' By this judgment I propose to dispose of above titled fifteen civil revision applications which arise out of common judgment dated 28-8-1997 passed by IV-Additional District Judge Karachi South, whereby fifteen identical Civil Appeals Nos.20 of 1996 to 34 of 1996 preferred by the applicants were dismissed and consequently consolidated judgment dated 31-1-1996 and decrees dated 7-3-1996 passed by the Court of III-Senior Civil Judge Karachi South, in Suits Nos.1255 to 1262 of 1985 and 1267 to 1273 of 1985, (new numbers) (all suits were originally instituted in the year 1979) decreeing the suits for declaration, permanent injunction and compensation filed by the respondents, were maintained.
2. The relevant facts to be noted here are that in the year 1979 all the respondents (in some cases their predecessor in interest) filed their respective suits before the Court of III-Senior Civil Judge Karachi South, asscr ting therein that they had purchased their respective tenements in multi storeyed building constructed over Plots Nos.0T6/65 and OT6/66 through registered sale-deeds executed in their favour by Mst. Zulekha and Mst. Fatima in the year 1979. Originally this property was transferred to one Bashiruddin from the Settlement Department under PTDs Nos.9681 dated 8- 10-1965 and 5131 dated 29-6-1965, who thereafter sold this property to Mst. Zulekha and Mst.
Fatima. The fact that the status of property No.0T6/65 was that of an Evacuee Trust Property came to the knowledge of Bashiruddin as well as Mst. Zulekha and Mst. Fatima when applicant No.1 filed an application under sections' 8 and 10(2) of the Evacuee Trust Properties Act XIII of 1975 (hereinafter referred to as Act of 1975) before the Chairman Evacuee Trust Property Board, who vide his order dated 29th January, 1978 validated PTD in respect of Plot No.OT-6/65 in favour of transferee Bashiruddin. Thereafter a registered sale-deed was executed by Bashiruddin in favour of Mst. Zulekha and Mst. Fatima on 13-2-1978. These two ladies raised construction of multi storeyed building over amalgamated plots Nos. OT6/65 and OT6/66 and sold its various tenements to the respondents under registered deeds executed in the year 1979. Subsequent to this respondents received notices dated 2679-1979 issued by applicant No.1 for their ejectment from property over Plot No.0T6/65, being Evacuee Trust Property. Further case of the respondents is that they had no knowledge that after passing of order by the Chairman, Evacuee Trust Property Board further proceedings were held before the Joint Secretary, Ministry of Religious Affairs, Government of Pakistan, Islamabad (applicant No.3), who in exercise of his powers under section 17 of the Act of 1975 set aside the order of Chairman Evacuee Trust Property Board, validating the PTD of Bashiruddin and restored the status of Property No. OT6/65 as Evacuee Trust Property. In the above background, to protect their interests in the suit property, respondents filed their respective suits with the following identical prayers except that each respondent disclosed in his plaint number of the flat/tenement and its corresponding floor number: "(a) Declare that the plaintiff is sole and absolute owner of the flat/tenement No.8 on the 4th Floor in the 7 storey newly constructed multi-storeyed building on Plot No.O.T.6/65 and O.T. 6/66 situated in the Old Town Karachi by virtue of the Registered sale-deed.
(b) Restrain the defendants, their superiors and subordinantes or any person claiming through or under them from claiming the said property as Evacuee Trust Property or of any other nature/status.
(c) Declare that the acts and actions proposed or taken are not only without authority/jurisdiction but are also mala fide.
(d) Grant a decree of Rs.4,000 as compensation against the defendant in his official and in his personal capacity for the acts of mala fide.
(e) Give and grant such other relief/reliefs as may be expedient in the interest, of Justice and circumstances of the case.
(f) Special and exemplary costs."
3 The applicant No.1 who was the only defendant in the suit wheninstituted in the year 1979 filed his written statement on 8-3-1981 wherein he agitated that the status of Property No.OT6/65 as Evacuee Trust Property was never in dispute as is evident from Government record including the Gazette Notification dated 15th July, 1963 and thus transfer of this property in favour of Bashiruddin by the Settlement Department was mala fide and illegal so also all subsequent transactions. The applicant No.1 did not dispute issuance of Show-cause Notice dated 26-9-1979 under section 25 of the Act of 1975 and claimed it to be legal, he further challenged the jurisdiction of Civil Court by virtue of sections 8 and 14 of the Act of 1975. The maintainability of the suit was also questioned due to the lack of pecuniary jurisdiction of the Civil Court.
4. On the above pleadings of the parties six issues were framed by the Court in all the suits on 4-7- 1981. Thereafter by order dated 22-9-1981 all the suits were consolidated and Suit No.2407 of 1979 (new No.1262 of 1985) was treated as leading suit. After recording of evidence these issues were answered in favour of respondents and consequently all the suits were decreed by a consolidated judgment dated 6-8-1989, followed by decree dated 16-8-1989.
5. Against the aforesaid judgment and decrees Evacuee Trust Property Board preferred 15 Civil Appeals before the Court of District Judge Karachi South being Civil Appeals Nos.208 to 222 of 1989 which were dismissed by District Judge Karachi South by common judgment and decree dated 1- 2-1990 and 11-2-1990 respectively.
6. The applicants thereafter filed Civil Revision Applications Nos.210 to 224 of 1990 which were allowed by this Court by its judgment dated 26-4-1992 and suits were remanded to the lower Court to decide the same afresh after impleading applicants Nos.2 and 3 as defendants in the suit and further both the parties were allowed to lead any additional evidence. After this order of remand plaint was accordingly amended whereafter applicants Nos.1 and 2 filed their written statement dated 12-1-1994, denying the claim of the respondents and also raising various legal pleas to challenge the maintainability of suits and jurisdiction of Civil Court. Same written statement was adopted by applicant No.3 by statement dated 2-7-1994.
7. The perusal of case record reveals that during the past remand proceedings conciliated issues were framed by the Court on 15-8-1994. Thereafter by consent order dated 7-5-1995 four other issues were added and filially these issues were renumbered/re-cast ',before passing of Judgment in terms of the order dated 28-11-1995. However after re-framing, of issues no further evidence was led by ttie parties as all the parties relied on the evidence already available on record of the lower Court. Such statement dated 27-8-1995 filed on behalf of the respondents is also available in the lower Court record.
8. After hearing of arguments, by consolidated judgment dated 31-1-1996, all the suits were decreed and such consolidated decree was drawn on 7-3-1996. Appeal preferred against such Judgment and decree by the applicants, being Civil Appeals Nos.20 of 1996 to 34 of 1996 were heard by the learned IV-Additional District Judge Karachi South who dismissed the same by his common judgment dated 28-8-1997. The two judgments and consequent decrees against the applicants have been impugned in these revision applications, wherein the grounds urged are common.
9. I have heard the arguments advanced by Mr. Ashiq Ali Anwar Rana, Advocate for the applicants, and Mr. Abdul Latif A. Shakoor, Advocate for respondents, in all the revision applications.
10. Mr. Ashiq Ali Anwar Rana, at the outset of his arguments, seriously questioned the jurisdiction of the Civil Court in entertaining the suits filed by respondents and in this context referred sections 8 and 14 of the Act of 1975. He contended that it is an admitted posiiion that the suit property bearing Survey No.OT-6/65 was notified as evacuee trust property in the Gazette Notification dated 15th July, 1963 issued by the of Government of Pakistan and in such circumstances no other authority, except the authority notified for this purpose under the Act of 1975 viz. Chairman, Evacuee-Trust Property Board, had jurisdiction to netermine its status otherwise. For this purpose learned counsel referred section 8. Of the Act of 1975. Referring to the order of Additional. Settlement Commissioner dated 2-10-1963 he contended that the said officer had no jurisdiction to hold that the property was neither religious, charitable or educational nor attached to the same or that if it was private trust then it could be disposed of by the Settlement Authorities. He urged that even if it was a private trust then no .Distinction could be made between a private trust or public trust to nullify the effect of the Gazette Notification dated 15-7-1963 issued by the Government of Pakistan. He termed the said order as an order without jurisdiction, void ab initio which was liable to be ignored. Mr. Rana next contended that the finality attached to the order of the Chairman, deciding the question of validation of PTD or otherwise in respect of an evacuee trust property, under section 10 of theAct of 1975, was subject to the revisional jurisdiction under section 17 of the Act of 1975, therefore, the order of applicant.No.3 determining the status of suit property as evacuee trust property and refusing to validate the PTD issued in respect thereof is fully justified, legal and final. Referring to the contents of the plaint in the suits, which are substantially identical in all the cases, learned counsel contended that non-joining of applicants No.2 and 3 as party to the suit at the time of its institution is fatal as joining of these applicants to the suit after lapse of more than 13/14 years has made the claim of the respondents against them time-barred. He further contended that seeking of no relief in the suit in respect of the order dated 17-5-1979 passed by the applicant No.3 is also fatal to the maintainability of the suits as without first setting aside this order no other relief could be allowed to the respondents. Criticizing the judgments of two Courts below, learned counsel , contended that findings recorded therein on the point of jurisdiction are misconceived as both the Courts below failed to take notice of the Gazettee Notification dated 15-7-1963 declaring suit property as evacuee trust property which fact was even not disputed by the respondents in their plaint.
Learned counsel also contended that section 10 of the Act of 1975 visualizes certain pre-conditions for validation of PTD therefore, mere issuance of PTD before the target date will not justify passing of validation order by the Chairman of Evacuee Trust Property Board, unless other conditions are also fulfilled. He referred the orders dated 29-1-1978 passed by the Chairman Evacuee Trust Property BOard to show its sketchy nature and also the order dated 17-5-1979 passed by the applicant No.3 to add force to his submissions that exercise of suo motu powers by applicant No.3, thereby setting aside the earlier order dated 29-1-1978 was not only legal but demonstrated proper, exercise of ' jurisdiction by applicant No.3. Mr. Rana lastly submitted that findings of both the Courts below are based on misreading of evidence contrary to the relevant provisions of law and without jurisdiction, thus, not immune, from interference by this Court in exercise of its revisional jurisdiction. To fortify his submissions, learned counsel placed reliance on the following cases.
(a) Mst. Hafeez Begum v. Assistant Administrator Evacuee Trust Property (PLD 1983 Karachi 374).
(b) Evacuee Trust Property Board v. Mst. Zakia Begum (1992 SCMR 1313).
(c) Rashida Begum v. Ameer Yousuf Ali (1995 SCMR 183). .(d) Federal Government of Pakistan v. Khursheed Zaman Khan . (1999 SCMR 1007)
(e) Federation of Pakistan v. Mufti Iftikharuddin (2000 SCMR 1)
(f) Muhammad Ibrahim v. Secretary to the Government of Pakistan and 4 others (PLD 1993 Karachi 483)
11. A review of the above ca;cs shows, that in the case of Mst. Hafeez Begum (supra) examining the scope of sections 8 and 10 of the Act of 1975, it was held that power to determine whether an evacuee property was attached to a charitable or other specified trust was within the domain of Chairman. Regarding validation of PTD, it was observed that such powers can be exercised by the Chairman only subject to fulfilment of all conditions laid down under the said provisions of law. It was further held that even the private religious trust property will fall within the definition of evacuee trust property. In the case of Evacuee Trust Property Board (supra) it was held by the Apex Court that powers of validation provided under section 10 of the Act of 1975, exclusively vests in the Chairman, Evacuee Trust Board. Further, examining the scope of section 14 of 'the Act of 1975 regarding bar of jurisdiction of Civil Courts, it was held that Civil Court has no jurisdiction to grant declaration about the status of evacuee trust property. In the result, declaratory decree; passed by the Civil Court which was affirmed by the High Court, was set aside on the ground of jurisdiction. In the case of Rashida Begum (supra). Apex Court, examining the question of bonafide transfer of evacuee trust property, held that petitioner's plea that transfer of evacuee trust property in his favour having been made prior to June, 1968 was saved, was not tenable. It was further held that the revisional Authority and the High Court were justified in holding that such transfer in favour of petitioner's predecessor was not bona fide in view of the facts that Settlement Authority first time declared property in question as trust property on 9-2-1963, but subsequently petitioner obtained transfer order knowing well that the property in question was claimed as trust property. In the case of Federal Government of Pakistan (supra), the Honourable Supreme Court, inter alia, considering the question of filing a revision application under section 17 of the Act of 1975 beyond the prescribed period of limitation yis-a-viz suo motu powers of revisional authority, after making specific reference to the language of section 17 observed that when revision application is preferred by an aggrieved party after the expiry of 15 days from the date of the impugned order, the Federal Government, the revisional Authority, can dismiss the application as time-barred, but it does not place any embargo on the Federal Government of revisional authority to exercise its suo motu powers under the main provision, in case it is of the opinion that the matter calls for determining the correctness legality or property of any order. The fact that the matter had come to the notice of the Federal Government through an application made by any person including an aggrieved party, would not debar the Federal Government from exercising revisional powers suo motu. In the case of Federation ofPakistan (supra) the scope-of sections 8, 9, 10, 14 and 21 of the Act of 1975 was thoroughly examined in the light of injunctions of Islam and it was held that said sections of the Act of 1975 do not contain anything which is in derogation of the Injunctions of Islam laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him). However, in the concluding paragraph of the judgment the Federal Government was directed to suitably amend the Act of 1975 by inserting the provisions providing right of appeal against the order passed by the Chairman under section 8 of the Act of 1975, In the case of Muhammad Ibrahim (supra) the scope of applicability of section 41 of the Transfer of Property Act 1882, was examined with reference to the provisions of Section 8 of the Act of 1975 and sections 10 and 11 of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and it was held that absolute protection was not available to the transferees as allotment of evacuee properties was subject to the provisions of section 10 and 11 of the Displaced Persons (Compensation and Rehabilitation) Act 1958, therefore, every purchaser from an allottee was to be saddled with the knowledge that transaction of purchaser was subject to the incidence of such provisions of the Act of 1958 and in such circumstances plea of protection on the principle of section 41 of the Transfer of Property Act could not be raised, and remedy for the purchaser would be against the vendor and.Not against the department in question.
12. In reply to the submissions of Mr. Ashique Ali Anwar Rana, on the other hand, Mr. Abdul Latif A.
Shakoor, learned counsel for the respondents contended that all the respondents are bona fide purchasers of their respective tenements in the suit property for valuable consideration, such sale- deeds were executed in their favour on 17-3-1979, after passing of order dated 29-1-1978 the Chairman Evacuee Trust Property Board, therefore, being bona fide purchaser for valuable consideration, their rights in the suit property are protected under section 41 of the Transfer of Property Act. He next contended that by order dated 2-10-1963 passed by Additional Settlement Commissioner (Judicial), the suit property was taken into compensation pool and thereafter validly transferred to Bashiruddin in lieu of his claim, therefore, its sale to Mst. Zulaikha and Mst. Fatima on 13-2-1978 and thereafter to the respondents had conferred valid and legal title in their favour.
Learned counsel was, however, unable to show that under what provision of law said officer under the hierarchy of Settlement and Rehabilitation Laws was competent to nullify the effect of Gazette Notification dated 15-7-1963 issued by the Government of Pakistan, treating the suit property as evacuee trust property, or had jurisdiction to order its transfer to Bashiruddin, though treating it as a private trust. Learned counsel next contended that validation of PTD, as provided under section 10 of the Act of 1975, in the cases where PTD were issued before the target date viz. June, 1868 was mere formality, therefore, the Chairman, Evacuee Trust Property Board had rightly validated PTD of Bashiruddin. Referring to the order of revisional authority viz applicant No.3 dated 17-5-1979, he contended that revision application preferred before the applicant No.3 was time-barred and ought to have been dismissed, as such, and exercise of suo motu jurisdiction by applicant No.3, in such circumstances was unwarranted by law. Learned counsel, however, did not controvert any of the reasons assigned by the applicant No.3 in its order dated 17-5-1979 which formed basis for setting aside order of Chairman dated 29-1-1978. He also did not dispute that from 15-7-1963 and even before that the status of suit property was determined as evacuee trust property and it was for this reason that initially C.H. Form filed by Bashiruddin for transfer of this property was rejected by the Settlement Authorities and after enactment of Act of 1975 the Chairman Evacuee Trust Property Board was moved under section 10 for validation of PTD, Mr. Latif A. Shakoor urged that in the facts and circumstances of the case civil Court had jurisdiction to entertain suits filed by the respondents and to determine the status of suit property. He further contended that judgments of two Courts below are based on proper appreciation of evidence thus the same are absolved from interference under the revisional jurisdiction of this Court under section 115 C.P.C. When asked to show whether the final order dated 17-5-1979 passed by the applicant No.3 refusing to validate the PTD of Bashiruddin in respect of suit property was challenged by the respondents in their respective suits, learned counsel firstly conceded that this has not been done by them. However, latter on learned counsel relied on prayer clause-C of the plaint to save maintainability of the suit on this account. Learned counsel lastly challenged the maintainability of these revision applications on the ground that same' are time-barred. He contended that these revision applications have been instituted after more than 90 days, as prescribed under Section 115 C.P.C.
For this purpose, thus, same are time-barred and liable to be dismissed as such. In support of his arguments, learned counsel placed reliance on the following case:--
(i) Divisional Evacuee Trust Property Committee Hyderabad v. Deputy Commissioner and another (1989 SCMR 1610)
(ii) District Evacuee Trust Committee v. Musharaf Khan and ?Others (1989 SCMR 1636).
(iii) Mst. Bani and 5 others v. Government of Pakistan and 4 of (1999 SCMR 2927).
(iv) Nasrullah Khan and 8 others v. Chief Settlement Comm Sargodha Division, Sargodha and 4 others (19f 2519).
(v) Evacuee Trust Property Board v. Abdul Aziz Khan and 6 others (2000 SCMR 1371)
(vi) Evacuee Trust Property and others v. Muhammad Ramzan and others (2000 MLD 100)
(vii) Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346)
(viii)Allah Dino and another v. Muhammad Shah and others (2001 SCMR 286)
(ix) Muhammad Hanif v. Mst. Kausar Robina (2000 CLC 1551)
(x) Kanwal Nain and 3 others v. Fateh Khan and others (PLD 1983 SC 53).
13. The perusal of above cited cases shows that in the first case, in the context of facts involved in that case, it was held that bona fide transfers of evacuee trust properties against satisfaction of verified claims, in the cases where PTDs were issued prior to June 1968, were validated and saved under section 10 of the Act 1975. In the second case similar view, as in the first case was affirmed. In the third case it was held that the order passed by Chairman, Evacuee Trust Property Board, on reference under section 4(3) of Displaced Persons (Compensation and . Rehabilitation) Act 1958, once attained finality, could not be collaterally challenged before its successor at the instance of the Government as its effect was saved under section 32 of the Act 1975. It was further held that transfer did not necessarily mean the issuance of PTD and even issuance of PTO on payment of full transfer price before the target date had met the requirement of section 10 of the Act of 1975, thus, property stood validly transferred to the transferee. In the fourth case, while examining the question of validity of transfer of evacuee trust property on the basis of PTD, it was observed that in case such property was subsequently declared as evacuee trust property, subject to the fulfilment of conditions provided under Section 10(1)(b) of the Act of 1975, such - transfer stood validated under the Act of 1975. In the fifth case, examining the question of bar of jurisdiction, as provided by section 14 of the Act of 1975, it was held that where the disputed property was not treated as evacuee trust property bar of jurisdiction cannot be pressed into service. In the sixth case bar of section 14 of the Act of 1975 was taken into account and it was observed that where non-evacuee property was treated as evacuee trust property the Notification with regard to non-evacuee property was outside the scope of Act of 1975, thus, jurisdiction of Trust Board was ousted. It was further held that an act without urisdiction could always be checked by a Civil Court. In the seventh se scope of revisional jurisdiction of the High Court was discussed. Itwas held that unless the case was covered by section 115(a)(b)(c), revisional jurisdiction cannot be exercised. In the eighth case question of non-applicability of section 5 of the Limitation Act in the proceedings under section 115 C.P.C. Was taken into consideration and it was held that where the law, under which proceedings were launched, itself prescribed period of limitation then benefit of section 5 of the Limitation Act could not be availed unless the same had been made applicable as per section 29(2) of the Limitation Act. In the ninth case, while dealing with a revision application under section 115 C.P.C., it was observed that provisions of section 5 of the Limitation Act were not applicable to such proceedings, thus delay cannot be condoned. In the tenth case, the scope of section 41 of the Transfer of Property Act was examined and it was held that fulfillment of certain conditions was necessary for application of this section; namely (i) the transferor is the. Ostensible owiter;
(ii) he is so by the consent, express or implied, of the real owner; (iii) the transfer is for consideration; (iv) the transferee had acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.
14. I have considered the arguments advanced by the learned counsel and carefully perused the cases record.
15. Since the question of jurisdiction was specifically raised by the applicants in their written statement filed before the lower Court with reference to sections 8 and 14 of the Act of 1975 it will be appropriate to reproduce these provisions of law hereunder and to examine this aspect in the first instance: "Section 8. Declaration of property as evacuee trust property.(1) If a question arises whether an evacuee property is attached to charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not, except as provided in subsection (4) be called in question in any Court.
2. If the decision of the Chairman under subsection (1) is that an evacuee property. Is evacuee trust property, he shall, by notification in the official Gazette declare such property to be evacuee trust property.
3. If a property is declared to be evacuee trust property under subsection (2) the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession mid assume administrative control, management and maintenance thereof; ' Provided that no declaration under section (2) or order under subsection (3) shall be made or passed in respect of any property without giving the persons having interest in that property a reasonable opportunity of being heard.
4. Any person aggrieved by a declaration under subsection (2) or an order under section (3) may, within thirty days of such declaration or order, prefer an appeal to the High Court".
"Section 14: Bar of jurisdiction. Save as otherwise provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."
16. A plain reading of section 8 of the Act of 1975 goes to show that when any question arises whether an evacuee property is attached to charitable, religious or educational trust or institution or not, only the Chairman holds the jurisdiction to decide such question which is final and cannot be called in question in any Court. Under subsection (3) to section 8 Chairman has further been conferred with the powers to pass an order cancelling the allotment or alienation in respect of such properties and to take possession and assume administrative control, management and maintenance thereof. Under section 14 of the Act of 1975 it has been provided that the Civil Courts shall have no jurisdiction in respect of any matter in which the Federal Government or any officer appointed under this Act is empowered to determine, and no injunction, process or order shall be granted/issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. Further dilating upon the question of jurisdiction when the provisions of sections 10 and 17 of the Act of 1975 are examined it becomes evident that Chairman as defined under the Act of 1975 has been vested with the jurisdiction of validation of certain transfers subject to fulfillment of conditions as provided under subsections (1)
(a) and (b) of section 10 of the Act of 1975, his decision in this regard is final and cannot be called in queition in any Court. Such decision of the Chairman is however subject to revisional jurisdiction of the Federal Government or any officer notified by the Federal Government` in this regard and such revisional powers can be exercised after passing of order of the Chairman either on the application of any aggrieved person or suo motu.
17. In the instant case it is an admitted position that after passing of order of validation by the Chairman Evacuee. Trust Property Board dated 29th January, 1978 the applicant No.1 had taken the matter before the Joint Secretary, Ministry of Religious Affairs and Minority, Government of Pakistan, Islamabad, through a revision petition and at the stage, after due opportunity of hearing to the original transferee Bashiruddin so also Mst. Zulekha and Mst. Fatima, who were claiming some title in the property in question at the time, in exercise of suo motu jurisdiction order dated 17th May,1979 was passed by applicant No.3 whereby the earlier order passed by the Chairman was set aside and the status of the Property No.0T6/65 was restored as evacuee trust property. Learned counsel for respondents has not disputed before this Court that under the scheme of Act of 1975, in respect of any decision or order passed by the Chairman in exercise of his powers under section 10, revisional jurisdiction was vested with the Federal Government or any officer notified by it for this purpose and such jurisdiction was lawfully and justly exercised by the applicant No.3.
18. In the context of jurisdiction when impugned judgment passed by the two Courts below are perused it is palpably cleared that the concurrent findings of two Courts below on this aspect are fallacious and lack application of mind. Both the Courts failed to take note of the fact that vide notification dated 15-7-1963 (Exh.D/2) the suit property was declared as Evacuee Trust Property, therefore, by virtue of section 4(2) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 (hereinafter referred to as the Act of 1958) it did not form part of Compensation Pool so as to be available for transfer under any Scheme framed for transfer of evacuee properties, but formed part of separate trust pool. The order date 2-10-1963 passed by the Additional Settlement Commissioner (Judicial) was thus without jurisdiction, null and void. This view of the matter is fortified from the case of Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi and .Others (PLD 1965 SC 356) wherein the Hon'ble Supreme Court examined the relevant provisions of the Act of 1958 and held that the view that a property could only be excluded from Compensation Pool if it was actually being utilized for a charitable, religious or educational purpose was not correct as Settlement Authorities have only jurisdiction to transfer or dispose of such properties which comes into Compensation Pool. The authorities under the hierarchy of such law have no power to decide which property should or should not come into Compensation Pool or to adjudicate whether a particular property has been rightly treated or included in such pool. It was further held that decision of such authorities purporting to decide whether property was held In trust for any of the purposes specified in section 4(2) of the Act of 1958 or to record their finding to the contrary, was without jurisdiction in both situations. It was further observed that properties which were held in trust for any of the purposes specified in section 4(2) of the Act of 1958 were to be dealt with the differently by framing schemes under section 16-A of the Act of 1958.
19. In view of the above discussion I am of considered view that the suit property all along remained an evacuee trust property therefore the Civil Court had no jurisdiction to entertain suits instituted by respondents in respect thereof or to grant them any relief in respect of the matter in which an officer notified under the Act of 1975 had exclusive jurisdiction. With reference to the maintainability of the suit another important aspect which skipped sight of both the Courts below is non-joinder of necessary parties viz. Applicants Nos.2 and 3 at the time of institution of suit vis-a-vis limitation.
Perusal of case record reveals that initially when the suit was instituted in the year 1979 only applicant Nci.1 was impleaded as defendant in the suit. The judgments and decrees passed by the Civil Court and the Appellate Court in the first round of C litigation were set aside by consent order of this Court dated 26-4-1992 whereafter as per observations of this Court contained in the said order applicants Nos.2 and 3 were also joined as defendants in the suit. Needless to observe that joining of applicants Nos.2 and 3 as defendants in the suit was subject to all other legal implications, thus, on one hand at the time of institution of suit, suit against applicant No.1 alone was bad for non-joinder of necessary parties and not maintainable (see Secretary B& R Government of West Pakistan and 4 others v. Fazal Ali Khan, PLD 1971 Kar. 625). On the other hand at the time of joining of applicant No.2 as defendant No.2 in the suit on 23-11-1992 and thereafter, applicant No.3 as defendant No.3 in the suit on 1.2-2-1993 it had become hopelessly time-barred against them and thus on this account too suit was not maintainable. (see PLD 1985 SC AJ&K) 102).
20. Since learned counsel for the respondents has referred the order of Chairman Evacuee Trust Property Board dated 29-1-1978 to substantiate the claim of respondents, I have perused this order so also the revisional order dated 17-5-1979 passed by applicant No.3 whereby the said order was set aside. The contents of order passed by the Chairman reveal that it was a sketchy order inasmuch as the concerned officer while exercising his powers under section 10 of the Act of 1975 dip' not bother to carefully examine fulfilment of all the pre-conditions for validation, as provided under section 10 of the said Act. On the other hand the applicant No.3 at the time of passing of order dated 17th May, 1979 minutely and carefully examined all the relevant aspects of the matter and passed a legal and speaking order. The relevant paragraphs of the order are reproduced as under:- "The counsel for the Board.Has convincingly argued before me that the PTD was issued to Bashiruddin on the 15th October, 1965 when it was fully known to the authorities that the property was evacuee trust property and it could not be validly . Transferred to any person. In support of his contention he has adduced the following evidence:
(i) On 18-8-1960 C.H., Form was rejected on the ground that it is trust property.
(ii) City Survey record shows it to be evacuee trust property.
(iii) Register of preliminary Survey dated 18th April, 1950 which shows it to be evacuee trust property.
(iv) Additional Settlement Commissioner declared on the 2nd October, 1963 that it is trust property.
(v) At serial No.236 on page 86 of the Gazette of Pakistan dated August 9, 1963, this property is shown as trust property.
' The representative of the Settlement Department showed me the original record to prove the trust nature of the property. The above is ample evidence to show that this property was widely known as trust in nature and the question of its transfer to anybody when such transfer was manifestly illegal could not have taken place except for mala fide reasons. This is further confirmed by the report of Mr. Muhammad Akhlaque Khan, Additional Settlement Commissioner, Karachi, who has stated that the 'Estate of Kewal Ram Choutumal' is evidently trust property attached to a charitable institution and its transfer by the Settlement Department was mala fide."
21. When confronted with the solid reasons given by applicant No.3 in his order for holding the status of suit property as evacuee trust property and its transfer by Settlement Authorities in favour of Bashiruddin as mala fide, Mr. Latif A, Shakoor was unable to controvert these facts from any material on record. He however, relied on the order dated 2-10-1963 passed by the Additional Settlement Commissioner (Judicial) whereby after rejection of C.H. Form of applicant Bashiruddin in respect of Property No.0T6/65, in appeal said order was set aside and case was remanded to the Deputy Settlement Commissioner for fresh decision. In this order it was observed by the Additional Settlement Commissioner (Judicial) that the property in question though notified by the Government as Evacuee Trust Property was neither religious, charitable and educational nor attached to the same but it was a private Trust created for the benefit of individuals which can be disposed of by Settlement Authorities. In this regard it will suffice to observe that such observations of the concerned officer are without reference to any provision of law where either any distinction has been made in private Trust or public Trust far the purpose of transfer or he was conferred jurisdiction for treating an evacuee trust property as evacuee property available in the compensation Pool for transfer under the Settlement laws. Thus the Reliance of Mr. Latif A. Shakoor on such order to fortify the claim of respondents is misconceived. If any case-law is needed to amplify this legal position reference can be made to the cases of Devachand Muljimal (surpa), Secretary Evacuee Trust Property Board v. Allah Rakha and 7 others (PLD 1975 Karachi 854) and Khizer Hayat v. Municipal Corporation, Faisalabad (NLR 2000 Civil 541). I am convinced with the arguments of Mr. Aashiq Ali Anwar Rana that the order, dated 17-5-1979 passed by the applicant No.3 is legal order which was passed after due opportunity of hearing to the original transferee Bashiruddin as well as to Mst. Zulekha and Mst. Fatima who were at the time claiming interest in the property, having purchased it subsequent to the passing of order by the Chairman Evacuee Trust Property Board. The contention of Mr. Aashiq Ali Anwar Rana that the order of applicant No.3 which is basis of this litigation initiated by respondents has not been challenged in the suits filed by respondents and no relief has been claimed to set aside such order, has also much force. Mr. Latif A. Shakoor was unable to controvert or to give any suitable reply to this argument of Mr. Aashiq Ali Anwar Rana.
22. The contention of Mr. Latif A. Shakoor with reference to exercise of suo motu powers by applicant No.3 while entertaining time-barred revision application is also without force as the applicant No.3 in such circumstances was not denuded of his suo motu powers to set aside the order of Chairman, in somewhat similar circumstances, when in another case, during the pendency of a time-barred revision application suo motu power was exercised by the Join Secretary Ministry of Religious and Market Affairs, Government of Pakistan (applicant No.3) such exercise of power was upheld/approved by the Apex Court in the case of. Federal Government of Pakistan v. Khurshid Zaman Khan and others (1999 SCMR 1007) and the contention of the learned counsel was repelled. In view of such precedent order of applicant. No.3 is unexceptionable.
23. Insofar as contention of Mr. Latif A. Shakoor, learned counsel for respondent, regarding maintainability of these revision applications is concerned there is no cavil to the proposition of law canvassed by him that if a revision application is preferred beyond prescribed period of limitation viz 90 days as provided under section 115, C.P.C. Then it is liable to be dismissed as such and recourse cannot be had to section 5 of the Limitation Act for condonation of such delay. The cases referred by him in this context also fortify this position. There is also no cavil to the other contention of the learned counsel that if a case is not covered by section 115, C.P.C. Then no interference is called for by the revisional Court in the judgments impugned before it. This legal position is alsoduly supported from the case of Abdul Rahim (supra) referred by the learned counsel. However when the applicability of these legal propositions about maintainability is seen on the basis of facts involved in these revision applications it is evident that revision applications presented on 9- 12-1997 were filed by the applicants within 90 days of the passing of impugned judgment and decree by the Appellate Court after educating the period consumed in preparation of certified true copies, thus, the same were preferred within time. From the endorsement on certified true copies of judgment and decree available on record one can see that judgment was passed on 28-8-1997 and decree in the appeal was prepared on 16-9-1997. The application- for obtaining certified true copies was filed on 23-9-1997, fee was estimated on 8-10-1997, it was deposited on the same day, copies were made ready on the next day viz 9-10-1997, stamps were supplied on 11-10-1997 and copies were delivered on the same day. Thus after excluding the period consumed by the officer in providing copies to the ,applicants_, for which they were legally entitled, (see: 1994 CLC 34) from no angle it can be said that revision applications preferred by the applicants are time-barred. As to the other contention, suffice it to say that in view of the discussion made above , about the merits of the case it is clear that two impugned judgments not only suffer from misreading of evidence and jurisdictional defect but also same are perverse, thus, this Court would be justified in interfering with such judgments in exercise of its powers under section .115, C.P.C. The contention of Mr. Latif A.
Shakoor with reference to the provisions of section 41 of the Transfer of Property Act has also no force as on facts the cases of respondents do no meet the conditions visualized by the Hon'hle Supreme Court of Pakistan for this purpose in the case of Kanwal Nain and 3 others v. Fatah Khan and others (PLD 1983 SC 53) and Industrial Development Bank of Pakistan v. Saadi Asmatullah and 4 others (1999 SCMR 2874) (also see 1983 SCMR 1199). Further the rule laid down by a Division Bench of this Court in the case of Muhammad Ibrahim v. Secretary to the Government of Pakistan (PLD 1993 Karachi 478) also negates the claim of respondents raised on such plea.
24. Besides,' the respondents who acquired title in the dispined property on the basis of registered conveyance deeds executed in their favour by Mst. Zulekha and Mst. Fatima during the pendency of proceedings before the applicant No.3 cannot claim any better title in their favour than that of their predecessor nor can they claim themselves to be bona fide purchasers of suit property.
Examining the facts for this purpose it will be pertinent to mention here that on record there is sufficient material available to show that applicant No.1 had been issuing notices to the original transferee Bashiruddin and the predecessor in interest of the. Respondents Mst. Zulekha and Mst.
Fatima, even before they had legally acquired title of suit Property No.OT 6/65 (see notice dated 12- 9-1977).Not only this but in response to the publication of notice in newspaper "DAWN" Gujrati dated 1-8-1977 by Mst. Zulekha and Mst. Fatima they and their counsel were informed by applicant No.1 vide his letter dated 15-8-1977 about the Evacuee Trust Status of the suit property. In such circumstances when the title of the suit property was under clouds if the predecessor in interest of respondents and thereafter, respondents were not vigilant and opted to purchase the suit Property No.0T6/65, they have to bless their own stars and no benefit of section 41 of the. Transfer of Property Act can be availed by them. As a matter of fact rule laid down in the case of Yousuf Ali v.
Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) is fully attracted to the facts and circumstances of this case..
25. Before parting with this judgment it may be clarified that dispute involved in the suit was only in respect of property over Plot No.OT6/65 and not in respect of Plot No.OT-6/66, therefore the findings recorded in this judgment are also confined to property over Plot No.OT6/65.
26. For the foregoing reasons all these revision applications are allowed and consequently judgments and decrees passed by the two Courts below are set aside and suits instituted by the respondents in respect of Property No OT-6/65 are dismissed with costs.