' On 21-3-1982 Sardar All predecessor of the present respondent filed a suit against the petitioners before the Civil Court at Burewala seeking a declaration that he was owner of the suit-land as described in para. 1 of the plaint and that he was entitled to its recovery. Also that orders dated 8- 6-1974 and 25-6-1976 of the Deputy Settlement Commissioner (L) and Assistant Commissioner, Pakpattan Sharif were illegal, void and without jurisdiction.
2. In the plaint it was inter alia alleged that on 13-2-1957 the Settlement Authorities allotted 14 Kanals of land from one Khata in dispute to Abdullah son of Jalal and 2 Kanals to Dulla, son of Dina refugee claimants who were predecessor of the defendants/present petitioners. The suit-land, however, was cancelled from their name on 12-9-1963 and subsequently confirmed in favor of the plaintiffs by the Commissioner Rehabilitation. Again on 8-6-1974 it was cancelled from the name of the plaintiffs by way of the first impugned order made by Deputy Settlement Commissioner (L) and then given back to the defendants/present petitioners on 25-6-1976 by the Assistant Land Commissioner, Pakpattan Sharif.
3. In their written statement, the defendants/present petitioners alleged that it was a case of double allotment and that the cancellation of earlier allotment was only rectified by way of subsequently allotment. Also a number of legal objections to the maintainability of the suit were raised.
4. On the pleadings of the parties, eight issues were framed. After recording of evidence and hearing both the parties learned trial Court on 6-10-1985 dismissed the suit. Earlier it was found that allotment in favor of the plaintiffs without cancellation of the earlier allotment in favor of the defendants was not warranted by law. Reference in this regard was made to the ratio settled in (1986 SCM R 1331). While deciding Issue No,4, it was observed that the land in dispute was finally cancelled from the name of the plaintiff vide Exh.P.11 on 25-6-1975 while the suit was filed on 21-3- 1982. The trial Court noted that although a prayer for possession had also been made yet no declaration against the impugned order dated 8-6-1974 and 25-6-1974 could be given after expiry of six years as the suit was filed beyond six years, 3 months and four days after the passing of the order dated 25-6-1976. Accordingly the suit was also found to be barred by limitation.
5. Learned First Appellate Court/Additional District Judge, Vehari, however, thought it otherwise.
While reversing the judgment and decree of the trial Court through his order dated 16-10-1986, Learned First Appellate Authority disagreed that allotment of the land in dispute in favor of the plaintiffs was made without cancellation of the allotment in favor of the defendants. He referred to the order of Chairman, Allotment Committee on RL-II, Exh.P.10. Further that the allotment of the defendants was cancelled on 12-3-1963 which was not challenged. It was also noted that the plaintiff/appellant was not heard while passing the impugned order by Settlement Authority on 25- 6-1976 and that the same was otherwise unlawful inasmuch as purportedly it was based upon an order of this Court recorded on 4-3-1974 in Writ Petition No,4558-R of 1963 whereas none of the parties to the suit was a party in that Constitutional petition.
6. The view of the trial Court that the suit was barred by time was also disapproved. It was noted that the plaintiff had brought the suit in the year 1982 while he was dispossessed only two years earlier in 1980. Also that the order passed on 8-6-1974 was preliminary order and was not final and that the limitation prescribed under Article 120 of the Limitation Act providing a limitation of six years ought to have been counted from the final order dated 25-6-1976 and not from the preliminary order dated 8-6-1974. Accordingly, the judgment and decree of the learned trial Court was set aside. Also the impugned orders dated 8-6-1974 and 25-6-1976 of the Settlement Authorities were set aside leaving the case open for them to decide the matter afresh after hearing both the parties in the light of his observations.
7. After hearing the parties at length, I am of the view that the impugned order is evidently misdirected. It is strange to note that the relief of possession was not allowed to the plaintiff/present respondents. Also that the respondents have not filed a revision against the impugned order. From the operative part of the order it appears that the learned First Appellate Authority had remanded the case to the Settlement Authorities keeping intact the possession of the present petitioners. This order necessarily operates both ways and against both the parties.
However, it cuts more the respondents rather than the petitioner.
8. There are other factual in accuracies with which the impugned order suffers from: Firstly it was not correct to observe that the order of the Settlement Authority dated 8-6-1974 was preliminary in nature. This view of that order appears to have been borrowed from the learned trial Court which was equally incorrect. The fact of the matter is that on 8-6-1974 in view of a judgment of this Court dated 4-3-1974 the order of the RCL . Dated 12-9-1963 (whereby the allotment of the defendants/present petitioners was cancelled) was set aside and the previous allotment was restored. This was in fact the basic order recorded by Deputy Settlement Commissioner (L) on 8-6- 1974. Therefore, it was rightly challenged by the plaintiff as the basic order. The second order dated 25-6-1976 was only a kind of explanatory note to the original order or an order passed only to give effect to the earlier order of the Settlement Authorities. The view of the learned First Appellate Authority that neither the order dated 8-6-1974 nor that of 25-6-1976 could be recorded to give effect to the order of this Court even if accepted as correct the situation as far the plaintiff is concerned does not change at all. Whether the present parties were strangers to the petitioner in which that order was passed also cannot be a moot point. Nor the fact if that judgment of-this Court was in rem or in person am. After recording of that order on 8-6-1974 practically the plaintiff was divested of his title. It is almost admitted between the parties and even the suggestion to one of the defendants in his cross-examination supports the fact that the possession of land in dispute was taken over by the defendants/present petitioners in the year 1974. Therefore, the order of the Settlement Authorities dated 8-6-1974 and the factum of taking over of possession by the defendants/present petitioners both jointly and severally provided a cause of action to the petitioner wherefrom the time of limitation had to be started.
9. It is not clear as to where from the learned First Appellate Authority had deduced that the plaintiff was dispossessed in the year 1980. As said earlier the dispossession of the plaintiff happened quite some time earlier. It will also be seen that after being dispossessed the silence of the petitioner for a number of years or even for two years as opined by the learned First Appellate Authority finds no explanation. Whether the order of this Court was wrongly implemented in the form of the order dated 8-6-1974, the fact remains that on adverse order against the plaintiff was recorded and he had to challenge the same within the prescribed limitation of six years as provided for in the residuary Article 120. The factum of his dispossession made it all the more urgent for him to agitate the matter well in time. However, it was not done. The copy of Khasra Girdawaris for Kharif 1976 to 1980 Exh.D.3 also supports the case of the defendants as for their claim of possession is concerned.
Also the order dated 22-9-1963 having been set aside and earlier allotment in favor of the defendants/present petitioners having been restored by the order dated 8-6-1974, the findings recorded by the First Appellate Authority in this regard appear to be against the record. Further, the view of the learned First Appellate Authority that the limitation ought to have been taken from 25- 6-1976 does not find support from the record.
10. Learned counsel for the respondent is very firm in his contention that both the aforesaid orders of the Settlement Authorities were totally void after the repeal of the Settlement Laws by way of the repealing Act of 1975 reported as (1975 Central Statutes 87) had come into operation. He states that neither any matter was pending before the Settlement Authorities nor the issue stood decided or remanded by any superior Court. Also alleges that the officer making the orders not being a notified officer these were otherwise against law. Therefore, in his view the orders of the Settlement Authorities per se are illegal and void. In support of the submissions learned counsel places reliance upon a recent judgment of the Supreme Court of Pakistan in re: Nawabzada Zafar Ali Khan and others v. Chief Settlement Commissioner reported as 1999 SCM R 1719.
11. All the submissions so made, however, cannot be accepted on their face value. In the first instance the Repealing Act was effective from 1-7-1974 while the order dated 12-9-1963 setting aside the allotment in the name of the defendants/present petitioners was cancelled and the original Khata was restored on 8-6-1974 by Deputy Settlement Commissioner (L). On that day he was fully competent to make such an order. If it was erroneous the petitioner had to assail the same within prescribed limitation. At any rate the ratio settled in the aforesaid judgment of the Supreme Court is clearly not attracted as the impugned order dated 8-6-1974 was made by the Settlement Authorities earlier to the cut-off date of 1-7-1974 as determined in the aforesaid repealing Act. Secondly even if the later order dated 25-6-1976 is not taken into account whereby the land in question was expressly restored to the defendants still the case of the plaintiff will not find any support. His ownership and entitlement to the land in dispute stood cancelled on 8-6-1974 and even if the later order was not made by a notified officer or a Competent Authority, he will not benefit anything out of it inasmuch as the cancellation of his entitlement was made by an officer competent both in law and in fact.
12. Accordingly I will agree with the learned counsel for the petitioners that the learned First Appellate Authority misread the aforesaid order as also Exh.D.2 to Exh.D.4 and, therefore, exercised its jurisdiction with material irregularity. The impugned order shall accordingly be reversed and as .a result, thereof, the suit filed by the predecessor-in-interest of the present respondent Sardar Ali shall be dismissed with costs.