1. By this order, I propose to decide the three (3) Revision Applications which involve common questions. The Revision Applications Nos.174 and 175 both of 1993 have been preferred against a common judgment and decree whereas Revision Application No,176 of 1993 arises out of identical judgment and decree, all passed on 21st September, 1993 by the learned IInd Additional District Judge, Dadu, in Civil Appeals Nos.34, 35 and 36, all of 1988. The agricultural land subject-matter of Revision Application No,174 of 1993 consists of Survey Nos. 67/1, 2 and 3 whereas Revision Application No,175 of 1993 pertains to Survey Nos.68/1, 3 and 4 and Survey No,67/4. The 3rd Revision Application No,176 of 1993 pertains to agricultural land bearing Survey Nos.63/1 and 2. All the above survey numbers are situated in Deh Qubo Qalandar, Taluka Johi, District Dadu.
2. The private respondents represented by Mr. Ali Ahmed Qureshi, Advocate claim to have purchased the above-referred agricultural land (hereinafter referred as the subject land) from the Barrage Department on harap conditions on instalment basis and such Ijazatnamas have been issued in their favour. The said respondents are stated to have approached the Mukhtiarkar Johi for mutation of the Revenue Record in their names but found that the subject land had already been disposed of treating it as Evacuee Property and was allotted to claimant Syed Zafar Hussain. It was further discovered that the said claimant Syed Zafar Hussain had surrendered Survey Nos.65/1, 3 and 4 under M.L.R.89 but did opt for its re-purchase. The above survey numbers surrendered by the claimant were purchased by one Sher Khan Leghari, the predecessor-in-interest of applicants in Revision Application No,175 of 1993 in an open auction held by the Mukhtiarkar Johi. Besides the above, the above-named Sher Khan Leghari had purchased Survey Nos.67/1 to 4 from claimant Syed Zafar Hussain by way of registered sale-deed. The applicant No,9 in R.A. No,175 of 1993 was a co-purchaser of Survey Nos.67/1 to 4 alongwith his brother Sher Khan Leghari. It is further the case of private respondents, represented by Mr. Ali Ahmed Qureshi, Advocate that the Colonization Officer, Sukkur Barrage was then approached who through his order, dated 4-11-1979 held that the subject land was Na-Qabooli land and had rightly been allotted to them on harap basis. The order passed by the Colonization Officer was assailed by the applicants in appeal before the Additional Commissioner, Hyderabad Division. The appeal was allowed and the order passed by the Colonization Officer, Sukkur Barrage was set aside. The matter was further taken, by the above- referred private respondents, before the Member, Board of Revenue who through his order, dated 19-10-1981 upheld the order passed by the Additional Commissioner, Hyderabad Division. This was followed by the two (2) civil suits filed by the private respondents. In the two (2) civil suits prayer was, inter alia, made for setting aside the orders passed by the Revenue Authorities and for declaration that the order, dated 4-11-1979 passed by the Colonization Officer, Sukkur Barrage was valid and legal. Further, prayer was made for declaration that the private respondents were owners of the subject land. Both the civil suits were partly decreed in the following terms:-- "In view of findings to above issues the orders of Member, Board of Revenue, and Additional Commissioner deciding the grant against the interests of plaintiffs is declared as illegal, void, mala fide and without jurisdiction and the plaintiffs are declared as grantee/tenants of the suit land in each suit pending payment of the installment. The title in favour of private defendants in suit on basis of sale in their favour is declared illegal. Since interference with the possession is not proved, injunction prayed is not granted."
3. The above judgment and decree, dated 21-1-1998 has been maintained in appeal.
4. The 3rd revision application arises out of proceedings filed by applicants Muhammad Mithal and others seeking declaration to the effect that the subject property was evacuee and is owned and possessed by the applicants. This suit came to be dismissed through judgment and decree, dated 21-1-1998 holding that the applicants had failed to prove their ownership of the land. The judgment and decree passed by the learned Senior Civil Judge, Dadu has been maintained in appeal.
5. The learned counsel for the applicants has raised the following contentions:--
(1) The subject land was treated evacuee and allotted in favour of Syed Zafar Hussain which order had attained finality in view of section 6 of General Clauses Act upon repeal of Evacuee Laws.
(2) The Civil Court was not competent to grant declaration about status of property which was treated evacuee by the Settlement Authorities.
(3) The private respondents were granted land merely on harap basis and did not acquire any legal character or entitling them declaration under section 42 of the Specific Relief Act.
(4) The two suits filed by the private respondents were barred by limitation by virtue of Article 14 of the Limitation Act.
6. The learned Additional Advocate-General has supported orders passed by the Revenue Authorities whereas Mr. Ali Ahmed Qureshi has supported the judgments passed by the two Courts below. It is contended by Mr. Ali Ahmed Qureshi that the findings of facts recorded by the two Courts below, being concurrent, cannot be disturbed in exercise of revisional jurisdiction; and, the Civil Court being the Courts of plenary jurisdiction can check the illegalities committed by the .Revenue Authorities or for that matter any statutory functionaries.
7. In relation to his first two submissions, the learned counsel for applicants has asserted that the subject land was allotted in favour of Syed Zafar Hussain and such act signifies conscious treatment of the subject land as evacuee property. According to the learned counsel, allotment of subject land as evacuee property could not be interfered by the Civil Court. It is further urged by Mr. Leghari that the status of the subject property as evacuee could not be reversed by any authority or forum including a Civil Court except the notified authority appointed under the Displaced Persons and Evacuee Laws (Repeal) Act, 1975.
8. In reply, the learned counsel for private respondents has referred to the judgments of Mr. Muhammad. Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 and Anwar Hussain v. Deputy Settlement Commissioner, Larkana 1983 CLC 851. The former judgment has been referred also by the two Courts below. The record of the case shows that the subject land was allotted as evacuee property on the basis of entry in the Revenue Record to the effect that one Tekomal had been granted the land on temporary basis during the years 1941 to 1945 and such entry was also shown in the Revenue Record for the year 1954-55. It is no one's case that the subject land was granted on permanent basis to Tekomal. The record does not show if the subject land had ever been treated as evacuee property through an overt and conscious act. It is a settled proposition of law that property which is not evacuee cannot be so treated A despite mistaken allotment. Reference in this behalf can be made to judgments reported in Azam Ali and others v.
9. The Custodian of Evacuee Property PLD 1968 Lah. 148 and Isab Khan v. Muhammad Sher PLD 1975 Lah. 833. In order to claim treatment of property as evacuee, something more has to be shown.
10. Such view finds further support in the case of Said Muhammad. Fazal Karim and others PLD 1982 Azad J&K 109. The following observations contained in the cited judgment applies to the present case with full force:-- "We may say, a mere allotment, if construed having been made as alleged, cannot be taken for the property in dispute treated as an evacuee one. The word 'treated' as used in section 3-A plainly indicates the sense in which it was used therein. The treatment of the property as an evacuee property spells out meaning that character of the property as an evacuee ought to be determined by a competent Authority, Custodian or a Rehabilitation Authority through a judicial process after a notice to the owner so that the aggrieved party has an opportunity to represent his case against the character of the property as an evacuee property and to prove that it is non-evacuee and the case be closed on him only if a proper enquiry and adjudication in respect of the matter in issue is finally determined or settled this way or that way."
11. I am mindful of the judgment in Muhammad Alam Khan and 3 others v. Mahmud Ahmad and 2 others 1974 SCMR 92, wherein the State land abandoned by non-Muslim grantees had been treated as evacuee property and allotment of such land by Settlement and Rehabilitation Commissioner was held valid. In that case, the non-Muslim grantee of land was occupancy tenant and had ultimately become proprietor of the land upon payment of instalments. Thus, the evacuee interest was permanent and in any event through Government Notification was to be treated as evacuee property. The scheme of things, under Settlement Laws had visualized acquisition of the "evacuee interest" alone and its allotment for rehabilitation of refugees and the locals. The properties belonging to non-evacuee including the Government and the Local Authorities did not become available for allotment except to the extent of evacuee interest therein. To illustrate, a property owned by the Government or a Local Body with lease hold rights of an evacuee, even if included in the register of Evacuee Properties or mistakenly declared an evacuee and allotted in such status, cannot divest the Government or a Local Body from the right of ownership. What could in such cases be allotted, was only the lease hold rights. I am fortified in this view by judgment in Rehmat Ali v. Member, Board of Revenue and another 1974 SCMR 171; the following observations recorded by the Honourable Judges of the Supreme Court are relevant to the controversy involved in the present case:-- "After hearing the learned counsel at some length, we are of the view that the submission made by him suffers from a patent fallacy. It has been recorded as finding of fact by the Revenue Authorities at various levels that in the area in question evacuees had not acquired proprietary rights by paying the Government dues, and, therefore, the acquisition of this land under section 4 of the Displaced Persons (Land Settlement) Act only had the effect of placing the tenancy rights of the evacuee in the compensation pool, and not of converting those rights into proprietary rights. It is well-settled that acquisition in such cases is confined only to the interest of the evacuees, and cannot extend to the acquisition of non-evacuee rights."
12. 'On the same analogy, transfer through issuance of Provincial Transfer Order of Evacuee Trust Property was held wholly misconceived and invalid in the case of Abdul Majeed v. Settlement Commissioner and others 1975 SCMR 423. In the present case, it is not shown if Settlement Authorities had ever treated the subject land as evacuee property through an overt act and conscious application of mind. The question which then arises is what right had been created in favour of Syed Zafar Hussain on account of allotment of subject land in his favour. Obviously, only the evacuee property could be allotted towards satisfaction of claim. The interest of Tekomal in the subject land was merely as a temporary grantee. He had never acquired any rights in relation to the subject land on permanent basis. Consequently, even if the subject land is assumed to have been treated evacuee at any point of time, the unexpired or the balance interest of Tekomal, in the maximum, could have been so regulated and nothing more. The subject land, therefore, could not have, in any event, been treated evacuee. Moreover, no property could be treated evacuee after 1- 1-1957. Reference in this behalf can be made to case of Isab Khan (supra) and Munira Bibi and others v. Member, Board of Revenue, Balochistan PLD 1978 Quetta 121. In the present case, nothing is shown nor even alleged about allotment muchless treatment of the subject land as evacuee property before 1-1-1957. The allotment of subject land in favour of S}red Zafar Hussain was, thus, invalid rather void.
13. No party can claim any right on the basis of a void order pleading lapse of time. The judgment in the case of Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 supports me in the said view. The following dictum laid down by the Supreme Court of Pakistan in the last referred case can be reproduced with advantage:-- "Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
14. The contention of the learned counsel for the applicants based on section 6 of General Clauses Act is not attracted to the present case since finality is ascribed only to lawful orders. The mistaken allotment of subject land made in favour of the applicants' predecessor-in-interest being void ab initio cannot be protected \ by extending the principle of finality thereto under section 6 of General Clauses Act.
15. As regards the next limb of Mr. Leghari's arguments, suffice to observe that after repeal of the evacuee laws, the Notified Officer can exercise jurisdiction in relation to pending matters alone and cannot undertake adjudication of the cases which were not pending at the time of repeal. In the present case, no proceedings were pending at the time of repeal of Evacuee Laws and, therefore, the civil Court alone, being the Court of plenary jurisdiction, can entertain adjudication about status of the subject land. To such effect the findings recorded by the two Courts below are unexceptionable.
16. As regards the contention about limitation, the Colonization Officer had accepted the contention of the private respondents through his order, dated 4-11-1979 which was challenged by the applicants before the Revenue Authorities. The final order was passed by the Member, Board of Revenue on 19-10-1981 and the two suits were filed by private respondents on 25-11-1981. An order passed without lawful authority can be questioned at any stage without limitation being pleaded in defence since passage of time cannot invest legality upon a void order. Moreover, a void order being non-existent in law can even be ignored altogether and in the present case such course was rightly adopted by the Colonization Officer.' In relation to the last contention of Mr. Leghari the Learned Senior Civil Judge has held that the private respondents were granted land which would have matured into ownership right upon payment of all installments. Such . Finding does not appear to suffer from any illegality. Even otherwise, allotment, lawfully made, creates right in rem which can validly be, enforced and declaration can be sought in relation thereto. Reference in this behalf may be made to the judgments in Haji Noor Muhammad v, Karachi Development Authority PLD 1975 Kar. 373 and Nasira Sultana v, Habib Bank Limited PLD 1975 Kar, 608.
17. As regards various findings of facts, concurrently recorded in the two judgments below, Mr. Leghari has conceded to the legal position that the same cannot be disturbed in exercise of revision jurisdiction unless the same are found perverse and glaringly contrary to record. No such material having been pointed out, the three revision applications are dismissed in liming.