' CH. MUHAMMAD ARIF, J.---In this petition under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 a challenge has been made to a common judgment and decree passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in R.S.A. No,158 of 1983 titled Muhammad Sharif v. Sher Zaman and. R.S.A. No,110 of 1983 titled Sher Zaman v. Pakistan through Collector, Attock etc., accepting the latter and dismissing the former.
2. Brief facts giving rise to the instant petition are that deceased-Sher Zaman, now represented through his LRs and others, filed a suit for declaration to the effect that they are owners in possession of land measuring 135-Kanals and 8-Marlas situated in the area of village Mathial, Tehsil Pindigheb, District Attock and the entries in the relevant mutation to the effect that they are its mortgagers and the Central Government is the mortgagee, are incorrect and liable to be corrected. In the alternative, it was prayed that the suit may be processed as one for redemption of the suit land on payment of Rs,100. The suit was filed on 17-1-1979 impleading also one Muhammad Sharif as a defendant having been transferred the suit land in his capacity as a Jammu and Kashmir Refugee by the Rehabilitation Department under the provisions of the Displaced Persons (Land Settlement) Act (No, XLVII of) 1958, hereinafter referred to as the Act. The claim of the plaintiffs was that the suit land was owned and possessed by Sooba who was father of Ghazi and grandfather of Sher Zaman, Mst Roshnai, Sarah, Mst Saeeda Bano and Mst Aziza Bibi and father-in- law of Mst Hajran Bibi. The land was mortgaged with one Amar Chand for Rs,100. According to them, the mortgage amount was paid to the mortgagee through receipt but appropriate entries could not be made in the Revenue Record. Mutation No, 1046 for redemption was entered on 24-1- 1933 but was rejected on 25-8-1936 in the wake of the partition of the sub-continent. The said non- Muslim mortgagee migrated to India and the suit land was treated as 'evacuee property' to the extent of Amar Chand's interest therein which vested in the Central Government by operation of law. Out of the suit land, 23 Kanals were transferred to Muhammad Sharif and the rest to Ghulam Mustafa, under the Act.
3. Muhammad Sharif-respondent contested the suit pleading that the above 23 Kanals of land having been transferred to him as a J & K Refugee in the year 1960 and he having paid the compensation thereof to the Government, his possession was as an owner, ever since the year 1960.
4. On the basis of the pleadings of the parties, the following issues were struck: "(a) Whether the suit is within time?
(b) Whether the plaintiffs have no locus standi to file the present suit?
(c) Whether this Court has no jurisdiction to try the suit?
(d) Whether the suit is not maintainable in its present form?
(e) Whether the mortgage dated 16-10-1988, still subsists if so its affect?
(g) Whether the Mutation No,1046 dated 24-1-1933 is illegal and not affected on the rights of the plaintiff?
(h) Whether the plaintiffs are entitled for the redemption of the mortgage land?
(i) whether the Central Government has become the owner of the property with the expiry of 60 years?
"(j) Relief."
5. The learned trial Court received whatever evidence the parties were minded to produce and, after hearing them, dismissed the suit with costs vide judgment and decree dated 17-9-1981.
6. The plaintiffs challenged the judgment and decree dated 17-9-1981 before the then learned District Judge, Attock which was assigned to a learned Additional District Judge there who accepted the appeal and partially decreed the suit holding that the plaintiffs are owners in possession of 23 Kanals of land which was allotted to Muhammad Sharif. It was further declared that allotment of 23 Kanals of land in favour of Muhammad Sharif by the Federal Government was illegal. The judgment and decree of the trial Court was modified as above. This happened on 30-4- 1983.
7. Muhammad Sharif filed R.S.A. No,158 of 1983 Sher Zaman etc filed R.S.A. No,110 of 1983. The learned Judge in Chambers proceeded with resolving the respective claims of the parties in the High Court as under: "7. I have read both the judgments of the Courts below and perused the record. It is admitted position on the record that Mutation No,1046, Exh.P.2, was entered but was rejected due to non- payment of some fee. Receipt was brought on the record as Exh.P.1, the trial Court has refused to draw presumption on the basis of Article 100 of the Qanun-e-Shahdat Order, whereas the Appellate Court has placed reliance on the said document and the provisions of the said article.
The relevant record of the Revenue Department also contemplates that the respondents are in possession of the suit land since pre-partition and in the Register Haqdaran Zamin for the years 1926-27 and 1932-33, the respondents have been shown as being in possession as (Bashara- Bilalgan Batassawa-Fakur-Rehn. The reasoning given by the Appellate Court is well founded and is based upon proper consideration of the record. Though independently receipt Exh.P.1, may not contain much evidentiary value but coupled with the fact of mutation and also subsequent record, before partition and admitted position that respondents are in possession of the suit land it can be relied upon, particularly being a very old document and coming from the proper custody in holding that the property was in fact, redeemed as claimed by the appellants."
' The question of limitation has also been properly considered and attended to by the Appellate Court. However, there is another angle to examine this question i,e, every wrong entry in the revenue record would give rise to fresh cause of action, thus, if a person challenges the latest entry in the Revenue Record within limitation, it cannot be said that the suit was barred by time."
"9 Besides, no other point was argued, particularly no misreading or non-reading of record by the Appellate Court, has been pointed out."
"10. In the other connected matter (R.S.A. No,110 of 1983) the grievance of the appellant is that the Appellate Court though has given findings in his favour on Issues Nos.1, 5 and 7, however, in the concluding paragraph of the judgment has partly decreed the suit to the extent of 23 Kanals. The grievance is that appellants were owners in possession of the entire mortgaged property and thus only granting partial decree is against the findings on the said issues. I have considered this aspect and agreed with the learned counsel once it was found that the property has been redeemed, then appellants were entitled to the full-fledged decree of their suit and not the partial relief, consequently, I accept this appeal and grant decree in favour of the appellants as prayed for."
8. It appears that petitioners, Muhammad Nawaz and Gulab Khan claimed that they were not impleaded as party either before the trial Court or even before the Appellate forum but were impleaded through C.M. No,1005 of 1987 in R.S.A. No,158 of 1983. The 1st Appellate forum and the High Court have declared the allotment of 23-Kanals to Muhammad Sharif as illegal. The rest of the land was allotted to Ghulam Mustafa as a J & K Refugee and his name finds mention in Mutation No,125 dated 31-5-1982. He sold 34-Kanals and 8-Marlas of the suit land in favour of Muhammad Latif son of Saleh Muhammad vide Mutation No,146 dated 19-8-1982. It was vide Mutation No,173 dated 8-12- 1982 that this land was sold by Muhammad Latif in favour of petitioner No, 1-Muhammad Nawaz son of Gulab Khan to the extent of 66-Kanals and 6-Marlas and the ownership was transferred in favour of Central Government vide Mutation No,124 attested on 31-5-1982. The land in question was transferred in favour of Ghulam Mustafa (respondent No,10 herein) vide Mutation No,125 on 31-5- 1982. Respondent-Ghulam Mustafa sold 33-Kanals and 3-Marlas of land to Ghulam Abbas reflected in Mutation No,138 dated 18-8-1982. He further gifted this land in favour of Muhammad Latif (respondent No,11 herein) through Mutation No, 146 attested on 18-8-1982. Muhammad Latif made a gift of 33-Kanals and 3-Marlas of land in favour of his son Shahid Iqbal (respondent No,15 herein) vide Mutation No,174 attested on 8-12-1982. The matter did not end here. Respondent- Shahid Iqbal sold this parcel of land in favour of petitioner-Muhammad Nawaz which fact is reflected in Mutation No,474, attested on 18-4-1984. As a consequence of the afore-referred transactions between the years 1982 and 1984, petitioner-Muhammad Nawaz claims to have become an owner of 60-Kanals and 11-Marlas of land through purchase from Shahid Iqbal and Muhammad Latif whereas petitioner-Ghulam Abbas became an owner of 33-Kanalas and 3- Marlas of land by purchase from respondent-Ghulam Mustafa. Further, claiming their status as necessary party before all the three forums, both the petitioners have pleaded that as there was no suit against them and as their impleadment came about only in the High Court where their view- point was even so much as incorporated in the impugned judgment and decree, their status as owners has to be recognized for the further reason that the suit was hopelessly barred by time and the same could not be processed further on account of their non-joinder. The suit property having been validly transferred to Ghulam Mustafa etc after its treatment as evacuee property, the status of the petitioners as owners (1) through purchase, (2) for consideration, (3) in good faith and (4) without notice needs protection.
9. Paras.18 to 21 of the grounds in the instant memo of petition read thus: "18 That redemption under the Displaced Persons Law was admissible up to a date fixed by the Government under various notifications and if the same was not redeemed at the relevant time, a suit was not competent to get the redemption of property, but rights to get it redeemed were extinguished and the property was rightfully transferred to claimants under the Displaced Persons (Land Settlement) Act, 1958, and its vires could not be challenged in any manner whatsoever, in any garb or shape whatsoever."
"19 That the learned First Appellate Court and the Hon'ble High Court did not appreciate the legal position involved in the case and thus concluded wrongly. The petitioner is aggrieved of the erroneous findings in this respect."
"20 That the jurisdiction of the Civil Court is completely barred under the Land Settlement Laws."
"21 That the impugned judgments and decrees dated 12-104998 passed by the Hon'ble High Court and 30-4-1983, passed by the learned Appellate Court are liable to be set aside, being contrary to law and erroneous."
10. Mr. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court appearing in support of this petition, has confined his case to (1) the late impleadment of his clients in one of the R.S.As. In the High Court and (2) the admitted position that their case was not at all even alluded to in the impugned judgment of the High Court. Contrarily, Mr. Mian Inam-ul-Haq, learned Advocate Supreme Court appearing on behalf of the respondents/caveators was of the view that the purchase of their respective parcels of the suit land by the petitioners between the years 1982 and 1985 was illegal and, therefore, their ouster from the scene was justified.
11. We are afraid the plea being raised by the learned counsel appearing on behalf of the respondents/caveators cannot be equated with consideration of their case by the High Court from any angle whatsoever. It is not the case of the respondents that the petitioners were a party either before the trial Court or even before the 1st Appellate Court. Similarly, it is not even so much as alleged on behalf of the respondents that the case of the petitioners was attended to while delivering the impugned judgment in R.S.As. Nos.158 of 1983 and 110 of 1983 and that the petitioners were impleaded as respondents No,5 and 6 respectively, in R.S.A. No,158 of 1983 only.
12. In this view of the matter, we are left with no other option but to remit the case back to the High Court for its decision according to law.
13. The above are the reasons for our short order of even date which reads thus: "For the reasons to be recorded later on, we convert the titled petition into an appeal, accept the same and remand the case to the High Court for re-hearing of the case, disposing of the claim made by the petitioners before us and then pass a fresh order. Costs to follow the event."