RAJA MUHAMMAD SAB!R, J.-- This petition is directed against he judgment of learned Addl. District Judge, Gujrat dated 13.5.1989, maintaining the decree of the learned Trial Court dated 12.10.1987, whereby, suit of the respondent No. 1 Mukhtar Ahmed for declaration and consequential relief was decreed.
2. Brief facts of the case are that plaintiff respondent No. 1 Mukhtar Ahmed (now represented by his LRs) instituted a suit for declaration contending that he purchased a shop bearing No. 6/196-11, fully described in para No. 1 of the plaint from the.
Settlement Department through auction and was in his possession as owner. The plaintiff paid portion of the sale price at the time of auction and for the payment of balance, since the amount mentioned in the compensation book was of less value, he assisted his friend Ahmad Khan, predecessor-in-interest of the petitioner, (who has also died and is represented by his LRs) for the purchase of compensation book to pay the remaining dues of the Department. Ahmad Khan consequently got signed written papers from the plaintiff for this purpose. The plaintiff also paid Rs.
4500/- to Ahmad Khan for the deposit to the account of department, who after a few days informed the plaintiff that the entire price of the shop had been adjusted from the compensation book and file of the shop in dispute had been mis-placed by the department so the .Relevant documents for transfer of shop in his name could not be got prepared and ,would be handed over to him as soon as the file is traced out but in the meanwhile, he died, whereupon, the plaintiff contacted defendant No 2 who is legal heir of the deceased for this purpose. Defendant No. 2 intimated the plaintiff that half of the shop stood transferred in the name of said Ahmad Khan and the remaining to the plaintiff and, thus claimed himself the owner of half of the shop which gave rise to the institution of the suit claiming to be the sole owner in possession of the whole shop in dispute. When the suit was pending, defendant No. 2 got prepared rent note and obtained possession of portion of the .Shop in dispute from the plaintiff through Court by eviction of so called tenant Risaldar Muhammad Ahmad/respondent No 3.
3. The suit was contested by defendant No 2 alone contending' that his predecessor was owner of half of portion of the shop in dispute. He raised preliminary objections regarding maintainability, limitation, estoppel and ma/a fide.
4. Learned Trial Judge, on divergent pleadings of the parties, framed issued, recorded evidence of the parties, heard their learned counsel and decreed the suit of the plaintiff on 12.10.1987 against which appeal of Muhammad Mushtaq failed through the impugned judgment. Hence the present revision petition.
5. Learned counsel for the petitioners contends that a joint PTD was issued on 26.8.1966, wherein, Ahmad and the plaintiff are mentioned owners of the shop in equal shares; that this deed was acted upon for 15 years and ultimately, the respondent instituted suit on 1.6.1981 after about 15 years; that the suit was hopelessly time barred and instituted to blackmail the petitioner in order to extract more money from him; that the learned Trial Court mis-read the evidence in decreeing the suit of the plaintiff against the predecessor-in-interest of the petitioners. He further argued that lower Courts have not properly appreciated the evidence while decreeing the suit of the respondent.
6. Learned counsel for the respondent, on the other hand, submits that Ahmad Khan was a clever man who pretended to help the plaintiff in getting the PTD and for this purpose, Rs. 4500/- were paid to him by the plaintiff in addition to the compensation book for payment of entire auction price; that while ,depositing the price, he let the department to believe that he was a partner in the shop to the extent of 1/2 share; that the plaintiff has denied his signatures on the deed of association; that his statement was not recorded and as such, the deed of association was void ab initio and the claim of predecessor of the petitioners that through deed of association, he is owner of half of the shop is false and frivolous; that unless statement of the parties is recorded, the deed of association simpliciter is not enough to deprive claimant of his right in the property and relied upon Mst. Sabira Begum and others Vs. Fazal Din and others NLR 1981 civil 654. He further submitted that the acceptance of deed of association without recording the statement of the plaintiff is void ab initio, therefore, any superstructure based on the aforesaid: deed is of no consequence and cited Syed Wajih-ul-Hassan Zaidi Vs. Government of Punjab and others 1997 SCM R 1901, Khuda Bakhsh Vs. Khushi Muhammad and 3 others PLD 1976 Supreme Court 208 and Dr. Zahir Ansari end others Vs. Karachi Development Authority and others (PLD 2000 Karachi 168) At the end, learned counsel for the respondent submitted that concurrent findings of the Courts below are based on proper appreciation of evidence and warrant no interference under revisional jurisdiction.
7. I have heard learned counsel for the parties at length and perused the relevant record with their assistance. Whole case of the petitioner is based on agreement of association which was submitted before the settlement Authority for adjustment of price of the shun in dispute. The auction purchaser denied his signatures on the agreement. Mere submission of agreement of association does not confer any right on Ahmad Khan. The Deputy Settlement Commissioner had not recorded the statement of the parties' to satisfy himself that the agreement was genuinely executed by Mukhtar Ahmad and Ahmad Khan inter se and Mukhtar Ahmad had surrendered half of his share in the shop in his favour pursuant to the agreement. This agreement could not be acted upon as the .Same was not executed in accordance with the procedure laid down for its approval. In the case of Mst. Sabira Begum and others Vs. Fazal Din and others NLR 1981 Civil 654, the Hon'ble Supreme Court observed that mere filing of an agreement of association alongwith NCH form by a party or its production before the Settlement Authorities by a person in whose favour it was executed is not sufficient unless both the parties appear before the authority to admit the deed. The PTD issued on the basis of deed of association who was never approved by proper authority was cancelled by the High Court in exercise of its writ jurisdiction and the matter having challenged before' the Supreme Court judgment of the High Court was upheld and the leave to appeal was refused. In another case re: Mst. Hafizan Begum and 6 others Vs. Deputy Settlement Commissioner, Lahore and 2 others PLD 1974 Note 17, it is laid down that the document transferring proprietary rights in favour of another cannot, in law, be accepted without examining the parties thereto. The contents of the documents I have to be affirmed or denied before necessary order could be made. The parties denying execution deed of association, . Questions of Validity, genuineness or otherwise of the deed cannot be gone into by the High Court yet it has jurisdiction to see whether deed was approved in lawful manner. The Settlement , Authorities not recording findings regarding execution of deed of association and merely accepting it in circumstances not a valid order and the orders passed on deed of association was annulled and the proceedings based on such deed were set-aside.
8. The afore-referred case law is applicable to the admitted facts of the case in hand. The statement of the plaintiff as well as Ahmad Khan were not recorded by the Deputy Settlement Commissioner and mere submission of deed of association and acting upon it without verification of genuineness supported by statements of executants is not a valid deed of association, to be acted upon. The deed of association dated 26.1.1961, is not a valid agreement, therefore, on the basis of this agreement, issuance of PTD in favour of predecessor-in-interest of the petitioner is void ab
9. Hon'ble Supreme Court in the case of Khuda Bakhsh Vs.. Khushi Muhammad and 3 others, PLD 1976 Supreme Court 208 held that a void order is nullity and such order does not require to be set- aside in appeal or any other proceedings. The Supreme Court reaffirmed its earlier decision in the case of Muhammad Swaleh and another Vs. M/s. United Grain and Fodder Agencies, PLD 1964 Supreme Court 1997. Then in case of Syed Wajih-ul-Hassan Zaidi Vs. Government of Punjab and others ,1997 SCM R 1901, Hon'ble Supreme Court held that order passed by the Authority in excess of jurisdiction or which Wajih-ul-Hassan Zaidi Vs. Government of Punjab and others,1997 SCM R 1901, Hon'ble Supreme Court held that order passed by the Authority in excess of jurisdiction or which the Authority has no jurisdiction to pass under the law could not be as a final order, the order falling in such category do not require to be set-aside and could be simply ,ignored if pressed into service.
Finally Karachi High Court in a recent judgment Dr. Zahir Ansari and others Vs. Karachi Development Authority, PLD 2000 Karachi 168 relying upon various judgments of the Supreme Court observed that if on basis of a void order, subsequent orders have been passed either by the, same Authority or by other Authorities, whole series of such orders together with 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 was in operation, would fall to the ground because such orders had as little legal foundation as the void order on which they were founded.
10. As far as contention of the petitioner on the point of limitation is concerned, suffice to observe that the Hon'ble Supreme Court in the afore-referred case has laid down that a void order need not to set-aside and be ignored whenever pressed into service. PTD was procured or the basis of deed of association which was not validly acted upon, therefore, limitation in the present case could not run against the respondents. Fraud vitiates the most solemn proceeding's and in the instant case, petitioner's predecessor-in-interest fraudulently got his name incorporated in the PTD. Learned lower Courts were, therefore, justified in holding that suit of the respondents was not time barred.
11.. The evidence of the parties was critically examined by both the Courts below and the findings recorded in favour of the respondent are based on proper appreciation of available evidence. The concurrent findings of both the Courts below warrant no interference under revisional jurisdiction.
12. The petitioner's predecessor has no right to claim half share of the shop in dispute. His name was incorporated in the PTD on the basis of deed of association which was not supported by the statements of auction purchaser. The deed of association itself has no legal consequences same having not been acknowledged by Mukhtar Ahmad. Both the Courts were justified in decreeing the suit ,of the respondent against the petitioner. This petition has no merit and is dismissed with no order as to costs.