2003 PLP 294 (MLD)

(3)??????? Whether the suit is not correctly valued for the purposes of court‑fee and jurisdiction, if so, what is correct valuation and its effect? OPD (4)??????? Whether the suit is barred by limitation? OPD (5)??????? Whether the plaintiff is estQpped by word of conduct to file the suit? OPD (6)??????? Whether the suit is false frivolous, vexatious, if so, is the defendant entitled to special costs under section 35‑A, C.P.C. if so, to what extend? OPD (7)??????? Whether two impugned orders are against facts, without jurisdiction illegal and ineffective against the plaintiff's suits? OPP (8)??????? Whether the plaintiff is entitled to the possession of the suit property, if so, on what terms and conditions? OPP (9)??????? Relief." Evidence of the parties was recorded. The learned trial Court decreed the suit of the respondent No. l vide a judgment and decree dated 31‑7‑1989. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Faisalabad on 26‑3‑1996.

2. The learned counsel for the petitioner contends that the evidence on record has been misread by the learned Courts below. According to the learned counsel it stood proved on record that the land had in fact, been transferred to Mst. Roori in Bhakkar and the Chief Settlement Commissioner had correctly cancelled the land from her name. Further contends that there is no plea and no evidence that the terms of the Circular letter relied upon by the learned Courts below were complied with. No one has turned up for the respondents. Both the respondents have been served. Respondent/L.Rs. are represented by the Chaudhry Mushtaq Ahmed, Advocate whose name stands duly listed in the cause list for today not no one has turned up despite the repeated calls. I find that even in the Courts below the respondent No.2 had not appeared. Both the respondents are accordingly proceeded against ex parte.

3. I have gone through the copies of the records. The order dated 18‑4‑1969 is available on record. Its copies have been produced by both the parties as Exh.P/3 as well as Exh.D/3. The order narrates that the case had been taken up pursuant to a remand order dated 8‑6‑1968 for decision under section 11 of Displaced Persons (Land Settlement) Act, 1958. It also narrates that, inter alia, the successor‑in‑interest of Mst. Roori has been heard through a learned counsel and the records have been examined. In the relevant portion of the judgment reference has been made to the records produced before the said officer according to which 120 Kanals of land was transferred to Ramzan Ali, successor?in‑interest of Mst. Roori on 30‑8‑1954 and possession was delivered on 9‑10‑1954. It was, thereafter that the allotment was cancelled in Faisalabad. Now the suit was filed 10 years after the passing of the said order with the allegation that the order had been passed without a notice to the respondent No.l. He appeared as P.W.3 and stated that 'the land was confirmed in favour of his mother and that no land was allotted to her in lieu of the said land and that he is the only heir of Mst. Roori; that he was not given a notice; that his mother had died in the year 1959 and that he came to know about the order when he filed a suit against the tenant for produce. He admitted in his cross‑examination that under a Government letter dated 15‑1‑1951 allottees of up to 300 units were offered allotment of 15 acres of land in Thal and that they had applied under the said letter. He admitted that a letter was issued by the Deputy Commissioner wherein his name as well as the name of his mother was there but he states that the land was not allotted. He further states that the units of his mother were included in his units. Then he admits that he had got the possession on 9‑10‑1954 and that the land in Thal is being Cultivated by his son. He, however, denied the suggestion that during the hearing his lawyer was present. On the other hand, the son and the .sttorney of the petitioner, namely Muhammad Ibrahim Khan, D.W.5 had stated that during the course of hearing in the matter of order ;rated 18‑4‑1969, respondent No.l had joined the proceedings and that his lawyer was Tajjamal Hussain Qureshi. The suggestion given to him was that in the title of the case the name of Mst. Roori continued to exist. Now P.W.4 is Muhammad Nazir, Patwari, produced by respondent No.l himself. He has stated that no land was transferred to Mst. Roori but at the same time he has stated that respondent No.1 was allotted 120 Kanals of land in Bhakkar, Chak No. 31/M.L., and that he is in possession of the same. He also stated that proprietary rights have also been conferred. In his cross‑examination the Patwari was unable to state as to under what scheme. the allotment was made. He expressed ignorance that the Deputy Commissioner had sent a letter on 23‑7‑1954 and alongwith the said letter, 23 applications were sent including, the application of respondent No. l and it was pursuant to this application that the land was allotted. The said letter of the Deputy Commissioner is on record as Exh.D/2, accompanied by a list of allottees/applicants to be settled in Thal. Now according to this list respondent No.l is mentioned at Serial, No.8 while Mst. Roori, widow of Ghous is mentioned at No.

15. There is a note against her name that she is included in the allotment of Serial No.8. The units of Ramzan Ali are 242 while the units of the lady are 130 stated to be included in the allotment of Ramzan Ali at Serial. No. 8.

4. The letter being relied upon by the respondent No. l is mentioned in order dated 14‑4‑1970, Exh.P.5. This was the order passed in application filed by Fazal Dad Khan, a brother of the petitioner. In this order the A.S.C. (L), Lyallpur observed that under Circular Letter dated 28‑12‑1968, the allottees are entitled to retain land at both places, if they pay Rs.400 per acre as price of land allotted to them in Thal.

5. A plain reading of the evidence referred to above goes to show that the land was allotted to respondent No. 1, after including the units of Mst. Roori, in Thal to the extent of 15 acres under Exh.D/2. According to his own witness, P.W.4, respondent No. l is in possession of the said land and has been conferred proprietary rights. There is no plea and there is no evidence that the terms of letter dated 28‑12‑1968 were complied with: So far as the impugned orders Exh.P.3 and Exh.D.3, are concerned, to my mind the learned Courts below have failed to read the f same. Presumption of correctness is attached to the said order which is quasi‑judicial in nature. The statement contained in the said order that the successor‑in‑interest of Mst. Roori was heard has not at all been rebutted. The bald statement made by respondent No. l in the witness ?box has sufficiently been rebutted by the attorney of the petitioner in the witness‑box. No foundations have been laid either in the pleadings or in the evidence on record that the land at Thal, admittedly transferred to respondent No. 1, was so transferred against his own exclusive claim. On the other hand, there is documentary evidence on record i.e. Exh.D/2 to show that the land was transferred after amalgamation of the units of the mother and the son. The said order, therefore, stands supported from the evidence led in the present suit by both the parties.

6. Coming to the impugned judgments which are reflection of each other, both the learned Courts below have been impressed by the fact that since the only reason for the cancellation of the land stated in Exh.P/3 and Exh.D/3 is that the land in Bhakkar was allotted to the respondent No .l, the order would have been different, had Ramzan Ali demonstrated before the said officer that he had an independent claim. As stated by me above, I have examined the entire evidence and I have not been able to find even a plea what to speak of evidence that Ramzan Ali had an independent claim. In any case, so far as the transfer of land in Thal is concerned, the evidence on record goes to show that the land was transferred to respondent No. 1, after including the units of his mother in his units so as to enable the Department to allot 15 acres of land in Thal. The impugned judgments are, consequently result of misreading rather non‑reading of the evidence on record and cannot be sustained in this civil revision, which is accordingly allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the respondent No.l against the petitioner is dismissed.

7. No order as to the costs. H.B.T./K‑183/L????????? Revision accepted.