1988 PLP 1333 (CLC)

This first appeal under Section 96 of the C . P. C . is filed against the judgment and decree passed by the Additional District Judge Jacobabad in F.C. No.23 of 1968 instituted by respondents Nos.1 and

2. The suit was instituted by the aforesaid respondents on the allegation that they had purchased the land mentioned in paragraph No.2 of the plaint situated in Deh Kacha Kashmore measuring 117‑9 Acre at the rate of 730 per Acre in an open public auction and that after payment of first instalment of the sale price they were delivered possession thereof on 25‑5‑1966. It was also alleged in the plaint that after taking over possession of land the respondents Nos.l and 2 made improvement in the land at the huge costs. It appears that subsequently out of above purchased land survey Nos.91, 92, 106, 107 and 108 were sought to be excluded from the allotment of respondents Nos.l and 2 on the ground that the same were reserved for P.W.D. Colony Guddu Barrage. It also appears that an area equal to the above Survey Number was offered to the plaintiffs/ respondents Nos.l and 2 in lieu of above referred Survey Numbers in Deh Domewali. It is alleged in paragraph 7 of the plaint that the plaintiffs protested against the above auction by making an application before the Project Director but that application was dismissed on 31‑5‑1967. Thereafter, the matter was taken before the Board of Revenue in a Revision Application which too was dismissed on 18‑6‑1968. Respondents Nos.l and 2 then instituted the civil suit from which the present revision has arisen. In their suit respondents Nos.1 and 2 claimed a declaration to the effect that they are the legal transferees of Survey Nos. 91, 92, 106. 107 and 108 of the land of lot No.l and the Kacha Quarter which are in their possession. A further declaration was also sought to the effect that the order dated 28‑1‑1967 of defendant No.4 and order dated 18‑6‑1968 of defendant No.6 in the suit were illegal and unjustified. A consequential relief of injunction was also claimed against defendant No.8 in the suit from ejecting respondent /plaintiff from the above referred Survey Numbers. The suit was resisted by defendant No.8 who alone filed his written statement contesting the allegations made in the plaint. The following issues were settled by the Court on the basis of controversy between the parties. (1) Whether the suit is not maintainable in law ? (2) Whether this Court has no jurisdiction to entertain the suit ? (3) Whether the suit is time‑barred ? (4) What is the effect of Section 74 of Agricultural Development Corporation Ordinance, on the suit ? (5) Whether the land in question was resumed under Section 38 of the Land Revenue Code for construction of Guddu Barrage Colony by Collector Upper SInd Frontier ? If yes, what were its boundaries ? (6) Whether the Colonization Officer was competent to auction theland in dispute if not what is its effect ? (7) Whether Colonization Officer was competent to cancel the auction? (8) What were the terms and conditions of the auction of the land in dispute ? (9) Whether the plaintiffs are entitled for judgment and decree as claimed by them in para 14 of the plaint ? (10)What should the decree be ?' All the issues were decided in favour of the plaintiffs /respondents Nos.l and 2 and accordingly the suit was decreed in their favour as prayed. The learned counsel for the appellants Nos.l and 2 contended that the learned trial Court failed to take in consideration that the plaintiffs/ respondents Nos.l and 2 had themselves represented to appellant No.2 that as Irrigation Department was not prepared to relinquish their right in respect of disputed Survey numbers they may be granted an area equal to the area of those land out of Survey No.47 of the adjoining Deh Doomewali. That the above proposal of respondents Nos.l and 2 was accepted by the appellant No.2 and as such the respondents /plaintiffs could not afterward bring the suit to challenge the order of the appellant ‑passed in this regard. It is next contended by the learned counsel for the appellant that the suit was not maintainable in the present form as the respondents Nos. 1 and 2 who were out of possession of the entire disputed land did not claim the relief of possession in the suit. After hearing the learned counsel for the appellant I am of the view that none of the above contentions have any merit. The first contention of the learned counsel for the appellant is that respondents Nos.l and 2 having themselves approached the appellant No.2 for allotment of an area equal to the area of disputed survey numbers and the said proposal having been accepted by appellant No.2, the respondent could not subsequently turn round and challenge the same. This contention is raised by the learned counsel for the appellant in this appeal for the first time and is unsupported by any evidence on record or by the pleadings of the parties. I have gone through the written statement filed on behalf of appellants in the suit with the assistance of learned counsel for the appellants and I am unable to find any such plea or averment in the written statement. Even in the evidence before the trial Court neither anything was suggested to the witness of respondents Nos.l and 2 nor any such plea was raised in the evidence of appellants. No effort has been made in this appeal to substantiate the allegations contained in paragraphs 4 and 5 of the Memo of Appeal by leading any additional evidence. In these circumstances the contention of the learned counsel raised during the course of arguments of appeal cannot be entertained as it has no basis. The second contention of the learned counsel for the appellant is that the suit instituted by. respondents Nos.l and 2 was not maintainable as these respondents were out of possession and they failed to claim possession as a consequential relief in the suit. This contention too is devoid of any force. The appellants in support of their case has examined Ammer Bux son of Abdur Rehman Colonization Officer Guddu Barrage as Exh.116 before the trial Court. This witness in his examination‑in‑chief stated that possession of entire land auctioned in favour of respondents Nos.l and 2 was delivered to them except Survey No.106 which was then in possession of P.W.D. Quarters and respondents Nos.l and 2 were informed by the Assistant Colonization Officer that the possession of Survey No.106 could not be given to them. In view of this categorical statement made by the appellants' witness before the trial Court there is hardly any scope for the argument that the suit instituted by the respondents was incompetent for ommission of the prayer of possession by them. According to appellants' own Witness the respondents were in possession of the entire land except Survey No‑106 on which a school and P.W.D. Store were in existence and in respect whereof the learned trial Court had already recorded a concession made by respondents Nos.1 and 2 that they will not claim possession of the school and store and the same were excluded from the decree passed in favour of respondents. No other point wasl raised. There is no merit in this appeal which accordingly is dismissed but there will be no order as to costs. H. B. T./P‑46/K Appeal dismissed.