1993 PLP 483 (MLD)

This second appeal was directed against the judgment and decree dated 10-10-1972 of the learned Additional District Judge, Lahore whereby the appeal of the appellant was dismissed after upholding the finding of the learned trial Court on issue No

1. The learned trial Court had earlier dismissed the suit for declaration and permanent injunction, filed by the appellant vide judgment and decree dated 26-11-1970.

2. The dispute in this litigation pertains to a shop in Property No.SE XIV-34-S-24, Main Bazar, Dharam Pura, Lahore. This property consists of three shops on the ground floor and two residential portions on the back side of the shops. One of the residential portions was transferred by the Settlement Department in favour of Talehan Bibi while Mehraj Din is transferee of second residential portion. Out of three shops, one shop was transferred to Noor Muhammad and according to appellant/plaintiff the said shop was passed on to Syed Baqar Ali Rizvi through association. Shop No.2 which was in possession of Ibrahim son of Abdul Aziz was put to auction and the appellant gave the highest bid for the said shop in the auction held on 29-4-1960. PTO dated 15-6-1960 and PTD dated 11-6-1966 were issued in respect of this shop in favour of Hamida Khatoon, appellant. Another shop was put to auction and Mgt. Nazir Begum, respondent gave the highest bid in the auction held on 17-6-1964. She was then issued PTO on 19-12-1964 and PTD on 16-1-1965. The case of Nazir Begum respondent as contained in para.7 of the written statement is that one of the shops was transferred to Talehan Begum while another shop was transferred to Syed Baqar Ali and the shop in between was transferred to her through auction. Thus, the identification of the shop which was got transferred in the first auction by Hamida Khatoon, appellant and the shop which was got transferred through auction dated 17-6-1964 by Nazir Begum is in dispute. The determination of this question would resolve the question of title of both the parties in the respective shops.

3. Learned counsel for respondent No.1 also pointed out that in PTO and the bid sheet shop auctioned on 29th April, 1960 was shown as SE-XVI-34 S-24. Learned counsel for the appellant in this respect submitted that the property number so mistakenly written in these two documents was subsequently corrected by the Settlement Department vide Exh.P.13. In view of the order that I propose to pass, this question may not he dilated upon in detail as mentioning of wrong number would be inconsequential once the shops which were auctioned in the two auctions are identified. It is pertinent to note that the shop which Nazir Begum got transferred in her favour was stately in possession of Muhammad Yaqoob son of Abdul Aziz while the shop transferred through auction to the appellant was admittedly in occupation of Ibrahim son of Abdul Aziz.

4. The other assertion of the parties may also be noted According to learned counsel for Hamida Khatoon, appellant, after serving a notice under section 30 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958 upon Muhammad Ismail, brother of Ibrahim, ejectment application filed by Hamida Khatoon was accepted and the shop so got vacated was rented out to Taj Din, respondent No.2. It was urged that Taj Din, respondent No.2 is, thus, in possession of the shop as tenant of the appellant. Learned counsel for Nazir Begum, on the other hand, urged that Nazir Begum filed an ejectment application against Muhammad Yaqoob, occupant and after obtaining possession from Muhammad Yaqoob, the shop was rented out to Taj Din by Nazir Begum, respondent No.1. He added that Nazir Begum filed the ejectment petition against Taj Din and succeeded in obtaining ejectment order against Taj Din and that it was in these circumstances that the present suit for declaration of title and permanent junction was filed by Hamida Khatoon. 5.This suit was resisted by Nazir Begum while Taj Din, the other defendant/respondent, conceded the suit. The learned trial Court framed preliminary issues and despite the fact that no issue on merits was framed, it appears from the record, that the parties produced evidence on the merits of the controversy as well. The evidence so produced has not been discussed either by the trial Court or by the learned first appellate Court. The learned trial court decided Issues 1, 2, 4 and 5 against the plaintiff/appellant while issue No.3 concerning limitation was decided in favour of the appellant. On first appeal of the appellant, the learned first appellate Court reversed the findings of trial Court on Issues 2, 4 and 5 but affirmed the finding on Issue No.1 and held that the suit is barred in view of the provisions contained in sections 22 and 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958.

6. I have heard learned counsel for the parties. Learned counsel for the respondent was not able to support the finding of the learned Courts below that the suit was barred by sections 22 and 25 of the Displaced Persons (C&R)Act, 1958 as the orders passed by the Settlement Authorities were not being challenged. The appellant in the suit was rather claiming title in the property under the very orders passed by the Settlement Authorities. The approach of the learned Courts below is patently erroneous. They failed to comprehend the controversy raised by the parties. In fact, the parties produced evidence in respect of merits of the controversy but the same was not attended to by the learned Courts below as no issue on merits had been framed. The finding of both the learned Courts below on Issue No.l cannot be sustained and are hereby set aside. It is held that the suit is not barred by the provisions of sections 22 and 25 of the Displaced Persons (Compensation & Rehabilitation) Act, 1958.

7. The net result of the above finding is that the judgments and decrees of both the Courts below are set aside, the suit shall be treated to be pending and will have to be decided on merits. Learned counsel for the parties state that the trial Court be directed to frame necessary issues on merits arising out of the pleadings of the parties and as the parties have already produced most of the evidence, they may be allowed further opportunity to produce evidence, if any, after framing of the issues. The approach of the learned counsel is fair and reasonable. The learned Senior Civil Judge to whom the record will be forwarded by the office immediately, shall proceed with the suit expeditiously by framing necessary issues arising out of the pleadings of the parties. The parties may adopt the evident already produced on record. They will, however, be afforded opportunity to lead further evidence. The suit shall be decided within six months. The appeal is accordingly allowed leaving the parties to bear their own costs. AA./H-47/L Case remanded.