2006 PLP 1469 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner/defendant, namely, Pakistan Broadcasting Corporation, impugns the concurrent decrees of the learned trial Court dated 8-3-1997 and of the learned appellate Court dated 1-10-1999, whereby a declaratory suit filed by the respondents Nos.13 to 16 has been decreed.

1. The facts of this case are simple. Under the Land Acquisition Act the Province acquired 202 Kanals of land which was then transferred to the petitioner/ defendant. The land acquisition proceedings are not in dispute. At this point it may be noted that the acquisition was completed and an award was also made in respect of the acquired land on 2-10-1962.

2. The respondents/plaintiffs claimed that they were owners of a part of the acquired land measuring 26 Kanals, 19 Martas. According to the contents of the plaint the grievance of the respondents/ plaintiffs was expressed only against two persons, namely, Ali Muhammad and Muhammad Hussain. In paras.12 and 13 of an amended plaint filed by the respondents/plaintiff, the aforesaid Ali Muhammad had filed a pre-emption suit against the above named Muhammad Hussain and had obtained a decree therein dated 28-4-1948 which decree had been affirmed in first appeal on 14-2-1949 and in Regular Second Appeal No.46 of 1949 decided on 12-5-1950. The case of the respondents/plaintiffs was that the aforesaid decree had been collusively obtained by Ali Muhammad (predecessor-in-interest of the respondents Nek Muhammad etc.). The relief claimed by the respondents/plaintiffs is instructive. The prayer clause reads as under: -- "It is respectfully prayed that a decree may graciously be passed for correction of the Revenue Record with a declaration that the land has remained in possession of the plaintiff with consequential relief of setting aside of the manipulated entries in the Revenue Record and the settlement record to show continuation of the plaintiff's possession according to law. The cost may also be awarded. That the decrees obtained by collusion and fraud by late Ali Muhammad and Muhammad Hussain mentioned in paras. 12 and 13 may also graciously be set aside as obtained by fraud and therefore, of no legal consequence."

4. It is not a matter of contention that the petitioner, Pakistan Broadcasting Corporation is in possession of the land in dispute and it has its installations thereon. The title in the land came to vest in the petitioner as far back as 1961-62 whereafter the petitioner is in continuous possession. The respondents/plaintiffs have not made any claim against the petitioner nor have they sought possession of the suit-land. The testimony of the P.Ws. is also relevant. Muhammad Mushtaq, one of the plaintiffs, appeared as P.W. He stated that the land was in possession of Nek Muhammad etc. (legal representatives of Ali Muhammad). This assertion is factually incorrect and is also inconsistent with the contents of paragraph 25 of the plaint wherein it is accepted that possession is with the "Radio Station". This fact .is also confirmed by P.W.2 examined by the respondents/plaintiffs. P.W.2 also stated that no relief was being claimed against the petitioner because fraud had been committed on the plaintiffs by defendants Nos.1 to 12 (legal representatives of Ali Muhammad).

5. Notwithstanding the above facts, the Courts below have. held that the respondents/plaintiffs have been deprived of their legitimate rights in the suit property. As a consequence, the plaintiffs have been held to be the owners of the disputed land. Such a decree could not have been passed against the petitioner because no relief to this effect had been sought against it. Secondly, it is to be noted that the Province and the Land Acquisition Collector had neither been impleaded as defendants in the suit nor had the land acquisition proceedings, as noted above, been assailed in the suit. Furthermore for the reasons discussed above, the claim of the respondents/ plaintiffs that they had been in possession of the suit-land was obviously and patently proved to be false.

6. In the foregoing circumstances, the concurrent decrees of the learned Courts below to the extent of the petitioner, Pakistan Broadcasting Corporation are set aside.

7. The petitioner shall also be entitled to its costs throughout. F.B./P-4/L Petition allowed.