1. ' All the above four applications shall be disposed of by this single order.
2. ' The relevant facts are that petitioner Jummo son of Khan Junejo filed F.C. Suit No,82 of 1976 in the Court of Senior Civil Judge, Sanghar, against the respondents which was dismissed on 10-8-1981.
3. He preferred appeal being Civil Appeal No,35 of 1981 which was heard by the learned 1st Additional District Judge, Sanghar and was dismissed on 4-9-1984. Petitioner Jummo still feeling dissatisfied preferred a revision application being Civil Revision Application No,192 of 1984 which was dismissed for non-prosecution on 27-2-1998.
4. ' The present applicant Muhammad Aslam Shah was not a party to the proceedings before the lower Courts as well as in the revision application before this Court. However, on 17-4-2000 he filed the four applications under consideration.
5. ' C.M.A. No,210 of 2000 is an application under section 5 of the Limitation Act. It has been averred in this application that Syed Aslam Shah is an applicant in the revision application and is fully conversant with the facts of the case. This statement is incorrect on the face of it, as Muhammad Aslam Shah is not the applicant in the revision application but Jumo son of Khan Junejo is the applicant. It is further stated in the affidavit attached with the application that he is placing reliance on his affidavit in support of application under Order 9, rule 9 read with section 151, C.P.C.
6. And under Order 22, rule 10, C.P.C. He has further stated that Jumo son of Khan Junejo died on 5-8- 1992 and left behind no legal representative. It is further contended that applicant Syed Aslam Shah had no knowledge of the suit, appeal and the revision filed by Jumo son of Khan Junejo as it was not disclosed to him either by Jumo or any other person. According to him he learnt for the first time about the orders passed by this Court dismissing the revision application in absence of Jumo in second week of April, 2000 when the officials of Forest Department came for demarcation of the land in dispute and claimed that the revision filed by Jumo was dismissed by this Court and the said officials threatened the applicant to eject him from the property in dispute. He has asserted that he made enquiries from the office of this Court and learnt on 14-4-2000 that the revision was dismissed by this Court on account of non-prosecution. A perusal of the application under section 5 of the Limitation Act and the affidavit in support of the said application shows, that, the applicant has very cleverly drafted the application and the affidavit in ambiguous and clandestine manner. The purpose of drafting the application and the affidavit in such an ambiguous manner appears to avoid any commitment on the part of the applicant as to when the period of limitation expired and according to him, how much delay is caused and what is the period of delay which is required to be condoned. This indicates that the applicant has not come to this Court in straightforward manner and with clean hands.
7. ' The second application C.M.A. No,212 of 2000 is under Order 9, rule 9 read with section 151, C.P.C.
8. Praying that the order, dated 27-2-1998 may be set aside and the revision application may be restored to its original number. In the accompanying affidavit it is alleged that on 17-7-1990 the petitioner/applicant Jumo sold the suit-land to his father Syed Mauz Ali Shah for a valuable consideration of Rs,1,27,500 by way of a statement before the Muktiarkar. A copy of the said statement has been filed as Annexure "J". It is stated that his father was put in possession of the land in dispute and the Record of Right and village Form VII was mutated in his favour. A copy of mutation entry dated 17-7-1990 is filed as Annexure "K". It is further alleged that Syed Mauz Ali Shah gave the land to the applicant in gift and Record of Right was mutated in the name of applicant Muhammad Aslam Shah on 7-8-1993. A copy of the entry has been filed as Annexure "L". It is further stated that the applicant has been continuously in possession of the land in dispute and is paying the land revenue. Copies of two land revenue bills and four land revenue receipts have been filed Annexures "M/1" and "2" and "N/1 to 4". It is asserted that the applicant is a necessary party for complete and effective adjudication of the proceedings.
9. ' The third application C.M.A. No,213 of 2000 is under Order 22, rule 10 read with section 151, C.P.C.
10. Praying that applicants Muhammad Aslam Shah and Aftab Shah be joined as party in the revision.
11. In the affidavit accompanying the application same facts have been repeated as contained in the affidavit attached with the earlier two applications.
12. ' The fourth application C.M.A. No,214 of 2000 is under Order 39, rules 1 and 2 read with section 151, C.P.C. And is based on the same facts as contained in C.M.As. Nos.210 and 212 of 2000.
13. ' Heard Mr. Jhamat Jethanand learned counsel for the applicant and Mr. Riazuddin Siddiqui learned State Counsel.
14. ' Learned counsel for the applicant Muhammad Aslam Shah has stated he has to cross several hurdles. The first hurdle, is whether the applicant can submit an application under Order 9, rule 9, C.P.C. And under Order 22, rule 10, C.P.C. When he was not a party to the original proceedings. The second hurdle, is whether the application under Order 22, rule 10, C.P.C. Can be submitted in a case which already stand disposed of and is not pending. The third hurdle, is whether the applicant is entitled to avail the provisions contained in Order 22, rule 10, C.P.C. By alleging that the interest in the agricultural land was transferred by the applicant Jumo in favour of the father of the applicant through a statement allegedly recorded by the Mukhtiarkar and without execution of registered sale-deed as required under the provisions of section 54 of the Transfer of Property Act and the Registration Act. The fourth hurdle, is whether the provision of section 5 of the .Limitation Act is applicable in the revision proceedings and the fifth hurdle, is to establish that period of limitation provided under Article 181 of the Limitation Act is attracted.
15. ' Mr. Jhamat Jethanand has cited several judgments on the above point. The first judgment is in the case of Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411. In this case a question was raised whether a transaction of sale entered into violation of section 54 of the Transfer of Property Act is pre-emptible. In the said case the transfer was made by mutation in the Record of Rights. A suit for pre-emption was filed. The Senior Civil Judge dismissed the suit for the sole reason that the land was transferred by unregistered document which was not in accordance with the provisions of section 54 of the Transfer of Property Act and thus the transfer was unpre-emptible. The High Court, however, by placing reliance on two decisions of the Allahabad High. Court held that the sale can be pre-empted and the right cannot be defeated simply because the vendor and the vendee have colluded with each other to deprive him of his rights. When the issue was taken up in Special Leave to Appeal before the Honourable Supreme Court it was held that the answer to the question raised must depend on whether there has been sale within the meaning of the law under which the pre- emption is claimed. Reference was made to the provisions contained in subsection (5) of section 3 of the Punjab Pre-emption Act of 1913. It was held that the definition of sale in the above Act, was wider than the one under section 54 of the Transfer of Property Act, for it is not governed by the restrictions as to the mode of transfer contained in the latter section. It was further held that "it cannot, therefore, in view of this definition, be said that if a sale of property exceeding the value Rs,100 is made by mutation entered in the Revenue Record such a sale is altogether void. This method of transfer by mutation was certainly recognized in the Punjab to which the Punjab Pre- emption Act originally applied, as a valid method of transfer of agricultural land. Thus, if the parties entered into a transaction in a form recognized by this law can it be argued that they nevertheless did not intend the transaction to be governed by the incidents attaching thereto under that law".
16. With context to the law of pre-emption it was further held "that if the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under section 53-A of the Transfer of Property Act". The Honourable Supreme Court further observed "that mere failure of the parties to comply with the requirements of section 54 of the Transfer of Property Act as to the , manner in which the transfer should be naiade cannot alter the nature of the transaction intended to be entered between the vendor and the vendee or affect the pre-emptor's right in respect of it. If the transaction amounts to a sale in fact then notwithstanding that it is not in the form prescribed' by section 54 of the' Transfer of Property Act the right of pre- emption will come into operation. Such a transaction even under section 54 of the Transfer of Property Act, is not altogether void, for, the defect is curable by getting a document drawn up and registered to perfect the inchoate title of the vendee. This perfection can be insisted upon, for, there is at any rate an enforceable contract of sale even under the Transfer of Property Act, and even such an imperfect transaction will give rise to equities in favour of the buyer. He has paid the price he will have the charge of the property for the amount paid".
17. ' The second judgment is in the case of Rashid Ahmed v. Mst. Jiwan and 5 others 1997 SCM R 171. In this case the question for consideration was whether the rule of lis pendens can be set up as a bar to an application by a transferee pendente lite from being impleaded as a party to the pending proceedings.
18. ' It was held by the Honourable Supreme Court as follows:-- "The doctrine of lis pendens contained in section 52 of the Transfer of Property Act, 1882 merely provides that a transfer of immovable property during pendency of a suit, which is not collusive in nature, in which the right to such immovable property is directly and specifically in question, cannot defeat or affect the rights of any party to. The proceedings under any decree or order which may be made in such suit. This provision does not preclude the transferee pendente lite from being made a party to the pending proceedings on the basis of such transfers, Order XXII, rule 10, C.P.C.
19. Which regulates the proceedings of a suit provides that in cases of assignment, creation or devolution of any interest during pendency of suit, the suit may be continued by or against the person to or upon whom such interest has come or devolved. Another provision which is relevant in such situation is section 146 of C.P.C. Which provides that where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. Provisions of section 146 and rule 10, Order 22, C.P.C. Apply equally to appeals."
20. ' Ultimately it was held by the Honourable Supreme Court that the appellant having purchased the suit property by registered sale - deed has stepped into the shoes of the seller during the pendency of the proceedings and was entitled to be impleaded as respondent in the appeal.
21. ' The third judgment is in the case of Allah Dino v. Muhammad Shah 2001 SCM R 286 where in it has been held by the Honourable Supreme Court that the provisions of section 5 of the Limitation Act are not applicable to the proceedings under section 115, C.P.C.
22. ' The fourth judgment is in the case of Muhammad Usman Khan and another v. Miraj Din and another PLJ 1978 Lahore .177. In the said case an application for temporary injunction was submitted alongwith the restoration application in a suit which was dismissed. The trial Court and the first appellate Court dismissed the application for the reason that it was not competent as there was no suit pending before the Court: The learned single Judge of the Lahore High Court held in exercise of the revisional jurisdiction under section 115, C.P.C. That although an application under Order 39, rules 1 and 2 C.P.C was not maintainable because no suit was pending but injunction is to be granted under inherent powers of the Court under section 151, Cr.P.C. Because the restoration application was submitted and if the restoration application was allowed the plaintiff would be deprived of the benefit of temporary injunction. This judgment has been produced in support of the contention that the temporary injunction can be granted notwithstanding the dismissal of the revision application and application under Order 22, rule 10, C.P.C. Can also be entertained when an application for restoration of revision has been submitted under Order 9, rule 9, C.P.C.
23. ' The fifth judgment is in the case of Motibhai Jijibhai and another v. Desaibhai Gokalbhai and another 1916 ILR 170. In this case a Division Bench of Bombay High Court upheld the extinguishments of the occupancy rights through a Rajinama and Qabuliyat with reference to section 74 of the Bombay Land Revenue Code, 1879. In this judgment the effect of relinquishment of the occupancy holding right through Rajinama was considered and it was held that the relinquishment was an arrangement by the Khatedar of his claim to hold the property. It was further held that the sole effect of Rajinama was the extinguishments of the occupancy right and the interest in the property in favour of the persons with whom Rajinama was made was created by Qabuilyat on account of agreement with the Government. It has not been held in this judgment that the Rajinama can itself confer any right on the person in whose favour Rajinama was made. In the cited judgment another judgment by the same Judge i,e, Scott, C.'J. Has been referred wherein it has been held that after the enactment of Registration Act and enactment. Of Transfer of Property Act a valid sale can be affected by a registered t-rstrument only. No registered document was produced and, therefore, it was held by the same learned Judge that there was no transfer. The legal proposition was clarified by another learned Judge. Sitting in Division. Bench namely Heaton, J., and held that the method of relinquishment was in accordance with section 74 of the Land Revenue Code which provided a method of relinquishment of occupancy rights. This judgment is of no help to Mr. Jhamat Jethanand for the reason that first the Bombay High Court has not held in this judgment that the interest by way of transfer of the title in the agricultural land is created through the statement before the Revenue Officer but has merely held that an occupancy right can be relinquished with reference to section 74 of the Land Revenue Code, 1879. It would be appropriate to reproduce section 74 of the Land 'Revenue Code, 1879 (which stands repealed by Land Revenue Act, 1967). It reads as follows:- "74. The occupant may relinquish his land, that is, resign it in favour of (The Crown), but subject to any rights, tenures, encumbrances, or equities lawfully subsisting in favour of any person other than (The Crown) or the occupant, by giving notice in writing to (Mukhtiarkar) or Mahalkari before the 31st March in any year or before other date as may from time to time be prescribed in this behalf by the (Provincial Government), and such relinquishment shall have effect from the close of the current year."
24. A perusal of above section shows that it speaks of the relinquishment of occupancy by an occupant of his land. The occupant has been defined in section 2(16) of the Bombay Land Revenue Code, 1879 to "mean a holder in actual possession of unalienated land, other than a tenant; provided that where the holder is in actual possession is a tenant, the landlord or superior landlords as the case may be shall be deemed to be the occupant". It will be seen that it is in respect of unalienated land only. The alienation has 'been defined in section 2(20) of the same Code to mean, "transfer in so far as the rights of the Government to payment of the rent or land revenue are concerned wholly or partially, to the ownership of any person". Thus, in the case of unalienated land the ownership is not transferred while in the present case the land was under ownership with the applicant in the revision application, namely, Jumo who is alleged to have sold the suit-land to the father of Muhammad Aslam Shah and Aftab Shah.
25. ' Now I come to the contentions raised by Mr. Jhamat Jethanand. The first point for consideration is whether the applicants Muhammad Aslam Shah and Aftab Shah can submit an application under Order 9, rule 9, C.P.C. And under Order 22, rule 10, C.P.C. It is admitted position that the provisions contained in Order 22. Rule 10, C.P.C. Can be invoked if there is a case of assignment, creation or devolution of any interest during the pendency of a suit. The suit can be allowed to be continued by or against the person to or upon whom such interest has come or devolved. It is admitted position that in this case the applicants are claiming title through their father who is alleged to have acquired interest in the land in question through a simple statement alleged to have been recorded by the Mukhtiarkar. The judgment of the Bombay High Court in the case of Motihhai (supra) is of no help to the applicants. Mr. Jhamat Jethanand has further placed reliance on Standing Order No,17, particularly on G.R.D. Nos.8702 dated 15-9-1914 and 2055/33, dated 14-2-1935 which provides that oral transaction of land and rights in land are admitted for the purpose of entries in the Record of Rights if the parties give written statement of agreement. This instruction has been withdrawn a few years ago as stated by Mr. Jhamat Jethanand. However, he has submitted that it was in existence in the year 1990 when the land was allegedly transferred by Jumo in favour of the father of the applicants Muhammad Aslam Shah and Aftab Shah through a statement allegedly recorded by the Mukhtiarkar whose name is not legible. Even if it was in existence it is of no help to the applicants because the instruction itself states that the oral transaction of land can be admitted for the purpose of entries in the Record of Rights and it has been stated in para.1 of Standing Order 17, that governing factor in Record of Rights matters is possession not title. It is further stated that if a right of inheritance is claimed after some years it should be considered as determinable only in a Civil Court, otherwise the Land Revenue Department would be usurping the functions of the Civil Court. By now it is established proposition of law that mere entry in the Record of Rights does not confer any title. Title in the immovable properties for the value above Rs,100 can he transferred by way of registered sale-deed only. The provisions contained in section 54 of the Transfer of Property Act and section.17 of the Registration Act are very clear and require no interpretation. The transfer of title in the agricultural land is no exception.
26. ' So far the applicability of section 5 of Limitation Act is concerned the Honourable Supreme Court has already held in the case of Allah Dino (supra) that section 5 of the Limitation Act is not applicable. So far the applicability of Article 181 of the 1st Schedule to the Limitation Act is concerned, I do not find any substance in the contention of Mr. Jhamat Jethanand. He has submitted that there is no specific provision in C.P.C. Or in any other law under which an application can be made for the restoration of a revision application. He has submitted that the restoration application in a revision application can be submitted by resort to the general principles contained in Order 9, rule 9, C.P.C. He has further submitted that, however, while having resort to the general principles contained In Order 9, rule 9, C.P.C. The period of limitation provided for submitting such application under Article 63 of the 1st Schedule to the Limitation Act, 1908 shall not be attracted. I am not persuaded to agree with the contention because Article 181 of the 1st Schedule to the Limitation Act is attracted when no period of limitation is provided in the Limitation Act or by section 48 of the Code of Civil Procedure, 1908 for filing an application. Admittedly there is no specific provision in any law under which an application for restoration of a revision application can be made and, therefore, Article 181 of the Limitation Act is not attracted. It will only apply if there is a provision for submitting application but the period of limitation is not provided in the Limitation Act or by section 48 of the Code of Civil Procedure, 1908. So far the revision applications are concerned no period of limitation was provided before the enactment of second proviso to section 115, C.P.C. In the year 1992. However, by enactment of second proviso the period of Limitation of ninety days has been prescribed. Prior to the promulgation of second proviso to section 115, C.P.C. It was prescribed in rule 56 of the Sindh Chief Court Rules that an application for initiation of revision proceedings can be submitted within ninety days which reads as follows:-- "56. Time for application for exercise of Civil Jurisdiction.--- Applications for the exercise of the Court's jurisdiction under section 115 of the Code, section 25 of the Provincial Small Cause Courts Act, 18a7, or Courts Act, 1929, shall be made within 90 days from the date of the decision complained against, exclusive of the time required for obtaining copies."
27. ' Thus even if it is held that the application for restoration of revision application amounts to initiation of proceedings in the nature of civil revision, at the most the period of limitation for submitting such application can be held to be ninety days and not three years as contended by Mr. Jhamat Jethanand.
28. Consequent to the above discussion, it is held that, first, no interest has been created in favour of the applicants Muhammad Aslam Shah and Aftab Shah during the pendency of the suit/appeal/revision application and, therefore, the applicants cannot avail the provisions contained in Order 22, rule 10, C.P.C. Secondly, no interest in the land has been created in favour of the father of the applicants and consequently, in favour of the applicants who are claiming the title in the land through their father, therefore, they have no right to submit an application under Order 9, rule 9, C.P.C. Or under any-other provision for restoration of the revision application which was dismissed on 27-2-1998 and even otherwise the proceedings stood abated with -the death of applicant Jumo on 5-8-1992 as stated by the applicants with further statement that he has not left any legal representative and consequently, the right to pursue the proceedings has not survived.
29. Thirdly, the application for restoration is hopelessly barred by time and the provisions of section 5 of the Limitation Act are not applicable to the civil revision as held by the Honourable Supreme Court in the case of Allah Dino (supra).
30. ' Consequent to the above findings all the four applications stand dismissed.