Applicant's plaint in the suit for Declaration and Injunction, through the impugned Final Order and Judgment/Decree of the Courts below, which are erroneous in law and facts and as such liable to be set aside.
11. Further submits that Article 14 of Limitation Act 1908, is not applicable to the case of the Applicant as Article 14, relates to a Suit against the acts or orders of the Govt. Officials in their official capacity, i,e, Official Orders, and prayer is made to set aside such Orders, whereas in this matter the Applicant as per Article 42 of Specific Relief Act, has filed the Suit for Declaration as to ownership of land and for Declaration against Government Official Orders, as void, illegal, excess of jurisdiction, arbitrary, so the Article 120 of the Limitation Act, 1908, would be applicable, as the Applicant is recorded owner by way of admitted purchase, mutation and possession of the land in question and can file Suit for Declaration of Title etc. In respect of the same, within 6 years from the date the right to sue accrues under Article 120 of Limitation Act. He relied upon 2004 SCMR 1502, 1995 SCMR 284, 2009 MLD 67, 2006 SCMR 489, PLD 1985 SC 345, 2010 CLC 1646, 2011 CLC 1556, 2006 CLC 1042 and 2003 CLC 1443.
12. Whereas the learned Counsel for Respondents Nos.1 to 3, submits that the Respondents Nos.1 to 3, are the Villagers of Deh, where the land in question is situated and have challenged the Grant of land in question to said Achar by filing Appeal under Section 161 of I and Revenue Act, 1967, which was rightly allowed by cancelling the said Grant vide Order dated 23.01.2002, and the same was in the knowledge of Applicant, who filed Review Petition, which was dismissed in default and as such the orders of the Official Respondents are legal and proper. The Applicant's instant Suit filed on 14.11.2005, after one year, while has been rightly rejected in view of Article 14 of the Limitation Act, by way of impugned Final Order and Judgment, which are legal and proper. He relied upon 1988 CLC 412, 1988 MLD 1980, 1992 MLD 1166, and 2002 MLD 526.
13. I have observed that the Applicant was initially aggrieved by the Ex parte Order of the Land Revenue Authority, whereby the Grant of land in question in the name of the Original Grantee -viz. Achar, was cancelled and the land resumed to the Government, which land was earlier purchased from the said Achar by the Applicant, mutated in the his name and with possession thereof. The Applicant challenged the same, which order was passed behind the back of the Applicant, who was not party therein, as such the Applicant was not heard and even Review Petition of the Applicant was also dismissed by the Land Revenue Authority without hearing the Applicant. Since the Applicant was actual and recorded owner by way of mutation of the Land in question, so the presence of and hearing of Applicant was very much necessary, material and legal to be joined in as party. So such order passed affecting the property rights of the Applicant behind the back is against the law of natural justice and as such same is null and void in the eye of law, as it is settled law that if any order being in violation of natural justice, the same is null and void and question of Limitation does not arise, but the Limitation would start from the date of knowledge also. The reliance is placed on the case of Rehmat Bibi v. Punnu, reported in 1998 SCMR 962, 1994 SCMR 782 Government of Sindh v. Khalil Ahmed, the case of Punhal v. Secretary Revenue, reported in 1982 CLC 660 (Karachi) and Hussain A. Haroon v. MRs, Laila Sarfraz, reported in 2003 CLC 771 (DB-Karachi).
14. Since the two courts below in the matter, while rejecting the plaint and upholding of the same have relied upon and applied the Article 14 of the Limitation Act, and observed that Article 120 of the Limitation Act, is not applicable, as such the main controversy in this matter is as to the interpretation and applicability of the Article 14 or Article 120 of Limitation Act, which is also to be seen/examined as per the contents and Prayer Clauses of the Plaint in the matter.
15. For that firstly I have examined and scrutinized the Articles 14 and 120 of Limitation Act, as the Article 14, relates to setting aside an act or order of an Officer of Government in his official capacity and aggrieved party prays to set aside the same and that too within one year from date of such act or order, whereas the Article 120 of the Limitation Act, is Residua one and applies where no period of limitation is provided, so suit to be filed within six years from the date when right to sue accrues.
16. As per the literal and plain meaning of the Articles 14 and 120 of the Limitation Act, are concerned, it is observed that under the Law of Interpretation of Statute the plain and literal meaning is to be given to the words used in the Statutes/Provision of Law. The two Courts below while rejecting the Plaint and upholding of the same have relied upon and applied the Article 14 of the Limitation Act, and observed that Article 120 of the Limitation Act, is not applicable in the matter.
17. But, the Applicant by way of Prayer Clauses, reproduced herein above, in the instant Suit the Applicant has mainly prayed for Declarations as to ownership of the land in question, against the Official Order of the Revenue Officer as illegal, arbitrary, fanciful, null and void and of no legal effect, and has not prayed for setting aside of such orders As such, the Article 14, would not be applicable rather in view of the Prayer Clauses the Article 120, is and relevant and applicable, which provides six years' period for seeking such type of reliefs under section 42 of Specific Relief Act, from the date when right to sue accrues. In support of the same, there are following Precedents:--
(i) 2005 CLC 285 (Karachi), Malhar v. Government of Sindh.
(ii) 1999 MLD 833 ahore, Nazeeruddin v. Province of Punjab.
(iii) 1998 CLC 2008, Zardad Khan v. Saila Begum.
(iv) PLD 1978 Lahore 679, Karim Dad v. Arif Ali.
(v) PLD 1963 Dacca 734, Hamid All v. Rahela Khatun.
(vi) PLD 1960 Lahore 801, Punjab Province v. Nisar Ahmed
(vii) AIR 1934 Madras 147 (D.B), Thiruvenkatacharyulu v. Secy. Of State.
(viii) AIR 1951 Ajmer 01, Kirshen Lal v. Mohan Lal.
' In the said cases the Plaintiffs filed Suits for the Declarations against the orders of the Revenue Authority/Government Officials, and the Hon'ble Courts have held that Article 120 of Limitation Act, would be applicable in such type of cases and not the Article 14 of Limitation Act, as the prayers were not to set aside such ordeRs,
(ix) PLD 1969 Dacca 280 (D.B), Province of East Pakistan v. AK Razaul Karim
(x) PLD 1961 Dacca 616 (D.B), Pakistan v. Muhammad Abdul Kuddus.
(xi) PLD 1990 Lahore 153, Province of Punjab v. Ashiq Muhammad Khan.
(xii) PLD 1957 Lahore 378, Rashid Inayat v. The Federation of Pakistan.
(xiii) AIR 1959 H.P. 32, Union of India v. Kedareshwar.
' In the said cases the Plaintiffs/ Government Officials have filed Suits for Declarations against the orders in respect of their services matters, passed by their superior Government Officials, the Hon'ble Courts have held that Article 120 of Limitation Act, would be applicable in such type of cases and not the Article 14 of Limitation Act, as the prayers were not to set aside such ordeRs, (xiv)2004 SCMR 1507, Rehman v. Yara.
(xv) 1995 SCMR 284, Wall v. Akbar.
(xvi)PLD 1964 SC 520, F.K. Khan v. Govt. Of Pakistan.
' In the said cases the Suits for Declarations were filed in respect of property and service rights, wherein Honourable Supreme Court has held that the Article 120 of the Limitation Act, would be applicable and Suit is to be filed within six years from the date of cause of action.
18. The case laws cited by the learned Counsel for Respondents are not of any help, as the point and law laid down in the Precedents, referred to hereinabove, have not been referred to and considered in the citations of the Respondent's side, and even otherwise in the 1988 CLC 412 and 1992 MLD 1162, the suits were filed beyond the time period as provided under Article 120 of the Limitation Act.
19. Moreover, now it is settled Principle of Law that decisions of the cases to be on merits instead of non-suiting the litigants for the technical reasons including the limitation, for which reliance is placed on the case of Managing Director, S.S.G.C. v. Ghulam Abbas, reported in PLD 2003 SC 724, and case of Muhammad Hanif Bukhari v. President, NBP, reported in 2004 PLC (C.S.) 14.
20. And even otherwise, the Applicant's Prayer Clause "b" as per Plaint in the matter, if treated to be prayer for setting aside the impugned order of an Officer of the Government in his Official capacity even then the Plaint cannot be legally and 'partially rejected on that very score in presence of main prayer for Declaration of Ownership as per Prayer Clause "a" of the Plaint in the matter, which has to be adjudicated upon by way of Trial and the law does not permit the partial rejection of the plaint as held in the cases of Attaullah v. Sanaullah, reported in PLD 2009 Karachi 38, Izhar Muhammad v.
Memon Housing Services, reported in 2009 MLD 1378, and E.F.U. General Insurance Company v.
Zahid Gee Textile Mills, reported in 2005 CLC 848 (Lahore).
21. In view of the above discussion and the Rulings referred to, I am of the considered view that the Applicant's Suit is for Declaration and Injunction in respect of his property rights, wherein the Applicant has sought Declaration as to his title for the land in question, which is under Section 42 of the Specific Relief Act, and similarly has prayed for Declaration that the order of the Official Respondents, adversely affected his property right, which have been passed in violation of Principal of Natural Justice, is null and void, so the Applicant's case governs under Article 120 of the Limitation Act and within time and not under Article 14 of the Limitation Act, as the Applicant has not prayed for setting aside of such adverse order of Govt. Officials and the Impugned Order and Judgment of the two Courts below rejecting the plaint and upholding of the same on the basis of Article 14 of the Limitation Act, are not legal and proper, and this is a fit case to exercise the Revisional Jurisdiction under section 115, C.P.C., as Impugned Order and Judgment of the two Courts below are not in consonance with interpretation of law as laid down by the Superior Courts, in cases referred to herein above, for which reliance is placed on the case of Muhammad Ameen v. Sardar Ali, reported in PLD 2006 Supreme Court 318, and even in the case of the wrong proposition of law by the Courts below the Honourable Supreme Court in the case of Rashid Baig v. Rehmatullah reported in PLD 2001 SC 443, and the case of Saheb Khan v. Muhammad Pannah, reported in PLD 1994 SC 162, has held that interference to be made under the Revisional Jurisdiction. As such, I am of the view that the subordinate Courts have exercised their jurisdiction not legally and properly and it can be legitimately interfered also in view of the case of Muhammad Hayat v. Mazhar Hussain, reported in 2006 SCMR 1410.
22. In view of the above, this Revision Application is allowed and the Impugned Judgment and Order of the two Courts below being not legal and proper are hereby set aside. Since the Applicant's Suit is of the year 2005, as such the Trial Court is directed to dispose of the same on merits for final adjudication expeditiously preferably within six months.
23. In view of the above disposal, the listed Applications for Amendment in Plaint have become infructuous in this Revision Application and are disposed of accordingly. The Applicant is at liberty to move such Application before the Trial Court.