EVACUEE TRUST PROPERTY BOARD through Assistant Administrator, Evacuee

ORDER

' SH. RIAZ AHMED, J.---Leave to appeal is sought against the judgment and order dated 12-10-1998 delivered by a learned Judge of the Sindh High Court in Chambers whereby the revision application assailing the judgment and decree dated 27-2-1994 passed by a learned Civil Judge and maintained in appeal by the Appellate Court vide judgment and order dated 31-10-1995 was dismissed.

2. The facts giving rise to the institution of this petition are that the respondents instituted a suit for declaration that order passed by the petitioner holding the suit land to be evacuee trust property was illegal, without jurisdiction, void, mala fide and inoperative. Consequential relief by way of injunction was also sought restraining the petitioner department from dispossessing them from the said land. In fact, the case of the plaintiffs/ respondents Nos.1 to 6 was that the disputed land had been transferred to Ghulam Muhammad and 3 others against their verified claim and the respondents Nos.1 to 3 and their brother Abdul Hamid had purchased the suit land vide two sale- deeds executed in 1964 and 1965 from the aforesaid claimant transferees for valuable consideration and, thus, they were in physical possession of the land. It was further averred that one of the vendees Abdul Hamid died and his share was inherited by his father and mother, who then gifted the same in favour of respondents Nos.4 to 6. It was averred in the plaint that the respondent No,7 approached the respondent No,1 and informed that the suit land was evacuee trust property and the order had been passed for taking possession thereof from respondents Nos.1 to 6. It was also pleaded that the respondent No,7 had threatened respondents Nos.1 to 6 with forcible dispossession.

3. In these circumstances, the aforementioned suit was instituted, which was contested. In the written statement, the petitioner pleaded that the disputed land was evacuee trust property and could not have been part of the compensation pool and, thus, could not be transferred against a verified claim. It was also pleaded that the suit was barred under the provisions of Management of Evacuee Trust Property Act (Act XIII of 1975) because under section 14 thereof, no such suit was maintainable. On the basis of the pleadings of the parties, issues were framed and the parties were directed to discharge their respective onus by adducing evidence. Vide judgment dated 27-2-1994, the Senior Civil Judge, Mirpur Khas decreed the suit. The said judgment and decree was assailed by the petitioner by way of filing an appeal, but the same was dismissed by the Additional District Judge. Therparker vide judgment and decree dated 31-10-1995. The said order of the Appellate Court was challenged by the petitioner by way of filing a revision petition, which was dismissed vide order impugned dated 12-10-1998.

4. The revision petition challenging the order of the Appellate Court as well as that of the Civil Judge was filed on 30-5-1996. Obviously it was barred by 107 days. The petitioner also filed an application seeking condonation of delay in filing the revision. The reasons advanced for seeking condonation of delay was that the relevant file and record of land in dispute had been misplaced and, therefore, the revision petition could not be filed in time. In course of hearing of the revision petition, application under section 5 of the Limitation Act seeking condonation of delay was withdrawn on the ground that the judgment and decree passed by the Senior Civil Judge and maintained by the Additional District Judge was void and as such against void orders no limitation runs. This contention was repelled by the learned Judge of the Sindh High Court by placing reliance upon the judgments reported as Pir Sabir Shah v. Shad Muhammad Khan and another (PLD 1995 SC 66), Khadim Hussain v. Mst. Fazalan Bibi (1996 SCM R 437) and Muhammad Raz Khan v.

Government of N.-W.F.P. (PLD 1997 SC 397).

5. It was vehemently argued by the learned counsel for the petitioner that since the suit was barred under section 14 of the Management of Evacuee Trust Properties Act (Act XIII of 1975), therefore, the judgment and decree passed by he learned Senior Civil Judge as well as the Additional District Judge was void and, therefore, it is non-existent and hence the question of limitation is irrelevant.

Unfortunately, no order was produced by the petitioner to prove that the Chairman of Evacuee Trust Property had treated the disputed property as evacuee trust property. On the pleadings, specific Issue No,7 was framed to the effect whether the suit was barred in law, but the petitioner failed to discharge its onus to prove the said issue. In this view of the matter, we are of the view that since in law the disputed property had not been treated as evacuee trust property, therefore, the bar of jurisdiction cannot be pressed into service. For the ouster of jurisdiction, the petitioner ought to have proved through cogent evidence that the disputed property was attached to a charitable trust and as such no suit was maintainable in respect thereof, but as already observed that petitioner being the department concerned with the management of such properties had not brought an iota of evidence to prove the property as attached to a trust. In this view of the matter, the objection raised by the learned counsel for the petitioner as to the judgment and decree being void is repelled.

6. The next crucial question is that the revision petition as filed after 90 days, i,e, the period prescribed for filing such revision petition. The revision petition was barred by 107 days. The revision petition was accompanied by an application under section 5 of the Limitation Act for condonation of delay in which the only reason given was misplacement of file and the record. This would hardly constitute sufficient cause for condonation of delay and the condonation of delay becomes irrelevant because the petitioner itself withdrew the said application seeking condonation of delay, thereby admitting the revision petition to be barred by time.

7. For the foregoing reasons, we are of the view that the judgment and decree passed by the learned Senior Civil Judge and maintained by the Additional District Judge is not open to exception. Hence this petition fails and is hereby dismissed. Leave to appeal is refused.