' This revision petition is by the plaintiff and is directed against the concurrent judgments and decrees of the learned two Courts whereby the suit for declaration has been dismissed.
2. The facts giving rise to the present revision petition are that Abdul Hakeem, respondent No, 1 owned land measuring 42 Kanals and 19 Marlas in Chak No,67/JB, Tehsil and District Faisalabad.
Through an oral sale attested on 13-11-1967 vide Mutation No,454 (Exh.P.39) said Abdul Hakeem sold land measuring 7 Kanal, 12 Marlas to Muhammad Ramzan, respondent No,2, for construction of a house and a poultry farm. The said Muhammad Ramzan agreed to sell the said land to the present petitioner by way of an agreement, dated 8-1-1970 (Exh . P . 1) . This transaction was given effect to in the Revenue Record vide Mutation No,637 attested on 14-6-1970 (Exh.P.38). However, respondent No,1 continued to remain in possession on the land in dispute. It may also be noted that Abdul Hakeem, the vendor, then made an application (Exh. P.6) before the Deputy Commissioner that Mutations Nos.454 and 637 be declared void because Muhammad Ramzan had got entered Mutation (No, 454) in his name in collusion with the revenue field staff and that it was violate of M.L.R.
64. This application does not bear any date, but it was averred that M.L.R. 115 had also been contravened. This means that it was filed after the enforcement of M.L.R. No,115. Vide order, dated 25-4-1975 (Exh.P.8) Deputy Commissioner allowed this application on the ground that it violated M.L.R. No,115. Muhammad Ramzan, the first vendee did not challenge the order, dated 25-4-1975 aforesaid. However, a revision petition was filed by the petitioner before the learned Additional Commissioner, which was rejected vide order, dated 14-10-1975 (Exh .P.10).
3. Pursuant to these orders Mutation No,898 was attested on 12-11-1975 (Exh.P.37) whereby the land in question was mutated in favour of Muhammad Ramzan, respondent No,2 and vide Mutation No,899 (Exh.P.36) attested on 12-11-1975 it was restored in favour of Abdul Hakeem. Against the orders, dated 12-11-1975 sanctioning Mutations Nos.898 and 899 of the Assistant Collector Grade-II, the petitioner filed two appeals before the learned Assistant Commissioner/Collector which were allowed vide order, dated 29-7-1978 (Exhs.P.15 and D.13). Mutations Nos. 898 and 899 were set aside and parties were directed to appear before the D.C./Deputy Land Commissioner for his decision regarding the disputed mutations. Abdul Hakeem, respondent No, 1, herein filed an appeal against the aforesaid order which was dismissed on 9-12-1979 (Exhs.P.14 and D.14) by the learned Additional Commissioner. Thereafter, the matter was taken up by the learned Deputy Land Commissioner who decided it vide order, dated 23-6-1981 (Exhs.P.13 and D.9). The sale in favour of Muhammad Ramzan, respondent No,2 was declared as void and further sale by him in favour of the petitioner was also declared as void. Accordingly, Mutations Nos. 898 and 899 attested on 12-11-1975 were upheld.
4. The petitioner herein then filed the suit claiming title to the land in dispute. The order, dated 23- 6-1981 of the learned Deputy Commissioner/D.L.C. Was also assailed.
5. The suit was contested on a number of grounds on which necessary issues were framed. The parties led oral and documentary evidence in support of their respective pleas. Vide judgment and decree, dated 26-2-1985 the suit filed by the petitioner was dismissed primarily on the ground that the Civil Court could not examine the order passed by the Land Commission Authorities. Appeal taken before the learned District Court was dismissed vide judgment and decree, dated 5-7-1986.
It was held that the transaction in favour of Muhammad Ramzan was void and he could not pass any title in favour of the petitioner.
6. Some more facts which may have relevance may also be noted. On 6-1-1975 the vendor, Abdul Hakim, respondent No,1 had instituted a suit (Exh.P.25) for declaration claiming title to the land in dispute on the ground that he had not sold land to respondent No,2 and that the mutation in his favour was the result of fraud. It was further alleged that this transaction was void as it contravened M.L.R. No,115. His application for the grant of temporary injunction in the said suit was rejected vide order, dated 12-2-1975 (Exh.P5). He failed in appeal before the learned District Court and then approached this Court in C.R. No,1480 of 1982 which was disposed of as not pressed on 27-3-1983 in view of the direction of this Court for the decision of the civil suit within two months (Exh.P.12). The final order of disposal of the suit is not on the record. However, D.W.1, the attorney of respondent No,1, admitted that the said suit was withdrawn.
7. Perusal of the record further shows that the petitioner had also filed a civil suit claiming declaration that respondent No,1 was a tenant on the land in dispute. Mutations Nos. 898 and 899 which had been attested meanwhile were also assailed in the said suit. The suit was withdrawn with permission to file a fresh suit on 6-5-1981. Meanwhile, Mutations Nos.898 and 899 had been set aside by the learned A.C./Collector on 29-7-1978 (Exh.P.15).
8. It may also be noted that vide Mutation No,2205 attested on 3-3-1985 Abdul Hakim respondent No,1 exchanged the disputed land along with some other land with respondent No,3.
9. The learned counsel for the petitioner contends that respondent No,1 had sold the land for the purpose of construction. According to him the land which was bona fide required for the purpose of building thereon was exempt from the operation of paragraph 25 of the West Pakistan Land Reforms Regulation, 1959 (M.L.R. 64 of 1959) providing for restrictions on alienation of holdings and once it was taken out from the operation of the aforesaid Regulation, the Land Commission Authorities had no jurisdiction in the matter to examine the transaction particularly when Muhammad Ramzan respondent No,2 had sold it for valuable consideration to the petitioner vide Mutation No,637 attested on 14-6-1970, Reliance was placed on Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others (1973 SCMR 62), Controller of Patents and Designs, Karachi and others v. Muhammad Quadir Hussain (1995 SCMR 529), Government of Sindh through Secretary, Home Department, Karachi and another v.
Abbas Ahmad, Advocate and 2 others (1994 SCMR 923), Mehr Dad v. Settlement and Rehabilitation Commissioner, Lahore, Division, Lahore and another (PLD 1974 SC 193) and Abdul Rauf and others v.
Abdul Hamid Khan and others (PLD 1965 SC 671) to contend that where a Tribunal of special jurisdiction exceeds its authority the Civil Court, as Court of plenary jurisdiction could examine its orders. He next contended that M.L.R. 64 of 1959 was repealed and replaced by the Land Reforms Regulation, 1972 (M.L.R. 15) and with the repeal of M.L.R. 64 of 1959 the transaction thereunder was a past and closed transaction. He further contended that only pending proceedings were saved by M.L.R. 115 and neither the Revenue Authorities nor the Land Commission Authorities had any jurisdiction to entertain the application of respondent No,1 seeking review of the two mutations. He next contended that respondent No,1 as party to the transaction, could not be permitted to challenge the transaction in favour of respondent No,2. His obvious motive was to get the land back after having sold it for valuable consideration. The proceedings initiated by him after the repeal of M.L.R. 59 were incompetent and, therefore, the entire superstructure falls to the ground. He empathetically relied on Saifuddin and another v. Member, Federal Land Commission and 19 others (1984 CLC 737).
10. On the other hand, counsel for respondent No,3 content hat the land was purchased by Muhammad Ramzan for raising construction and to this excellent was exempt from the operation of M.L.R. But the fact remains that he did not raise an construction and ultimately alienated the land in dispute in favour of the petitioner. Reliance was placed on the circular letter of the then West Pakistan Land Commixed bearing No, A.S. R-1633-67-537-LC, 3-2-1968 (mark A). According to this lets "If a house was not built within a reason time the Deputy Land Commission concerned should examine the merits of cacti case and decide whether such area shoe be excluded from the provisions of paragraph 25(6) of the Land Reform Regulation (M.L.R. 64)". He contended that since undisputedly, no construction was raised on the land in dispute the transaction was rightly cancelled by the D.L.C. As it was clearly established that the land purchased by respondent No,2 was not required bona fide for construction purpose. He also relied on the testimony of P.W.1 Muhammad Ramzan who admitted that he had no funds to raise construction.
11. He further contended that no principle of equity could defeat the express letter of law. He next contended that when the parties are in pari delicto the Courts always stay their hands to give relief to either of the parties. He further asserted that the matter stands concluded by concurrent findings of the learned two Courts and no interference is called for in exercise of provisional jurisdiction of this Court. He next contended that the transaction which was invalid in its inception continued to be so and the Courts not bless such a transaction with sanctity. In support of his submissions he placed reliance on Sher Zaman v. Muhammad Ishaq and others (PLD 1985 SC 144), Zulfiqar Ali Khan Additional Chief Land Commissioner, Punjab and 2 others PLD 1975 Lah. 158, Muhammad Hussain and others v. Shahab Din and others (NLR 1981 Revenue 138), Mst. Kaniz Begum v. Mst. Sughra Begum and others (2000 YLR 857). Noor Samad v. Muhammad Aslam and 16 others (1986 MLD 431) and Sultan Azam Shah and 9 others v. Member, Board of Revenue, Punjab and 6 others (1988 CLC 165).
12. I have considered the submissions made by the learned counsel for the parties. There is no dispute that the land in question was sold by Abdul Hakim respondent No,1 for a valuable consideration to Muhammad Ramzan who had sold it to the petitioner for valuable consideration.
The application seeking review of Mutations Nos.454 and 637 was made before the learned Deputy Commissioner/Collector somewhere in 1975 (although it does not bear the date). According to the recitals of this application it was in any case moved after the repeal of M.L.R. 64 of 1959 because in this application reliance was placed on paragraph 24 of M.L.R.
115. According to clause (b) of subsection (2) of section 163 of the Punjab Land Revenue Act, 1967 "An application for review of an order shall not be entertained unless it is made within 90 days from the passing of the order or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period". A perusal of the above said provision shows that respondent No,1 sought view of the mutations eight years after attestation of mutation in favour of Muhammad Ramzan, respondent No,3, and five years after attestation of mutation in favour of the petitioner. The Assistant Commissioner put up a note on this application on 23-4-1975 to the learned Deputy Commissioner that there was no construction on the land in dispute and, therefore, it was violate of "M.L.R. 64 (now 115)". On the said report the Deputy Commissioner passed the following order on 25-4-1975: "Allowed. Explanation of the official concerned be obtained and put up."
13. From the above facts it is abundantly clear that the learned Deputy Commissioner allowed review of the two mutations without adverting to the question that the application seeking review was filed beyond the period prescribed in section 163 of the Punjab. Land Revenue Act and respondent No,1 had not sought condemnation of delay. A perusal of the above order further shows that it was mechanical in nature and passed without due application of mind. Thus, the proceedings initiated by the petitioner were wholly incompetent in their inception. The aforesaid Mutation Nos.454 and 637 were mechanically cancelled by the Assistant Commissioner Grade-II by sanctioning Mutations Nos.898 and 899 on 12-11-1975. Against the said order two appeals filed by the petitioner were allowed by the A.C./Collector vide order, dated 29-7-1978. Yet another glaring illegality was committed by the learned A.C/Collector while setting aside the aforesaid mutations. He directed the parties to appear before the learned D.L.C./Deputy Commissioner. This could be done by the learned Assistant commissioner for two/fold reasons. Firstly there was no provision in law authorizing the learned Assistant Commissioner to transfer the case to the Deputy Commissioner/D.L.0 and secondly the Assistant Commissioner stood invested with the powers of Assistant Land Commissioner and could not have transferred the case to an Officer of superior jurisdiction i,e, The D.C./Deputy Land Commissioner. The learned A.C. Could not have transferred the case to the D.C. Either because both of them had coordinate jurisdiction as Collector. Reliance is placed on Meraj Din v. Mst.Sarwar Jan etc. (PLD 1981 Lah. 659). In the said case an order of transfer of the case by one Collector to another Collector was held to be illegal. The order, dated 29-7-1978 of the learned A.C./Collector in fact amounted to conferring jurisdiction on the D.C./D.L.0 to examine a transaction under the repealed M.L.R. 64 of 1959. This could not have been done.
14. The question whether a transaction under repealed M.L.R. Could be examined by the Land Commission Authorities after the repeal of M.L.R. 64 came under consideration of a learned Division Bench of the Karachi High Court in case of Saifudein and another supra. It was argued before the said learned Division Bench that even after the repeal of M.L.R. 64 fresh proceedings for infringement of repealed M.L.R. Could be initiated and prosecuted. The argument was repelled and it was held that M.L.R. 64 and M.L.R. 115 did not provide for entertaining an application by a private person for the purpose of examining whether an alienation involved reduction of holding below the economic holding nor it had been provided that the Land Commission could entertain such an application. It was further held that violation of para. 25 amounted to contravention of the repealed Regulation No,64 warranting taking of penal action by the Commission under para. 29 of the repealed M.L.R. 64 or under para. 30 read with para.31 of M.L.R. 115 but no application by a party who had himself infringed para. 25 could be filed before any forum provided under the repealed M.L.R.
64 or under M.L.R.
115.
15. The conclusions of the learned Karachi High Court were based on Notification No,SLC.1/72/7 issued by the Sindh Land Commission which provided for delegation of powers under M.L.R. 115 to various Land Commission Authorities. The said Notification did not contain any power to examine the question that any transaction infringed M.L.R. 64 of 1959. The Punjab Land Commission had issued similar Notifications vide A.S.R-1-63-72/831-LC, dated 22-5-1972 and DSH-58-72/1863-L (2) delegating certain powers to various authorities under the Land Reforms Regulation No,115. None of the aforesaid Notifications empowered any authority constituted under M.L.R. 115 to examine a transaction under repealed Regulation of 1959. Reference may also be made to the Notification No,DSA-887-72/2898-LC (2), dated 17-7-1972 issued under section 32(2) of M.L.R. 115 according to which the pending proceedings under M.L.R. 64 were transferred to various authorities under M . L. R .
115.
16. Although the learned Karachi High Court was examining the case of an economic holding yet the rule laid down by the learned Karachi High Court in the above said judgment squarely applies to the facts and circumstances of this case.
17. There is merit in the contention of the learned counsel for the petitioner that only the proceedings pending under M.L.R. 64 of 1959 had been saved by M.L.R. No,115 and undisputedly when the application was made by respondent No,1 to seek review of the two mutations no proceedings under the aforesaid Regulation were pending. It was, thus, a past and closed transaction.
18. Some other cases involving violation of M.L.Rs, 64 and 115 may also be noted. In the case of Mehtab Din and 4 others v. Pima Ditta through his Legal Representatives and others (1987 CLC 1061), the vendor had sold 82 Kanals and 19 Mamas to the petitioners in the said case on 22-6-1965.
As a result of Killa Bandi it was found to be 84 Kanals and 1 Marla. This mutation was cancelled by the Revenue Authorities on 29-9-1969. Based thereon the vendor filed a suit for possession. The vendees also instituted a suit for declaration. The suits were consolidated and were dismissed on the ground that M.L.R. 64 was contravened. Both the parties appealed. The appeal of the vendor was allowed by the learned First Appellate Court with the result that his suit was decreed. The vendees approached this Court on which this Court interfered by decreeing the suit of the vendees with a finding that the parties were clear that the vendor was selling the entire land. Apart from this fact the following observations in the judgment of the Humble Supreme Court in Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314) were relied upon: "We agree with the learned Judge of the High Court that due to the agreement wherein the petitioner had undertaken to do all that was necessary for formally completing the sale and having parted with the possession after receiving the consideration, he could, not rely on either para.25 of Martial Law Regulation 64 of 1959 or on section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) so as to non-suit the purchaser."
' In Rulia and others v. Fateh Muhammad and others (1989 CLC 1705) the petitioners before this Court purchased land measuring 55 Kanals, 7 Marlas from Fateh Muhammad through a registered sale-deed, dated 24-3-1966 on the basis of which Mutation No,165 was attested in their favour on 12-7-1979. The vendor filed a suit challenging the said transaction as violative of M.L.R. No,64 of 1959.
The said suit was dismissed. His appeal was also dismissed by the learned District Judge, Faisalabad. Thereafter, the vendor transferred the disputed land including his other holding to his sons and on that basis a mutation was entered but was rejected. The alienates filed an appeal before the learned Collector which was dismissed. They filed a revision petition before the learned Additional Commissioner which was withdrawn on 2-4-1981. On 4-3-1981 the Deputy Commissioner accorded permission to review the order, dated 12-7-1979 attesting Mutation No,165 aforesaid in favour of th e vendees. The Revenue Officer cancelled the said mutation as violative of the provisions of M.L.R.
64. The petitioners filed a suit for declaration assailing the order of the learned Collector and the Assistant Collector and claimed title of the land in question. The suit filed by the petitioners was dismissed by the learned Civil Court and their appeal was also dismissed by the learned Additional District Judge on the ground that the parties were pari delicto. This Court allowed the revision petition decreeing the suit filed by the petitioners on the ground that the Collector could not review an order against which an appeal had been filed before the Collector by the domes against Mutation No,165 which was dismissed. In this case the judgment of the Hon'ble Supreme Court in the case of Ghulam Muhammad (supra) was also relied upon to reach the conclusion that the vendor could not plead invalidity of the transfer and that the matter having attained finality before the Civil Court in the earlier round of litigation could not be re-opened by the Revenue Authorities.
19. In the case in hand, the vendor Abdul Hakeem had filed a suit challenging both the mutations on the ground that these infringed the provisions of M.L.R. 64 and M.L.R.
115. As admitted by D.W.1 this suit was withdrawn. He could not, therefore, agitate the same question in the suit filed by the petitioners.
20. In the case of Rulia (supra), it was also held that the principle of pari delicto was not applicable as the provision regarding alienations contained in the aforesaid M.L.R. Put a restriction more on the vendor than the vendee. In the case in hand, the petitioner had purchased the entire holding from Muhammad Ramzan who was duly recorded as an owner in the Revenue Record and therefore, the principle of pari delicto was clearly inapplicable as far as the petitioner was concerned. It was not attracted in case of the transfer in favour of Muhammad Ramzan either, because respondent No,1 had not delivered possession of the land sold to Muhammad Ramzan. In the case of Waris Ali v.
Sher Muhammad etc (1988 CLC 1166) the principle that the aliened could not rely on his own illegal act was reaffirmed. In the case of Muhammad Ishaq v. Member, Board of Revenue, Punjab Lahore and 18 others (1994 MLD 2254) it was, inter alia, held that after the repeal of M.L.R. 64 no proceedings thereunder were entertain able and that a party to the transaction had no locus standi to challenge the legality of alienation and mutation sanctioned on the basis thereof on the ground that the said transaction was violate of the provisions of M.L.R. Referred to above.
21. This revision petition is being contested by respondent No,3 who as stated above, got the land in dispute in exchange from Abdul Hakeem respondent No,1 vide Mutation No,2205, dated 30-3-1985.
This transaction was effected after the suit of the petitioner had been dismissed on 26-2-1985. This transaction was, therefore, clearly hit by the rule of lis pendens and, therefore, he was not even a proper party to this revision petition, although he was impleaded before this Court vide order, dated 14-1-1987 on the application of the petitioner. He therefore, could not even by heard. None of the judgments cited by the learned counsel for respondent No,3 have any application to the facts and circumstances of the present case.
22. In the case of Sher Zaman (supra) the appellant had pre-empted the transaction in question through a pre-emption suit on the ground that it was sale and not an exchange. This suit was dismissed. He filed another suit claiming that the transaction was violative of mandatory provisions of M.L.R.
115. This suit was dismissed on the ground that it was barred by res judicata. He took an appeal on which the finding that the suit was barred by res judicata was set aside and it was held that the suit was barred under paragraph 26 of the M.L.R.
115. The petitioner took an appeal before the learned Peshawar High Court which was dismissed and the appeal taken before the Hon'ble Supreme Court was also dismissed. In the case of Zulfiqar Ali Khan supra it was held that the provision of M.L.R. 64 are mandatory. In this case, vendor had sold his holding by three separate transactions on 31-1-1971. When the case of the petitioner came up for scrutiny under the Land Reforms Regulation No,115 the learned Land Commissioner, Sargodha held the mutations as void on the ground that these were violate of M.L.R. 64 of 1959. His appeal was dismissed by the learned Additional Chief Land Commissioner and against the said order a Constitutional petition was filed before this Court which was partly allowed. It may be noted that paragraph 7 of M.L.R. 115 specifically declared certain transfers as void and the case was examined by the learned Land Commission. Authorities under the said provision. The case of Muhammad Hussain supra ostensibly helps respondent No,3. The vendor in that case had sold the land and after his death an application was moved before the Collector for review of the mutation on the ground that it was violative of M.L.R. 64 of 1959 and was also fraudulent. Accordingly, permission to review was granted and the A.C. Grade-II cancelled the said mutation. The appellant before this Court filed a suit. The suit was dismissed. On appeal the judgment of the learned trial Court was modified and it was directed that the vendee shall be paid the price of the land Rs,3,046 and Rs,1,600 for improvements. The second appeal of the vendee was dismissed on the ground that M.L.R. 64 of 1959 had an overriding effect. It may, however, be noted that in this case, the mutation was cancelled on 23-7-1969 when M.L.R. 64 of 1959 was still in force. In the case of Mst.
Kaniz Begum supra the donor had sought cancellation of mutation of gift after 10 years on the ground that it was violate of M.L.R. 64 of 1959. This application was dismissed by the learned Collector but was allowed by the learned Additional Commissioner who directed that the mutation be reviewed. On a revision petition of the donee the Board of Revenue set aside the said order, on the ground that the donor was transferring the entire land in the village. Against the said order, writ petition was filed which was dismissed. In the case of Noor Samad supra the petitioner had sold land in favour of his sons who had further alienated it. The vendor then sought cancellation of the mutations on the ground that these were violate of M.L.R.
115. These sales were upheld by the Senior Member of the Federal Land Commission against which a Constitutional petition was filed. The petition was dismissed with the observation that: "It is an old age maxim that he who seeks equity must do equity. It does not lie in the mouth of the petitioner having sold the land to say that the sales were void so as to get back the land. His vendees-sons have further sold the land to the respondents Nos.8 to 16 and pocketed the money. It is inequitable to deprive the respondents of their title."
' The observations in this judgment go against the contention of learned counsel for respondent No,3. In the case of Sultan Azam Shah and 9 others (supra) the father of the petitioner made various transactions vide three mutations. He sought cancellation of these mutations on the ground that these were violate of the provisions of M.L.R.
115. These applications were dismissed by the learned Collector. However, when the consolidation operations were initiated, the learned Additional Deputy Commissioner (Consolidation), in exercise of suo motu powers, directed review of the aforesaid mutations treating them as void. The alienee challenged the said order in an appeal before the learned Additional Commissioner which was allowed and the case was remanded to the learned Collector. The learned Collector refused review of the aforesaid mutations. Appeal of the petitioner and revision petition were dismissed respectively by the learned Additional Commissioner and the learned Member, Board of Revenue.
The writ petition filed was dismissed.
23. The petitioner was non-suited solely on the ground that Civil Court has no jurisdiction and the transaction in question was void. As already held above the entire proceedings initiated by respondent No,1 by way of miscellaneous application before the Deputy Collector and the superstructure based thereon were without lawful authority. After the repeal of M.L.R. 64 of 1959 even the learned Deputy Land Commissioner had no jurisdiction to examine the transaction thereunder either of his own or on an application made by any person before him. In this case the impugned order was passed by the learned Deputy Land Commissioner neither of his own nor on the application of any person. The proceedings before him were transferred by the learned A.C./Collector which order was also without lawful authority as observed above.
24. The bar of jurisdiction contemplated by para. 27 of M.L.R. 64 of 1959 could only be applied to the cases falling within the jurisdiction of the Land Commission Authorities. The moment any Tribunal exceeds its jurisdiction, the Civil Court could validly examine its order. Reference may be made to Hassun Khan alias Ghulam Hassan Khan v. Muhammad Amin and 6 others (PLD 1994 Lah. 24) in which it was held that the Civil Court enjoys plenary jurisdiction under section 9 of the Code of Civil Procedure and even the orders passed by the Land Commissioner Authorities could be examined.
25. The contention of the learned counsel for respondent No,3 that the matter stands concluded by concurrent finding has no merit because the learned two Courts were persuaded to dismiss the suit of the petitioner on the ground that the jurisdiction of the Civil Court was barred and the transaction was void ignoring from consideration that the learned D.L.C., had no jurisdiction to examine the disputed mutations. It is a case of misdirection in law on admitted or proved facts.
26. For what has been stated above, this revision petition is allowed. The impugned judgments and the decrees of the learned two Courts are set aside and the suit filed by the petitioner is decreed with costs.