MUNIR A. SHEIKH, J.- The land in dispute was allotted to the petitioners under Grow More Food Scheme admittedly on 14. 12.1956 The possession was delivered to them in pursuance of the said allotment in March', 1957 as per findings recorded by the Trial Court in the judgment dated 29.11.1987 through which their Suit was decreed.
2. According to the policy decision of the Punjab Government, the land of such allotters whose lease had expired on or before Rabi 1962 was to be resumed and included m the scheme of schedule of tender to be given through auction on tender to public at large.
3. The land of the petitioners was resumed under the said policy decision aggrieved of which they brought a suit before the Civil Court which was decreed through judgment dated 29.11.1987 by the Trial Court by recording finding that the possession having been delivered to the petitioners in Mach, 1957, therefore, as per terms of section 10 of Colonization of Government Lands Act, their tenancy would be deemed to have started from the said date and if counted from the said date, period of five years would go beyond Rabi 1962, as such, the said policy decision was wrongly applied to this case and the orders of the authority of resumption of the land and inclusion of the same in the Scheme of tender were void abinitio.
4. In appeal, however, the appellant Court dismissed the suit of the petitioners by acceptance of appeal on technical ground that jurisdiction of the Civil Court in such matters was barred by virtue of section 36 of the said Act. It was affirmed by the learned Judge of the High Court through the impinged judgment dated 12.1.2000 against which leave is sought.
5. Learned Judge of the High Court in the impugned judgment has, however, observed that in case an order of statutory authority was void abinitio, mala fide or against law, the jurisdiction of the Civil Court would not be barred. At the same time, it appears to have altogether been overlock by the first appellate Court and also the High Court that the case of the petitioners was and it was proved through evidence as per findings of the Trial Court that possession of the land was delivered in March, 1957 and as per terms of section 10 of the Act, the tenancy would be. Deemed to have started from the said date, as such, period of five years would not expire in Rabi 1962 but would go beyond the same which has not been attended to. This jurisdictional fact being absent from the case which is sine qua non for exercising-power by the concerned authorities to resume the land under the said policy decision and inclusion of the same in the scheme of schedule of tender, therefore, the Trial Court according to learned counsel for the petitioners rightly decreed the suit by holding that the act of the concerned authorities was void abinitio and lacked power which has not been taken into consideration by the first Appellate Court and the learned Judge of the High Court as the decision of the said to Courts are based on extraneous matters and the petitioners have been deprived of their valuable right under the law. In support of his contentions, he relies upon Muhammad Rafiq and. Others versus Hashmat Ali and others (PLD 1992 SC 49) and Muhammad Shaft versus member, Board of Revenue and others (1985 SCM R 817). He also argued that subsequent to the said policy decision, however, the government changed its policy and issued another policy decision that in case of allotters under the Grow More Food Scheme, proprietary rights could be given to them irrespective of date of commencement or expiry of their lease.
6. We have also heard learned counsel for the respondents.
7. The above contentions, inter alia, raised by the learned counsel for the petitioner require examination therefore, we grant leave to consider the same.
8. Till the disposal of the appeal, possession of the petitioners over the land in dispute shall not be disturbed Who shall continue paying government dues.