' Muhammad Ayub son of Khaliq Dad and Badshah Khan son of Surat Khan of Lakki Minakhel Tehsil Lakki Marwat District Bannu (defendants/petitioners) have sought the indulgence of this Court by invoking the revisional jurisdiction as envisaged by section 115, C.P.C. praying for setting aside the judgment and decree dated 2-9-1982 of the Court of Mr. lshtiaq Noor Additional District Judge, Bannu whereby maintaining the judgment and decree of the Court of Senior Civil Judge. Bannu dated 6-5-1980 he dismissed the appeal of the defendants/ petitioners with costs.
2. Facts in brief leading to the instant Civil Revision are that Moulana Riaz-ul-Hassan son of Nawab Hassan a refugee of Lakki (plaintiff/respondent) instituted a suit in the Court of Senior Civil Judge, Bannu for:-
(a) A perpetual injunction against the defendants/petitioners restraining them to refrain from interference in the ownership of the plaintiff in respect of plot measuring 3 Kanals out of Khata No. 545 Khasra No.6367/6276/3501 (Maila Mandi) situated in village Lakki Minakhel and in case of any construction raised by the defendants/petitioners, it should be raised to the ground and the superstructure removed.
(b) A decree for possession of the suit site in case the possession of the plaintiff was not proved.
The suit was hotly contested by the defendants/petitioners. The pleadings of both the parties resulted in the framing of the following issues by the learned trial Judge:-
(1) Whether the plaintiff is entitled to the decree for permanent injunction against the defendants?
O.P.P.
(2) Whether the form of the suit is incorrect? O.P.P.
(3) Whether defendant No.2 is bona fide purchaser of the suit property? O.P.D
(4) Whether the defendant has improved the property if so to how much they are entitled? O.P.D.
(5) Whether the suit is within time? O.P.P.
(6) Whether the suit is deficient in court-fee? O.P.D.
(7) Whether this Court has the jurisdiction to try the suit? O.P.P.
(8) Whether the auction if any conducted by the custodian in favour of the plaintiff is void and ineffective on the rights of the defendant? O.P.D.
(9) Whether the plaintiff has a cause of action? O.P.P.
(10) Whether the suit is bad for non-joinder of necessary parties? O.P.D.
(11) Whether defendant No.1 has prescribed title to the suit property by adverse possession? O.P.D,
(12) Relief?
' After recording the evidence of the parties as they wished to adduce the learned trial Judge decided issues 1, 5, 6, 7 and 9 in favour of the plaintiff/respondent and issues 2, 3, 8 and 11 against the defendants/petitioners. On issue No.4 the trial Court concluded that Badshah Khan defendants/petitioners was not entitled to any costs of improvement. Ultimately suit of the Plaintiff was decreed with costs and the appeal of the defendants/petitioners facing failure, they have come to this Court in the instant Civil Revision.
3. Arguments of Mr.Aziz-ur-Rehman Khan Baloch, Advocate on behalf of the defendants/petitioners and Mr.Mir Adam Khan, Advocate, counsel for the plaintiff/respondent have been heard at length and record of the case thoroughly scrutinized.
4. Land comprised in Khasra No.6367/6276/3501 (old) i.e Khasra No.3501 (new) measuring 18 Kanals 14 Marlas and 6 Sarsais was admittedly owned and possessed by Sardar Khan. Ayyub Khan (defendant/petitioner No.1) is the son of Khaliq Dad son of aforesaid Sardar Khan. Badshah Khan (defendant/petitioner No.2) had purchased the suit land from said Ayub Khan. Plaintiff/respondent claims that he had purcahsed 4 Kanals of land in open auction from the Settlement Authorities against a consideration of Rs.3,200 out of which he subsequently sold an area of 1 Kanal to Sahib Khan and the rest 3 Kanals of land is still the ownership and in possession of the plaintiff. Before pondering over the title of the plaintiff/respondent over the suit land it would be of significance to sort out the history which opened the way for the Settlement Authorities to step in. Sardar Khan the original owner and predecessor-in-interest of Ayub Khan had sold land in the suit Khasra numbers to non-Muslim evacuees long before the partition of the sub continent as per detail as follows:-
(i) An area of 1 Kanal and 16 Marlas in favour of Palwa Ram vide registered sale-deed No.86 dated 9-9-1929 for the consideration of Rs.1,960.
(ii) An area of 3 Kanals 3 Marlas in favour of Kamran Das and Qaisar Das vide registered sale-deed No.87 dated 9-9-1929 for Rs.2,000.
(iii) An area of 2 Kanals and 2} Marlas in favour of Maing Raj vide registered sale-deed 88 dated 9- 9-1929 for Rs.1,268.
(iv) An area of 1 Kanal in favour of Utam Chand vide registered sale-deed No. 89 dated 9-9-1929 for Rs.600.
(v) An area of 2 Kanals and 4 Marlas in favour of Lachhman Das vide registered sale-deed No.90 dated 9-9-1929 for a consideration of Rs.1,400.
(vi) An area of 17 Marlas in favour of Kala Ram and Hari Chand vide registered sale-deed No.91 dated 9-1-1929 for Rs.500; and
(vii) An area of 184 Marlas in favour of Naimat Ra-ai vide registered sale-deed No.92 dated 9-9- 1929 for Rs.590.
' Thus out of his entire holding in the suit Khasra Number measuring 18 Kanals 4 Marlas and 6 Sarsais Sardar Khan had alienated an area of 12 Kanals and 1 Marla to the non-Muslim evacuees by way of the aforesaid registered sale transactions. These sale transactions were, however, never given effect in the Revenue record wherein the entries constantly remained in the name of the original owner. The obvious reason for not giving effect to these registered sale-deeds in revenue record was the bar created by section 3 of the Law of Alienation (XXIII of 1900) which was introduced just with a view to protect the peasant class and which was implemented in the N.-W.F.. pursuant to Regulation-I of 1904. Section 3 of the Act reads:- "3.(I) (Save as hereafter provided) a person who desires to make a permanent alienation of his land shall be at liberty to make such alienation where--
(a) the alienor is not a member of an agricultural tribe; or
(b) Repealed by Act 1 of 1907.
(c) the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group; (Proviso) Repealed by Act 1 of 1907.
(2) Except in the cases provided for in subsection (I), a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by a Deputy Commissioner: Provided that--
(1) Sanction may be given after the act of alienation is otherwise completed, and
(2) Sanction shall not be necessary in the case of--
(a) a sale of a right of occupancy by a tenant to his landlord, or
(b) A gift made in good faith for a religious or charitable purpose, whether inter vivos or by will.
(3) The Deputy Commissioner shall inquire into the circumstances of the alienation and shall have discretion to grant or refuse the sanction required by subsection (2).
' The Registered sale transactions in favour of the non-Muslim evacuees referred to above, also falling under the prohibitory clause as provided by subsection (2) of section 3 reproduced above, in the absence of the sanction of the Deputy Commissioner the same were of no legal effect, because the bare reading of this section would represent that permanent alienations of lands are permitted in two cases only firstly when the alienor is not a member of agricultural tribe he may alienate or transfer the Land to any person whether he is or is not member of agricultural tribe and secondly when the alienor and the alienee are both either members of the same agricultural tribe, or of two different agricultural tribes falling within the same group. Excepting these two categories all permanent alienations of land are controlled by the Act, rendering sanction of the Deputy Commissioner necessary for their validity. In other words in cases not falling under these two categories, want of sanction of the Deputy Commissioner makes the transaction as invalid.
Following this legal bar it was evidently for this reason that the alleged sale transactions were never given effect and the possession of the suit land continued to remain with the original owner physically and on record both. The fact that the aforesaid registered sale transactions were not given effect in any manner whatsoever is further borne out from the fact on record that on the death of Sardar Khan aforesaid, his landed property, including the one in dispute, devolved on his legal heirs vide inheritance Mutation No.2759 attested on 16-12-1940. it clearly suggests that for more than 11 years of the registered sale transactions, the same were never acted upon. Vide Mutation No.2851 attested on 16-5-1942, Muhammad Ayyaz Khan etc. sons of Sardar Khan sold an area of 1 Kanal 5 Marlas and 3 Sarsais in favour of Lachhman Das out of the said Khasra Numbers on payment of Rs.1,400 pursuant to a Court decree. Similarly vide Mutation No.3429 dated 16-2- 1946 an area of 2 Kanals 2 Marlas and 2 Sarsais was sold in favour of Choudhry Maing Raj by Muhammad Ayyaz Khan etc. sons of Sardar Khan on payment of Rs.1,268, but this mutation was not attested. These two subsequent sale mutations by the heirs of Sardar Khan would go a long to prove that the sale transactions by Sardar Khan were never acted upon which fact was fully in the knowledge of the non-Muslim evacuees. Moreover it is also of much significance to lay down that while Sardar Khan had alienated an area of 2 Kanals and 4 Marlas in favour of Lachhman Das is 1929, as a result of the Court decree, referred to above, he was granted a decree for 1 Kanal 5 Marlas and 3 Sarsais, while despite Court decree the area decreed in favour of Choudhry Maing Raj and a mutation having been entered therefor the same was not attested, meaning thereby that the land sold to Choudhry Maing Raj was not given effect in the Revenue papers. The aforesaid resume of the facts on record are clearly indicative that although Sardar Khan or for that matter his successors-in-interest did alienate certain parts of land in the disputed Khasra numbers to the non-Muslim evacuees the same was not treated as evacuee property apparently due to the bar created by the Land Alienation Act, as discussed earlier so much so that even after partition of the sub-continent vide Mutation No.3811 attested on 15-12-1950, Mutation No.3852 attested on 13-2-1952 Mutation No.6068 attested on 30-6-1969, the property in suit Khasra number left by the successors-in-interest of Sardar Khan on their respective death further devolved on the legal heirs of the latter. Even vide Mutation No.6176 attested on 15-10-1972 Ataullah Khan etc. the legal heirs of Muhammad Ayyaz Khan son of Sardar Khan the original owners sold an area of 1 Kanal and 19 Marlas to Fazl-e-Subhani etc. for a consideration of Rs.7,000. Evidently these subsequent transactions could take place only if the property in suit still stood in the names of legal heirs of Sardar Khan the original owner. Statement of Asmatullah Patwari Exh.P.W.2/1 further indicates that even in the 'Jamabandi' for the year 1970-71 the entire suit Khasra number is shown to be owned and possessed by the legal heirs of Sardar Khan the original owner.
5. The case of the plaintiff/respondent is that as a result of information communicated to the Settlement Authorities by one Maazullah in 1961 the property in suit was declared by the Settlement Commissioner as evacuee one and in consequence thereof in open auction he purchased 4 Kanals of land out of the suit Khasra number on payment of Rs.3,200 being the highest bidder: that subsequently on 29-12-1966 P.T.O was issued in his favour and ultimately on 17-4-1970 a permanent transfer deed was granted to him. However, prior to the issuance of the permanent transfer deed vide consent decrees of the Civil Court dated 1-5-1969 and 24-9-1969 an area of 20,275 square feet coming to 3 Kanals and 15 Marlas was sold by Muhammad Ayub (defendant/petitioner) to Sahib Jan (defendant/petitioner). In this sequence it would not be out of place to mention that the plaintiff/respondent during the pendency of the suit on 15-11-1974, after the framing of the issues, submitted an application for the amendment of the suit enabling him to challenge the consent decrees which application however was rejected by the Civil Judge Lakki by his order dated 11-12- 1974, who was then seized of the matter. This order of the learned Civil Judge was not challenged in appeal, rendering thereby the consent decree having become final. The learned Senior Civil Judge, Bannu while granting the decree to the plaintiff/respondent in the instant suit, declared the consent decree as "void and nullity" by observing further that" a void transfer confers no title on any person". Once permission to amend the plaint, challenging the consent decree, was not granted, and the plaintiff having miserably failed to get that order set aside in appeal, the natural presumption is that he was fully satisfied with the findings of the Court and the consent decree being no more a matter to be adjudicated upon, nor was the same in issue, the observation of the learned Senior Civil Judge with regard to its nullity was not called for because he was not sitting in appeal against the order of the Civil Judge who as already observed did not allow the plaintiff to challenge the consent decree by way of amending the instant suit, being a separate and independent issue. It is well-settled principle of Civil Jurisprudence that a compromise decree is open to attacks which are available against the contract and as such it may be set aside within the period of limitation prescribed on the grounds which may be sufficient to invalidate a contract but so long as it is not set aside a party to it cannot urge that as it embodies an illegal term it should be ignored. Since the plaintiff failed to get the consent decree set aside in terms of Order, (XLIII, rule 1) or Order IX, rule 13 of the Civil Procedure Code and his attempt td get it set aside by applying for amendment of the suit having failed the A decree becomes final and it cannot be declared as "nullity" without having report to the normal legal course. Undoubtedly section 151, C.P.C. gives ample powers which are wide enough and under this section of law the Court must be deemed to possess inherent powers necessary to do right and to undo wrong in the administration of justice and merely for want of express provision of the code Courts are not rendered powerless to do justice or redress a wrong, but it is not ordinarily to be invoked where there is an express provision in the code relating to the matter which is sought to be dealt with under section 151, C.P.C.
Besides the power conferred under section 151, C.P.C. cannot be exercised once the Court has disposed of the matter. In this view I am fully fortified by the observation of honourable Mr.Justice Anwar-ul-Haq, J. (as he then was) reported as Bashir Begum v. Abdur Rehman PLD 1963 Lah.
412. As the plaintiff/respondent failed to take steps towards nullifying the consent decree under the provisions of the Code and further failed to challenge the order dated 11-12-1974, referred to above, the Senior Civil Judge, had no jurisdiction to ponder over this aspect of the matter even under the powers conferred upon him under section 151, C.P.C.
6. It is not disputed that the property in question was not declared as evacuee property upto 22-5- 1961 when on the information of one Maazullah the land in suit was declared as evacuee property out of which 4 Kanals were put to open auction and given to the plaintiff as the highest bidder. The plaintiff thereafter sold 1 Kanal out of it to one Sahib Khan Patwari. Section 3 of the Pakistan Administration of Evacuee Property Act (Act XII of 1957) places a bar on the declaration or treatment as evacuee property the one which has not been so declared or treated on or before the 1st January, 1957. For convenience of the appreciation of the point involved it is reproduced and reads as under:-
(3) Property not to be treated as evacuee property on or after 1st January, 1957. (1) Notwithstanding anything contained in this Act, no person or property not treated as evacuee or as evacuee property immediately before the first day of January, 1957, shall be treated as evacuee or as the case may be, as evacuee property, on of after the said date.
(2) Nothing in subsection (1) shall apply,
(a) To any person in respct of whom or to any property in respect of which any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as evacuee or such property as evacuee property; or
(b) to any property which is occupied, supervised or managed by a person whose authority or right so to do after the twenty-eighth day of February 1947, has not been accepted or approved by the Custodian.
' Now the very fabric of the plaintiff's suit is that for the first time the property was declared as evacuee on 22-5-1961 by the Rehabili tation Authority. In the first instance it is for all practical purposes the Custodian under the Administration of Evacuee Property Act who can subject to certain limitations as illustrated in section 3 ibid declare a property as evacuee one and in whom all such property shall vest. Since upto 1st January, 1957 the property was not declared as evacuee, it could not be so deemed after the target date. Nothing has been brought on record, what to speak of proof, the burden of which was ? surely on the plaintiff, that the suit property was ever treated as an evacuee by the Custodian had it been declared as evacuee property it was incumbent upon the Custodian to have included it is in the list of such property of the area by publishing a notification in the official Gazette as required by section 17 of the Act ibid. On the other hand the suit property was declared as evacuee by the Settlement Commissioner whose duty and functions are elaborated in Chapter III of the Administration of Evacuee Property Act, 1957 which nowhere empowers the Settlement Commissioner to simultaneously declare a property as evacuee and to allot it to displaced persons or to put it to open Even otherwise in the presence of a clear bar in terms of section 3 above the property could not be declared as an evacuee property after the date fixed by the enactment. In Imtiaz Bashir v. Special High Powered Committee (reported as PLD 1976 Quetta 131 it was held:- "that no person or property could be treated as evacuee or evacuee property on or after the 1st January, 1957 except in cases where the action has already commenced, proceedings pending or the property is managed or supervised by a person whose rights have not been approved by the Custodian Department within the prescribed period."
' It was argued by the learned counsel for the plaintiff/respondent that irrespective of the clear bar created by subsection (1) of section 3 of the Act ibid the property could still be declared as evacuee in terms of subsection (2). The bare reading of this subsection would reveal that nothing in subsection (1) shall apply to any person in respect of whom any action has commenced or any proceedings are pending immediately before the date mentioned therein for treating such person as an evacuee or such property as evacuee property. Since it is conceded that no such steps were taken before the target date nor were any proceedings pending before that date the instant case is not covered by this clause. As for clause (b) of subsection (2) of section 3 is concerned it also relates to those properties which are in unauthorised possession, management or supervision of certain parties who cannot be termed as owner of such property. Learned counsel for the plaintiff/ respondent, laid great stress on sub-clause (b) aforesaid and argued that since the land in suit had been sold by the original owner to the non-Muslim evacuee, the possession and supervision thereof by the defendant/petitioner was unauthorised and property did automatically vest in the Custodian in terms of section 7 of the Act, There can be no dispute over the principle that all the properties left by the non-Muslim evacuees did vest in the Custodian. The question for determination however is whether the land in suit was actually evacuee property which could automatically vest in the Custodian after the migration of the Hindus as a result of the partition of the sub-continent. It has clearly been provided in section 22 of the Act that:-- "22. Claim by interested persons.-- (1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that--
(a) the property is not evacuee property, or
(b) his interest in the property has not been affected by the provisions of his Act.
(2) An application under subsection (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.
(3) On receiving an application under subsection (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefor, rejecting the application or allowing it wholly or in part on such terms, and conditions as he thinks fit to impose.
' From the simple reading of this section it is clear that a person aggrieved by the order of the Custodian or the Rehabilitation Authorities treating or declaring any property as evacuee in which he claims any right or interest may prefer a claim to the Custodian on the ground that the property is not evacuee property or his interest in the property has not been affected by the provisions of this Act. It leads one to the irresistable conclusion that the declaration or treatment of a specific property as an evacuee one by the Custodian is the pre-requisite obliging the person affected by such declaration or treatment to prefer a claim with the Custodian. Thus, the mere vesting of the property in the Custodian by itself is nothing. On the other hand the Department must be proved to have done some overt Act in respect of a particular property i.e. it should have been treated by the competent authority as evacuee property so as to enable the person aggrieved to prefer a claim with the Custodian within the prescribed period. "In Syed All Iqtidar Shah Dara and others v. The Custodian Evacuee Property West Pakistan Lahore PLD 1964 Lah. 274 it was held that:- "In the first place, the vesting of property in the Custodian or the holding of property on behalf of the Custodian is only by fiction of law. In that application these provisions are of a general nature because they do not deal with any specific or identified property. In the second place, the most formidable hurdle in the way of the Department pertains to the words "not treated" used in the subsection under consideration. The significance of these words cannot be overlooked. In my opinion their meaning is that the mere vesting of property in the Custodian is not sufficient. The competent authorities must have done some overt act in respect of some specific property, namely that any paticular person or any particular property must have been treated by a competent authority as evacuee or evacuee property. This view is strengthened by the fact that in another part of the enactment the Legislature has specifically provided a remedy to the parties who feel aggrieved from the treatment of their properties as evacuee. "
' Assuming, without conceding for the sake of arguments that since Sardar Khan the original owner had alienated the land measuring 12 Kanals and 1 marla to non-Muslim evacuees prior to partition, irrespective of the fact that these alienations were never given effect in the revenue papers in the presence of a clear bar on such alienations under the Land Alienation Act, the Custodian or for that matter the Settlement Commissioner had genuinely treated it as an evacuee property, one fails to understand as to why the plot of 4 Kanals only was declared as evacuee and not the entire alienated area. This also suggests mala fide on the part of the Settlement Commissioner in declaring only portion of the entire alienated land as evacuee one. In the light of what has been discussed above it becomes clear that the property in suit having not been declared as evacuee property on or before the first of January, 1957, it could not be so declared thereafter particularly in the circum stances that it was nowhere shown in the revenue record as evacuee property direct from the date of alleged alienation by Sardar Khan the original owner upto the 1st January, 1957 or for that matter upto 22-5-1961 when all of a sudden it was declared as such by the Settlement Commissioner.
7. From the perusal of the 'Jamabandi'/Khasra Girdawri' it is crystal clear that the land in suit has constantly been shown in the revenue record to belong to Sardar Khan the original owner, even after the so-called alienation and on his death it devolved on his legal heirs and vice versa. Under section 52 of the Land Revenue Act an entry made in the record of rights in accordance with the law for the time being in force or in a periodical record shall be presumed to be proved until the contrary is proved or a new entry is lawfully substituted therefor. The plaintiff/respondent has utterly failed to prove to the contrary, the consistent entries in the revenue record and similar is the case with the order of the Settlement Commissioner who declared the property in suit as an evacuee one and put it to open auction without having least consideration towards the presumption of truth attached to the entries in the revenue papers. As observed earlier right from the date of the alleged alienation in favour of the non-Muslim Hindus by Sardar Khan the original owner of the suit land upto the partition in 1947 and thereafter uptil 22-5-1961 when the land was declared as evacuee by the Settlement Commissioner and even thereafter the entries in the revenue record have shown no change either in the ownership or in the possession. These entries in the revenue record were well within the knowledge of the Hindus to whom the land was alienated because an attempt was made by them to get the sanction of the Deputy Commissioner as required by section 3 of the Land Alienation Act and having failed in the process it obliged Choudhry mailing Raj to file a Civil Suit and get a decree from the Civil Court. This act on the part of the Hindus clearly suggests that it was well in their knowledge that the alienation in their favour by Sardar Khan was not given effect in the revenue papers. In Wali Muhammad v. Settlement Commissioner Sargodha 1973 Law Notes 58 (sic) it was held:- "If the rehabilitation record contains an entry contrary to that in the revenue records, then the latter will prevail. It is established law, that presumption of truth is attached to the entries in Jamabandis.
These entries were made long before the rehabilitation record was prepared and no suspicion was attached to them. If there had been any doubt with regard to their genuineness then the Hindu owners would have asserted their right in getting the same corrected. Since it was never done, therefore, reliance on the said entries has to be placed upon in determining the nature of the land in question."
' Accordingly I hold that the consistent entries in the revenue papers with regard to the nature of the property in suit and the ownership/ possession must prevail as against those of the Settlement Commissioner in view of the provision contained in section 52 of the Land Revenue Act and in the light of the observation reproduced above.
8. It is not disputed that right from 1929, nowhere the Hindus resorted to the legal course to get possession of the land alienated in their favour. To recover possession which is adverse in nature a time limit of 12 years is prescribed under the Limitation Act. Even if it is presumed just for the sake of arguments that the non-Muslim Hindus had become owner of the suit land as a result of the alienation in their favour by Sardar Khan the original owner, no attempt whatsoever was made by them to get possession of their respective area. There is nothing on record suggest that Sardar Khan or for that matter his successors-in-interest held the land with the permission of the so- called non-Muslim evacuees. Even if we apply the principle of adverse possession Sardar Khan had become the owner and as such on this principle too the land no more remained as evacuee one much prior to the partition of the sub-continent.
9. From whatever angle I may look to the case I feel that the plaintiff/respondent has miserably failed to prove his case and the learned two Courts below have gravely erred in granting him the decree impugned in the Civil Revision. Accordingly on the view of the matter that I take I accept this Civil Revision, set aside the judgments and decrees of the two Courts below and dismiss the suit of the plaintiff but keeping in view the legal points involved I would leave the parties to bear their own costs.