MUHAMMAD AZAM Versus BASHIRUDDEV

This civil revision assails the judgment/decree dated the 15th of October, 1981, of the learned District Judge, Mianwali, whereby he dismissed the petitioners' appeal.

2. The land in question was allotted on the 20th of March, 1954, to the petitioner Muhammad Azam's father Muhammad Akram deceased. It was cancelled on the 17th of April, 1958, by the Thal Development Authority on account of his failure to abide by the conditions of the allotment. Taking an opportunity the respondent‑plaintiff Bashir‑ud‑Din got it allotted from the Chairman, Thal Development Authority, vide his order, dated the 13th of April; 1962. A letter dated the 19th of July, 1962, was issued by the C.O., T.DA. for delivery of possession of the land to him as new allottee. Although he was already occupying it, yet some formal proceeding were conducted to signify that the land hence was transferred to his possession under the allotment. Later, allegedly the petitioner Muhammad Azam impersonating his deceased father Muhammad Akram received certain expenses from the respondent on account of improvements effected on the land by him during his life time and executed an affidavit dated the 6th of June, 1961, whereby he relinquished all interest in the land in favour of the respondent. Still later, he preferred an appeal before the Chairman, Thal Development Authority, against the order dated the 13th of April, 1962, of cancellation of his lot contending that the affidavit dated the 6th of June, 1961, purporting to have been signed by his father was fake and fictitious inasmuch as he had died on the 3rd of July, 1959. The appeal was transferred to the Commissioner, Sargodha Division, on account of dissolution of the Thal Development Authority in the meantime and was accepted presumably because the petitioner's father having already died could not make the affidavit on the 6th of June, 1961. The respondent/plaintiff challenged the order of the Commissioner in the present suit maintaining that he had no jurisdiction to entertain it against the order of tire Chairman, Thal Development Authority; that it was hopelessly barred by time; and that without asking for restoration of the land, the petitioner could not assail its allotment in his favour.

3. The suit was resisted by the defendants. The petitioner Muhammad Azam in his separate written statement pleaded that in its present form it did not lie, nor had the Court jurisdiction to entertain it, nor was there any cause of action to sustain it. He claimed that the respondent was not in possession of the land and that the suit for mere injunction did not lie. He reiterated that the affidavit dated the 6th of June, 1961, was fake and forged and affirmed that the order of the Commissioner passed in appeal having not been further challenged was final in all respects.

4. Appropriate issues on these pleadings were framed. Initially the suit was dismissed on the 17th of on October, 1977, but was remanded by the learned Additional District Judge on the 11th of February, 1980, allowing two documents (Exhs.P.8 and P.9) by way of additional evidence. In the second round it 'was decreed by the trial Court on the 12th of July, 1980, and even the appeal was dismissed by the judgment impugned in the present revision petition.

5. The reason why the appeal was dismissed by the learned District Judge was, inter alia, as follows‑.‑

"The order being by the Chairman, Thal Development Authority, the appeal was not competent before the Commissioner and so the order passed by him being beyond jurisdiction is void altogether and is hereby ignored."

6. It has been pointed out that on the plaintiffs own showing as per paras 6 and 7 of the plaint, the appeal initially pending with the Chairman, T.DA. was referred to the Commissioner, Sargodha. Division, only because the Thal Development Authority had been in the meantime dissolved. It appears that the learned District Judge somehow missed to take note of this fact‑ The appeal pending with the Chairman T.DA could not 'possibly be against his own orders. It must have initially been against the order of any officer subordinate to him and that is why it was automatically transferred to the Commissioner for disposal. The contention that the basic order by which the land was allotted to the respondent plaintiff was passed by the Chairman on the 13th of April 1962, did not have much substance, for, the plaint nowhere showed if the petitioner‑defendant had any knowledge of it. His case instead was that he came to know of the allotment of the land to the respondent for the fast time when the Colony Officer issued his orders dated 19‑7‑1962 and that it was those orders which he. at once challenged in appeal before the Chairman, T.DA. The plaint was silent also about the petitioner's knowledge in regard to the order dated 17‑4‑1958 whereby the lot was cancelled from the name of the deceased allottee Muhammad Akram. Ostensibly neither the deceased allottee nor his son the present petitioner had knowledge of the cancellation of the lot. This assumption gains support from the fad that the respondent conceptually treated the petitioner to be the allottee of the land till the 6th of June, 1961 when he attempted to get the disputed affidavit from him in order to relinquish his interest' in the land in his favour. Had he not been having any interest in the land till that date, he would not have been shown to have relinquished it by means of the so‑called affidavit. In a way, therefore, this event negatives knowledge on the part of the petitioner of the cancellation of the land from his name. The affidavit turned out to be fake as it purported to have been signed by a dead person. There was ample reason to infer that the petitioner had no knowledge of the order dated 13‑4‑1962 and that the first ever order to his knowledge was passed by the CO. on 19‑7‑1962 which he promptly in appeal before a proper forum.

7. Section 7(1) of the Colonization of Government Lands (Punjab) Act, 1912, provides that all proceedings conducted thereunder shall be governed by various provisions of the Land Revenue Ad. It will manifestly mean that remedies of appeal etc. as also the forums therefore provided under the Land Revenue Ad, particularly sewn 164 would apply to the proceedings conducted by Colonization officer. Under the Colonization of Government Lands (Punjab) Act, order of the C.O. was amenable to appeal before the Commissioner and, therefore, his order disposing of the appeal was quite valid.

8. Counsel argued that cancellation of the lot taking place on 17‑4‑1958 or for that matter its reallotment to the respondent on 13‑4‑1962 were challenged before the Commissioner very late in the year, 168, when it had become hopelessly barred 'by time. The Commissioner considered this aspect and concluded that the reallotment of the land in favour of the respondent and also presumably cancellation of its allotment to the deceased Muhammad Akram were based upon fraud. He specifically held that the affidavit dated 6‑6‑1961 was all initio void as it was made by a dead person and that all subsequent proceedings based thereupon were equally void. He placed reliance upon Syed Mahmud Alain v. Syed Mehdi and 2 others P L D 1970 Lah. 6 to conclude that no limitation applied to get rid of a void order and that is why he ignored all that long delay in entertaining the appeal. In a way he condoned it in the exercise of his discretion for a plausible reason. It may not be interfered with particularly when the exercise of discretion by him was neither wanton nor perverse. Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan and others 1986 S C M R 1086 provides that condonation of delay being a discretionary matter cannot be interfered with.

9. Last but not the least, Section 36 of the Colonization of Government Lands (Punjab) Act excludes jurisdiction of Civil Courts to call in question orders passed thereunder by officers in exercise of jurisdiction conferred upon them. The reason adopted by the learned District Judge to confer jurisdiction on the Civil Court was that the order of the Commissioner was void. As discussed above, C this view was based upon an hypothesis which could not be sustained. The appeal before him was against the order of C.O. and he was competent to entertain it. If at all there was something wrong with it, under the provisions of Section 164 of the Land Revenue Act, the respondent had still the remedy of revision before the Board of Revenue. He admittedly did not avail it. It is settled principle of law that if remedies provided by Statute in its special hierarchy are not availed, a civil suit would not lie. Sultan Ali Nanghiana v. Nur Hussain A I R 1949 Lah.131, Central Government through the Income Tax Officer, Dera Ismail Khan v. Sher Muhammad Khan and others P L D 1971 Pesh.153, Abdul Aziz v. Syed Arif Ali and 6 others P L‑ D 1978 Lab.441 may be referred to in this behalf. Learned counsel for the respondent could not show how he could evade the application of the rule laid down in these authorities. In the case in hand there was comparatively greater need for caution because Section 36 of the Colonization of Government Lands (Punjab) Act totally excluded the jurisdiction of the Civil 1 Courts. Finality was attached to the orders of the Revenue Officers and the suit to challenge them should not have been easily entertained.

The petitioner‑defendant claimed that possession was with him and that on this ground alone the suit could have been dismissed. Since it is being dismissed for other reasons enumerated above, there will be little use to add this ground to them. Ordinarily such a technical defect a allowed to be‑ amended, but dismissal of the suit being unavoidable on other grounds it would be idle to dwell upon this ground alone.

11. As a result the revision petition is accepted. The impugned judgment and decree are set aside and the respondent‑plaintiffs suit is dismissed leaving the parties to bear their own costs.

M.Y.H./M‑768/L Petition accepted.