2003 PLP 240 (CLC)

(4) Whether the plaintiff is entitled to the mandatory injunction prayed for? (5) Relief.

3. Learned trial Court answered Issues Nos. 1 to 4 in the negative and resultantly dismissed the suit with costs vide judgment and decree dated 9‑3‑1991.

4. Petitioner's appeal against the said judgment was also dismissed by Additional District Judge, Sahiwal on 27‑2‑1993.

5. Now the petitioner has come up in this civil revision.

6. Muhammad Siddique Kamiana, Advocate, learned counsel for the petitioner, while assailing the judgment of trial Court and that of Additional District Judge urged that both the Courts below had acted illegally and with material irregularity in passing the impugned judgments for the reason that it was proved on record that out of the allotted land only 8 acres was left with the petitioner out of which he had cultivated 50 Kanals hence, he had fulfilled the conditions for the grant of proprietary rights and that the condition of bringing 90% area under cultivation for grant of proprietary rights was related by the Government vide Notification dated 16‑8‑1980 (Annexure D) but both the Courts below had failed to take notice of the said notification, hence their judgments are based on non‑reading of the evidence.

7. Revision petition is opposed by learned State Counsel.

8. Arguments heard. Petition and its Annexures perused.

9. Adverting to the contentions of learned counsel for the petitioner it may be observed that the term "acted illegally" means acting in breach of some provision of law and the words "acted with material irregularity" refer to committing of some error of procedure in the course of trial which is material in that it may affect the ultimate decision.

10. Copies of Revenue Record viz. Jamabandi for the period 1983‑84 Exh.P.4 and Khasra Girdawari from Kharif 1984 to Kharif 1986 Exh.P.5 produced by the petitioner during his evidence before the trial Court reflected that almost all the suit‑land was "Bunjar Qadeem". Cultivation of the land by lessee himself and that too from Kharif 1980 was a necessary prerequisite for the grant of proprietary rights under the 1 Notification dated 20‑4‑1983.

11. Conclusion arrived at by learned Courts below that the petitioner was not entitled to‑the grant of proprietary rights is based on sound and plausible reasoning given at pages Nos.6 and 7 of the judgment of trial Court and paras. Nos.12 to 14 of the judgment of Appellate Court.

12. Argument of petitioner's counsel that out of the allotted land only 8 acres was left with the petitioner out of which he had cultivated 50 Kanals and was therefore, eligible for the grant of proprietary rights is misconceived inasmuch as not only in his application for grant of proprietary rights moved before the District Collector but also to ills plaint he had asked for the grant of proprietary rights to the entire suit land. Apart from that petitioner was not eligible for the grant of proprietary rights because such rights could only be claimed by a lessee whereas according to record the petitioner was neither a lessee of the suit‑land when he had moved application before the District Collector which was dismissed on 20‑3‑1985 nor he was lessee on the day when he had instituted his suit on 6‑4‑1987.

13. It is an admitted fact that lease of the petitioner had expired in Rabi 1981, he did not apply for its extension, land was resumed vide order of District Collector on 14‑2‑1983 (as stated in para. No.1 of the plaint). Appeal against that order was dismissed by Additional Commissioner (R) on 15‑4‑1984 with a direction that the petitioner could approach the District Collector for re‑examination of his case under 1983 Scheme (order dated 15‑4‑1984 whereby appeal was dismissed was neither produced before the lower Courts nor it has been produced before this Court. However, the fact that the said appeal was dismissed finds mention in the order of Collector dated 20‑3‑1985, order of Additional Commissioner (R) dated 10‑11‑1985 and order of Member, Board of Revenue, dated 4‑9‑1986).

14. The petitioner did not approach any higher forum against the order, dated 15‑4‑1984 passed by Additional Commissioner (R) whereby the appeal against the order of District Collector, dated 14‑2‑1983 was dismissed. Vide said order suit‑land was resumed and the order of resumption of the suit‑land had, therefore, attained finality. Orders dated 14‑2‑1983 and 15‑4‑1984 were not assailed in the civil suit.

15. In the said background when the lease of the petitioner stood expired in 1981, was not extended, suit‑land stood resumed and the order of resumption was not challenged in any forum including the civil suit filed by the petitioner, the petitioner was not a lessee of the suit‑land and was, therefore, not eligible to file application before the District Collector for the grant of proprietary rights and he was also not competent to file a suit for declaration that being a lessee he was entitled for the grant of proprietary rights in the suit‑land.

16. This aspect of the case was not considered by the two Courts below, it was perhaps so because order dated 15‑4‑1984 of the Additional Commissioner (R) was not produced whereby appeal against the order of resumption passed by the Collector was dismissed 'with an observation that the petitioner could approach the District Collector for reconsideration of his case. The case was not remitted for fresh decision by that order of the District Collector as was erroneously considered by the learned Additional District Judge in para. No.1 of his judgment.

17. It was contended by petitioner's counsel that both the two Courts below had failed to take notice of Notification dated 16‑8‑1980 (Annexure D) whereby condition of bringing 90% area under cultivation for grant of proprietary rights was relaxed, hence, the impugned orders were the result of non‑reading of evidence. This argument is without any force because said notification (Annexure D) was never tendered in evidence by the petitioner nor it was produced on record during the trial or appeal. The said notification also does not find mention in the plaint. Anyway the said notification does not help the petitioner as it relates to lessees and the petitioner not being lessee was not entitled for the grant of proprietary rights.

18. Learned counsel for the petitioner could not draw my attention to the breach of provision of law or commission of any error of procedure by any of the Courts below.

19. Civil revision being devoid of any merit is hereby dismissed with costs. H.B.T./H‑115/L Revision dismissed.