' The plaintiffs are legal heirs of Shaikh Inayatullah and Muhammad Yousuf Barlas who were non claimant displaced persons migrated from India. The plaintiffs have filed this suit for declaration, perpetual injunction and cancellation of PTO No,07182 dated 9th January, 1961 and PTD 0088/A/DSC dated 28-6-1963 as well as for damages. The injunction application filed by the plaintiffs under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. No,2246/95) was granted. Now the defendants Nos.1 to 6 have filed application under section 151, C.P.C. (C.M.A. No,3875/95 with the prayers that the order of this Court dated 6-8-1995 be stayed. These- defendants have also filed another application under Order XXXIX, Rule 4, C.P.C. (C.M.A. No,3876/95) for vacation of the order of interim injunction.
Besides, they have also filed an application under Order VII, Rule 11, C.P.C., C.M.A. No,3782/95 with the prayers that the plaint be rejected on the grounds inter alia, that it is barred by limitation and by secions 10 and 14 of the Evacuee Trust. Properties (Management and Disposal) Act, 1975. Through this common order, I intend to dispose of all the abovesaid three applications filed on behalf of defendants Nos.1 to 6.
2. The case of the plaintiffs, as stated in the plaint, is that the immovable property bearing No,S.R.
5/9 Corner Chambers, 181, I. I. Chundrigar Road, Sarai Quarters, Karachi measuring 1043 square yards Marwari Dharam Sala was initially leased out in the year 1862 by the then Government of India to one Mohata Family for 99 years hereinafter referred to as the said property.
3. That on 1St February, 1950 a learned Single Judge of erstwhile Chief Court of Sindh, Mr. G.B.
Constantine, J. (as he then was) granted permission to Shivrattan G. Mohatta and 4 others who were all trustees under section 92, C.P.C. To sell or exchange the said property. This decree confined to the rights of the trustees and the rights of custody of evacuee property were kept intact. Is is claimed in the plaint that since the predecessor-in-interest of the plaintiffs deceased Inayatullah and Muhammad Yousuf were in possession of the entire suit property as such they jointly applied to the Rehabilitation Commissioner/Collector for the allotment of the same which was accordingly allowed to the predecessor-in-interest of the plaintiffs by the Collector of Karachi vide order dated .27-12-1948. That the suit property was old and was in dilapidated condition as such the then Karachi Municipal Corporation declared it to be a dangerous and ordered for its demolition. That in the month of June, 1950 the then K.M.C. Authorised the deceased allottees to reconstruct the building on their own costs which was accordingly re-constructed at the approved cost of Rs,1,25,935. That Ministry of Refugees and Rehabilitation vide its order dated 27th March, 1958 recommended that the suit property be sold to the deceased allottees as a substitute for creation of charge. That after coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the transfer of the suit property was duly approved and accepted by the Custodian, Evacuee Property and notice of transfer was issued to the deceased allottees. That the entire transfer price of Rs,1,37,468 assessed by the Settlement Authorities were adjusted out of compensation books in the name of Abdul Rehman and Muhammad Sharif. In view of this alleged background, it is claimed by the plaintiffs that PTO bearing No,13867 dated 21-8-1962 and a permanent transfer deed PTD dated 15-2-1964 were issued by the Settlement Authorities in favour of the deceased allottees.
4. The grievance of the plaintiffs is that the original title document of the suit property were in possession of the deceased allottees who died in the years 1970 and 1977. That the plaintiffs for the purpose of disposing of the property amongst the heirs searched for the original PTD which could not be found in papers and, therefore, on 14-12-1978 they applied to the Settlement Authorities for issuance of duplicate. It is the further case of the plaintiffs that the Deputy Settlement Commissioner, Karachi instead of issuing a duplicate copy of the PTD illegally proceeded and cancelled the PTD issued in the year 1964 in the name of deceased allottees. The plaintiffs have filed copy of the order of the Deputy Settlement Commissioner dated 29-7-1979 as Anncxure-P/20.
Following is the relevant portion of the said order:- "The transfer file of the property, the Compensation Book from which the transfer price is said to have been adjusted and its Form ' A' files could not be traced. The C.S.C. IV, V, and 'F' registers were, therefore, checked. An entry is found .Recorded in the C.S.F. 'F' but the references of C.S.C. IV & V.
Recorded therein do not tally with the entries in the other registers. Interestingly enough, the applicants have also expressed their ignorance of the fact whether or not PTD was issued.
' In view of these facts I am of the view that the entry in respect of P.T.D. Made in the C.S.C.'F' is a spurious entry liable to be cancelled. Hence no copy of the said P.T.D. Could be issued to the applicants and the case be referred to the Settlement Commissioner for cancellation of the said entry in the C.S.C. 'F'."
5. The plaintiffs have averred in the plaint that the order of Deputy Settlement Commissioner was sent for approval to the Settlement Commissioner, Sindh and, therefore, they were deprived of challenging the validity of the final order. However, this order of the Deputy Settlement Commissioner as reproduced hereinabove was not challenged by the plaintiffs before any other forum.
6. In the year 1984 the defendant No,9, namely, Deputy Administrator, Evacuee Trust Property, Karachi directed the tenants of the suit property not to pay the rents to the plaintiffs. The plaintiffs filed a revision on 9-6-1984 before the Chairman, Evacuee Trust Property Board, Lahore defendant No,8 challenging the order of the Deputy Administrator. It is admitted by the plaintiffs that this revision application is still pending before the defendant No,8. That the plaintiffs have also challenged the status of the suit property as an Evacuee Trust Property. According to the plaintiffs, it does not fall within the definition of charitable, religious, or educational trust or institution. The main grievance of the plaintiffs is disclosed in Para. 23 of the plaint which reads as follows;
7. The plaintiffs have prayed for a declaration that the order of Deputy Settlement Commissioner dated 29-7-1979 and the order of Settlement Commissioner, Sindh dated 20th September, 1979 are illegal, coram non judice, void ab initio. They have also prayed for cancellation of PTO and PTD issued to the defendants Nos.1 to 6. They have also claimed a sum of Rs,1,25,935 with interest at 6% per annum from January, 1995 against defendant No,7, namely, Deputy Secretary (RS&EP), Board of Revenue, Sindh and further damages up to the tune of Rs,10 million for pain, humiliation and sufferings undergone by the plaintiffs and for permanent injunction against the defendant from acting upon the PTD issued to the defendants Nos.1 to 6.
8. I have heard Mr. Khalilur Rehman, Advocate for the defendants Nos.1 to 6 in support of abovesaid three applications. Mr. M. G. Dastagir, Advocate for defendants Nos. 8 and 9 has supported the case of defendants Nos.1 to 6. Mr. Muzaffar Ali Khan, Advocate for the plaintiffs has vehemently opposed arguments of both the learned counsel. Mr. Muzaffar Ali Khan has strenuously contended that for the purpose of hearing of application under Order VII, Rule 11, C.P.C. Only the contents of plaint are to be considered. He has referred to the case of Shahbeone Perveen v. M/s. Defence Officers, Housing Society Authority, Karachi 1993 CLC 2523 and the case of Hakim Saleem Ahmed and 8 others v. Government of Sindh and 3 others 1982 CLC 269. There is no cavil to the legal proposition as canvassed by Mr. Muzaffar Ali Khan. It is also a settled law that the contents of the plaint are to be treated as true. For any reference, see the following cases:--
(1) Messrs Zor Engineering Ltd. v. State Bank of Pakistan PLD 1980 Lahore 534.
(2) Messrs Shah Noor Studios v. W.Z. Studios 1980 CLC 433.
(3) Mahmud Ahmad Butt and another v. Lahore Development Authority and another PLD 1981 Lahore 153, and
(4) Messrs Agricides (Pvt.) Ltd. v. Messrs Ali Agro Supply Corporation Ltd. 1988 CLC 59.
' In view of this legal position, I have confined to the facts narrated in the plaint. I, therefore, proceed to dispose of application under Order VII, Rule 11, C.P.C.
9. It is contended by Mr. Khalilur Rehman that the suit is barred under Article 91 as well as under Article 120 of the Limitation Act, 1908. According to the defendant, the plaintiffs came into knowledge of the order of cancellation in the year 1978 but have filed the suit on 30th March, 1995 after unexplained delay of more than 16 years. In this connection, Mr. Khalilur Rehman and Mr. M.G.
Dastagir have referred to para. 27 of the plaint which indicates that firstly, the cause of action was accrued on 29-7-1979 when PTD was cancelled by the Deputy Settlement Commissioner and thereafter on 20-9-1979 when the said order of cancellation was approved by the Settlement Commissioner Sindh. Thereafter the entire para as well as other contents of the plaint are silent on the point that what efforts were done by the plaintiffs to challenge the said two orders of the year 1979 passed by the Settlement Authorities. It was also argued on behalf of the defendants that once a property is declared as an evacuee trust property the question of transfer can only be decided by the Chairman, Evacuee Trust Board and the jurisdiction of the Civil Court is barred.
Learned counsel for the defendants have referred to the following cases laws:--
(1) Evacuee Trust Property Board v. Mst. Zakia Begum and others 1992 SCMR 1313.
(2) Kh. Mehtab Din v. Azad Government through its Chief Secretary and 4 others 1993 CLC 988).
(3) Deputy Commissioner, Pishin v. Abdul Salam and others PLD 1993 Quetta 121.
(4) Mst. Saleem Khatoon and another v. The Deputy Commissioner/Authorised Officer and 2 others PLD 1994 SC 160.
(5) Bashir-ud-Din v. The Government of N.-W.F.P. And others 1995 CLC 1394.
(6) Evacuee Trust Property Board v. Muhammad Siddique alias Bandoo and others 1995 SCMR 1748.
' Mr. Muzaffar Ali Khan has contended that the plaint is not liable to be rejected on the grounds, inter alia, that the Civil Courts are competent to scrutinize any order passed by the Settlement Authorities. That the plaintiffs were not able to challenge the order of Settlement Commissioner, Sindh as copy of the same was not supplied to them and that it came to the knowledge of the plaintiff about present status of the defendants in the year 1995 in some other proceedings. That after repeal of the Settlement Laws vide Evacuee Property and Displaced Persons Laws (Repeal)
Act, 1975 the Settlement Authorities ceased to exist and they were not competent to pass the impugned order. According to the learned counsel for the plaintiffs, the time to be calculated for filing of the suit starts from the year 1994 and not from the year 1979 and that this suit being a suit for declaration, the time provided in Article 120 of the Limitation Act will attract which provides six years. He strenuously argued that the order passed by the Settlement Authorities in the year 1979 being void, time limit will not run against such void order. In support of his content, he has referred to the following cases:--
(1) Zafar-ul-Ahsan v. The Republic of Pakistan PLD 1960 SC 113.
(2) Mst. Fazal Begum and another v. Municipal Corporation, Lahore and 5 others 1983 CLC 1643.
(3) Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962.
(4) Muhammad Younus and 2 others v. Muhammad Younus Khan etc. 1981 SCMR 899.
(5) Raja Hassan Akhtar and others v. Akbar Khan and others 1981 SCMR 503.
(6) Evacuee Trust Property Board v. Muhammad Azam and 2 others 1995 SCMR 520 and
(7) Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698.
10. For the purpose of determining the question of limitation, it would be proper if the question whether the orders of the year 1979 passed by the Settlement Authorities are "void" is examined first. In the case of Mst. Rehmat Bibi 1986 SCMR 962, the Hon'ble Supreme Court has followed the precedent laid down in the case of Allah Dino v. Faqir Muhammad and another PLD 1969 SC 582 where it was held that no question of limitation would arise if an order is nullity and has been passed without hearing and notice to the other party whose presence is necessary. In the present case, the Deputy Settlement Commissioner, Karachi had passed order on the application filed by the plaintiffs. It is to be presumed that they were aware of these facts and the procedure of the Settlement Department that such orders are always referred to the Settlement Commissioner for approval. But despite that they kept silent for more than 16 years. The rule laid down in the case of Mst. Rehmat Bibi was again reiterated by the Hon'ble Supreme Court of Pakistan. In the case of Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543.
11. Mr. Khalilur Rehman, Advocate has referred to a judgment of a Single Judge of Balochistan High Court in the case of Deputy Commissioner, Pishin v. Abdul Salam and others PLD 1993 Quetta 121 where it was held that if a void order is in the knowledge of a party who is adversely affected from such order then it is his duty to get it set aside by filing proper proceedings. It is his legal obligation to challenge the same before the competent forum in accordahce with law. The learned Single Judge has followed the law enunciated in the cases of Messrs Conforce Ltd. v. Syed Ali Shah etc. PLD 1977 SC 599 and Syed Sajid Ali v. Sayed Wajid Ali PLD 1975 BJ 29.
12. The term "void order" is defined by the Hon'ble Supreme Court as a kind of an illegal order which does not exist in the eyes of law. See the case of S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367. In this reported case, a Full Bench of the Supreme Court of Pakistan observed that an order which is termed as a void order can create consequences, therefore, there cannot be a hard and fast rule to say that void order must always be struck down. On the question of limitation against a void order, it was held that writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of statute of limitation. For further. Reference, see the case of Messrs Friend Engineering Corporation v.
Government of Punjab and 4 others 1991 SCMR 2324. In the present case, the plaintiffs remained silent for nearly 17 years which had resulted in creation of a valid right in favour of defendants Nos.1 to 6. It was in the knowledge of the plaintiffs in the year 1979 that an adverse order had been passed by the Settlement Authority despite that they kept silent till the year 1995. This is a gross negligence on the part of the plaintiffs and could not be permitted to circumvent the period of limitation.
13. The plaintiffs have described the suit property in plaint as "Marwari Dharamsala" and have further claimed that it was not attached to any charitable, religious, educational trust or institution to qualify the same as an "Evacuee Trust Property". It is also admitted by the plaintiffs that in the year 1984 the defendant No,9, namely, Deputy Administrator, Evacuee Trust Property Board ordered stoppage of the payments of rents by one of the tenant Saifur Rehman against which the plaintiffs filed revision petition before defendant No,8, namely, Chairman, Evacuee Trust Property Board, Lahore which is still pending. But in Suit No,216 of 1949 (Shiv Ratan G. Mohatta and others v.
Shankarlal B. Sharma) the suit property has been defined as .Dharamsala established for the benefit of Marwari Hindu Community who left Pakistan for good prior to 1950. In these circumstances, it was prayed in the said suit by the trustees that permission be granted to sell or exchange the suit property subject to the provisions of the Evacuee Trust. It was notified in the Gazettes of Pakistan dated 15th July, 1963 and 9th August, 1963 that the suit property is attached with the religious trust named "Shivrattan G. Mohatta Hindu Marwari Dharamsala". Nowhere the plaintiffs have challenged the said two notifications published in the year 1963. In my view, a presumption of correctness is attached to these Notifications published in the Gazette of Pakistan in the year 1963 (Reference is made to the Article 51 of the Qanun-e-Shahadat, 1984). It would be advantageous if the case of District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25 is referred. In this reported case, the immovable property involved was situated on Phuleli Road, Hyderabad which was described as Dharamsala. It was argued by the respondents that as the said property was not attached to any trust, therefore, it cannot be declared to be evacuee trust property. It was also argued before the Hon'ble Supreme Court that in the absence of the trust deed, property could not be declared to be attached to a religious or charitable trust.
These contentions were repelled and it was held that since the trust deed documents were in possession of Hindu Trustees who had left Pakistan at the time of Independence, therefore, the demand for production of trust deed was unwarranted. The Supreme Court attached presumption of correctness to the official record and set aside the order passed by this Court. Following observations are fully relevant for disposal of instant applications:-- ' Now the Properties Register Card was prepared by public officials in the discharge of their official functions. Ordinarily a presumption of correctness would attach to the entries in the said Register.
In the face of this record the onus shifted to respondent No,1 to show that the entries therein were incorrect or unreliable. To discharge his burden he produced certain P.T.Os. Of adjoining properties which had been transferred to some other persons without any objection by the appellant. It is to be noticed that the P.T.Os. Were issued long after Independence when the trustees named in the extract were no loner available in Pakistan to contest the transfers. The P.T.Os. Are at best evidence of the inaction of the appellant in not protecting evacuee trusts; they can hardly be regarded as sufficient evidence to rebut the presumption which is attached to the official record which was prepared as far back as 1932."
14. Yet in another case Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner and another 1989 SCMR 1610, the property involved was described as Dharamsala.
The property was situated at Rishi Ghaat at Hyderabad and was declared to be an evacuee trust property. A learned Single Judge of this Court held that mere entry in the City Survey Record was not sufficient to establish the character of a property as a trust without there being evidence as to where the said Mandar was situated. It was observed by a Full Bench of Supreme Court that since the property in question was clearly shown in the official record maintained by the City Survey Department to be attached to a temple, therefore, under section 135-.1 of the Sindh Land Revenue Code and section 52 of the West Pakistan Land Revenue Act, such entries have attached to them a presumption of correctness. It was also held that the evidence to the extent that the suit property was attached to a Mandar being unrebutted was sufficient to declare the same to be attached to a religious trust. I do not see any reason not to attach correctness to the two Notifications published in the Gazette of Pakistan in the year 1963. This being so, it cannot be disputed that the suit property is an evacuee trust property, therefore, this suit is further barred under section 14 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 which ousts the jurisdiction of a Civil Court in respect of any matter covering an evacuee trust property which the Federal Government or any officer appointed under the said Ordinance is empowered to determine. Admittedly, a matter of like nature is already pending before the Chairman, Evacuee Trust Property Board, Lahore. This creates bar on the present proceedings as envisaged in section 14 of the Ordinance, 1974.
15. The effect of repeal of law of Settlement and Promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was considered by the Hon'ble Supreme Court in a recent case of Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others 1993 SCMR 21. In this reported case, the property involved in question was declared as non-evacuee which was set aside by a Division Bench of Balochistan High Court. Facts of this reported case are that the respondent, Mst. Dilshad Akhtar, obtained no-objection certificate from the District Council, Quetta to raise a residential colony on the land in question. Against this order appellant Quetta Hindu Panchayat approached the then Governor/Martial Law Administrator seeking relief of cancellation of the allotment made in favour of respondent Mst. Dilshad Akhtar. This application was marked to the Member, Board of Revenue who restrained the transferee from raising construction on the property in question.
Against such order, the respondent filed Constitutional petition. It was argued by the appellant before the Hon'ble Supreme Court that the disputed property was not an evacuee property and that no order can be passed by a Settlement Authority after promulgation of Act XIV of 1975.
Contentions of the appellant were not upheld by the Supreme Court of Pakistan with the following observations:-- "No doubt, on the enforcement of Act XIV of 1975 Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, all evacuee laws stood repealed but on the repeal thereof the proceedings pending before the authorities appointed there understood transferred for final disposal. To such officers notified by the Provincial Government etc. Etc. Under section 3 of the said Act all properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before or after the repeal stood transferred to the Provincial Government on payment of such price as was to be fixed by the Federal Government after consultation with the Provincial Government and the procedure of its disposal provided for therein.
Section 4 provides for disposal of residual work. It is clear from the reading of this statute that the Board of Revenue is practically the successor of the Chief Settlement Commissioner and empowered with the disposal of pending cases as well as transfer of available property. Obviously in the exercise of its duties it has to find out whether any particular property is available for transfer or not. Evacuee properties attached to charitable, religious or educational trust have been excluded from its jurisdiction as available property for transfer. Howcver, in the instant case the disputed property being neither evacuee nor evacuee trust property could not be transferred by him to anybody who through his impugned order does not pass any order regarding its transfer but in view of his inquiry based on the earlier record had simply held that it is non-evacuee property and its transfer was without jurisdiction."
16. In the plaint, it is' admitted by the plaintiffs that they are pursuing remedy before the Chairman, Evacuee Trust Property Board. It was argued by Mr. Muzaffar Ali Khan that the Settlement Authority was not competent to pass any order after promulgation of Ordinance XIV of 1975 as it ceased to exist. Perusal of the said order dated 29th July, 1979 shows that no fresh order was passed by the Settlement Authorities. They have given a finding on an application field by the plaintiffs for obtaining certified copies of P.T.D. Which was refused on the ground that there was no PTD issued in the name of predecessor of the plaintiffs. The plaintiffs have also admitted in their plaint that they do not possess originals of PTD and PTO as these documents were not traceable. The entire plaint is silent on the point as to why the plaintiffs have not challenged this order dated 29-7-1979 prior to the year 1995.
17. In view of the law laid down in the case of Quetta Hindu Panchayat (supra) by the Hon'ble Supreme Court I do not see any legal defect in the order, dated 29-7-1979 (Annexure-P/20 to the plaint) and therefore, this suit which was filed after a lapse of 17 years appears to 'be patently barred by the Limitation Act, 1908. Therefore, CMA No,3782/95 filed under Order VII, rule 11, C.P.C. Is granted and the plaint is rejected. Consequently, C.M.A. Nos.3875/95 and 3876/95 have become infructuous which are accordingly dismissed.
Plaint rejected.