2003 PLP 825 (CLC)

3. Aggrieved of the said order the respondent preferred an appeal before the Commissioner who vide order dated 10-9-1988 rejected the appeal of the respondent.

4. Without availing of the remedy of approaching the Board of Revenue the respondent filed a suit for declaration to the effect that the respondent was in possession of the suit-land as an allottee under 15 Years Lease Scheme and that he was entitled to purchase its proprietary rights. It was contended that the property in dispute was not reserved for any scheme for Personnel of Armed Forces and that the order of 6-6-1988 of D.C. and. dated 10-9-1988 of the Commissioner, Sargodha Division was illegal. The suit was contested by the petitioner on the ground that the Civil Court did not have jurisdiction and that the plaintiff/respondent is estopped by his own words and conduct for filing the suit. On merits it was contended that according to notification of the Colonies Department, Board of Revenue, Punjab, dated 3-9-1979, any land already reserved for any permanent scheme stands excluded from the cases of conferment of the proprietary rights. According to the petitioner the land in possession of the respondent stood reserved for allotment to Armed Forces Personnel and accordingly could not be sold to the respondent. The parties went on trial, the `material Issues Nos.3-A and 4 are reproduced as under:-- Whether the property in dispute stands reserved for allotment to Armed Forces Personnel under the present grant scheme and hence the plaintiff is not entitled to get its proprietary rights? OPD Whether the orders dated 6-6-1988 and 10-9-1988 are illegal, mala fide, arbitrary, void and inoperative upon the rights of the plaintiff for the reasons alleged in the plaint? OPP

5. The respondent appeared as his own witness as P.W.1 and produced copy of the judgment and decree of an Additional District Judge, dated 8-10-1977 Exh.P.1 and Exh.P.2 judgment and decree dated 22-4-1976 Exh.P.3 and Exh.P.4, copy of Register Haqdaran Zamin Exh.P.5, Khasra Girdawari Exh.P.6, order of Commissioner, dated 10-9-1988 Exh.P.Z. grounds of appeal Exh.P.8, copy of Register Haqdaran Zamin for the year 1986-87 Exh.P.9 and copy of Khasra Girdawari Exh.P.10, order of District Collector, dated 6-6-1986 Exh.P.11. Order of District Collector dated 6-6-1988 Exh.P.12. Order of District Judge dated 11-12-1989 Exh.P.13, and copy of decree dated 11-12-1989 Exh.P.14 and closed his evidence. On the other hand, the petitioners/defendants produced copy of the order of D.G. dated 6-6-1988 Exh.D.1, copy of the letter in respect of allotment Exh.D.2 and order of the Commissioner dated 10-9-1988 is Exh.D.3.

6. The learned trial Court found Issue No.3-A and Issue No.4 in favour of the petitioner/defendant and it was found that the land in possession of the plaintiff/respondent was reserved for the Permanent Schemes of Armed Forces Personnel and that the order, of D.C., Khushab dated 6-6-1988 and that of the Commissioner, Sargodha Division dated 10-9-1988 did not suffer from any illegality. Resultantly, the suit of the respondent was dismissed vide judgment and decree dated 7-6-1997. The respondent preferred an appeal. The learned Appellate Court found that the petitioners had not produced sufficient evidence to prove that the land in question was reserved for Armed Forces Personnel and that in this view of the matter, the plaintiff/respondent was entitled to purchase or proprietary rights. The appeal was accepted vide judgment and decree dated 1-11-1997 with the result that the suit of the respondent stood decreed.

7. The learned counsel for the parties have been heard and record perused.

8. The learned counsel for the petitioner has referred to the copy of the memorandum dated 13-12-1971 issued by the Secretary, Colonies, Board of Revenue, Punjab to the Deputy Commissioner, Sargodha. In this letter reference was made to another letter dated 8-9-1971 issued by G.H.Q. A.G.'s Branch (W.R. .DTE), Rawalpindi. It was stated therein that the Military Chaks which are already reserved for settlement of Military Personnel alone cannot be allotted under 15 Years Lease Scheme and should not be disposed of on proprietary basis. He referred to a statement showing the details of the land available for allotment to Armed Forces Personnel. At Serial No.31 of this letter, reference is made to Chak No.43-D.B., wherein land comprised in Lots Nos.31 and 35 have been so reserved for the Armed Forces Personnel. According to the order dated 6-6-1988 of the D.C. and dated 30-9-1988 passed by the Commissioner Lot No.35 of this Chak already stands allotted to Risaldar, Ali Bahadur Khan. Land subject-matter of the suit fell in Lot No. 31 which stands included in the area reserved for Army Personnel. According to the learned counsel for the petitioner Lot No.31 comprises of Khasra Nos.64/1 to 10, 65/6 to 8 and 42/5/6 measuring 102 Kanals, 7 Marlas. It is thus contended that the respondent was not entitled to purchase the proprietary rights and that the judgment and decree of the-learned Appellate Court was erroneous and was liable to be set aside.

9. On the other hand Mr. Naveed Shaharyar, Advocate for respondent contended that this matter has been already settled in the earlier round of litigation. In this respect he made reference to the judgment and decree of the Civil Court, dated 22-4-1976 to contend that this very contention that the land in question stood reserved for Armed Forces Personnel was rejected by the trial Court which was later upheld even in appeal. He next contended that these was no material on the record to prove that the, land described by the respondent in his plaint to have been allotted to respondent is not proved to fall within Lot No.31 which is allegedly reserved for allotment to the Armed Forces Personnel. He further submitted that there was no evidence on the record even to prove that Lot No.31 of 35 were reserved for Military Personnel. The submissions made by the learned counsel for the respondent that this very question has been decided in the earlier round of litigation is not correct. A perusal of the judgment of the Civil Court dated 22-4-1976 would show that the efficacy of the letter of Board of Revenue dated 13-12-1971 and dated 20-2-1974 was not denied. The Civil Court had found that these letters of the Board of Revenue did not affect the leasehold right which were created prior to the issuance of these letters. The said judgment of the Civil Court shall be of no avail to the respondent also on the ground that at that stage the only controversy raised by the respondent was in respect of the premature cancellation of his lease. The present controversy on the other hand, concerns itself with the purchase of proprietary rights, wherein, the question of retrospectively of the aforementioned letters of Board of Revenue is irrelevant. According to the order dated 6-6-1988 by D.C., Khushab, an area measuring 29 acres, 6 Kanals and 7 Marlas of Chak No.43/D.B. fell in Lots Nos.31 and

35. According to the said order Lot No.3-1 comprised of Khasra Nos.64/1 to 10, 65/8 to 10 and 42/5/2 measuring 102 Kanals and 7 Marlas.

10. The perusal of the judgment and decree dated 1-11-1997 passed in appeal would show that the learned Appellate Court has erred in concluding that the petitioner/defendant has not produced sufficient evidence to prove that the suit-land was reserved for Military Personnel. The learned Appellate Court did not correctly appreciate the letters of the Board of Revenue referred to above while coming to this conclusion. To this extent the impugned judgment and decree cannot be sustained and is liable to be set aside.

11. What was the exact extent of Lot -No.31 and whether this Lot comprised of Khasra Nos.64/1 to 10, 65/8 to 10, and 42/5/2 is not deducible from the material on the record although such fact clearly finds mention in the order of D.C. dated 6-6-1988 and the order of the Commissioner dated 10-9-1988. It is also pertinent to point out that in the order of D.C. passed on the application of Nawab Din. Ghulam Muhammad, Muhammad Hussain and Hamid Khan on 6-6-1988 an area excluding 29 acres, 6 Kanals and 7 Marlas which were considered to be part of Military Chak; the remaining was found available for transfer which was accordingly transferred to the aforementioned applicants.

12. For all that has been discussed above, the impugned judgment and decree of the Appellate Court dated 1-11-1997 is set aside and the case is remanded to the learned Appellate Court to decide the specific question as to whether the land in possession of the respondent does or does not fall within Lot No.31 and whether or not the same, is reserved for Personnel Armed Forces.

13. Resultantly, this civil revision is allowed and the case is remanded to the learned Appellate Court to decide the appeal afresh keeping in view the aforesaid observations after giving opportunity to the parties to produce necessary additional evidence. As this is an old matter, the learned Appellate Court shall decide the appeal within six months after the receipt of this order. Parties to bear their own costs. H.B.T./P-121/L Revision accepted.