1. ' The father of the petitioner No,3 under a registered sale-deed, dated 30th June, 1925 purchased from one Dewan Krishan Chand 8 Annas share in Survey No,138/1 and 2 measuring 9.10 Acres situated in Deh Keti Abu Baker, Taluka Naushero Feroze Nawabshah. His name was entered in the records as Khatedar, 0-8-0 share in Survey No,139/1 to 4 in the same Deh owned by Dewan Krishan Chand was sold by him to Paryal son of Qadir Bux, the father of the petitioners 4 and 5 and his name was mutated in the revenue record as Khatedar. The remaining 8 Annas share of Dewan Krishan Chand in both the aforestated survey numbers was inherited by his sons Pirthvi Raj and Partab Singh. Pirthvi Raj and Partab migrated from Pakistan and their shares were treated as evacuee property which were temporarily allotted with possession to a claimant namely Yawar Hussain the respondent No,7. After receipt of entitlement certificate it was finally allotted to him in satisfaction of his claim. On promulgation of M.L.R. 89 the respondent No,7 surrendered excess share in the said survey numbers but opted to purchase these lands. On 20th June, 1964 the claimant YawaP Hussain entered into an agreement of sale in respect of 8 Annas share in Survey No,138/1 and 2 with the petitioner No,3 Khuda Bux and Meer Muhammad who are brothers and put them in possession. The same day he executed another agreement of sale in respect of -/8/- Annas share in Survey No,139/1 and 2 in favour of petitioners Nos.4 and 5 sons of Paryal and put them in possession thereof. According to the terms of agreement, the purchasers were to pay the balance price of land on behalf of the respondent No,7 and sale-deed was to be registered after obtaining clearance. It has been stated that under M.L.R. 115 the transactions were reviewed and confirmed by the Land Commissioner Sind. One Haji Abdul Razzak respondent No,5 filed a suit for joint possession in 1972 before the Civil Judge Noushero Feroze against the petitioners Nos.3 and 4 and respondent No,7. It was then disclosed from the plaint that Haji Abdul Razzak the respondent No,5 had purchased evacuee share in the two disputed survey numbers under a registered sale- deed dated 31-5-1949 from the father of the respondent No,6 who had purchased the same from Pirthvi Raj and Partab on a statement before Mukhtiarkar Noushero Feroze recorded on 15-2-1948. It also transpired that Haji Abdul Razaak had filed an application for confirmation of 'sale on behalf of Muhammad Bakhsh and also sought permission to file a suit for specific performance of the contract. This application was granted on 10-10-1960 by the Additional Custodian. Pursuant to that a suit was filed by Muhammad Hayti( son of Muhammad Bux bearing Suit No,85/60 against hindu evacuee for specific performance of the contract but petitioner was not joined as party. This suit was decree. The petitioners allege that from proceedings of this suit they came to know that on 25- 3-1969 the allotment of evacuee share to respondent No,7 was cancelled which was maintained by order dated 29-12-1970 passed by the Settlement Commissioner. The respondent No,7 filed Constitution Petition No,263/1974 challenging these orders and order 28-7-1960 granting permission for filing suit for specific performance of contract as confirmed by Custodian's order dated 10-10-1960 and orders dated 20-1-1970 and 29-12-1970 passed by the Settlement Commissioner. That petitioner was withdrawn on 20th September 1978 and was dismissed. This petitioner has now filed this petition challenging the order passed by the Deputy Custodian on 28- 7-1960 as confirmed by the Additional Custodian on 10-10-1960 and the order dated 25-3-1969 of the Deputy Commissioner and Deputy Settlement Commissioner, order dated 20th January, 1970 of Additional Settlement Commissioner and order dated 29-12-1970 of Settlement Commissioner and sale made by Hindu evacuee on 15-2-1948 as illegal, without lawful authority and of no legal effect.
2. ' The respondent No,5 has contested the matter and denied that the respondent No,7 has transferred the property to the petitioner or that the order of the Commissioner and Deputy Settlement Commissioner were obtained by fraud. He has further stated that the petitioners have not come with clean hands as they have not disclosed certain material facts namely that the property in dispute has been transferred to their sons by a registered sale-deed and further that instead of filing a certified copy of the order dated 27-8-1960 a simple copy has been produced by erasing the number or case from the title to give the impression that the application for confirmation was filed in 1960 when the Custodian did not have the jurisdiction. The respondent No,5 maintained that the petition is liable to be dismissed on this account alone. It has further been pleaded that the petitioner is guilty of lathes and delays. He was aware of the proceeding when the suit was filed but he did not take any step and has filed the petition during the pendency of the suit.
3. ' The learned counsel for the petitioner has contended that on 11-6-1960. The Custodian had not jurisdiction to pass orders for confirmation of sale. This argument is based on the allegation that the application for confirmation was filed on 11-6-1960. The learned counsel has referred to para. 4 of the objections filed by the respondent No,7 to the application of Dr.Muhammad Hayat for attachment of certain survey numbeRs, In para. 4 relied upon by the petitioner's ,counsel it has been stated that Muhammad Bux filed an application under section 16 of the Ordinance, and notice was issued on 11-6-1960. This allegation by itself is not sufficient to establish that the application was filed after 8-6-1960. It only speaks of issuance of notice on 11-6-1960. The learned counsel for the petitioner also referred to the judgment in Suit No,85/60 which was filed by Muhammad Bakhsh against Pirthvi Raj and Partab for specific performance of contract. In that judgment it is stated that in the year 1960 the plaintiff applied to the Custodian Evacuee Property Nawabshah for permission to file a Civil Suit for specific performance. From this also it is not possible to construe that this application was filed after 8-6-1960. On the other hand Mr. Allah Bux Panhwar, the learned counsel for the respondent No,5 has invited my attention to the documents filed with the counter-affidavit. Reference has been made to the certified copy of the order passed by the Deputy Custodian on 28-7-1960 which was confirmed by the Additional Custodian on 10-10- 1960. In the title, the number of application has been mentioned as F2 (71) of 1956. It seems that the application was filed for confirmation before 1960 and subsequently permission was sought to change it for leave to sue the Hindu owner for specific performance of the contract. It, therefore, seems that the petitioner has not been able to establish that the application was filed after 8-6- 1980, and therefore, the bar of jurisdiction pleaded by the petitioner will not be attracted for the simple reason that under the notification dated 8-6-1960 issued under section 4 of the Displaced Persons (Land Settlement) Act pending proceeding were saved. Reference can be made to Mehtab Khan v. Rehabilitation Authority and other PLD 1973 SC 451.
4. ' The learned counsel for the respondent contended that the action of the petitioners in challenging the impugned order dated 29-12-1970 is belated and suffers from 'aches. The learned counsel further contended that the respondent No,7 from whom MO petitioners claim the title had filed a constitution petition, against the impugned order which was withdrawn on 20th September, 1978.
5. The petitioners have contended that in none of the proceedings, the petitioners were party and, therefore, immediately on coming to know about the order they have filed this petition. This statement does not seem to be correct as in 1972 Abdul Razzak had filed a suit for possession and manse profit and since then the petitioners were aware of the order of the Custodian but they did not file any proceedings joined action with the respondent No,7. The petitioner filed this petition 21 years after the petition filed by the respondent No,7 was withdrawn. The facts on record establish that obviously there is a long delay in challenging the impugned orders of the Custodian and the petition suffers from lathes.
6. ' Mr.Maroof Ali Khan, the learned counsel for the petitioners contended that as the order is void ab initio it should be set aside irrespective of the delay. He has referred to PLD 1976 SC 208, PLD 1976 Kar. 848 and PLD 1976 Lah.
820. None of these authorities support the petitioner's contention. Where the impugned action is a continuing wrong void or math fide and taken behind the hack of the petitioner delay may not by itself be sufficient for dismissal of the petition. In any event a party is not entitled to challenge such order at his own sweet will and file action when it suits his convenience. Even in cases where order is void the petitioner has to be vigilant and if there is undue delay it would be properly explained. In the present case as observed earlier the order passed by the Custodian was not void or illegal.
7. ' Mr. Allah Bux has filed certified copy of the statement of petitioner No,4 in Suit No,78/73 where he has admitted that the land in dispute has been transferred to his son. In the same proceeding sale-deed was also produced, certified copy of which has been filed. According to it on 16-12-1978 by a registered sale-deed, the respondent No,7 has transferred the land with the consent of the petitioners Nos. 1, 2 and 3 to their sons. In view of these facts pointed out by the learned counsel for the respondent it is clear that firstly the petitioners Nps.1 to 4 have no locus standi and have no interest in the land. Secondly these material facts were not disclosed in the petition or during the argument. Considering the facts of the case in this background, it seems clear that by these acts the petitioner wanted to create more complication in the matter. The conduct of the petitioners is far from being bona fide and delay in filing the petition is fatal to their action, and in the circumstances they cannot be permitted to challenge the order and seek discretionary relief.
8. ' Mr.Maroof All Khan has contended that the application was first filed by Razzak which was dismissed and the second application was filed by Muhammad Buksh which was for permission to file a suit for specific performance and not for confirmation of the transaction and as the agreement was not confirmed, no valid transfer could be made. The learned counsel has referred to PLD 1966 Lah. 953 where it was held that an agreement to sell does not create any right title or interest in immovable property and further that in view of PLD 1959 Kar. 131, if permission to sue has been given, it does not mean that the party is absolved from seeking confirmation of sale.
9. ' Mr. Allah Bux Panhwar has referred to PLD 1970 SC 326 where the revisional authority by one order confirmed the exchange and also granted permission to file suit for specific performance, it was held that the property was taken out from the evacuee pool. The order granting permission to sue for specific performance seems to have taken into consideration the conditions and requirements necessary for confirmation of sale. This order was subject to approval by the Additional Settlement Commissioner, who has approved it except for Surveys Nos. 190 of Deh Devil and Survey No,235, 1275/2, 257, 260/2, 262 and 263 of Kati Abu Baker as in respect of these lands, it was not proved that the Vendor was owner on 1-3-1947. It, therefore, follows that the approval and permission to sue was granted by this order. The Petition is, therefore, dismissed.