CH. MUHAMMAD IQBAL, J.---Through this civil revision, the petitioners have challenged the validity of the judgment and decree dated 20.09.2010 passed by the learned Civil Judge, Bhakkar whereby the suit for specific performance filed by the respondents was decreed and also assailed the judgment and decree dated 22.11.2012 passed by the learned Additional District Judge, Bhakkar who dismissed the appeal of the petitioners. ,
2. Brief facts of the case are that Phool Muhammad, predecessor-in-interest of the respondents Nos. 1 to 10/plaintiff, filed a suit for specific performance and permanent injunction in respect of house No. 349 (which is an evacuee property) against his real brother Muhammad Yameen, predecessor-in-interest of the petitioners/defendants, contending therein that Muhammad Yameen purchased the suit house in auction but till to-date, no proprietary rights were granted to him by the Settlement Department. That the respondent/plaintiff purchased the suit house against consideration of Rs.70,000/- through an agreement dated 19.03.1997 but later on, the petitioner/defendant refused to execute the sale deed. The petitioners/defendants filed contesting written statement. The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment and decree dated 20.09.2010. The petitioners filed an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 22.11.2012. Hence, this civil revision.
3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.
4. The respondent/plaintiff in paragraph No.3 of the plaint admitted that the sale deed could not be registered because the proprietary rights of the suit property were not conferred by the Settlement Department. For reference, the aforesaid paragraph is reproduced as under: The Hon'ble Supreme Court of Pakistan in Muhammad Sadiq v. Muhammad Ramzan and 8 others (2002 SCM R 1821) has held that if a person is not owner of the property owned by the state, he cannot execute any sale deed until and unless he got proprietary rights of the same and if any transaction made, that would not take effect and, its operation shall remain suspended till acquisition of the proprietary rights. For reference, the relevant portion of the judgment (supra) is reproduced as under: " ....In the light of the above discussion, we hold that sale of Government land by the allottee without proprietary rights would not take legal effect and operation of the same would remain suspended till the proprietary rights of the property are not acquired by the vendor."
Another reliance is placed on cases cited as Commissioner Multan Division, Multan and others v.
Muhammad Hussain and others (2015 SCMR 58) and Salehoon and others v. Sadara NLR 1999 Civil 626).
5. The suit land being an evacuee property is owned by the provincial government but the respondents/plaintiffs have not impleaded the Settlement Department/Chief Settlement Commissioner as party in the suit. It is settled law that in the absence of a necessary party, no effective decree or order can be passed. Reliance in this regard is placed on a recent judgment rendered by the Hon'ble Supreme Court of Pakistan in a case titled as Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd.
(MBCL) and another (2021 SCMR 305) wherein it has been held that:
14. Therefore, the legislative intent and the purpose of the operation of this provision is for the State, or the Province, to be adequately represented and defended through the impleadment of the proper department. This purpose cannot be achieved if the concerned and proper department is not made a party to the suit, nor can it be achieved if the State, or Province, are not named in the suit.
15. This Court, in previous matters before it, has held that S.79 of C.P.C. is a mandatory provision where the State, or the Province, was either not impleaded in compliance with S.79 of the C.P.C., and Article 174 of the Constitution, or the concerned department was not made party to the suit.
Reference can be made to the cases of Province of the Punjab through Member Board of Revenue (Residual Properties) v. Muhammad Hussain, Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner, Khuzdar, and Government of Balochistan, CIVPP&H Department and others v. Nawabzada Mir Tariq Hussain Khan Magsi.
Reliance is also placed on the cases titled as Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46) and Muhammad Siddique (Deceased) through L.Rs. and others v. Mst.
Noor Bibi (Deceased) through L.Rs. and others (2020 SCMR 483)".
6. The learned Courts below have also failed to apply the correct law which rendered the said dicta as not sustainable in the eyes of law and are liable to be set-aside. This Court, under section 115, C.P.C., has jurisdiction to interfere in the perverse concurrent judgments and decrees of the lower fora. Reliance is placed on the case of Nazim-ud -Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24).
7. In view of above, this civil revision is allowed, the judgment and decree dated 20.09.2010, passed by the learned trial Court and the judgment and decree dated 22.11.2012 passed by the learned appellate Court are set aside and the suit for specific performance filed by the respondent/plaintiff is hereby dismissed. No order as to costs.