FAQIR JAMIL MASOOM Versus ALLAH BAKHSH
ABDUL LATIF KHAN, J.--- The instant civil revision is directed against the judgment and decree dated 25.8.2011 of the learned Additional District Judge-IV, D.I. Khan whereby appeal of the petitioners against the judgment and decree dated 30.4.2010 of the learned Civil Judge-VIII, D.I. Khan has been dismissed and maintained the judgment and decree of the learned trial court.
2. Succinct facts forming background of the instant case are that the present respondent No.1-plaintiff filed a suit for declaration, mandatory injunction and possession of the disputed property detailed in the head note of the plaint. The petitioners-defendants appeared before the learned trial court and filed their written statement. The parties produced their respective evidence in support of their contention, whereafter the learned trial court decreed the suit of the respondent No.1-plaintiff vide judgment and decree dated 30.4.2010. Feeling aggrieved and dissatisfied of the above mentioned judgment and decree, the petitioners-respondents challenged the same in appeal but the learned appellate court while concurring with the decision of the learned trial court dismissed the petitioners' appeal on 25.8.2011, hence the instant revision petition.
3. Learned counsel for the petitioners contended that the suit land along with other property was allotted to respondents Nos.2 to 4 vide RL-II, digest No.46 dated 24.11.1972 but the same was cancelled on 14.4.1983 by the Deputy Rehabilitation Commissioner, D.I. Khan on this ground, being fraudulent and later on 26.11.1983 the property was auctioned by Deputy Rehabilitation Commissioner and the petitioners purchased the same in open auction and as such have become bona fide purchaser in accordance with law. He argued that the petitioners are in possession of the property and entry to this effect has been recorded in khasra girdawari Ex:PW2/2 but the courts below have wrongly interpreted the same. It was argued that respondent No.1 instituted a suit on 18.11.1997 after 17 years from the date of agreement to sell dated 08.5.1980 and 15 years from consent decree dated 11.2.1982 and had not executed the said decree within statutory period of limitation nor got mutation attested in favour of respondent No.1 from the revenue authorities and the consent decree remained unexecuted and as such its legal value along with agreement to sell had became a dead letter but the courts below have not appreciated this aspect of the case amounting to non-exercise of jurisdiction vested in them. It was contended that the order of Deputy Rehabilitation Commissioner dated 14.4.1983 was set aside by this court in Writ Petition No.12 of 1983 on 09.10.1987 by reversing the order on acceptance of writ petition and remand the case to the Notified Officer under Repealed Displaced Persons Land Revenue Act to reconsider the matter but since then no action has been taken so far nor the respondent No.1 has approached the authority in compliance with the order of this court.
4. As against that, the learned counsel for the respondents contended that the auction proceedings were conducted in violation of law and in the absence of settlement department. He argued that the matter was pending before this court and during pendency of writ petition, auction was conducted which was patently illegal. It was contended that the order of cancellation of allotment was set aside by this court through order dated 09.2.1987 in writ petition filed by the allottee. He contended that Deputy Rehabilitation Commissioner is not acted so far in compliance with the order of the court and the respondent-plaintiff was left with no option but to challenge the same in court of competent jurisdiction.
5. I have heard the arguments of learned counsel of the parties and perused the record with their valuable assistance.
6. Perusal of file reveals that the claim of Muahmmadi Begum was verified vide RL-II, digest No.46 dated 24.11.1972 Ex:PW3/1. The plaintiff purchased 9 kanals 3 marlas out of that property from the allottee vide sale deed dated 08.5.1980 and filed suit No.77/1 of 1981 against the said allottee and got a consent decree in his favour on 11.02.1982 from the court of Additional Civil Judge, D.I. Khan. The suit property was cancelled from the allottee by Deputy Rehabilitation Commissioner on 14.4.1983 on the ground that the allotment was bogus. Writ Petition bearing No.12 of 1984, Ex:PW8/2, was filed by allottee on 11.2.1984 wherein the order of cancellation was challenged which was allowed by this court on 09.2.1987 and remanded the case to Deputy Rehabilitation Commissioner/Notified Officer to look into matter afresh and give decision on merit after hearing the parties. That order so far has not complied with and none of the parties have pursued the same and even to day on the query of the court none replied and convince the court about the fate of the same.
7. During pendency of writ petition, as no restraining order was passed, the settlement authorities put the suit land into auction which was purchased by the petitioners and became owners of the same in accordance with law, as the same was out of the allotment pool. That the consent decree passed upon agreement, was kept unattended by the respondents for considerable long period of 15 years. It was never executed nor any mutation was got entered or attested in favour of the decree holder in order to incorporate the entries in the revenue record or the settlement record and when the limitation for all the actions to be taken on the basis of decree stand exhausted the respondent-plaintiff filed a suit for declaration to give effect to the consent decree of court dated 11.2.1982, which is not warranted by law, has been adopted for the simple reason that no decree can be granted on the basis of a previous decree of the court and when the learned counsel was confronted with the situation that as to how he has challenged a decree passed in his favour duly consented by defendants through the instant suit, he candidly conceded that limitation to execute the decree was over, therefore, he was left no other remedy but was to file another suit, which was totally in negation to the procedure, law besides.
8. The proceedings are pending before Notified Officer, remanded by this court in Writ Petition bearing No.12 of 1984, the respondent-plaintiff was supposed to pursue the same before Notified Officer instead of filing the instant suit as he derives title from the claimant and the fact his claim is still subjudice before Notified Officer as per directions of this court. He has taken no pain to look into matter and instead filed instant suit which is not maintainable in any eventuality on the score of remedy and forum available with the plaintiff-respondent as well as holding a consent decree passed by civil court in his favour on the basis of agreement to sell. Needless to mention that under evacuee lease protection of section 41 of Transfer of Property Act is not available to the purchaser from allottee as this protection is not extended to evacuee laws and if the allotment in favour of original allottee has been cancelled as being bogus one and based on fraud, allottee being defective owner, cannot transfer a better title to his vendee. Vendee-respondent No.1 at the most sue the claimant, his vendor for the redressal of his relief but cannot question the allotment and auction in favour of subsequent purchaser conducted by the department in accordance with law. It is pertinent to mention that the fact of entitlement of respondent plaintiff hinges upon decision of Notified Officer and civil court has nothing to do with the matter and the instant suit in no eventuality was entertainable before this, forum. So far the consent decree dated 11.2.1982 is concerned, that too remains no more intact as the basis of which has since extinguished as claim of his vendor not remained in field. The impugned judgments and decrees passed by the courts below are patently illegal as the same are based without adhering to the legal provision amounts to make redundant provisions of Limitation Act and Civil Procedure Code regarding execution proceedings, maintainability and settlement laws. This practice is alien to law as shall be deprecated.
9. For the foregoing reason, the instant revision petition is accepted, the impugned judgments and decrees passed by the learned lower courts are set aside and the suit filed by respondent-plaintiff is hereby dismissed with no order as to costs.
ARK/252/P Revision dismissed.