' CH. MUSHTAQ AHMAD KHAN, J.---This judgment shall dispose of the following connected matters as they involve identical questions of facts and law and arise out of the same dispute:---
(1) Writ Petition No,53/R of 1987 "Zafar Iqbal etc. V. A.D.C. (G) etc."
(2) Writ Petition No,93/R of 1987 "Abdul .Qadir etc. v. A.D.C. (G) etc."
(3) Writ Petition No,325/R of 1992 "Ghulam Mustafa etc. v. A.D.C. (G) eta.
(4) Writ Petition No,1729 of 1981 "Ghulam Ahmad v. Addl. District Judge etc."
(5) Crl. Original No,125/W pf 1987 "Abdul Qadir etc. v. Ghulam Ahmad".
(6) Cr1. Original No,50/W of 1989 "Abdul Qadir etc. v. Ghulam Ahmad".
2. Briefly stated facts out of which these matters have arisen are that Property No,S-85-R-7/9, commonly known as "Cooper Hostel", situated at Bahawalpur Road, Lahore, measuring 39 Kanals, consisting of two bungalows, one hostel and 22 servant quarters, alongwith other properties originally belonged to Mr. A.B.L. Cooper who created a family trust thereof, by virtue of his last will dated 23-10-1917 and a subsequent codicil dated 21-12-1918. As per the abovesaid document wife of the testator Nawazbai A. Cooper was appointed as sole executrix and the trustee of the said properties, who obtained a probate of the said will and codicil on 10-12-1921 and continued administering the trust in accordance with the directions contained in the deed of trust during her lifetime. On her death in December, 1923, the nominated trustees declined to resume the duties as such, therefore, learned District Judge, Lahore vide order dated 4-7-1925 appointed Messrs Din Shaw A. Cooper, Durab Shaw A. Cooper and Byram A. Cooper sons of Mr. A.B.L. Cooper, as trustees of the property referred to above.
3. Subsequently, vide registered deed of agreement dated 3-10-1931, subject-matter of the trust was partitioned amongst the trustees, in pursuance whereof, property mentioned in the Schedule 'D' to the deed fell to the share of Mr.B.A. Cooper.
4. Mr. B.A. Cooper and Mrs. S.B. Cooper, his wife, had executed a promote after obtaining a loan of Rs,15,000 from Messrs Bulaki Mal & Sons, Ghumti Bazaar, Lahore who, on the basis thereof, filed a civil suit for recovery of loan amount (C.S. No, 60/1 of 1935) in the Civil Court of Lahore, wherein a decree dated 22-6-1935 for payment of Rs,20,500 with interest at the rate of 1% per mensem w,e,f, 19-6-1935 till realization of the decretal amount, was passed in their favour by L. Jawala Dass, learned Sub-Judge, 1st Class, Lahore. Decree-holders filed various execution petitions which had been consigned to record for one reason or the other. Ultimately in execution petition filed in the year 1943, the property referred to above was attached. Particulars of encumbrances as stated by the decree-holders were mentioned as Rs,30,000 being debt payable to Sardar Anand Singh.
Market value was stated to be Rs,50,000 fetching Rs,100 as rent.
5. The judgment-debtors Mr. W.A. Cooper, who himself was an Advocate, and his wife filed objections against the attachment and auction of the property on the grounds that the bulk of attached property is agricultural land and can only be put to auction by the Collector; that the value of the property is more than two lacs of rupees for which there is already an offer of Rs,2,35,000 but the same is being put to auction in a decree passed on the basis of pronote for Rs,15,600 that the property attached and sold was never mortgaged with the decree-holder, therefore, he cannot get it sold in execution of a money decree; and that the execution petition is barred by time. This petition was pending when learned counsel for the objectors made a statement on 18-5-1945 that he has no instruction from his clients. Learned Executing Court instead of issuing a notice to the judgment-debtors to prosecute the objection petition, dismissed the same and ordered the sale of the attached property vide the order of even date in pursuance whereof the same was purchased in open auction by Haji Muhammad Ismail deceased predecessor-in-interest of the petitioners and respondents Nos.4 to 9, for an amount of Rs,48,000.
The judgment-debtors challenged the order dated 18-5-1945 in E.F.A. No,307 of 1945 before this Court, on the following amongst other grounds: "(1) That the learned Sub-Judge was wrong in law in deciding the objections on the merits after the judgment-debtor's counsel had made a statement to him that he had no instructions from his client. In the circumstances the only order that could have been passed was one for default and not on merits. See L.P.A. 25 of 1941 decided by the Hon'ble the Chief Sir Arthur Trevor Harries and the Hon'ble Sir Abdur Rehman on 9-11-1943 entitled "The Cooperative Mortgage Bank, Jhang v. Sayed Muhammad Hussain Shah etc."
(2) That the petitioner has a right to get his objections tried on the merits and if the judgment under appeal is not reversed, the findings given on the merits will operate as res judicata and he will suffer.
(3) That the bulk of the property in suit is land revenue paying land and can only be sold by the Collector.
(4) That the property in suit is valued over two lacs. The appellants have been offered two lacs thirty-five thousand but its value is not less than three lacs. The decree in the course of which it is being executed was originally on the basis of a pronote for 15 thousand and the utmost amount that the decree can realize under the law is double the amount.
(5) That the decree-holder cannot sell this property as mortgaged property because the property was never mortgaged to him.
(6) That the alleged charge is illegal.
(7) That the order of the executing Court is contrary to law and without jurisdiction."
' Memorandum of appeal has been verified by an affidavit contents whereof are reproduced as under: ' Affidavit of Mr. B.A. Cooper, Bar-at-Law, Lahore which was presented today before the Oath Commissioner for attestation.
' I, B.A. Cooper, Bar-at-Law, Lahore do hereby solemnly affirm and say as follows:---
(1) That the bulk of the property is land revenue paying land.
(2) That I have been offered Rs,2,35,000 for the property in dispute but I have not sold it because the property is worth three lacs and more.
(3) ' That the original debt was on a pronote for Rs,15,000."
6. The appeal was accepted by a learned Single Judge of this Court vide judgment dated 15-5- 1946 and the case was remanded to the learned executing Court for hearing of arguments on 11-6- 1946 and to decide the objections on merits. The judgment rendered in appeal is reproduced as under:--- "There is no doubt that the appellant had been negligent in absenting himself and in not making proper arrangements to have the case argued on the date fixed by the Court below. But as the property involved is considerable and no harm would be done to the decree-holder if an opportunity for arguments were even now afforded to the appellant, I do not feel disposed to adopt a very strict attitude. I would, therefore, set aside the lower Court's judgment and order that the arguments may be heard by the learned Subordinate Judge, provided the appellant pays a sum of Rs,50 as costs by the 23rd of May, 1946.
' The costs are paid to learned counsel for the decree-holder in Court. The judgment of the lower Court is accordingly set aside. The case may now go back to the learned Subordinate Judge for hearing arguments on the 11th June, 1946, and to decide the case on its merits. The parties are directed to appear before the Subordinate Judge on that date fully prepared to argue the case before him.
7. In post remand proceedings the case was taken up on 11-6-1946 was adjourned to 12-7-1946, on which date strangely enough learned counsel for the judgment-debtors/objectors, who had earlier stated that he had no instructions from his clients, made a statement to the effect that he does not unless the objections and accepts the Court auction, hence, the objections were dismissed as not pressed and auction was confirmed in the name of Haji Muhammad Ismail deceased auction- purchaser, predecessor-in-interest of the petitioners and respondents Nos.4 to 9 for an amount of Rs,48,000, in absence of the judgment-debtors and ultimately sale certificate was issued in the name of Haji Muhammad Ismail deceased, predecessor-in-interest of the petitioners as well as respondents Nos.4 to 9, on 29-7-1946, photostat whereof has been . Placed on record of these proceedings as the original is stated by the petitioners to be with F.I.A. Whereas according to respondent No,3, it is stated to be in possession of the petitioners, which is intentionally being not placed on the record of the case, as the same is a forged document and if produced on record, will on the face of it establish the same to be a forged document. It may be mentioned here that as per F.I.A. Record perused by us, the said certificate had been returned to the accused Haji Muhammad Yusuf, from whom it was taken into possession for the purposes of investigation. The judgment- debtors have not been heard since after the decision rendered by the High Court in E.F.A. No,307 of 1945 and as per contention of both the parties have migrated to India.
8. Haji Muhammad Ismail, who had purchased the property in question obtained a warrant of possession dated 8-1-1948 from learned Executing Court, which at that time was being presided over by Sh. Maqbool Ahmad, leaned Civil Judge, Lahore. Although the judgment-debtors had migrated to India on that date and their interest in the property which is subject-matter of the warrant for possession had vested in the Custodian, yet, the same was applied for and issued against them without notifying and impleading the Custodian as a party to the proceedings, which were consigned to record vide order dated 7-2-1948 which is reproduced from the copy of Goshwara supplied by the Incharge Record Room as under: {{URDU TEXT}} 9.Another application (C.M. No, 72/11, dated 26-10-1949) seeking amendment of the sale certificate was filed against the original judgment-debtors which was accepted by the learned Civil Judge vide order dated 15-8-1950, on the basis of statement of Patwari in absence and without issuance of any notice to the judgment-debtors or to the Custodian in whom the property vested at that time and the sale certificate was amended by deleting therefrom Khatauni No,2245 and Khasra No,7650 and by addition therein Khatauni No,2445 and Khasra No,6750, respectively, which order is reproduced as under: {{URDU TEXT}} (Sd.)
"Sher Muhammad" S. Judge, Lahore 15-8-50
10. The auction-purchaser Haji Muhammad Ismail had agreed to sell the property purchased by him in favour of Haji Muhammad Yusuf, his 'Samdhi', for a sum of Rs, 70,000 vide deed of agreement for sale dated 19-1-1948. However, instead of getting a sale-deed executed, the property in dispute except a small portion thereof was got transferred in the name of 'Haji Muhammad YusuT through an award which was made a rule of Court on 19-12-1950. Strangely enough, sale amount as mentioned in the award has been reduced to Rs,48,000 from Rs,70,000. A part of the disputed property was alienated by Haji\ Muhammad Yusuf in favour of Mst. Khadija Begum and Zafar Iqbal, Ghulam Mustafa and nine others.
11. Malik Ghulam Ahmad- deceased respondent No,3 who is now represented by his legal heirs, in a bona fide belief that Haji Muhammad Yousuf and others are the owners of the property in question, obtained a portion of the property on lease, vide lease deed dated 4-2-1951 and set up an Ice Factory and Cold Storage thereon. Subsequently, however, when it transpired to him that evacuee property referred to above had been fraudulently grabbed by Haji Muhammad Ismail and subsequent transferees thereof, he moved an application to the Rehabilitation Commissioner, Lahore stating therein that the same is under mortgage with Sardar Hukam Singh and Krishan Gopal etc., therefore, the mortgage rights after the partition vested in the Custodian of the property, hence, claim of ownership rights by Messrs Haji Muhammad Ismail and Haji Muhammad Yusuf etc. Are illegal and without a lawful authority. On the said application a notice was issued to Haji Muhammad Yusuf deceased and hence control of the properties referred to above was taken over by the Rehabilitation Department treating it to be evacuee in nature and rent thereof was also ordered to be paid to the Rehabilitation Department vide order dated 18-3-1954 passed by the D.R.C. (R & R), Lahore.
12. In order to avoid the proceedings on the Settlement side Haji Muhammad Yusuf filed a civil suit in the Court of learned Senior Civil Judge, Lahore seeking declaration to the effect that the entries in the Revenue Record pertaining to mortgage rights are incorrect and that he is the owner of the property in question without encumbrances, hence the entries adverse to his rights may be ordered to be rectified. Learned trial Court made a reference under section 34 of the Ordinance XV of 1949 to the Custodian for the purpose of determination of the evacuee interest in the said property.
13. The Custodian of Evacuee Property vide judgment dated 19-8-1961 determined the mortgage rights of the evacuees to the extent of Rs, 83,000, which amount was required to be paid so that the property could be discharged of all the encumbrances. In the same order, however, the following observations regarding nature of the equity of redemption and title of Messrs Haji Muhammad Ismail and Haji Muhammad Yousaf were made as under:--- "I have asked the respondent, Malik Ghulam Ahmad who is present in'' Court if he can adduce any documentary evidence to prove that the mortgage debt stands at a higher figure than that accepted by the Additional Custodian. He has expressed his inability to do so. However, it has been urged on his behalf by the learned counsel appearing for him that the decree obtained by Haji Muhammad Yousaf in respect of this property is not above board. This is not a matter for me to investigate as it involves a contest between him and his predecessor-in-title, viz. Muhammad Ismail. The limited question for determination before me is the extent of the evacuee interest. If the respondent feels that the title of Haji Muhammad Yousaf to this property can be assailed in any manner, he can choose his remedy, including a report to the Enforcement Staff if it is considered that Haji Muhammad Yousaf has been guilty of any conduct which would require investigation by them.
' The answer to the reference received from the Civil Court shall be returned in terms as stated in this order. A copy of this order should also be sent to the Deputy Settlement and Rehabilitation Commissioner concerned for taking steps to recover the amount of the mortgage debt from the petitioner."
' In compliance with the direction of the C.S.C. Dated 15-11-1961, charge of Rs,83,000 was adjusted from the deferred payments of compensation No,2265441 of Haji Muhammad Yusuf and clearance certificate was issued. By the D.S.C.. On 28-8-1963, in pursuance whereof a letter dated 2-11-1963 was issued by the Settlement Department to the effect that the properties have since been declared as non-evacuee by the order of the Custodian dated 19-8-1961 and from that date the same is now in the name of Haji Muhammad Yusuf, therefore, Malik Ghulam Ahmed, who was the tenant of Haji Muhammad Yusuf should pay the rent to him.
14. Subsequently, land measuring 5 Kanals, 2 Marlas bearing Khasra No,6750 was allotted to Malik Ghulam Ahmad deceased respondent No,3 under Settlement Scheme No,6 vide order dated 25-10- 1963, by the competent Settlement Authority.
15. In pursuance of the observations made by the Custodian, reproduced in paragraph 12 above, respondent No,3 moved the Enforcement Staff for holding of an inquiry into the title of Haji Muhammad Yousaf, whereupon a case F.I.R. No,95 of 1964 was registered with the Special Police Establishment under the provisions of section 420/468/471, P.P.C. Aggrieved of the registration of this case, Haji Muhammad Yousaf sought quashment thereof in Writ Petition No,1965 of 1964. This petition was accepted by a Division Bench of this Court vide judgment dated 23-10-1967 and the F.I.R. Was quashed. The judgment rendered by this Court is reported as PLD 1968 Lahore 482.
Aggrieved of this judgment, respondent No,3 filed an appeal before the Hon'ble Supreme Court of Pakistan, which was accepted by their lordships of the Supreme Court on 26-1-1976. This judgment is reported as PLD 1976 SC 271. In the judgment rendered by their lordships of the Supreme Court, various facts and inferences have been taken note of which are relevant for decision of these petitions as well, hence, are reproduced as under: "A perusal of the entire judgment in appeal and the observations quoted above has left an unhappy impression on our minds that the learned Judges were anxious to obtain concession from the Public Prosecutor and dispose of the writ petition on its basis. In the circumstances we do not attach much importance to the view formed by the learned Judges that 'there was no doubt about the authenticity of the documents relied upon' by respondent No,1 'or' that no forgery, interpolation or tampering with the original record has been practised'. The accusation had yet to be probed into by the Special Police Authorities and to some extent they received prima facie support from the voluminous material placed on the record by the appellant. For instance, in the Court certificate, encumbrance by way of only one mortgage on the property sold in .Favour of Sardar Nand Singh for Rs, 30,000 is not mentioned. At a later stage, respondent No,1 himself conceded the existence of four mortgages in the sum of Rs,83,000 in favour of evacuees.
' There was also the accusation that the property included in the Court certificate belonged to three persons and two of them were not judgment-debtors but their names were fraudulently added to the certificate. The learned Judges ignored this allegation while recording the finding that 'there was no doubt about the authenticity of the documents and Court orders on which respondent No,1 relied' and that 'there was no forgery, interpolation or tampering with original record'.
' It was also omitted from consideration by the learned Judges of the High Court that the property to Which, respondent No,1' lay claim comprised an area of 39 Kanals of land, a double-storied building consisting of 100 rooms and three large bungalows situated on Bahawalpur Road, near Chauberji, a highly congested commercial area of Lahore. How could such property be sold at a public auction for the paltry sum of Rs,48,000. It is on record that Mr. Cooper, the judgment-debtor, who was a practising Barrister-at-law had obtained orders from the High Court for rehearing of his objection to the proclamation of sale but on the next date of hearing in the executing Court his counsel conceded that the attached property may be sold by auction. Mr. Cooper did not put in appearance. The property was put to auction and sold to Mian Muhammad Ismail for the sum of Rs,48,000. No objections were filed against the sale. In fact Mr. Cooper disappears from the picture after obtaining favourable order from the High Court certificate of the property involved in the case was issued in the name of Haji Muhammad Ismail on 16th July, 1945. In turn he entered into an agreement with Haji Muhammad Yusuf, respondent, on 19-1-1948 to sell the property to him for Rs,70,000. It was recited in the agreement that Rs, 20,000 had been received by Haji Muhammad Ismail from the respondent and Rs,40,000 was kept in deposit with him for payment to one Haji Muhammad Ibrahim, refugee, who had advanced to him an interest-free loan in the said sum and that Rs,10,000 will be paid to the vendor before the Registrar. This agreement was substituted by another instrument executed on 24-4-1948 in which it was recited that Haji Muhammad Ismail had received the sum of Rs,40,000 which was lying in deposit with respondent No,1 for payment to Haji Muhammad Ibrahim.
' On 23-7-1950 Haji Muhammad Ismail and respondent No,1 entered into an agreement of Arbitration and appointed Maulvi Siraj-ud-Din, Advocate, to adjudicate upon the dispute which had arisen between them about the value of the property agreed to be purchased by respondent No,1 for Rs,70,Q00. It was claimed by respondent No,1 that the property agreed to be purchased by him had depreciated in value since the agreement was executed in 1948. It was specifically mentioned that a residential bungalow included in the property had been vacated by the Public Works Department in a dilapidated condition resulting in damage to the bungalow estimated at Rs,20,000.
' On 3-8-1950 the Arbitrator gave an Award holding that the value of the property which Haji Muhammad Ismail had agreed to sell to respondent No,1 was Rs, 48,000. He was accordingly held liable to pay back Rs,12,000 to respondent No,2 In the concluding part of the Award, it is said that Haji Muhammad Ismail has elected for him 1500 sq. Ft. Of land and the rest of the property stands transferred to respondent No 1 . The consideration for retaining a plot of land measuring 1500 sq. Ft.
By Haji Muhammad Ismail is not mentioned in the Award.
' The Award bears non-judicial stamp of Rs,62-8-0. It was made Rule of the Court on 19-12-1950, without contest either before the Arbitrator or before the Civil Court.
' While we refrain from expressing any considered opinion on the facts of the case it is not possible to avoid the inference that either the property put to auction had been eaten away to 'its foundations by a number of mortgages and only the equity of redemption was sold or that the property put to auction did not consist of 39 Kanals of land, a double-storied building containing 100 rooms and 3 large residential bungalows in the city of Lahore. There are many other pertinent questions which require a thorough probe by the Investigating Agency. The circumstances in which, instead of executing a sale-deed, the transfer of the property was effected in favour of respondent No,1 by means of an Award also called for an inquiry.
' The learned Judges dealing with the jurisdictional issue observed that there was no evacuee interest in the property in dispute, and therefore, the case registered by the Special Police Establishment did not relate to matters concerning the Central and Provincial Governments. This was begging the question. For if the Court certificate was tampered with and thereby the entries in favour of evacuee mortgagees were not mentioned in it or the names of two other co-owners of the property who were not judgment-debtors were added to the sale certificate or properties which were not put to auction were fraudulently included in the Court certificate then there would be evacuee interest in the property and the offences allegedly committed by respondent No,1 will be connected with the matters concerning the Central and Provincial Governments to attract the jurisdiction of the Special Police Establishment."
16. After the judgment had been rendered by their Lordships of the Supreme Court, the investigation was ultimately conducted by the F.I.A., although initially it was held during the course of investigation that the allegations of forgery and fraud and grabbing of evacuee property are not established, yet, in the ultimate findings it has been held that the sale certificate as being forged and that the evacuee property as being worth crores of rupees have been grabbed by fraudulent means.
17. Another development which took place during the interregnum was that the order of transfer of the property dated 21-8-1963 and subsequent orders dated 30-3-1973 and 12-12-1978 passed on the Settlement side in favour of respondent were challenged by Haji Muhammad Yusuf before the learned Settlement Commissioner, who accepted the revision petition vide order dated 27-10-1981 and set aside the transfer in favour of Malik Ghulam Ahmad on the ground that the property in dispute had since been purchased by Haji Muhammad Ismail and then from him by Haji Muhammad Yusuf in lawful proceedings, taken by the Civil Courts, hence it was not available evacuee property for the purpose of transfer under the Settlement Schemes. However, the question of validity of title of property purchased by Haji Muhammad Yusuf was kept open to be determined by the Settlement Authority in the light of the report of F.I.A. And observation made by their Lordships of the Supreme Court. Operative part of the order passed by the Settlement Commissioner is reproduced as under: "I have given considered thought to the arguments of both the parties and have also carefully gone through the voluminous record of the case including various orders of superior Courts. In the light of the above discussion and agreeing with the contention of the learned counsel for the petitioner I am of the view that the petitioner has a good case to succeed, this is because the petitioner/his predecessor-in-interest had purchased the suit property through a Sale Certificate issued by the Civil Court and this sale was allowed by the learned Custodian vide order dated 19- 8-1961 subject to clearance of encumbrance amounting to Rs,83,000 which the petitioner cleared, as such the property in question in part or as a whole never belonged to the Compensation Pool in light of the above-referred order of Custodian which still holds the field having not been agitated in any Court. By seeing, therefore, the order of transfer dated 21-8-1963 passed by Deputy Settlement Commissioner is found void and without jurisdiction, particularly when it was also passed without hearing the petitioner. There is no ground found for it to stay, it is therefore, set aside. Similar is the position of order dated 25-10-1963 which was also passed by the Deputy Settlement Commissioner at back of the respondent.
' As a result orders passed subsequently by the learned Additional Settlement Commissioner and Deputy Settlement Commissioner dated 30-3-1973 and 12-12-1978 respectively now impugned also lose its ground and they are also set aside.
' It is in the above manner that this revision petition stands accepted and the file remitted to the learned Deputy Settlement Commissioner for further necessary 'action as may be due in this case on receipt of the inquiry report pending before the F.I.A. As also observed in the order ' of the Supreme Court dated 16-1-1976 passed in Civil Appeal No,87 of 1970."
18. This order was challenged by Malik Ghulam Ahmad respondent No,3 in Writ Petition No,713 of 1981, which petition was disposed of as not pressed in view of the statement made by the learned counsel for the Settlement Department that the Settlement Authorities shall decide the matters in accordance with law. Order dated 23-6-1986 passed in Writ Petition No,713 of 1981 is reproduced as under:- "Mr. Shahzad Jahangir, Advocate states that as submitted in the Preliminary Objections in the written statement filed on behalf of respondent No,1 (Member Settlement and Rehabilitation Wing)
Board of Revenue) this case is liable to be decided now by the Notified Officer afresh as directed by the remand order which has been impugned in this writ petition, and that the matter will be decided in accordance with the facts, law and justice in .View of the report of the F.I.A. Appended alongwith the written statement as Annexure R/1.
2. In view of the statement made by Mr. Shahzad Jehangir, Advocate, learned counsel for the petitioner does not press this petition as he states that he will avail his remedy before the Notified Officer.
3. This petition is disposed of With no order as to costs".
18-A. After the F.I.A. Had held during the course of investigation that the sale certificate is a forged document, on 7-7-1986 respondent No,3 moved an application to the notified officer respondent No,1 for proceeding with the matter in pursuance of the order dated 27-10-1981 as upheld by the High Court in Writ Petition No,713-R of 1981, vide order dated 23-6-1986, whereupon the case was taken up by the respondent No,1 who vide order dated 24-12-1986 held that the sale certificate is forged and is based on fraud and hence, the property entered therein being evacuee in nature, the allotment in favour of respondent No,3 stands restored and rest of the property stands resumed.
18-B This order has been challenged by Messrs Zafar Iqbal and others who are successors-in- interest of Mst. Khadija Begum deceased purchaser of a portion of the disputed property, in Writ Petition No,53-R/87, The successor-in-interest of Haji Muhammad Yusuf have challenged the same order in W.P. No,93-R of 1987 and Messrs Ghulam Mustafa and 9 others in W.P. 325-R/92.
18-C Another relevant facet of the litigation is that an ejectment petition was filed against Malik Ghulam Ahmad deceased respondent No,3 on the basis of the lease deed executed by him. This petition was accepted by the learned Rent Controller 'vide order dated 1-3-1979 on the ground that the relationship of landlord, stands established by virtue of the lease in presence whereof the respondent cannot deny the relationship of landlord and tenant. Appeal filed there against has been dismissed as barred by time vide order dated 15-2-1981. Both the orders passed by the learned Rent Controller as well as Appellate Authority have been challenged by Malik Ghulam Ahmad, respondent No,3, in Writ Petition No,1729 of 1981.
19. Criminal Original No,125-W/87 has been filed in Writ Petition No,713 of 1991 by Messrs Abdul Qadir and others for alleged violation of the final order passed in that petition. Criminal Original No,50-W of 1989 has been filed by Messrs Abdul Qadir and others in W.P. 53-R/87 for alleged violation of order of status quo dated 7-2-1987.
20. Messrs Ch. Khurshid Ahmad, Raja Dilshad A. Khan, Anzak Raja, M. M. Alam, M. Z. Khalil and Mimi Nisar Ahmad, Advocates, have appeared on behalf of the Petitioners, to whom they represent, whereas Messrs Shahzad Jehangir, Raja Mahmood Akhtar, Ch. Qadir Bakhsh, Advocates have appeared on behalf of the respondents represented by them in all these cases.
21. As all these matters arise out of the same dispute, are relatable to the same subject-matter, involve identical legal and, factual questions and resolution of dispute in one case will affect the result of the other, with consent of learned counsel for all the parties, arguments therein have been heard simultaneously and are being decided by this consolidated judgment.
22. In support of his case Ch. Khurshid Ahmad, Advocate, learned counsel for the petitioner has raised the following contention:---
(i) That the learned notified officer had no jurisdiction to entertain the application made by respondent No,3 on 7-7-1986 in view of the following submissions:---
(a) The order of transfer in favour of respondent No:3 dated 21-8-1963 had been set aside by the order of the Settlement Commissioner (Urban) dated 27-10-1981 and having been challenged in Writ Petition 713/R of 1981 which had been withdrawn on 23-6-1986 as such had attained finality.
Therefore, both the orders dated 27-10-1981 and 23-6-1986 in Writ Petition No,713-R of 1981 could not be treated as the orders of remand.
(b) As the order of the Custodian dated 17-8-1961 had become final and there being no order of Custodian declaring property in question as evacuee and this fact having been taken cognizance by the Settlement Commissioner in order dated 27-10-1981 that the property never formed part of compensation pool, the Notified Officer did not have jurisdiction to entertain the application for that reason as well.
(c) As a natural consequence of the two submissions above, the property in question could not be treated as an evacuee property after the target date i,e, 1-1-1957 as per paragraph 3-A of the Pakistan Administration of Property Act, 1957.
(ii) That the order of the Notified Officer dated 24-12-1986 was biased and mala fide as the case had never been set-forth for evidence and the preliminary submissions were only for the understanding of the case as per direction of the Notified Officer duly supported by the affidavit of Mr. Amir Alam Khan, Advocate (as his Lordship then was).
(iii) That the question of jurisdiction was required to be decided before proceeding further by the Notified Officer and it had been submitted before this Hon'ble Court at the time of arguments that an absolutely false circumstance had been created as to the disposal of the objection of jurisdiction raised before the learned Notified Officer.
(iv) That the objections filed to the record of the Notified Officer on 24-9-1987 before this Hon'ble Court requires determination in which it has been specifically pointed out that how in connivance with the Notified Officer the order-sheet had been prepared after it had been declared by the Notified Officer that the file of ,the case was not traceable and when the directions were issued for reconstitution of the record without any explanation the record was made available, this being by itself sufficient to show the mala fide of the proceedings.
(v) That irrespective of the submissions made above neither the F.I.R. No for that matter the report of the F.I.A. Without any corroboration could be treated as evidence for deciding the matter irrespective of the fact that the Notified Officer did not have any jurisdiction to deal with the question as to the vires of the sale certificate.
(vi) That neither the sale certificate was a forged document nor it could be treated as such and the very fact that the allegation of the opposite-party was that the same had been tampered with, raises assumption of the sale a certificate having been issued and any illegality in respect thereof- could only be taken cognizance and dealt with in accordance with law under C.P.C. Or in any other appropriate proceedings but in no case by the Settlement Authorities particularly the Notified Officer in view of the orders of the Settlement Commissioner dated 27-10-1981.
23. Elaborating his arguments, learned counsel has contended that the Notified Officer had no jurisdiction to decide the question of title finalized before the Civil Courts and that' too without holding of a proper inquiry and giving an opportunity of leading of evidence to the parties and further that he had absolutely no jurisdiction to revive the allotment in favour of respondent No,3 which had been set aside by the Settlement Commissioner which order having been challenged in writ petition was upheld by withdrawal of the writ petition, hence, according to the learned counsel the impugned order is absolutely illegal and without lawful authority. As regards the ejectment petition it is contended that the respondent No,3 having admittedly obtained the property in question on lease has no right to, deny the title of his landlord and, therefore, on this short ground writ petition filed against the order of ejectment is liable to be dismissed as principle of forfeiture will be attracted in this case with full force and hence, respondent No,3 cannot be shown any indulgence as per the principle of estoppel as contained in section 116 of the Evidence Act. In support of his contention learned counsel has placed reliance on the following cases:
(1) Abdul Hamid v. Malik Karam Dad, P.C.S., Election Tribunal, Rawalpindi and 2 others (PLD 1966 Lah.
16).
(2) Des Dewan v. Major Nazir Beg and others (PLD 1970 Lah. 790).
(3) Khadim Mohy ud Din and Mrs. S.Mahmud v. Ch. Rehmat Ali Nagra and Mst. Aziz Begum (PLD 1965 SC 459).
(4) Muzaffar Hussain and 3 others v. Mst. Ghulam Fatima and 20 others (PLD 1976 Lah. 1226).
(5) Dodraj and others v. Mst. Natho (AIR 1915 Allahabad 177).
(6) Lalji Singh and others v. Lakshmi Narayan Singh (AIR-1927 Patna 32).
24. M/s. Raja Dilshad A. Khan, Mian Nisar Ahmad, Anzak Raja and M.Z. Khalil, Advocates, have adopted the arguiments addressed by Ch.. Khurshid Ahmad, Advocate and have further contended that there is absolutely nothing on record on the basis whereof it could be said that the sale certificate was forged and that the property has been grabbed by Haji Muhammad Ismail or Haji Muhammad Yusuf and as the only evacuee interest therein i,e, the mortgagee's rights having already been extinguished due to redemption thereof and clearance certificate having been issued, no evacuee interest/right in the property is left therein as such the impugned order passed by the Notified Officer is absolutely without jurisdiction and that the findings of fact recorded by the Notified Officer to the effect that the sale certificate is a forged document and is not reliable due to cuttings therein is without any lawful basis and justifications as the certificate even though not a document of title., yet, the cuttings are in fact made by the learned Civil Judge in pursuance of a judicial order of rectification passed by him as there were clerical mistakes therein, hence, neither the order nor the corrections can be said to be without jurisdiction. It is hence prayed that the Writ Petitions Nos.53-R, 93-R of 1987 and 325-R of 1992 are liable to be accepted, whereas the Writ Petition No,1729 of 1981 filed by heirs of respondent No,3 is liable to be dismissed. Learned counsel have neither pressed the criminal originals nor have addressed any arguments in support thereof.
25. From the respondents' side, Messrs Shahzad Jahangir, Raja Mahmood Akhtar and Ch. Qadir Bakhsh, Advocates, have vehemently contended that the property in dispute was a trust property being managed by the judgment-debtors besides others who were not even parties to the suit, hence, the disputed property could neither be privately partitioned nor attached and sold, therefore, Haji Muhammad Ismail the auction-purchaser did not acquire any rights therein; that property in dispute which is worth crores of rupees but strangely enough it is. Said to have been purchased by him for a. Petty amount of Rs,48,000 in execution of a' money decree for Rs,20,500, which proves beyond doubt that the whole transaction is doubtful and fishy; that auction proceedings have not been confirmed so far; that objection petition has been got dismissed as not pressed by an unauthorised person; that the so-called sale certificate is a forged document as it contains cuttings and deletions which have been made without taking of any lawful proceedings in relation to evacuee property; that the original sale certificate has been intentionally withheld which gives rise to a presumption of forgery; that full opportunity was given by respondent No,1 to both the parties to prove their case by filing of documents on record and arguments in writing, hence grievance of failure to grant opportunity to lead evidence being urged by the learned counsel for the petitioners is absolutely baseless; that the order passed by a tribunal of exclusive jurisdiction is not challengeable in writ jurisdiction of this Court and that the criminal originals are liable to be dismissed as having not been pressed and even otherwise being misconceived.
26. Elaborating their arguments, it is contended that according to the petitioners a Khasra and Khatauni number was added in the certificate in the year 1950 i,e, after partition when the evacuee owners thereof had already left the country, therefore, at that time the property which was originally mentioned in the certificate could not have been substituted without the notice and knowledge of the judgment-debtors and even the Custodian by a Court who had absolutely no jurisdiction having become functus officio after the execution proceedings have been finalized and consigned to record.
' It is maintained that allotment in favour of respondent No,3 on the basis of the possession was made under Settlement Scheme No,6. It was set aside on ground that the property was not evacuee having been purchased by Haji Muhammad Ismail before partition and by Haji Muhammad Yusuf thereafter. The Notified Officer has rightly restored the allotment in favour of respondent No,3 which is a just and lawful order and at any rate the petitioners have no locus standi to challenge the same as the Department does not object to it and even otherwise law favours giving the relief to which one is entitled to. Reliance has been placed on case of Allah Ditta v. Barkat Ali and 3 others (1992 SCMR 1974), hence, the petitioners have no cause of grievance on that account.
' It is next contended that there is no legal bar of limitation to resume hidden evacuee property in possession of unauthorised person. It is further argued that full opportunity was given to the parties to produce whatever documents they wanted to place on record. Even written arguments were invited to be placed on record. Both the parties submitted their written arguments alongwith documents and as such Notified Officer not being a Court and being a tribunal which is quasi- judicial in nature, inquiry held by him is not governed by the strict principle of the Evidence Act as held in case of Mst. Bhano and another v. Mian A.M. Saeed and others (PLD 1969 SC 299). As sufficient compliance of rules of fairness and natural justice of giving of opportunity to lead evidence have been made, no fault can be found with the impugned order as held in case of Mst.
Bhano (supra). Findings rendered by respondent No,1 are fully supported by the report of the F.I.A., report under section 173, Cr.P.C., photostat copy of the sale certificate which had been produced by the respondents themselves and comparison of signatures by the Presiding Officer himself, hence it could not be said that the findings of fact rendered by the Court of exclusive jurisdiction; without a lawful authority and hence are liable to be interfered with in exercise of writ jurisdiction of this Court. It is hence prayed that all the writ petitions and criminal originals except W.P. No, 1729 of 1981 are liable to be dismissed, whereas W.P. No,1729 of 1981 is liable to be allowed as the impugned order of ejectment is without jurisdiction and lack of valid title of the ejectment petitioner, relationship of landlord and tenant does not exist between the parties.
27. Keeping in view the grievance being raised before us by the learned counsel for the petitioners that the Notified Officer had not given proper opportunity of hearing to the petitioners and to produce documentary evidence, as the matter is pending litigation for the last about more than 45 years, with consent of the learned counsel for the parties, we have permitted the parties to place on record additional documents which they wish to produce in support of their case which shall form part of the record of these proceedings and shall be taken into consideration while deciding the matters in issue. We have also summoned the relevant record from the Settlement Department; the Civil Courts, Court of learned Rent Controller as well as the file pertaining to the investigation of the criminal cases from the F.I.A. Both the parties agree that records referred to above may also be referred to for decision of the controversy involved in these matters.
28. We have given our anxious consideration to the arguments of the learned counsel for the parties, have gone through the relevant case-law and have perused the relevant documents/record.
29. It is not established on record as to whether any permission for partition of property was sought from the District Judge by the appointed trustees. Due to lack of material on record presumption is that it was affected without permission of the concerned Court. According to the petitioner's own showing, the property in dispute was a trust property, partition whereof has been affected by the trustees appointed by the District Judge. The money decree passed in favour of M/s. Bulaki Mal & Sons is based on a pronote for a loan amount of Rs,15,000. The decree was passed for an amount of Rs,20,500 in the year 1935. In the execution petition filed in the year 1943 the property in dispute was attached. Objections were filed by the judgment-debtors. Learned counsel for the objector made a statement that he has no instructions on behalf of his clients, hence, the objections were dismissed and the property was ordered to be put to auction. The order of dismissal of the objections was challenged by the judgment-debtors on the ground that the order of dismissal of objection petition is illegal and further that the property worth lacs of rupees cannot be attached and sold to satisfy a decree for petty amount of Rs,20,500. The appeal was accepted and the case was remanded to be decided on merits. It is very strange that on the basis of the statement of the learned counsel who had earlier stated that he had no instructions from his clients, the objection petition was dismissed as not pressed in absence of the judgment-debtors although it was directed to be decided on merits. The petitioners have not been able to show that the judgment- debtors were ever heard or served in post-remand proceedings held by the learned Executing Court who had dismissed the objection petition on the basis of the statement of an Advocate, who had no lawful authority to make such a statement having once earlier stated that he has no instructions from his clients, therefore, the order of dismissal of the objections being patently unauthorised, illegal and void, all the subsequent execution proceedings including confirmation of the sale and issuance of sale certificate are patently void ab initio and as such have to be ignored as being non-existent in the eyes of law, therefore, no sale certificate in favour of the predecessor- in-interest of the petitioners could have been issued under the provisions of Order XXI, Rule 94, C.P.C., hence, it is quite clearly proved that a valid title had not passed to Haji Muhammad Ismail who was the auction-purchaser. Consequently, the subsequent transferees of any interest from him will also not acquire any lawful and valid title in the property in question which shall continue to have the same status as it had prior partition.
30. Admittedly the non-Muslim owners of the disputed property, having left the country in the year 1947, the same had become evacuee in nature, vested in the Custodian, as such, could not have been proceeded against by the Civil E Court either in execution proceedings or in independent suit without even impleading the Custodian as a party thereto. Consequently, no valid and lawful title can be said to have been acquired by the petitioners in 'any proceedings, in relation to the evacuee property, held after 1947, which admittedly have not been held between the predecessor- in-interest of the petitioners and the Custodian of Evacuee property. The judgment-debtors having migrated, even if cited as respondents, post partition proceedings, in relation to the disputed property as well, could not be held lawful and valid, as such, the property in dispute stands established to be evacuee in nature and in unauthorised possession of the petitioners, hence, liable to be treated and dealt with as such. Refer the following cases:
(1) Yousuf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104).
(2) A. Hamid v. Chief Settlement and Rehabilitation Commissioner N.-W.F.P. And another (PLD 1979 Pesh. 56).
(3) Muhammad Swaleh and another v. M/s. United Grain & Fooder Agencies (PLD 1964 SC 97).
' In case of Muhammad Swaleh (supra) at page 101 of the report it has been held as under: "It should be remembered that if an order be a nullity then every Court before whom it is brought is not only entitled, but bound to ignore it. If it be held that the taking up of a case not on the date fixed, but on any other day, renders the proceedings totally void, the result would be that even the Court of 3rd Class Civil Judge could hold that the High Court or the Supreme Court in taking up a case on a particular day without proper notice acted without jurisdiction and the judgment delivered was a nullity. The Civil Judge will be bound to go into this question because under section 44 of the Evidence Act .The parties are entitled to show that a judgment or decree was passed without jurisdiction".
31. There is no cavil with the proposition that the Notified Officer is quasi-judicial forum and is not bound by strict principle of Evidence Act, but at any rate it has to follow the rules of fairness and justice as enunciated in case of Bhag Mal (C.A. No,51 of .1987 decided on 11-5-1991) and Mir Salah- ud-Din v. Qazi Zaheer-ud-Din (PLD 1988 SC 221). In this case the controversy to be decided by the Notified Officer mainly was about the title of the petitioners and respondents Nos:4 to 9. Admittedly the title is being claimed by the said persons on the basis of auction held in execution proceedings of money decree in pursuance whereof they have alleged to have purchased the property and obtained Sale Certificate. Original sale certificate has not been placed on record, by them in spite of grant of opportunity even by this Court. Learned counsel for the petitioner has argued that the said certificate was produced before the F.I.A. But the said Authority stated that the certificate was returned to them. So, is proved from their record. At any rate, photostat copy of the sale certificate clearly shows that Khasra numbers and Khatauni numbers have been deleted and instead thereof new Khatauni number and Khasra number has been substituted. This change in the sale certificate was made vide order dated 15-8-1950. The execution proceedings stood finally consigned to record on 7-2-1948, therefore, subsequent thereto the executing Court having become functus officio, it is not understandable as to under what circumstances and under what provisions of law proceedings for rectification of sale certificate has been ordered and affected. It is for the petitioners to clarify as to how the sale certificate having once been issued could have been- changed subsequently when the judgment-debtors had already left the country, without even impleading the Custodian as a party to these proceedings.
32. Report of F.I.A. Read with other record clearly show that the property which is claimed by the petitioners belonged to various persons whereas decree was only against two persons. Property is also trust and hence, could not be sold. We ourselves have examined the sale certificate as well as record of the F.I.A. And have also taken into consideration various observations made by the Custodian of the Evacuee Property during the course of previous litigation as well as observations made by the Hon'ble Supreme Court of Pakistan in the earlier judgment, as the said observations are strong piece of evidence which support the order passed by Notified Officer, which has been impugned in these Constitutional petitions. Refer the following cases:
(1) Fawwad & Fareen Enterprises Ltd. v. The Director of Industries Government of Sindh, Karachi and others (PLD 1983 SC 268)
(2) Said Wali v.Yaqoob Khan and another (PLD 1983 SC 440).
' Therefore, we hold that alleged acquisition of title by Haji Muhammad Ismail and then by his successor-in-interest is invalid.
33. As regards the objections with- regard to the mode of inquiry held by the Notified Officer, litigation in subject is pending between the parties for the last about 45 years. Full opportunity appears to have been given to both the parties to produce whatever evidence they wanted to produce. It is correct that the Notified Officer did not formally set down the case for recording of evidence yet he had 'given opportunity to the parties to place on record the arguments in writing along with documents, which were filed by both sides. There being a presumption of. Correctness to judicial record it cannot be said that the order sheet has been tampered with or that the case was not heard on merits and that only preliminary submissions were made. Lengthy arguments supported by documents submitted before 'respondent No,1 establish beyond doubt that the case was heard as a whole. Affidavit of the learned counsel for the petitioners to the contrary has since been controverted by the learned counsel for the respondents, who have categorically stated that the case was heard as a whole, as such the presumption of correctness attached to the judicial record on the basis of such an affidavit does not stand rebutted, We ourselves have given full opportunity to the parties to produce whatever evidence they want to rely in support of their case before us and both the parties have added the documents which have been placed on the record.
We have also summoned the record from various Courts/forums pertaining to this case therefore, it cannot be said that any prejudice has been caused to the petitioners by the mode of inquiry adopted by respondent No,1 which is a quasi-judicial tribunal and mode of which inquiry does satisfy the test as laid down in cases of Mst. Bhano, Bhag Mal and Mir Salah-ud-Din (supra).
34. The order passed by respondent No,1 is based upon the material which consists of proceedings held by the F.I.A., the photostat copy of the certificate of sale produced by the petitioners as well as comparison of signatures by respondent No, 1 . The material relied upon by respondent No,1 cannot be said to be inadmissible before the forum o' a quasi-judicial nature, yet, the said material read in juxtaposition to the facts which have been 'taken note of by their lordships of the Supreme Court of Pakistan in case of Malik Ghulam Ahmad (supra) taken note of in paragraph 15 at page 16 of this judgment do give rise to a strong probable conclusion that the title of Haji Muhammad Ismail deceased as well as the subsequent transferees who are his successors-in-interest is attained with fraud and, therefore, the impugned order cannot be held to be illegal and without a lawful authority.
35. As regards the objection of jurisdiction of Notified Officer the initial argument of the learned counsel for the petitioners was that the proceedings having been initiated on the basis of an application filed by the petitioners on 7-7-1986, as such, the Notified Officer had no jurisdiction to proceed with the matter as the evacuee laws stood repealed on that date as it is not a case of "pending proceedings". However, during the course of arguments, he conceded that the Notified Officer. Could hold the proceedings in pursuance of the order dated 27-10-1981 passed by the learned Settlement Commissioner upheld in Writ Petition No,713-R of 1981 vide order dated 26-3- 1986, but he contended that the controversy being of the nature which could only have been decided by the Civil Court, the Notified Officer had no jurisdiction to go into the question of validity of the petitioners' title.
The decision of question of title having been left open by the Custodian and also directed to be decided by the learned Settlement Commissioner vide order dated 27-10-1981 passed in proceedings arising out of "pending proceedings" under the repealed laws, the Notified Officer was competent to decide even the question of title of the petitioners as this is the basic issue which had to determine the fate of the case, therefore, it cannot be said that the order passed by the learned Notified Officer is without jurisdiction. The argument of the learned counsel as such being misconceived is hereby repelled.
36. As regards the arguments of the learned counsel for the petitioners to the effect that the allotment of respondent No,3 having been finally set aside by the Settlement Commissioner in his order dated 27-10-1981 which order was upheld up to this Court, Notified Officer had no authority to restore the same, suffice it to say that the allotment of respondent No,3 was set aside solely on the ground that the property in question has been purchased by Haji Muhammad Ismail in Court auction and was not available Evacuee Property at the time of allotment in the year 1963. The Notified Officer having held that the property in question was never validly purchased by Haji Muhammad Ismail and the sale certificate in his favour was fake and forged document, there is nothing wrong if he has ordered the restoration of the allotment of respondent No,3 as in pursuance of the said finding the property shall be deemed to be available evacuee property and hence the order of cancellation of the respondent's allotment shall automatically fall to the ground being without any lawful basis and justification, hence shall be deemed to be void and liable to be ignored. Even otherwise order passed by the Settlement Commissioner is to be read and interpreted as a whole and the same being a remand order having merged into the order dated 26-3-1986 passed by this Court in Writ Petition 713-R of 1981, the question of validity and restoration of the respondent's allotment was also sub judice before the Notified Officer, who hence was possessed of the jurisdiction to decide the same. The Settlement Department is also not aggrieved of the passing of the order of restoration of allotment as stated by learned counsel for respondents Nos.1 and 2 during the course of arguments before this Court, as such, the Notified Officer has rightly directed the restoration of allotment in favour of respondent No,3.
37. Examined the case from another angle, it is not necessary to interfere with an order in exercise of the writ jurisdiction even if it is illegal or void, if the same has been passed in aid of justice. We are of the view that the order of restoration of the allotment in favour of respondent No,3 has been passed in aid of justice as under the present established legal position every one who comes to the Court must get which he is legally entitled to, irrespective of bar of technical nature which may stand in his way, as held in case of Allah Ditta v. Barkat Ali and 3 others (1992 SCMR 1974). At page 1976 of the report it has been observed as under: "6. As long as 1963 it was laid down by this Court in the classic statement of law in Imtiaz Ahmad v.
Ghulam Ali etc. PLD 1963 SC 382 at 340 as follows: ...The proper place of procedure in any system, of administration of justice is to help and not to thwart the grant to the, people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
38. As regards the argument of the learned counsel for the petitioner to the effect that neither the order of resumption could have been passed by the Notified Officer nor property could have been declared to be evacuee after 1-1-1957, suffice it to say that it is not a case of declaration of a property as evacuee but determining the factum of property as being evacuee which is 'hidden' and is being held by a person without valid entitlement to hold the same, hence the said hurdle is not applicable to the case in hand. This portion of the order even if it would have been held to be void is also not challengeable in exercise of discretionary jurisdiction as the same is also held to have been passed in aid of justice as the petitioners cannot be allowed to retain ill-gotten gains through process of the Court. In case of A. Hamid v. Chief Settlement and Rehabilitation Commissioner, N.-W.F.P. And another PLD 1979 Peshawar 56, at pages 66 and 67 of the report it is held as under: "14. There is yet another authority which supports the proposition that an order is to be treated as void when it is made by Court, tribunal, or other authority which had no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose. It further says that such an order would amount to 'a usurpation of power unwarranted by law', and accordingly it would be a nullity. I have in my mind the Chief Settlement Commissioner v.
Muhammad Fazil and others PLD. 1975 SC 331, wherein Anwarul Haq, J., as his lordship then was, has made aforementioned observations. His lordship in the above-cited authority has proceeded on to discuss "how an order, which is a nullity, can be attacked and has held that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review and order obtained from it by fraud. It is true that his Lordship has observed in that very authority that in the matter of collateral impeachment of such an order, the position would be somewhat different, elaborating that whereas a superior Court or a Court of special jurisdiction has the power of nullifying an order on the ground of want of jurisdiction in the authority making it, such a power is not available to a tribunal which acts either in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere. But further on though in that case his Lordship came to the conclusion that Officer on Special Duty could not cancel the Entitlement Certificate on the ground that the verification of the claim had been Obtained by practising fraud on the claims organization, but declined to validate the transfer in favour of the respondent observing that discretionary relief could not be granted to help petitioner retain ill-gotten gains. In the instant case though it cannot be reasonably disputed that the Chief Settlement Commissioner had no power to upset the judicial decision of the Settlement Commissioner which favoured the petitioner and reference in this behalf to A.S. Kazi v. Government of Pakistan and 6 others 1975 SCMR 191 and Syed Sabir Hussain and 2 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1973 Note 110 at p.166 appears to be in point, but if the present petition was to be allowed, then the effect would be that the petitioner through the process of this Court will be enabled to retain in a property, transfer whereof in his favour was a nullity."
39. As regards the order of ejectment passed in ejectment proceedings upheld in first appeal which has been dismissed on the ground that the same is barred by time in view of the findings rendered by us that the ejectment petitioner has no title in the property in question, we hold that the relationship of landlord and tenant does not exist between the parties as provisions of section 116 of Evidence Act do not debar a tenant to deny the title of his landlord if the landlord is stripped of his title and as in this case the so-called landlord himself did/does not have title in the property in question which has been held to be evacuee in nature. Refer cases of National Bank of Pakistan v. Muhammad Mobin Siddiqui and 2 others PLD 1973 Kar. 107 and A. Hamid v. Chief Settlement and Rehabilitation Commissioner, N.-W.F.P. And another PLD 1979 Pesh.
56. In the latter case at page 67 of the report it has been held as under: 15, k is true that respondent No,2 had admitted his ,defeat and had said this after his success; before the Settlement Commissioner he acknowledged the petitioner to be his landlord and that he has been paying rent to him for good eleven years, but this acknowledgment proceeded on the assumption that transfer in favour of the petitioner was valid.
' As has been already discussed, transfer in favour of the petitioner was not legal and was for that reason a nullity. It, therefore, seems to me that the question of estoppel by conduct would not arise, especially when it was on the basis of 'misapprehension and the fact of the matter was that there was no title in the petitioner. I am, therefore, clear in my mind that illegality of the transfer in favour of the petitioner could be set up by respondent No,2 by way of defence. Be that as it may, there is another aspect of the case, namely, that even if in the present case, respondent No,2 had not challenged the claim of the petitioner, there is stout resistance by Chief Settlement and Rehabilitation Commissioner (respondent No,1) and his counsel has been all along arguing that transaction in favour of the petitioner was nullity. For the reasons it appears to me that the emphasis on the basis of estoppel is misplaced. At this stage I need not anticipate who is going to get the property in question eventually. Nevertheless I hope, it would be disposed of in accordance with law."
' The relationship of landlord and tenant being not there between the parties, the order of ejectment passed against respondent No,3 by the learned rent Controller upheld in appeal, hence, is without jurisdiction, hence the same is not maintainable.
40. For what has been held above, we see no force in W.Ps.53-R, 93-R of 1987 and 325-R of 1992, the same hence are dismissed. Writ Petition No,1729 of 1981 is accepted and the order of ejectment dated 1-3-1979 passed by the learned Rent Controller, upheld by the Appellate Court vide order dated 15-2-1981 is declared to be illegal and without lawful authority and hence, is set aside.
' The Criminal Originals Nos.125-W of 1987 and 50-W of 1989 are dismissed as having not been pressed and also for the reasons that the main dispute has since been decided, therefore, we do not deem it proper to continue with the contempt proceedings.
41. As the difficult, factual and legal questions are involved in this case, the parties are left to bear their own costs.