SHAIKH ABDUL MANNAN, J.-This judgment will dispose of writ Petitions Nos. 1332, 1454,.1334, 1333 and 1455 of 1984 where identical question of law and fact is involved.
2. Briefly stated, the consolidation scheme of revenue estate Kot Mahraj, Tehsil and District Sialkot was confirmed by the Assistant Consolidation Officer on 29-6-1974 and on appeal, Collector Consolidation partly accepted the same vide his order dated 5-3-1978 and restored certain Khasra numbers to Hassan Din etc after withdrawing the same from Khatas of Khera and Ghulam Qadir.
The matter was taken up further and Addl. Commissioner (Cons.) vide his order dated 24-5-1978 remanded the case to Collector (Cons.) with some directions. Ghulam Qadir felt aggrieved against this order and he filed revision petition in the first instance before the Board of Revenue and then writ petition before this Court but without any relief. In the meantime, Collector in compliance with the remand order dated 24-5-1978 passed a fresh order dated 6-11-1978 and restored the previous land to Hassan Din etc. This order was further assailed and learned Addl. Commissioner (Cons.) dismissed the appeal of Ghulam Nabi etc. vide his order dated 13-9-1979. Ghulam Nabi and others filed revision petition against order dated 13-9-1979 of Addl. Commissioner (Cons.) which was dismissed vide order dated 1-1-1984. Petitioners are aggrieved against this order dated 1-1-1984 of Member, Board of Revenue and 13-9-1979 of the Addl. Commissioner and that of Collector dated 6- 11-1978.
3. While dismissing the revision petition, learned Member, Board of Revenue observed in para 5 of his order that "parties had entered into an agreement for the mutual exchange of their lands on the terms and conditions set out in Resolutions No. 36 and No. 37. Nevertheless, during the framing of the wandas, although the lands of the respondents lying near the Abadi Deh were taken away and assigned to the petitioners, the lands promised in return to the respondents to make up the deficiency sustained by them in terms of Class I land, as stipulated in Resolution No. 37, were fraudulently and collusively withheld from them. In this way not only the valuable lands of the respondents around Abadi Deh were denied to them but also their entitlement in terms of Class I land was reduced from 116 Kanals 11 Marlas to 149 Kanals 6 Marlas. When the respondents came to know of this unfair and fraudulent distribution of the lands, they preferred an appeal against Muhammad Hussain etc., the petitioners in R.O.R. No. 893, but subsequently on discovery that the other petitioners had likewise benefited in the transaction, impleaded them also as a party to the proceedings before the Collector (Cons.) there was nothing illegal about it. It is a familiar principle of law that an agreement which has been induced by fraud or misrepresentation can be repudiated by a party not in pari delicto, at its option within a reasonable time after the discovery of such fraud or misrepresentation and no length of time would operate a bar to relief."
4. Learned counsel vehemently contended that impleadment of petitioners was barred by time and that there was no evidence to hold that any fraud was committed. It is further submitted that parties had entered into 'an agreement for mutual exchange of their lands as set out in Resolutions Nos. 36 and 37 and these Resolutions still hold the field and the only issue was regarding the implementation of these Resolutions and on these basis, it is vehemently urged that learned Member, Board of Revenue misdirected himself to hold that there was any fraud. It is further contended that if there was any minor deficiency, the same could be made from other landholders and not from the petitioners. Both the parties have placed their respective charts showing that there was some deficiency.
5. We have heard the learned counsel for the parties and are of the view that there was no legal justification for the Member, Board of Revenue to affirm the orders passed by the Additional Commissioner Consolidation and that of the Collector, Sialkot assailed in the writ petitions for the obvious reason that the parties had entered into an agreement for mutual exchange of their land as set out in the aforementioned resolutions and this arrangement, could not have been interfered unless the same was contrary to any principle or rule of consolidation. The learned counsel for the respondents have not been able to show such a situation in this case. The petitioners were impleaded as party in the aforementioned appeal which was obviously barred by time and unless sufficient cause was shown they could not have been participated in the litigation. The learned lower Courts were bound to follow the law as laid down in Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167) where it was clearly held that "whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law." It has not been shown that while impleading the petitioners as party the lower Court was conscious about the question of limitation.
For reasons stated above, the impugned orders are declared to be without lawful authority and of no legal effect and the writ petitions are accepted but without any order as to costs.