Muhammad Ibrahim, Muhammad Shafi, Muhammad Sharif sons. of Ali Muhammad had purchased land measuring 349 Kanals, 13 Marlas situated in Mauza Bhikki, Tehsil and District Sheikhupura from one Nabbi Bakhsh vide registered sale-deed, dated 21-1-1964 which transaction was incorporated in the Revenue Record and Mutation No,909 was attested on 20-6-1964. The said land was a part of the land allotted to one Mst. Zainab Bibi. The allotment of Mst. Zainab Bibi came to be scrutinized and was ordered to be cancelled by the Deputy Settlement Commissioner vide order, dated 1-1- 1965. Vendees of the part of the land mentioned above felt aggrieved of the same and assailed that order through Writ Petition No,1018-R of 1969, which was accepted by a learned Single Judge of this Court on 25-6-1973 that as vendees, they were necessary parties to be heard by the Deputy Settlement Commissioner .and remanded the matter to the Deputy Settlement Commissioner for fresh decision after providing opportunity of being heard to them as well as the other necessary parties. This order was not challenged any further. As a consequence of that, Assistant Commissioner Sheikhupura/Deputy Settlement Commis-sioner/Notified Officer passed order, dated 18-5-1995 that the land was rightly and validly allotted to Mst. Zainab Bibi and was thus restored in her name. Abdul Haq and Mst. Sardaran Bibi respondents Nos,1 and 2 respectively filed an appeal against the above mentioned order before the Additional Commissioner (Revenue), which appeal was accepted by him taking the view that the order challenged before him was passed by the Assistant Commissioner Collector, which was without jurisdiction. The same was thus set aside vide order, dated 28-12-1995. This order has been challenged through the present petition, inter alia on the ground that against the order. dated 18-5-1995 passed by the Assistant Commissioner/Deputy Settlement Commissioner, no appeal was competent before the Additional Commissioner (Revenue) who acted without jurisdiction in entertaining the same or setting aside the order, dated 18-5-1995. Since order, dated 18-5-1995 was passed in pursuance of remand order, dated 25-6-1973 passed in Writ Petition No,1018-R of 1969,.C.M. No,109 of 2000 under section 12(2) read with section 151, C.P.C. for setting of judgment, dated 25-6-1973 filed by respondents Nos,1 and 2 has thus direct nexus. The same has also been heard alongwith this petition. Both the matters thus shall stand disposed of through this judgment.
2. It is contended by Kh. Ahmed Tariq Rahim, the learned counsel for the petitioners that by judgment, dated 25-6-1973 passed in Writ Petition No,1018-R of 1969 the matter was remanded to the Deputy Settlement Commissioner, which on remand was heard and disposed of by the Assistant Commissioner, Sheikhupura who at the relevant time was exercising the powers of Deputy Settlement Commissioner by force of Notification, dated 3-11-1991; the said order was final, no appeal was competent against that order before the Additional Commissioner (Revenue) who has acted without jurisdiction in entertaining the appeal and passing the impugned order, dated 28-12-1995. It is contended that application (C.M. No,109 of 2000) filed by respondents Nos,1 and 2 (herein) in Writ Petition No,1018-R of 1969 is a belated move which application should be dismissed, as they were fully aware of the said order and had been participating in the post-remand proceedings.
3. Mian Nussrat Ullah, the learned counsel for respondents Nos,1 and 2 and for the applicant (in C.M.
No,109 of 2000 in Writ Petition No,1018 R/69), however, contends that the order of remand, dated 25- 6-1973 passed in Writ Petition No,1018-R of 1969 was result of suppression of material facts inasmuch as the writ petition filed by Israr Ahmed one of the respondents in the said writ petition had already been dismissed which order had been maintained by the Hon'ble Supreme Court of Pakistan. According to him though the applicants had the knowledge of the remand order and had been participating in the proceedings before the Assistant Commissioner, yet in matters of fraud no limitation stands in the way of the Court to set aside any such order. It was further contended that Assistant Commissioner. Sheikhupura had acted without jurisdiction in the matter as he was not a Notified Officer when he passed the order, dated 18-5-1995. According to him the Additional Commissioner (Revenue) acted lawfully in setting aside such an order. It is fur her contended that writ petitioners who are vendees cannot have a better claim than their predecessor. Reference is made to Manzoor Hussain v. Fazal Hussain and others (1984 SCM R 1027), Gul Muhammad and others v. The Additional Settlement Commissioner and others (1985 SCM R 491), Muhammad Younas Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCM R 618), Lal Din and another v. Muhammad Ibrahim (1993 SCM R 710) and Mubarik Ali v. Fazal Muhammad and another (PLD 1995 SC 64). The learned counsel for the official respondents has also been heard who has produced a set of notifications issued from time to time about the notified officers. The rest of the respondents have continued to be unrepresented despite notices.
4. It may be noted that this writ petition had come up for hearing on 17-1-2000 before a learned Single Judge of this Court, Ghulam Mehmood Qureshi, J., as he then was, who accepted the writ petition ex parte declaring order, dated 28-12-1995 passed by the Additional Commissioner (Revenue) as without lawful authority and of no legal effect. The said judgment was, however, recalled in view of the consensus of the parties that the matter be decided after hearing the parties in accordance with law.
5. The background, mentioned above briefly, would show that the Assistant Commissioner proceeded in this matter in pursuance of the remand order, dated 25-6-1973 passed in Writ Petition No,1018-R of 1969. The operative part of that judgment reads as follows:-- "In view of the above I would remand the case to the Deputy Settlement Commissioner for fresh decision with the direction that he would decide the case afresh after providing reasonable opportunity of being heard to the petitioners as well as to the other necessary parties. The petition is disposed of with these observations. (Underlined by me for relevance and emphasis)."
The direction of the Court was quite explicit and susceptible of no ambiguity that the matter was remanded -to the Deputy Settlement Commissioner. It was an order passed before the repeal of Settlement Laws. The matter was indeed pending before the Deputy, Settlement Commissioner before the repeal of the laws i,e, Evacuee Property and Displaced Persons Repeal Act, Act XIV of 1975. To meet and cater for such an eventuality notifications have been issued by the Government of the Punjab from time to time. The one having relevance with reference to the point of time is Notification, dated 3-11-1991, through which Assistant Commissioners in the Punjab except Lahore District were given the powers of Deputy Settlement Commissioner of their respective Sub- Divisions. The Assistant Commissioner, Sheikhupura in terms of the remand order, dated 25-6-1973 had thus exercised the powers of the Deputy Settlement Commissioner to' whom the case had been remanded. He was notified as such by virtue of the above Notification. The omission to give description of his full or correct designation would not make any difference as he was otherwise possessed of the relevant powers and notified as such. The learned Additional Commissioner (Revenue) thus acted illegally in construing that the order passed by the Assistant Commissioner was in the capacity of Collector of the Sub-Division and not as the Deputy Settlement Commissioner. Such a view taken by him was wholly unwarranted by law. No appeal was competent before him against order, dated 18-5-1995. The legal position is so firmly settled, it hardly needs any reiteration that remedy of appeal is creation of the Statute and unless it is so provided by law it can neither be exercised nor assumed inferentially. Even if the learned Additional Commissioner (Revenue) had felt some taint of illegality in the order, he should have in view of lack of jurisdiction left the party to avail of the legal remedy elsewhere as per law. He acted wholly without jurisdiction in entertaining and accepting the appeal. His order is thus not sustainable and is declared as without lawful authority.
6. So far as C.M. No,109 of 2000 made in Writ. Petition No,1018-R of 1969 is concerned, the same was tiled on 15-2-2000 qua the judgment rendered in the said writ petition on 25-6-1973. It is candidly conceded by the learned counsel that the applicants therein who were party in that writ petition and had even been participating in the post-remand proceedings ever since the passing of the remand order knew about that. The contention, that despite the fact that the applicants had the knowledge and their application was beyond 'limitation, this Court should exercise inherent power in view of the fraud having been committed in the matter, cannot be accepted inasmuch as even where the allegation of fraud is made the party concerned has to take remedial steps on acquiring the knowledge. Otherwise the law of limitation 'would be rendered nugatory and redundant if it is left at the will and whim of a party to approach the Court at any time. Section 18 and Article 95 of the Limitation Act. 1908, take care of such situations. The precedents cited at the bar had their peculiar circumstances and of no use to the applicant. Moreover, the writ petitions in Writ Petition No,1018-R of 1969 had not committed any fraud whatsoever nor suppressed any material information from the Court inasmuch as in the litigation launched by Israr Ahmad Khan they were not party either before the High Court or before the Hon'ble Supreme Court of Pakistan. They cannot, therefore, be saddled with any liability. It may be observed that the status of these petitioners as vendees was duly recognized while accepting their petition (Writ Petition No,1018- R/69) in judgment, dated 25-6-1973, which was not assailed any' further. The same became final qua the parties and had the binding effect in view of. Pir Bakhsh represented by his legal heirs and others v. The Chairman., Allotment Committee and others (PLD 1987 SC 145). Its legal efficacy cannot be questioned or re-opened in these proceedings. The application thus has no merit either and is dismissed. As a result of the above, by declaring the order, dated 28-12-1995 passed by the Additional Commissioner (Revenue), Lahore/respondent No,13 herein as unlawful and of no legal effect the petition is accepted. NG order as to costs.