' The facts giving rise of this revision petition under section 115, C.P.C. Are that in a suit for perpetual injunction restraining Central Government through Secretary, Rehabilitation, Islamabad, Province of Punjab through Collector Mianwali, Mst. Kaneez Fatima and Mumtaz ,Ali respondents from making any interference in the possession and ownership of Ahmad Khan plaintiff-respondent over the land in question, an application, dated 4-4-1977 was filed by the petitioner under Order I, rule 16, C.P.C. For being impleaded as a defendant in the suit. This application was dismissed by the learned trial Court on 2-6-1977 and on the same date the suit for permanent injunction of the respondent-platfttiff was decreed. The claim of the petitioner has been that he was in possession as tenant over 12 Kanals out of the land in dispute and that he was entitled to have the same purchased on the basis of possession under the scheme framed by the Provincial Government in exercise of the powers vesting under section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The petitioner, as he was not impleaded in the suit and as the suit itself was decreed by the trial Court, filed an appeal against the -judgment and decree, dated 2-6-1977 but the same was dismissed by the learned Additional District Judge I, Mianwali, vide judgment and decree, dated 7-10-1981 holding that he had no locus standi to file the appeal. The judgment was then challenged by filing the present revision petition.
2. Learned counsel for the parties were heard on 28-4-1984 and in view of the peculiar circumstances emerging from the record learned counsel for Ahmad Khan respondent I, was asked to show cause as to why the impugned judgments and decrees be not interfered with even in exercise of suo motu revisional jurisdiction. Learned counsel for the parties asked for time to prepare the brief. The matter came up on 2-5-1974 when the matter was adjourned as learned counsel for the parties asked for grant of further time. Learned counsel for the parties were asked to address this Court on the question arising in the suit as follows:--
(1) Whether the suit of perpetual injunction as filed was competent as no declaration regarding the order of cancellation and resumption, dated- 28-7-1972 of the learned Settlement Commissioner was sought;
(2) What is the effect of sections 22 and 25 of the Displaced Persons (Land Settlement) Act on the suit;
(3) Whether the necessary and the proper parties were present before the Court;
(4) Whether the suit was within limitation;
(5) Whether the protection on the principle of section 41 of the Transfer of Property Act is available to the bona fide purchaser; and
(6) Whether the case is fit for interference in exercise of suo motu revision jurisdiction.
3. Learned counsel for the parties have been heard. Learned counsel for the respondent argued that the petitioner has no locus standi to claim even 12 Kanals of land as after cancellation of the land from the name of Mumtaz Ali and original allottee by the Settlement Commissioner (Land), vide order, dated 28-7-1972 under sections 10 and 11 of the Displaced Persons (Land Settlement)
Act, 1958, the land was allotted to Mst. Kaneez Fatima, respondent and as such the land was not available to be claimed by the petitioner under the Scheme framed under the Evacuee Property and Displaced Persons, Laws (Repeal) .Act, 1975. According to him the petitioner had no right to seek impleadment in the suit filed and that he was rightly kept out of the proceedings by the learned Courts below. He pointed out that even the application under the said Scheme had not been filed by the petitioner at the time when the application under Order I, rule 10, C.P.C. Was submitted before the learned trial Court. Such an application was admittedly filed on 28-11-1979 whereas the suit itself was decreed on 2-6-1977. He further added that Mst. Kaneez Fatima the allottee did file Appeal No, 198 of 1977 against the decree, dated 2-6-1977 passed by the learned trial Court and this appeal was also dismissed on merits by Ch. Masood Akhlar, Additional District Judge-I, Mianwali, vide judgment and decree, dated 7-10-1981. He was of the view that as the decree has been upheld by the learned appellate Court on appeal filed by Mst. Kaneez Fatima the contesting defendant, interference may not be made in exercise of suo motu revisional jurisdiction.
4. I have given anxious consideration to the submissions made but I find that though Muhammad Yasin petitioner was not able to establish sufficient interest in the litigation at the time of submission of the application under Order I, rule 10, C .P.0 and was thus rightly kept out of the proceedings yet for the circusmtances and the reasons noted below interference in revision jurisdiction is called for to advance the interest of justice. My reasons for coming to this conclusion are a under: ' The suit was filed on 2-1-1975 citing Central Government through Secretary Rehabilitation, Islamabad and Province of Punjab through Collector. The Chief Settlement Commissioner was not impleaded as a defendant, even the Province of Punjab was not impleaded through Member, Board of Revenue (Settlement Wing) and as such the concerned authority whose order was under challenge was neither impleaded as a defendant nor was given opportunity to contest the suit. The judgment passed by the learned trial Court as well as learned appellate Court on the appeal of Yasin and Mst. Kaneez Fatima shows that the learned Courts below were of the view as if the impugned order was passed by Land Commission Authorities. It will further be noted that the impugned order, dated 28-7-1972 passed by the Settlement Commissioner with the powers of Chief Settlement Commissioner under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 was not produced in evidence and yet it was held that the said order was void and without jurisdiction for want of notice to Ahmad Khan respondent who claims the status of a bona fide purchaser for value. The finding that Ahmad Khan plaintiff-respondent was not given a notice of hearing before passing the impugned. Order was based on the statement of Halqa Patwari (P.W.1) and the statement of Ahmad Khan plaintiff. Neither the record from the Court of Settlement Commissioner was produced nor even the order, dated 28-7 1972 passed by the Settlement Commissioner was produced or even read. A perusal of the order, dated 28- 7-1972 would show that Ahmad Khan plaintiff-respondent was a party to the proceedings under sections 10 and 11 of the aforesaid Act, he was in fact cited as respondent No,7 in the said proceedings. The order further shows that notices were issued to all the respondents and orders for ex parte proceeding against all of them were passed. A certified copy of the power of attorney executed by Ahmad Khan and others giving authority to the learned counsel to appear and contest the proceedings under sections 10 and 11 of the Act alongwith certified copy of the application for inspection of the file by the learned counsel of Ahmad Khan is available on the record of the revision petition.
' In view of the order that I propose to pass it will not be appropriate to record my views about the evidentiary value of the aforenoted documents but 1 must observe that the learned Courts below acted illegally in declaring the order illegal without even reading the said order .And without requiring the plaintiff to produce the said order in evidence. Moreover, the evidence produced to substantiate the assertion that notice was not served on the plaintiff before passing the impugned order was too insufficient to rebut the presumption attaching under law to the official acts and the judicial proceedings. The statement of Patwari P.W.1 that Ahmad Khan was not given any notice was inadmissible and irrelevant as he could not have known about the non-issuance or non- service of the notice said to have been issued by the Settlement Commissioner. It will, therefore, be seen that except that bald assertion made by the plaintiff-respondent himself there was nothing in evidence to substantiate the assertion regarding non-service of notice. Moreover, the learned Courts below as pointed out above were also not conscious that the order impugned was not passed by the Chief Land Commissioner. This erroneous and misconceived approach was the cause for not attending to the issues framed in the light of the provisions contained in the Displaced Persons (Land Settlement) Act. The learned Courts below were of the view that the plaintiff-respondent was a bona fide purchaser for consideration and was, therefore, protected by the provisions of section 41 of the Transfer of Property Act and that the civil Court being the Court of ultimate jurisdiction can rectify any wrong done by any Tribunal or Administrative Authority acting in violation of any principle of natural justice. It was further observed by them that in the case in hand it was clear that the Land Commissioner had not abided by the rule of natural justice while passing the impugned order cancelling the land from the name of Mumtaz Ali because he passed it at the back of interested person.
It is apparent from above that the impugned order was held to be illegal being violative of principle of natural justice and principle of natural justice was found to be attracted view of the protection available under the provisions of section 41 of the Transfer of Property Act. Without expressing any final view it will be appropriate to invite the attention of the trial Court to the law laid down by the Supreme Court in Bashir Ahmad and others v . Additional Commissioner 1983 SCMR 1199 and Sher Muhammad v. The Chief Settlement Commissioner and others 1971 SCMR 339. The learned trial Court will also while deciding the question of jurisdiction and the competency of. The suit as filed refer to the provisions of the Displaced Persons (Land Settlement) Act.
For the reasons given above, I am constrained to hold that th learned Courts below acted illegally and with material irregularity in decreeing the suit. The decree, dated 2-6-1977 passed by the learned trial Court and the judgment and decree passed in the appeal "Mat. Kaniz Fatima v.
Ahmad Khan and others" are hereby set aside with the result that the suit stands remanded to the trial Court for decision afresh in accordance with law after allowing the parties opportunity t lead evidence afresh. The Member, Board of Revenue (Settlement Wing), Lahore shall be impleaded as defendant in the suit. Yasin petitioner may, if he so desires, seek to be impleaded as defendant in the suit in case he is able to establish his interest in the suit land and is necessary or proper party.
No order as to costs.