1983 PLP 2868 (CLC)

‑‑ Leases given under Grow More Food Scheme in 1956 initially for period of three years and in 1958 this period extended for five years Leases, held, expired in April, 1962‑View of Courts below being contrary to law pronounced by superior Courts, held further, liable to be set aside on this score. P L D 1981 S C rel. (f) Civil Procedure Code (V of 1908)‑‑ ‑‑ S. 100‑Grow More Food Scheme ‑ Second appeal ‑ Trial Court apart from infirmity on legal plane failing to exercise juris diction vested by law ‑ Order of trial Court as well as that of first appellate Court maintaining order of trial Court, held, unsustain able‑Case remanded to trial Court for fresh trial. Mian Nasir Ahmad for Petitioners. Riayast Ali for Respondents Nos. 5 and

7. Respondent No. 4'in person. Date of hearing: 12th April, 1983. This R. S. A. is based on the grievance that the appellants were denied the conferment of proprietary rights. by the functionaries in the Revenue Department on the erroneous view of the law that Rabi 1962 would expire in December, 1961. Learned counsel for the appellants feels fortified in urging before me that this aspect of the matter has been thoroughly examin ed by a Division Bench of this Court In re: Muhammad Ashraf v. Board of Revenue, West Pakistan (P L D 1968 Lah. 1155) wherein it has been laid down that according to the correct interpretation of law Rabi 1962 will extend to April, 1962. This condition having been fulfilled by the appellants, they could not be denied the conferment of proprietary rights. Therefore, the judgments of two Courts below are based on incorrect view of law and are liable to be set aside and the suit be decreed. The supplementary contention of the learned counsel for the appellants is that the learned Additional District Judge overlooked the law on the subject in refusing relief to the appellants on the view. that the appellants had not claimed the consequential relief of possession.. He submits that this view runs contrary to the established law laid down by superior Courts. In support of his contention the learned counsel for the appellants relies on the following decisions : ‑ P L D 1963 S C 91 ; .P L D 1971. .S C .762 and P L D 1983 Lah. 294 in which it has been stated sand reiterated that in !a case where a relief due to a party was omitted in the plaint and on the facts of the case it is found that he is entitled to that relief, the Court ought to provide to such a party an opportunity to amend the plaint. According to the learned counsel, in following the contrary course, there was an illegality committed. I am in clined to agree that the appellants were entitled to an opportunity to amend the plaint to make prayer for relief of possession.

2. On behalf of respondents 5 to 7 Ch. Riasat Ali, Advocate states that the question of Rabi 1962 was not relevant, In fact, he does .not challenge the correctness of Division Bench authority reported as P L D 1968 Lahore 1155. Proceeding on these basis he sought to argue that if one . has to go by documents Exhs. P‑1 and P‑2 it will appear that the tenancy commenced in 1956 for five years had expired in the year 1960. According to him, therefore, the five years expired in 1960. I am afraid, I am unable to subscribe to this view for the reason that in P L D 1968 Lahore 1158 the: facts were precisely the same and yet it has been laid down by the Division Bench of this Court that such a tenancy for five years would expire m April, 1962. Therefore, I find no infirmity attached to these two documents placed on record by the appellants.

3. Learned counsel for the respondents argued that in view of ‑the ,fact that concurrent finding having been recorded by the two Courts below to the effect that the tenancy expired before Rabi, 1960 the same was not liable to be interfered with in exercise of my powers under section 100 of the C. P. C. I am of the view, however, that any finding of fact whether, concurrent of otherwise in order to be immune from scrutiny must he such as is based on correct appreciation and reading of evidence. If at finding be against the entire weight of evidence and also be in violation of the enunciation of law made by the superior Courts ‑then such a finding by no plausible process of reasoning is immune from interference under section 100 of the C. P. C. This appears to be precisely the case in the instant. case. Had the two Courts below taken into consideration the dictum mentioned in A I R 1929 P. C. 38 as well as Division Bench authority of this Court in Muhammad Ashraf's case, the result would have been entirely different.

4. Learned counsel for respondents 5 to Tat this stage sought to argue that there were, undoubted powers vested in the functionaries of the Revenue Department to resume the land if it was found to be required for public purpose. Once according to him, this was done then the land in question became a part of the schedule. In this case the land had been resumed and formed part of the schedule, therefore, thereafter it was per manently transferred to respondents and thus it called for no interference. Learned counsel, therefore, relies on 1981 S C M R 1134 and 1981 C L C 1681. ~

5. I have considered the submissions being made by the learned counsel for respondents and I find myself unable to subscribe thereto. It is not being appreciated by the learned counsel that the illegality commenced the p moment .law was misconstrued and under patent misconception the rights of the appellants were denied to them. Thereafter what happened would be of no consequence because I am to see whether the law was observed by the functionaries and whether the aggrieved persons have made out a case for relief being granted to them. It has now been established on the basis o decisions cited at the bar in the case of Muhammad Ashraf that all the leases given under Grow More Food Scheme in 1956 were initially made for a period of three years and in the year 1958 this period was extended for five years. The learned Judges of Division Bench after hearing the Govern ment Department had interpreted that in the facts and circumstances of cases E of such leases made under Grow More Food Scheme in 1956 for a period of three years and then extended for five years expired in April, 1962. The view of the trial Court as well as learned Addl. District Judge being contrary to the law propounded by the superior Courts is liable to be set] aside on this score alone. The authority for this proposition is 1' L D 1981 S C.

6. In so far as other limb of argument is concerned that the Govern ment has power to resume the tenancy on that being required for a public purpose, the point may be good in so far as it goes as a pure legal pro position but in the facts of present case the Revenue authorities or the two Courts below have not refused the conferment of proprietary rights on the appellants on this ground and it was nobody's case before the Courts below that impugned auction could be justified on that score.

7. There were five issues framed by the trial Court and it contented it self by giving decision only on issues Nos. 1 and

6. There was a pivotal issue of locus standi i.e., issue No.

5. Issues Nos. 2, 3 and 4 were also left undecided. This omission appears to have been supplied by the learned Additional District Judge in his appellate judgment dated 10th December, 1973. While purporting to supply the omission, the learned Additional District Judge again fell into a serious legal error in recording the finding that the plaintiffs‑appellants had no locus standi to file the suit. This goes to the root of the matter. In reaching this conclusion he has again misconstrued the law as well as the scheme and also in so doing ignored from consideration of the decision of Lahore High Court In re : Muhammad Ashraf v. Board of Revenue, West Pakistan and contrary to this decision he was of the view that the terms of the lease expired in 1960 and thereaftar the plaintiffs‑appellants were left with no locus standi. On the contrary, the law laid down by the High Court is tli`at these leases expired in April, 1962 and the person aggrieved had the lpcvs ;: standi. So in any view of the matter the finding of the learned Additional District Judge is liable to be reversed. In so far as issue No. 2 is concerned this also cannot be sustained. I have already dealt with this aspect of the matter in the light of precedent case law. So an opportunity has to be provided to the appellants for making appropriate amendment in the plaint) and this could not be made basis for throwing out the suit.

8. Ch. Riasat Ali, Advocate, learned counsel for respondents 5.to 7 wanted to argue other aspect of the matter, but I have decided not to make my comments in view of the order I am proposing to pass in this case t: e., remand. The learned counsel has rightly decided to refrain from making further submissions because if I am to give a decision on issues which are going to be tried in the suit then remand order would become itself illusory.‑.

9. The above discussion would show that the trial Court, apart from the infirmity on the legal plane, had failed to exercise jurisdiction vested in him by law by deciding only two issues. The learned Additional District Judge who maintained the order of the trial Court itself fell into a serious legal error in recording findings against the appellants which have been found to be unsustainable. This appeal is accordingly accepted and the case is remanded to the trial Court for fresh trial. It will be open for the parties to raise all the pleas available to them. The parties in the circumstances of the case are left to bear their own costs. M. Y. H. Appeal accepted.