' MUHAMMAD YUNUS SURAKHVI, J.--This appeal with the leave of the Court, has been preferred against an order passed by the High Court on June 12, 1996, whereby the writ petition filed by the appellants herein was dismissed.
2. The precise facts, forming the background of the present appeal, are that the father of appellant No,1 along with others, filed a suit in the Court of Sub-Judge, Mirpur in respect of land measuring 1508 Kanals and 4 Marlas situate in village Rathoa, Tehsil Mirpur against Abdullah and others, for a declaration that the suit land was Shamlat-Deh in possession of the owners of the village, therefore, an entry of Arakdari in favour of Abdullah and others, defendants, was illegal and inoperative. It was averred in the plaint that this entry, due to the destruction of the record in 1947, was fraudulently managed by the defendants. The defendants controverted the allegations and pleaded that the land was not Shamlat-Deh rather the same was the property of the State and was in possession of the defendants in which they acquired the rights of Arakdari. According to the defendants, the land was not in possession of the plaintiffs. After necessary proceedings, the suit was dismissed by the Sub-Judge, on 31-10-1966 but on appeal, the District Judge reversed the judgment and decree in terms that entry of Arakdari in favour of the defendants was incorrect and inoperative on the rights of the plaintiffs. On the basis of this decree, Mutation No,66 was accordingly sanctioned on 25-1-1975, by the Revenue Officer which was confirmed by the Collector, in appeal. On April 2, 1993, respondent No,1, Muhammad Afsar, sent a telegram to the Board of Revenue complaining about the said mutation which was treated as a revision petition by the Member, Board of Revenue and the same was accepted consequently, the said mutation was set aside along with the order of Collector dated 31-5-1976. The appellants herein challenged the order of Member, Board of Revenue, through a writ petition which was dismissed by the High Court vide the order impugned in this appeal mainly on the ground that the Government was not impleaded as a party, similarly, a considerable portion of the land was acquired by the WAPDA and the same was also not arrayed as a party in the civil proceedings. Thus, any decree, which was passed without arraying the necessary parties i,e, Government and WAPDA as parties to the proceedings, was a nullity in the eye of law.
3. Raja Muhammad Siddique Khan, the learned counsel appearing on behalf of appellants submitted with vehemence, that Board of Revenue was not vested with any jurisdiction to question the legality of the mutation sanctioned on the basis of the decree passed by the District Judge. In the estimation of the learned counsel, the Revenue Authorities were bound to act upon the decree even if the same was wrong or illegal. The learned counsel submitted that the decree passed by the District Judge had attained finality as the same was not challenged by any aggrieved party in an appeal or a revision before any competent forum. The learned counsel also urged that in sub- paras. (v) and (vi) of para. 4 of the writ petition, it was specifically averred that non-applicants Nos.
1, 4, 7, 8, 10, 11, 12, 16, 18, 19 and 21 entered in revision petition before the Board of Revenue were dead but all the same, they were impleaded as non-applicants, as such, the revision petition filed against the dead persons was, on the face of it, not maintainable. Similarly, the Member, Board of Revenue had no jurisdiction to entertain a revision petition lodged after the lapse of about 18 years but these points, though very fatal to the maintainability of the revision petition, were left undecided by the High Court. The learned counsel pressed into service the submission that the impugned judgment recorded by the High Court suffered from serious legal infirmity as the relevant law was misinterpreted and misappreciated, rendering the same as being unsustainable.
4. Controverting the arguments raised by the learned counsel for the appellants, Raja Hassan Akhtar Khan, the learned counsel for the respondents, fully defended the impugned judgments recorded by the High Court and the Member, Board of Revenue. The learned counsel submitted that the ownership of the land in question vests with the Government and it is entered in the Revenue Record as "Sri-Sarkar". A considerable portion of this land was acquired by WAPDA long before, which was also not impleaded as one of the defendants, in the civil proceedings. The learned counsel took serious pains to substantiate that in the plaint filed by the appellants in the Civil Court, it was not averred in terms that the land in question was not Sri-Sarkar and that the same was Shamlat-Deh land. The decree thus passed by the District Judge, according to the learned counsel of the respondents in absence of necessary parties i,e,, the Government which is entered in the Revenue Record as owner of the land in question and WAPDA to which a substantial portion of land has been awarded, was a void decree which was rightly ignored by the Member, Board of Revenue. The learned counsel for the respondents strenuously contended that the point with regard to some of the non-applicants being dead was not either raised before the Member, Board of Revenue or the same was not pressed before the High Court. Similarly, the point with regard to entertaining the revision petition after the lapse of many years was also not raised before the Member, Board of Revenue and the same was also not pressed before the High Court during the arguments in the writ petition. Thus, those points which were, though, raised before the High Court but were not pressed, shalt be deemed to have been waived. Mr. Abdul Ghaffoor Qureshi also supported the contentions raised by Raja Hassan Akhtar Khan and argued for the dismissal of the appeal.
5. We have given our dispassionate thought to the arguments advanced at the Bar and perused the relevant record, with care. The first point that needs resolution by this Court is as to whether a decree passed in absence of necessary parties who are entered in the Revenue Record as owners of the land in question can be regarded as a valid decree or not and how does it affect in so far the sanction of mutation on the basis of the said decree is concerned. From the critical survey of the Revenue Record it transpires that in the column of ownership and possession incorporated in the said mutation, the land in dispute is shown in the ownership and possession of the Government.
The suit filed by the appellant-plaintiffs shows that it was against Ghulam Muhammad and others who were entered as 'Arakdar'. This implicitly shows that the suit was between the private parties who were fighting over their claims as 'Arakdaran' in the said land. A plea was also raised by the plaintiffs-appellants that the suit land may be declared as Shamlat-Deh but a further inconsistent plea was also raised that the plaintiffs-appellants were Arakdaran in the land and the entry in favour of defendants as Arakdaran was illegal and inoperative as against the rights of the plaintiffs.
When the Government was shown as owner-in-possession of the land in question, on the basis of Misle-e-Haqqiat 1959-60 incorporated in the impugned mutation, it was enjoined upon the plaintiffs to implead the Government, the owner-ih-possession of the land, to get an entry deleted from its name and inserted in the name of the plaintiffs but no such course was elected by the appellants-plaintiffs. In this view of the matter, a decree obtained in absence of a necessary party which was entered in the Revenue papers as owner in-possession, was, in our considered view, a nullity which at least cannot bind the Government, the owner of the land in dispute.
6. We have also noticed that out of the land in dispute land measuring 601 Kanals was acquired by the WAPDA long before the proceedings and a mutation to this effect was also sanctioned. The Member, Board of Revenue has also observed that out of the land in dispute, a substantial portion of it was acquired by WAPDA who duly paid for the said land but despite that even the WAPDA was not arrayed as one of the defendants in the suit filed by plaintiffs. Thus, in our view a decree obtained in absence of necessary parties was a nullity in the eye of law in so far as the necessary parties are concerned.
7. In case reported as Vesu and another v. Thekkedath Veetil Kannamma and others AIR 1926 Madras 991 it was observed at page 992 in a following way:-- "Now it goes without saying that no .Decree is binding on a party if he was a necessary party to the suit and he was not on record and if the result of the judgment in second appeal had been a decree against necessary parties not on the record undoubtedly the interest of those parties would have been affected without their having had an opportunity of meeting the case against them and in such circumstances the judgment against them would have been void, and in certain circumstances when their interests were inseparable from those of other judgment-debtors under the decree the decree as a whole would have been void. This principle of law is laid down in several cases: Imdad Ali v. Jagan Lal (1895) 17 All. 478, Imam-ud-Din v. Sadarath Rai (1910) 32 All. 301 and Subramania Aiyar v. Vaithinatha Aiyar and another AIR 1916 Mad.
656."
' In a case reported as Zeenat Begum and others v. Fazal Dad and others 1993 SCR 245, it was observed as under at page 248: "Adverting to the first point of query listed above, we find that Roshan Khan, Sakhi Muhammad and Raj Muhammad were indeed impleaded by their brother Fazal Dad plaintiff as pro forma defendants in the suit filed in the Court of Sub-Judge. Yet, however, the decree was claimed in the plaint by the plaintiff against the defendant-appellants in his favour as well as in favour of his brothers pro forma-defendants. The decree on the ground of adverse possession was allowed in favour of all the brothers including Roshan Khan. From the very nature of the decree it is obvious that it is indivisible and is operative commonly in favour of all the brothers. Roshan Khan, now sought to be impleaded as respondent, was therefore, in our view, a necessary party. As the decree cannot be bifurcated, the whole appeal would therefore, if Roshan's name is not allowed to be impleaded as respondent, become incompetent."
9. In a case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir PLD 1985 SC(AJ&K) 102, the relevant observation recorded by this Court may usefully be reproduced from pages 108 and 109 which read as under:-- "It is settled principle of law that the necessary parties should be impleaded by the person seeking the redress within the period of limitation and such parties cannot be brought on the record after the expiry of such period specially so when party seeking impleadment is guilty of negligence.
However, where a party is remotely interested the fate of the petition and as such is only a proper party, its non impleadment would not be fatal to the proceedings. This view prevailed in Atiar Rahman v. M.A. Bari and others PLD 1968 Dacca 17. Likewise, it does not require, any deep argument that if all the heirs of the deceased party are not impleaded it would be said that such a party has not been properly represented and the party who omits to do so cannot escape the legal consequences. Besides, a claim against a dead person surely cannot be entertained. So far as equity is concerned, we have not to see the equity only in favour of one party but we are expected to safeguard the interests of other party too. It may be that the appellants may suffer because of the dismissal of these appeals on this ground but on the other hand we cannot implead them now because the persons in whom a right had come to reside and who have been left out would be dragged to this Court after a number of years for no fault on their part."
10. From the case-law it becomes abundantly clear that a decree in absence of necessary parties is for all purposes a void decree and cannot operate against them. The contention raised by the learned counsel for the appellant merits no consideration that Revenue Authorities were bound to act upon the decree even if the same was a nullity. On the other hand it was enjoyed upon the Revenue Officer to ignore the said decree at the time of attestation of mutation on its basis.
11. In a case reported as Mst. Fazal Bibi and 8 others v. Ghulam Hussain and 46 others 1980 CLC 789, it was observed by this Court at page 796 as under:-- "In view of the above we hold that in the event a decree is nullity, absence of an appeal, suit or cross-objections to avoid such decree is not bar for holding such that decree is inoperative and ineffective qua the rights of the other rival contestants. It is also now well-recognised principle of law if a decree is a nullity, it would be ignored wherever it is pressed in service. The simple reason is that such a decree or order is considered as to have never been passed."
12. Similarly in a case reported as Muhammad Swaleh and another v. Messrs United Grain and Fcdder Agencies PLD 1964 SC 97, it was observed at page 101 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 a 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."
13. The decree of the learned District Judge, dated 9th of January, 1970 on which the sole reliance is placed by the learned counsel for the appellant is even against the provisions contained in Order XX, Rule 6, Civil Procedure Code. The Code of Civil Procedure postulates that decree must be in conformity with the judgment. To have a correct perception of the matter it is deemed expedient to reproduce exactly Issues Nos.1 and 3 which were framed by the learned District Judge. Issue No,1 was framed to the following effect:-- "Whether the suit land is `Shamlat Deh' land owned by the proprietors of the village and is in possession of plaintiffs as 'Arakdars' OPP."
' Issue No,3 reads as under:-- "Whether the defendants are 'Arakdars' in the suit land and how does it affect the suit? OPD."
14. In his finding the learned Judge in the first instance dealt with issue No,3 and observed that defendants were not found as 'Arakdars' of the suit land and thus this issue was decided against the defendants. While dealing with issue No,1 it was simply observed by the learned District Judge that after giving finding on Issue No,3. Issue No,1 is decided in favour of plaintiffs. However, while recording his finding on this issue it was observed by the learned Judge that plaintiffs-appellants could be given the 'Shamlat-Deh' land on the basis of their possession in the land owned by the Government. It was further observed in unequivocal terms that the plaintiffs are found to be the 'Arakdars' in the suit land; thus, the finding recorded by the trial Court on Issue No,1 is set aside. One fails to understand that on the basis of this ambiguous finding the decree-sheet, totally inconsistent to the finding recorded in the judgment was prepared by the subordinate staff of the District Judge. Thus, it was rightly observed by the Member, Board of Revenue that in the judgment no definite finding was recorded that the suit land was a 'Shamlat-Deh' land instead of 'Sri Sarkar' land. Therefore, the argument is not without any substance that in fact the decree was not in conformity with the judgment.
15. Another point that needs resolution is as to whether the revision petition filed before the Member, Board of Revenue seeking cancellation of Mutation No,66 was hopelessly time-barred and was liable to be dismissed on this sole ground. This objection does not appear to have been raised before the Member, Board of Revenue as it finds no mention in the judgment recorded by the learned Member, Board of Revenue. However, in the High Court in the writ petition the objection with regard to maintainability of revision petition after the lapse of about 18 years has been raised but it was not averred that the point of limitation was either urged or agitated before the Member, Board of Revenue. From the impugned judgment it transpires that the learned Judge in the High Court dealt with this point and observed in the following manner:-
(i) that the Board of Revenue is the highest forum of appeal/revision and has suo motu powers. The Board of Revenue can revise any order passed by officer subordinate to it at any time; and
(ii) that there is no provision in the law that Board cannot act suo motu in revisional jurisdiction when an application has been filed. The suo motu powers are unfettered and an application of an individual is no bar to the exercise of revisional jurisdiction suo motu and for this there is no time limit.
From the above observation it becomes crystal clear that the learned Judge duly weighed the point of limitation agitated by the learned counsel for the appellant and in the ultimate analysis rejected the plea. The fact, however, remains that the plea with regard to the limitation was not raised before the Member, Board of Revenue who was the exclusive authority to determine the question of limitation or otherwise but as said earlier the point was neither urged nor argued before him as the same does not find any place in the judgment passed by the Member, Board of Revenue. Even in this Court the plea was not raised that the point of limitation was argued before the learned Member, Board of Revenue and the same was not resolved as no affidavit was filed by the appellants in respect of their above assertion. We have held in numerous cases that even if a point is urged or argued before an authority of exclusive jurisdiction but the same is not resolved by it the appropriate course for the party relying on such plea is to raise the said plea in this Court duly supported by an affidavit but the same has not been done. Thus, the contention raised by the learned counsel merits no consideration and the same is hereby repelled. Similarly the point that some of the non-applicants who were dead before the Member, Board of Revenue were impleaded as such and the plea was raised in the writ petition but the same was not resolved by the High Court. We regret to point out that though this point was raised in the writ petition but we cannot assume that the same was urged or argued before the High Court. If it had been argued before the High Court and the High Court failed to record any finding on this vital point. The appropriate course for the appellants was to aver so in the petition for leave to appeal duly supported by an affidavit, which is the normal practice in this Court but the appellants failed to do so. In this view of the matter this contention too is hereby repelled.
16. We are also of the view that under section 164 of the Land Revenue Act, the Board of Revenue has vast powers and it can revise any order passed by officer subordinate to it at any time. In a case reported as Abbas Raza v. Government of Balochistan PLD 1984 Quetta 158 the relevant observations may be reproduced from pages 162 and 163: "The question that arises in the matter is whether Member, Board of Revenue when he became aware of these patent illegalities which was known from the report of the Revenue Authorities could plead helplessness. The revisional jurisdiction has been kept vast by the Legislature as would appear from the words 'Board of Revenue, may at any time, on its own motion' used in section 164 of the Land Revenue Act, 1967.
' It would be clear that the power of the Member, Board of Revenue to summon the record of the case is not confined to decided case but on the contrary he can call for the record of any case pending before or disposed of by a subordinate Revenue Officer. A Division Bench of the Lahore High Court in Khair Din v, I.U. Khan PLD 1968 Lah. 11 had the occasion to consider the provision contained in section 16 of the Punjab Land Revenue Act which provisions are in pari materia with the provisions of section 164 of the Act of 1967 except that the word Financial Commissioner is replaced by the Board of Revenue, and it was held that the Board of Revenue was competent to entertain second revision. We find ourselves in agreement with this view.
' In our opinion the superior Revenue Authorities are duty bound to interfere to rectify any wrong done to the interest of innocent parties. It is the duty of the State and its functionaries to ensure redress of grievances and minimisation of litigation.
' Having thus conceded the competence of the Member, Board of Revenue to interfere even at a belated stage in the exercise of revisional jurisdiction, in case of miscarriage of justice, we are inclined to think that in view of the facts and circumstances of the instant case the learned Member was perfectly justified in undoing a wrong and to see that it was not perpetuated, and we are convinced that in the instant case the revisional powers have been properly exercised, and it is never too late to set aside an order which has been passed without jurisdiction or is void:--
(1) PLD 1948 PC 94.
(2) Muhammad Tufail v. Abdul Ghafoor and others PLD 1958 SC (Pak.) 201.
(3) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97.
(4) Major Syed Walayat Shah v. Muzaffar Khan and 2 others PLD 1971 SC 184. ' are some of the authorities which may be quoted in this behalf."
17. The High Court in our view committed no illegality in dismissing the writ petition as the Constitutional jurisdiction of the High Court is always invoked in aid of justice and not to help retention of ill-gotton gains.
18. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.