MIAN NAZIR AKHTAR, J.- This revision petition arises out of a suit for declaration filed by the petitioners on 25.2.1988 claiming to be transferees of property No. 237/XI/M, Block No. 11 Jhang Sadar measuring 4 Marlas and 153 Sq. Ft. They also challenged the legality of order dated 6.12.1986 passed by the A.D.C. (G) whereby the petitioners' request for payment of balance price and transfer of the property in their names was rejected. The suit was resisted by the respondents.
Respondent Nos. 1 & 2 filed a joint written statement while respondent No. 3 filed a separate one. On the pleadings of the parties the Trial Court framed the following issues:- Issues
1. Where the Civil Court has got no jurisdiction to try the suit?
1-A Whether the suit is within time?
2. Whether the plaintiffs are estopped to file suit?
3. Whether the order of defendant No. 2 dated 6.12.1986 is illegal, void, and malafide and ineffective upon the rights of the plaintiffs?
4. If issue No. 3 is proved in favour of the plaintiffs, whether the plaintiffs can be treated as transferees, if so, with what terms?
5. Relief.
After recording evidence of the parties, the Trial Court decided issues No. 1 to 4 in favour of the petitioners while issue No. 1-A relating to limitation was decided against them. Resultantly, the suit was dismissed vide judgment and decree dated 12.2.1992. The petitioner appeal was also dismissed by the learned District Judge vide judgment and decree dated 27.6.1996.
2. I have heard learned counsel for the parties. The petitioner's learned counsel contends that after deciding issued 1 to 4 in favour of the petitioners, there was no legal justification to non-suit them on the question of limitation alone; that the Notified Officer was not competent to cancel and resume the property and could only take steps for recovery of the balance sale price and that the for cancellation of the property as well as order dated 6.12.1986 passed by respondent No. 2 were void. In this connection, he relies on the judgment in the cases of:-
1. Nawab Din etc. v. Mst. Haseeb-un-Nisa etc. (1980 SCMR 798).
2. Mst. Majeeda Begum v. Deputy Settlement Commissioner etc. (1980 SCMR 827).
3. Sughra Begum v. Nawab Din (1986 CLC 819)
4. Muhammad Ashraf v. Mushtaq Ahmad etc. (1987 CLC 2390).
5. Mst. Roshan Jahan v. Dy. Settlement Commissioner etc. (1988 SCMR 346).
He further submits that Articles 14 of the Limitation Act was not attracted .In the case and instead Article 120 was applicable which provides the limitation of six years for filing the suit. In this connection, he relies on the judgments in the cases of:-
1. Rashid Inayat v. Federation of Pakistan (PLD 1957 (W.P) Lahore 378).
2. Ghulam Muhammad, etc. v. Hafiz Ahmad etc. (PLD 1960 (W.P.) Lahore 1179).
3. Ghulam Jilani & Co. v. Govt of Pakistan (PLD 1967 Kar. 624).
4. Malik Khawana Muhammad & 24 others v. Marduman Babar Kahol etc. (1987 SCMR 1543).
5. Province of Punjab v. Ashiq Muhammad Khan (PLD 1990 Lahore 153).
6. Miss L.M. Stratford v. Syed Amjad Hussain etc. (PLD 1992 SC 51).
He contends that the impugned orders being wholly void could be challenged by the petitioners at any time; that Sharaf Din auction-purchaser had died in the year, 1973 and at that time petitioners No. 1 to 8 were minors and their mother was a parda Nashin lady; that on 18.11.1986 they learnt about the factum of transfer of property in favour of Sharaf Din and made an application for payment of the remaining price but the application was illegally dismissed and the property resumed from the name of the deceased; that no notice was ever served on the petitioners for payment of the balance price and they had voluntarily appeared before he Notified Officer to pay the price but he illegally passed the resumption order. On the other had learned counsel for respondent No. 3 submits that the disputed property was auctioned twice; first on 24.6.1960 in which Sharaf Din predecessor-in-interest of the petitioner was highest bidder who deposited 25% of the bid money but failed to pay the remaining amount whereupon the property was cancelled from his name on 19.12.1960; that the property was again auctioned on 9.1.1969 and Sharif Din gave the highest bid; that auction was confirmed on 17.1.1969, notice was issued to him to pay the remaining price but he did not do the needful, whereupon the property was rightly cancelled from his name; that in view of the provisions of Article 14 of the Limitation Act the suit filed by the petitioners was time barred. In this connection he relies on the judgment in the cases of Allah Ditta v. Province of Punjab (1988 CLC 169), Mian Muhammad Akram etc. v. Muhammad Rafi (1989 CLC 15), Rameswa ram Devasthanam v. Secretary of State and others (AIR 1927 Madras 1167), Laxman Balvant Bhopatkar and another v. Charity Commissioner, Bombay (AIR 1957 Bombay 83) and Dorab Mai v. Asa Ram (102 Indian Cases 418); that the conduct of the petitioners is not above board because on to occasions they had failed to pay the balance auction price and have filed the suit with considerable delay; that respondent No. 3 being in possession of the property should not be dislodged at this stage. In support of his contentions he relies on the judgments in the cases of :-
(1) Ma Htay v. U Tha Hline (1925 Rangoon 184).
(2) Muhammad Ali and others v. Muhammad Amir (PLD 1995 Lahore 124).
3. Admittedly in the second auction held in 9.1.1969 Sharaf Din, deceased, predecessor-in-interest of the petitioners was the highest bidder and had deposited 25% of the auction price. The auction was duly confirmed on 17.1.1969. Thereafter, there is no material to show that any notice was issued to and served upon the auction purchaser to pay the balance price. The property remained in the name of Sharaf Din, deceased till his legal representatives filed an application before the notified officer to pay the remaining price and obtain title documents but this application was rejected by the Notified Officer vide his order dated 6.12.1986. The Trial Court has rightly held on issue No. 3 that no Demand Notice was issued to the transferee through registered post (A.D.) for recovery of the balance price from him, therefore, the property could not have been cancelled from the name of Sahraf Din and that the petitioners were to be treated as transferees of the property. By virtue of the provisions of Settlement Scheme No. VIII contained in proviso the para 2 and para 17, if transferee of a house has paid 25% of the sale price then the remaining price can be recovered from him as arrears of land revenue and transfer cannot be cancelled for non-payment of the price. The provisions of para-2 of Settlement Scheme No. VIII read as under:- "An Additional Settlement Commissioner (Industries), or the Deputy Settlement Commissioner concerned, as the case may be will serve a Demand Notice upon a transferee of a property who has failed to pay to consecutive instalments or, if no installments had been allowed to him, has defaulted in payment of transfer price due from him, requiring him to pay the whole outstanding amount within a period of thirty days from the date of issue of the Demand Notice. The Demand Notice will be issued by registered post acknowledgment due and the acknowledgement receipt when received from the addressee will be pasted on the file of the Demand Notice, Where necessary, substituted service of Demand Notice, as provided in the Code of Civil Procedure, may be made; provided that, in cases where more than 25% of the transfer price has already been paid, no resumption proceedings will be initiated, but Transfer Orders as provided under Paragraph 11, will be issued."
Para-17 reads as under :- "In case of default in payment according to the Schedule, the Board of Revenue may effect recovery as Arrears of Land Revenue."
In this connection, the Trial Court has relied on the judgment in the case of Nawab Din v. Mst.
Haseeb-un-Nisa (1980 SCMR 798), in which it was held:- "The reasons are that according to the Settlement Scheme No. VIII as it stood amended on the relevant date no transfer in which 25% of the amount had been paid could be cancelled or resumed, and according to paragraph 17 of that scheme the only legal course to be adopted was to recover the balance amount if any, as arrears of land revenue."
The second judgment relied upon by the Trial Court is titled Mst. Majeeda Begum v. Dy Settlement Commissioner (1980 SCMR 827) in which it was held:- " Where in case of transfer of a house, a transferee has paid 25 % of the sale price, then if any arrears remain, the same are to be recovered as arrears of land revenue and the transfer on that ground is not to be set aside."
Therefore, it was rightly held by the Trial Court that the transfer could not be cancelled by the Notified Officer. The Notified Officer could have taken steps for recovery of the remaining sale price as arrears of land revenue. However, no such action was taken till the petitioners voluntarily appeared before the Notified Officer with an application for paying the balance auction price. The Notified Officer illegally rejected their application on 6.12.1986 and on the same day ordered that the property be disposed of under the existing scheme. The learned counsel for respondent No. 3 claims that the property was transferred to Amir-ud-Din, respondent No. 3 on 6.12.1986. The said transfer was void because the earlier transfer made in the name of Sharaf Din lawfully held the field.
4. It has been rightly urged by the petitioners' learned counsel that Article 14 of the Limitation Act was not applicable in the present case because the Notified Officer had no jurisdiction or lawful authority to pass the resumption order. In case of Rashid Inayat it was held that Article 14 of the Limitation Act was inapplicable to a suit for declaration that the plaintiffs dismissal from service was wrongful and that the order of dismissal was null and void and in-operative. In the case of Ghulam Muhammad and others, it was held that it can hardly be doubted that if a public officer has passed an order which he has no jurisdiction to pass, the order can be overlooked and the suit to get relief against it can be brought within six years of the passing of the order under Article 120 of the Limitation Act. In the case of Ghulam Jilani and Co. It was held: - "Article 14 of the Limitation Act is only applicable to such cases where a valid order is passed by a competent authority. In the present case the learned Single Judge has not pointed out the power under which the respondent Government could pass any order by freezing the amount in dispute.
In fact the statement of Mr. Abbas Hussain, a witness produced on behalf of the respondents, clearly shows that it was not done under any statutory power but was taken on the basis of a contract which was entered into between the parties." In our opinion, such an action cannot be described as an order passed by a statutory authority under a statutory provision of law so as to fall within the four comers of Article 14 of the Limitation Act."
In the case of Ashiq Muhammad Khan, it was held that the impugned order being null and void could have been challenged within a period of six years as provided under Article 120 of the Limitation Act and that Article 14 of the Limitation Act was not attracted. In the case of Miss L.M.
Stratford it was held that where the impugned order is void being against the express provisions of the Settlement Scheme, laches to challenge such an order would be of no consequence. In the case of Malik Khuwaja Muhammad it was held that decree passed in a suit in utter contravention of mandatory provisions of law was a nullity and limitation did not run against such a decree.
5. In the present case, as noted above, the trial Court had recorded findings on issues Nos. 3 and 4 in favour of the petitioners and held that the Notified Officer was not competent to pass order dated 6th December, 1986. Therefore, Article 14 of the Limitation Act had no application in the case and the suit filed on 25.2.1988 was well within time.
6. The judgments relied upon by learned counsel for respondent No. 3 are distinguishable In the case of "Allah Ditta v. Province of Punjab (1988 CLC 169) the order for resumption of suit land was passed by the Collector in pursuance of an order passed by the Board of Revenue. The Board of Revenue had passed the order on the ground that the disputed land was a Charagah which was not allottable to any person. Moreover, the order for resumption of land was passed by the Collector after due notice to the concerned parties. Therefore, it was held that the suit filed after more than to years of passing of the orders dated 27.12.82 by the Board of Revenue was barred by limitation as provided under Article 14 of the Limitation Act. In the case of "Mian Muhammad Akram and others v. Muhammad Rafi" (1989 CLC 15) it was held that in a suit against order of allotment limitation was to start from the date of allotment and that the provisions of Article 95 of the Limitation Act related only to a decree and not an order of allotment passed by a Notified Officer. I need not discuss the judgments pertaining to the pre-partition days or the foreign judgments relied upon by the learned counsel for respondent No. 3 in the presence of the above-refered recent judgments of our on Courts.
7. The argument raised by learned counsel for respondent No. 3 that the property was twice resumed from the petitioners' name and that they were not entitled to any relief in view of their conduct as well as delay in institution of the suit, carries no weight. After first auction and resumption of the property it was put to auction again on 9.1.169 and thereafter there is nothing to show that the property was ever cancelled till 6,12.86. Even in the order dated 6.12.86 it was mentioned at the end of para 3 that after service of notice on the auction purchaser he did not pay the price of the property but no final order was passed in connection with the case. The cancellation order was passed on.6.12.86 and the civil suit was instituted on 25.2.88 with was within time. There is nothing wrong with the conduct of the petitioners who are legal heirs of Sharaf-ud- Din, deceased. Petitioners No. 1 to 8 are sons and daughters of Sharaf-ud-Din deceased who were minors at the time of death of the transferee which took place in the year, 1973. Mst. Sardaran Begum is widow of the deceased and a Parda Nashin lady. They had voluntarily come forward to pay the transfer price which was otherwise recoverable as arrears of land revenue. Under the circumstances of the case, the Notified Officer ought to have received the balance sale price and issued title documents to the petitioners.
8. For the foregoing discussion, the revision petition is accepted, the findings of the Courts below on issue No. 1-A relating to limitation are reversed, the judgments and decrees of the Courts below are set aside and the petitioner's suit decreed in their leaving the parties to bear their on costs. The Notified Officer will receive the balance auction price from the petitioners and issue title documents in their favour.