' MIAN ALLAH NAWAZ, J.--The dispute in six Regular First Appeals Nos. 53/90, 57/90, 16/92, 18/92 and 19/92, relates to agricultural land measuring 49 Kanals 7 Marlas situated in Khatoni No, 70/Rectangle No, 84/7, Killa No, 5/0-18 Ms, 6/4K-16M Rectangle No, 84/10, Killa Nos. 13/2K-OM, 17/0- 14M, 18/7K-OM, 19/3K-18M, 21/2K-3M, 22/7K-18M, 23/2K-17M, Rectangle No, 84/11 Killa No, 1/7K-6M, 2/4K-4M, 9/0-2M, 10/5K-13M and 1/0-4M in the area of Mauza Zakhira Samma-Satta, Tehsil and District Bahawalpur. The aforesaid property was claimed by three persons namely; Haji Ghulam Sarwar, Malik Fiaz Muhammad and Syed Saleem-ud-Din. Haji Ghulam Sarwar, is still alive while the other two have passed away. Malik Faiz Ahmad was substituted by Malik Rafique Ahmad and others, while Syed Saleem-ud-Din by Mst. Syeda Rohi Begum and 5 others. The Court below treated Haji Ghulam Sarwar as plaintiff and the two other claimants. As first defendant and second defendant. We propose to adopt the same Scheme. The aforenoted property belonged to Bahawalpur State which was one of the Federating Unit of Federation of Pakistan. It shall be hereinafter described as the 'suit land' or the 'property in dispute'.
2. The chronology of these appeals is as old as 1954. At that time, Bahawalpur was a self-governing administrative Unit of Federation of Pakistan. It was merged in the then West Pakistan in 1955. On 25-7-1966, The Allied Match Company (Pvt.) Ltd. (hereinafter described as the 'Company') brought a suit, under section 42 of the Specific Relief Act against the Province of West Pakistan for seeking declaration to the effect that the Company needed some suitable land for setting up a Match Factory; that the Ministry for Agriculture, Bahawalpur Government, had agreed to sell the property in dispute to it by means of letter dated 10-8-1953; that he appointed the Deputy Commissioner, Bahawalpur to assess its price; that the employees of the Company selected the suit land on 24-4- 1954; that the Deputy Commissioner, Bahawalpur fixed the price of the suit land at the rate of Rs,1,000 per acre; that the Chief Engineer, on 26-5-1954, accepted the above price; that the Company deposited a sum of 28,838 vide Challan Form No, 2808 on 20-6-1954, took over the possession of the suit land; that with the advent of West Pakistan, the Government of West Pakistan, started to intermeddle in the possession of the Company over the property in dispute and so the Company was constrained to institute a suit. The suit was resisted by the Province of West Pakistan. Written statement was filed on 8-12-1966 wherein it was contended that the area measuring six acres had been sold to the Company by the Government of Bahawalpur; that the Government of West Pakistan later declined to allow the company to import the machinery for setting up the Match Factory and so the Board of Revenue of West Pakistan decided to cancell the sale and return the price deposited by the Company. On aforesaid pleas, necessary issues were framed and the case was fixed for evidence of the parties on 16-2-1967. As the evidence of none of the parties was available therefore the hearing of the case was postponed to 2-3-1967. On that date, the statement of Ch. Habib Ullah, as attorney of the Company, was recorded. He supported the claim of the Company and tendered in evidence Exhs. P/1 to P/7. The right of the Province of West Pakistan, to lead evidence, was closed under Order XVII, Rule 3, C.P.C. And the Company's suit was decreed. At this stage, it is necessary to note that the suit was filed by the Company through its one of the Directors namely Ashraf All resident of Karachi through Ch. Habib Ullah as his attorney. It was stated therein that the Company was a private limited company with two Directors namely Ashraf Ali and Syed Saleem-ud-Din.
3. The aforestated decree became starting point for further controversies. Haji Ghulam Sarwar/plaintiff entered the area of litigation first. On 26-9-1978 he instituted a Suit No, 714/78 for seeking declaration to the effect that Ch. Habib Ullah, as attorney of the Company, had made the sale of a parcel of property in dispute measuring 25 Kanals, 5 Marlas to him by an agreement of sale dated 17-9-1971, obtained the price of the land so alienated and got Mutation No, 75 attested on 16-4-1974. The land so alienated to him was situated in Rectangle No, 84/7, Khasra No, 6-Alf/2K- 0, Rectangle No, 84/10, Khasra Nos. 17-Alf/0-14M, 18/7K-14M, 22-Alf/4K-0, 23-Alf/2K-17M, 1-Alf/1K-0, 2- Alf/4K-4M, 9-Alf/0-2M, 10-2K-10M, 11-Alf/0-4M; that the aforesaid Ch. Habib Ullah as attorney of the Company filed an appeal against Mutation No, 75 which was accepted by the Collector, Bahawalpur on 4-10-1976, on the premises that it was in breach of Article 25 of the Land Reforms Regulation 115; that feeling aggrieved, the plaintiff filed an appeal which was dismissed by the Additional Commissioner on 10-1-1977; that his revision petition was accepted by the Member, Board of Revenue vide order dated 22-2-1979; that defendant No, 1, in collusion with Ch. Habib Ullah, filed a suit for declaration that he had become owner in possession a slice of suit land measuring 28 Kanals, 4 Marlas by means of oral sale; that the suit was filed on 5-11-1976 and was decreed on the consenting statement of Ch. Habib Ullah on 10-11-1976 and the sale-deed was registered by the Sub-Registrar in favour of Malik Faiz Ahmad on 18-11-1976. On the above circumstances, it was prayed that a declaration be granted to the effect that the proceedings commencing from the order of Collector dated 4-10-1976 to the registration of sale-deed dated 18-11-1976 were coram non judice, based upon fraud and were of no lawful consequence against his rights qua the land alienated to him. Haji Ghulam Sarwar filed a suit for permanent injunction on 6-4-1986 against S. Saleem-ud-Din/second defendant.
4. The first defendant did not lag behind. He, too, joined the contenders on 30-3-1986 and filed Suit No 218 of 1986. This was suit for seeking declaration to the effect that the first defendant was owner of a parcel of land measuring 28 Kanals, 4 Marlas under decree passed by the learned Civil Judge, Bahawalpur dated 10-11-1976 and sale-deed dated 18-11-1976; that neither the plaintiff nor the second defendant had any right in the suit land which belonged to him. It will be necessary, at this stage, to note that the land claimed by Malik Faiz Ahmad bore rectangle No, 84/10, Killa No, 13/2K-0, 17/0-14M, 18/7K-14M, 19/3K-8M, 21/2K-3M, 22/2K-0, 23/2K-17M, rectangle No, 84/11, Killa Nos. 2/2K-OM, 11/0-4M measuring 28 Kanals, 4 Marlas. It would be also essential to mention here that the land measuring 16 Kanals 15 Marlas bearing rectangle No, 84/10, Killa Nos. 17/0-14M, 18/7K-14M, 22/1K-2M, 23/2K-17M, rectangle No, 84/11 KIlla No, 2/4K-4M" and 11/0-4M, out of above land, had stands already, mutated to Haji Ghulam Sarwar/plaintiff through Mutation No, 75 attested on 16-4-1974.
5. All the above suits were resisted and after some time, were consolidated. Consolidated issues were framed on 18-7-1980. On 8-12-1987 and on 13-2-1988, Issues Nos. 8 to 8-C were added. The issues framed by the learned first Court are as follows:-- ISSUES:
(1) Whether the suit is liable to be dismissed in view of preliminary objection No, 1 of the written statement? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the defendants are entitled to special costs? If so, to what amount? OPD
(4) Whether the plaintiff was a necessary party in the suit between defendants Nos. 1 and 2 in which the decree dated 5-11-1976 was passed? OPP
(5) Whether the defendant No, 1 purchased any portion of the suit land from the defendant No, 2 in the year 1964 and the possession was also transferred to him? OPD
(6) If Issue No, 5 is proved then whether the plaintiff had the knowledge of the sale in favour of the defendant No, 1? OPD
(7) Whether Mutation No, 75 dated 16-4-1974 sanctioned in favour of the plaintiff is in contravention of Martial Law Regulation No, 115? OPD
(8) Whether the decree dated 5-11-1976 passed in favour of defendant No, 1 and the subsequent sale-deed dated 18-11-1976 in favour of the defendant No, 1 are illegal, void, collusive and hence inoperative upon the rights of the plaintiff? OPP (8-A) Whether the defendant No, 10 is entitled to the possession of the property described in his suit alongwith the mesne profits? If so, with what effect and to what extent? OPD (8-B) Whether the suit of defendant No, 10 is time-barred? OPD 1 to 8.
(8-C) Whether the plaintiff has become the owner of the suit land due to adverse possession?
(9) Relief.
6. Haji Ghulam Sarwar produced P.W. 1 to P.W. 4 before the consolidation of the suits. He, thereafter, relied upon their previous statements and produced them for cross-examination. He also examined Abdul Aziz as P.W. 5, Allah Diwaya as P.W. 6, and himself appeared as P.W.
7. On 10-12-1988 first defendant produced Amir Bakhsh D.W. 12 and himself appeared as D.W.
13. Syed Saleem-ud-Din/second-defendant examined Muhammad Siddique/reader of Magistrate at Lahore, Dr. Syed Zafar Haider and himself appeared as D.W.
11. Syed Saleem-ud-Din tendered into evidence Exhs. D/1 to D/13. Upon the consideration of the evidence adduced by the parties, the learned Trial Judge came to the conclusion that the plaintiff as well as Malik Faiz Ahmad first-defendant had failed to prove the execution of special power of attorney by Syed Saleem-ud-Din in favour of Ch. Habibullah and so all the transactions/alienations made by that Attorney in favour of the plaintiff as well as Malik Faiz Muhammad were null and void; that Syed Saleem-ud-Din was the owner of the property in dispute. On these findings Mr. Naeem Mohyuddin, Civil Judge, II-Class, Bahawalpur vide decision dated 29-5-1990 dismissed the suits filed by Haji Ghulam Sarwar as well as Malik Faiz Ahmad and decreed that of Syed Saleem-ud-Din.
Against this decision the aforenoted Regular First Appeals Nos.53/90, 17/92, 18/92 and 19/92 have been filed by Haji Ghulam Sarwar, while R.F.As. Nos. 57/90 and 16/92 have been filed by Malik Rafiq Ahmad and others/successors-in-inerest of Malik Faiz Ahmad.
7. While going through the record of these cases with the assistance of Mr. Ijaz Ahmad Ansari/learned counsel for the plaintiff, we observed certain features of unique significance which need mention over here. Firstly, the anchor-sheet of the claim of all the three contenders was judgment and decree passed by the learned Administrative Civil Judge dated 2-3-1967 in favour of Match Factory, Private Limited Company. The perusal of the plaint of Company's suit, in which the decree was passed (the file was requisitioned by us with the consent of the parties) showed that the suit was filed by Match Factory Private Limited Company through one of its Directors Ashraf All through his legally constituted attorney Chaudhry Habib Ullah. Secondly, the perusal of the' order of Member, Board of Revenue dated 22-2-1979 showed that vide Notification dated 10-74968 under section 4 of the Land Acquisition Act, the Government of Punjab had acquired a parcel of suit land measuring 33 Kanals, 4 Marlas from the disputed properties. On the above basis, the learned Member, Board of Revenue had come to the conclusion that Mutation No, 75 attested on 16-4-1974 in favour of plaintiff, was not in violation of any provision of Martial Law Regulation 115. Thirdly, that neither plaintiff nor first defendant nor second defendant had incorporated the above circumstances in their plaints. On the above observations, guided by the principle of judicial constraints and with the consent of the parties, we summoned the learned District Magistrate, Bahawalpur, and directed him to give us a report about the actual existing realities on suit land.
The District Magistrate, Bahawalpur, after a thorough inquiry, submitted a report on 24-4-1995, wherein it was stated that out of property in dispute, 33 Kanals, 4 Marlas was in possession of Public Health Engineering Department and that the aforesaid department had raised its construction over there. It was further stated therein that Haji Ghulam Sarwar and Malik Faiz Ahmad, in collusion with revenue staff, had made the plots of his claimed parcel of suit land sold them to number of vendees through registered sale-deeds and oral sales incorporated in mutations; that all these transactions were the result of fraud and swindling. On this report, we summoned the concerned Patwari and asked him to funish us the list of vendees from Haji Ghulam Sarwar and Malik Faiz Ahmad. The Patwari Halqa appeared and submitted before us the list of vendees from Haji Ghulam Sarwar as well as Malik Faiz Ahmad. The first list shows that Haji Ghulam Sarwar had made sale of 13 Kanals, 10 Marlas from the land claimed by him to 31 vendees in the form of residential plots and that these sales were made through registered sale-deeds. The second list indicates that legal heirs of Malik Faiz Ahmad had made sale of 10 Kanals, 7 Marlas from the properties in dispute in the form of various plots to 22 vendees. None of the learned counsel for the parties was able to dispute the contents of the report of the District Magistrate and the lists of the Patwari Halqa. The report of the District Magistrate, list of vendees from Ghulam Sarwar/plaintiff and from the legal heirs of Malik Faiz Ahmad have been placed on record as Mark-A, Mark-B and Mark-C respectively.
Unfortunately, these facts were totally concealed from the Court in all three plaints .Filed by Ghulam Sarwar/plaintiff, Malik Faiz Ahmad/first defendant and Salcem-udDin/second defendant.
8. On above facts, we asked the learned counsel for the parties to assist us on the two questions namely; whether the suit filed by the Match Factory Private Limited Company through Chaudhary Habib Ullah was competent in the terms of Order XXXVII, Rules 1 and 2, C.P.C.; and whether the decree passed by the learned Administrative Civil Judge dated 2-3-1967 was valid decree as it was violative of Order XVII, Rule 3, C.P.C., which was only applicable if adjournments were granted at the request of effected party.
9. Mr. Ijaz Ahmad Ansari, Advocate Supreme Court, learned counsel for the plaintiff/Haji Ghulam Sarwar, opened the debate. His contentions can be conveniently summarised as follows: ' Firstly; that the Match Factory was a Private Limited Company with only two Directors namely Ashraf All and Syed Saleem-ud-Din; that Ashraf All was Director as well as Principal Officer of the Company and he was completely competent to authorise Ch. Habibullah as attorney to institute the suit. On these facts, it was contended that the rule laid down in Muhammad Siddique Muhammad Umar v. Australasia Bank Ltd. (PLD 1966 SC 684) and Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. (PLD 1971 SC 550) was not applicable to the facts of that case. He further contended that Ashraf Ali was also competent under Rules 71 and 79 in Schedule of the Companies Ordinance (XLVII of 1984) to constitute Ch. Habibullah as special attorney. He also placed reliance on Haji Sh. Afazl Hussain v. Bhabani Prasad Saha (PLD 1963 Dacca 25), Habib Bank Ltd v. Green Garments Manufacturers (PLD 1978 Kar. 1027), Group Capt. A.M. Murad v. Mushtaq Ahmad (PLD 1975 Kar. 327), Abdul Salam Qureshi v. Judge, Special Court (PLD 1984 Kar. 462), Zamindara Cooperative Society Ltd v. National Bank of Pakistan (1982 CLC 1276) and Dumez Borie v.
International Forwarders Ltd. (NLR 1983 UC 184).
' Secondly; that the evidence adduced by the plaintiff was sufficient in quality and quantity to prove the execution of sale-deed dated 17-11-1971 executed by Ch. Habibullah and so the Trial Court was clearly in error in non-suiting Haji Ghulam Sarwar.
' Thirdly; he relied upon section 85 of the Evidence Act/Article 95 of Qanun-e-Shahadat Order, 1984, to maintain that certified copy of special power of attorney dated 3-12-1962 Exh. D.W. 8/1 executed by Ashraf Ali and Syed Saleem-ud-Din in favour of Ch. Habibullah and the general Power of Attorney dated 9-12-1960 was validly executed and presumption of its correctness was attached to it. Continuing, he added that the general power of attorney in favour of Chaudhry Habibullah was not in dispute and the only dispute related to the special power of attorney. According to the learned counsel, even if it was assumed that the execution of the registered Special Power of Attorney was not proved, Ch. Habibullah from 1975 up to 22-2-1979 had been admitting that he had made sale of land claimed by Ghulam Sarwar. On these facts, he pressed into service the principle of ratification embodied in the provisions of Contract Act.
' Fourthly, that the Special Power of attorney within the terms of Article 95 of the Qanun-e- Shahadat was a public document and was per se admissible.
' Fifthly, although the judgment and decree passed by the learned administrative Civil Judge dated 2-3-1967 was violative of Order XVII, rule 3 of the C.P.C., yet it was never questioned by the Province of Punjab by filing its appeal and so it had become final and was immuned from any challenge in these proceedings.
' Sixthly, and lastly, he contended that as far as Haji Ghulam Sarwar was concerned, he had no claim whatsoever against the land acquired by Province of Punjab and land which was in possession of Public Health Engineering Department, Bahawalpur. On these premises, it was convassed that neither Province of Punjab nor Public Health Engineering Department was necessary nor proper party.
10. Syed Iqbal-ud-Din Ahmad, who appeared for successors-in-interest of Malik Faiz Ahmad/first defendant, strenuously contended that the learned Court below had decided all the issues with patent error. According to the learned counsel, the testimony of P.W.8 was not sufficient to disprove that Ashraf All and Saleem-ud-Din had executed special power of attorney in favour of Chaudhary Habib Ullah who had made a sale of a parcel of land, fully described in the preceding paragraph, in his favour and got a consent decree passed by the Court below on 10-11-1976. Continuing, he submitted that no evidence, whatsoever, had been led by the plaintiff as well as second defendant to prove that the special power of attorney Exh. D.W.8/1 was a forged document.
11. Sheikh Hakim All entered debate as counsel of second defendant. In the first place he adopted the arguments advanced by Mr. Ijaz Ahmad Ansari on the maintainability of the suit filed by Match Factory through Habib Ullah in 1966. He, however, fully supported the decision of the Court below.
He contended that decision of the learned Civil Judge dated 2-3-1967 was passed in breach of the provisions of Order XVII, rule 3 of C.P.C. And it was not appealed by the Province of the Punjab. On this canvass, it was urged that the aforesaid decision had attained finality and could not be impeached by way of collateral attack. Reliance was placed on Hriday Nath Roy v. Ram Chandra Barna Sarma (AIR 1921 Cal. 34). Conforce Ltd. v. Syed Ali Shah (PLD 1977 SC 599) and Cawashah Bomanji Parakh v. Prafulla Nath Budra (AIR 1941 Nag. 364). He further submitted that none of the parties, at the time, had raised this question and so no issue was framed on it and the same cannot be examined by this Court for the first time under section 96 of the C.P.C. In reply to points raised by Mr. Ikram-ud-Din Sh. And Mr. Ijaz Ahmad Ansari, Advocate, he contended that Article 58 of the Qanun-e-Shahadat was a clear answer to the question that the second defendant was not required to file application under section 12(2) of the C.P.C. As regards, the presumption of registered deed of special power of attorney, he relied upon Mrs. Sarwar Siddique v. Muhammad Yusuf (1985 CLC 2831), Sahib Noor v. Feroz Khan (1992 M LD 2563), Lal Baz v. Gulab (1989 CLC 8) and contended that Article 95 of the Qanun-e-Shahadat did not prove the execution of special power of attorney/Exh. D.W-8/1. As to the report of the District Magistrate as well as the possession of Public Health Engineering Department over a portion of land, he frankly submitted that he had no claim, whatsoever, with regard to that property and would be contented with pursuing remedy against Ch. Habib Ullah for the recovery of compensation from him. He, too, did not dispute the factual contents of the report submitted by the learned District Magistrate on 24-4-1995.
12. From the foregoing factual matrix, the points raised by the learned counsel for the parties and from perusal of the record of the case, following questions emerge for consideration:--
(I) Whether the Allied Match Company Ltd.'s Suit No, 341 was competently filed by Chaudhry Habib Ullah as the attorney of the company?
(II) Whether the judgment and decree, passed by the learned Administrative Civil Judge dated 2- 3-1967/being in defiance of provisions of Order XVII, rule 3, C.P.C., was void ab initio and was liable to be ignored by the Courts under Article 58 of the Qanun-eShahadat Order, 1984?
(III) Whether the alleged Match Company was a fake one and the Courts are entitled to examine its character?
(IV) Whether in the facts and circumstances of the case Public Health Engineering Department/in possession of a major portion of suit land, was a necessary party in the suit filed by Haji Ghulam Sarwar and the suits filed by first and second defendants?
(V) Whether the vendees from Haji Ghulam Sarwar/plaintiff and vendees from legal heirs of Malik Faiz Ahmad, whose names are given in lists Mark-B and Mark C are also necessary parties and transactions in their favour are protected under law?
(VI) Whether the sale made in favour of Malik Faiz Ahmad vide decree date 10-11-1976 and registered sale-deed dated 18-11-1976 were collusive and ineffective on the rights of plaintiff and second defendant? And
(VII) Whether Saleem-ud-Din could not claim the suit land in his own name?
13. On our careful examination, we are reluctant to answer questions Nos.1, 2, 3, 6 and 7 for number of reasons. We are inclined to only deal with questions Nos. 4 and 5. It is not in contest between the parties that the land measuring 33 Kanals, 4 Marlas was acquired by the Province of Punjab under the provisions of Land Acquisition Act. It is also not in dispute that the acquiring department had taken over possession of the acquired land and had constructed their buildings over it. It is also not contradicted that out of that land, about 22 Kanals, 4 Marlas form part of the suit land. These facts were fully reflected in the order of the Member, Board of Revenue dated 22-2-1979 (Exh. P-11). These facts were clearly known to all of the parties. Unfortunately, none of the parties mentioned these facts in their plaints as well as their written statements. Moreover, Haji Ghulam Sarwar and Malik Faiz Ahmad divided the portions of properties in dispute in plots and sold the same to number of persons through registered sale-deeds. This aspect of the case is not denied, either, by Haji Ghulam Sarwar or by the legal heirs of Malik Faiz Ahmad. This being the position, we have no hesitation in holding that the Public Health Engineering Department through Province of Punjab and the vendees from Haji Ghulam Sarwar as well as from the legal heirs of Malik Faiz Ahmad were necessary parties. It is settled law that the persons ought to have been joined as party and in whose absence no effective decree can be passed, are necessary parties and suit without them is illegally constituted and cannot proceed. Reference may be made to Hussain Baldish v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), East and West Steamship Co. v. Queensland Insurance Co. (PLD 1963 SC 663), Muhammad Sadiq v. Muhammad Rafiq (1985 SCM R 376), Muhammad Ashraf v. Azad Government of the State of Jammu & Kashmir (PLD 1985 SC (A J & K) 102) and Mst.
Maqbool Begum v. Gullan (PLD 1982 SC 46). Applying these principles to the aforestated uncontradicted, uncontested facts of the case, we hold that the suits filed by the plaintiff, first defendant and second defendant were without necessary parties and so these suits were incompetent. On this analysis, we have two options; first is to dismiss the suits as being incompetent and second is to remand the cases to the Trial Court with a direction to it to get impleaded all the necessary parties and decide the matters afresh after affording opportunity of hearing to all the necessary parties and in consonance with law. We are inclined to follow the second option. The Province of Punjab is in possession of a major portion of the suit land, which is situated in a joint Khata. Furthermore, Haji Ghulam Sarwar and successors-in-interest of Malik Faiz Ahmad had disposed of a sufficient chunk of property allegedly alienated to the vendees who have been put into arena of litigation without any knowledge. On the above analysis, we are of considered view that the second option will be in the fitness of things. The system of dispensation of justice in our country is structured on the principle of adversary hearing and we are not persuaded to deny this right to the Province of Punjab and vendees from Haji Ghulam Sarwar and successor-in-interest of Malik Faiz Ahmad.
14. As a result of the above discussion, we accept these appeals, set aside the judgment and decree passed by the learned Civil Judge, IInd Class, Bahawalpur, dated 29-5-1990 and remand the cases to the learned Senior Civil Judge, Bahawalpur. The learned Trial Court shall determine the controversy in the light of whatever has been stated above and will be free to determine the questions formulated in para. 12 of this judgment. As none has achieved success in this case, therefore, there shall be no order as to costs. All the parties, including the Province of Punjab, the vendees from successor-ininterest of Malik Faiz Ahmad and Haji Ghulam Sarwar, shall be at liberty to raise all the points in support of their pleas and shall have the right to lead evidence in support of their points and the Trial Court shall determine them strictly in accordance with law and without being influenced by any observation contained in this judgment.