1987 PLP 489 (SCMR)

SAAD SAOOD JAN, J.‑‑ This petition for special leave to appeal arises in the following circumstances. The respondent was a hereditary Lambardar of Chak No. 42/E.B. in Tehsil Pakpattan of District Sahiwal. By virtue of his office as Lambardar he held a grant of 100 Kanals of land in Square No.

35. In 1951 the Provincial Government allowed the hereditary Lambardars the option to purchase proprietary rights in the Lambardari grants at the rate of Rs.150 per Acre. The option was to be exercise within one year and was subject to the condition that on 15‑3‑1948 the grantees should have acquired proprietary rights in more than half of the area of the village. Some of the Lambardars could not exercise the option within the prescribed period. Subsequently, the Government gave another opportunity to the Lambardars to exercise the option before 7‑8‑1957 but enhanced the price of the land to Rs.800 per Acre. According to the respondent he exercised his option twice; first in 1953 and then in 1957. The Government, however, turned down his request for acquisition of proprietary rights on the ground that on 15‑3‑1948 the grantees had not obtained proprietary rights in more than half of the area in the village.

2. Aggrieved by the decision of the Government the respondent on 30‑11‑1974 instituted a suit which has given rise to this petition for special leave to appeal. In the suit he sought a declaration to the effect that he was entitled to be granted proprietary rights in the Lambardari grant at the rate of Rs.150 per Acre. He also sought a permanent injunction by way of consequential relief restraining the Government from claiming the price at the enhanced rate of Rs.800 per Acre.

3. The suit was resisted by the Government. Its plea was that on 15‑3‑1948 less than half of the area of the village had been acquired by the grantees on proprietary basis and for that reason the respondent was not entitled to obtain proprietary rights in the Lambardari grant. The learned trial Judge rejected its plea after finding that in more than 50% area of the village the grantees had already obtained proprietary rights in March 1948. Accordingly, he wanted the declaration sought by the respondent. It, however, declined to fix the rate at which the respondent was to be permitted to purchase the land and left this matter to be decided in accordance with relevant rules and instructions.

4. From the judgment and decree of the trial Court the Provincial Government preferred an appeal before the District Judge. The respondent too filed cross‑objections challenging the decision of the learned trial Court in not fixing the rate at which he was entitled to acquire proprietary rights. In the appeal one of the grounds taken by the Provincial Government was that the suit of the respondent was barred by section 36 of the Colonization of Government Lands (Punjab) Act. The appeal and the cross‑objections were heard by the learned Additional District Judge. He upheld the findings of the trial Court that in more than 50% of the area of the village the grantees had obtained proprietary rights. He did not record any finding on the competency of the suit in the light of the bar contained in section 36, ibid. It accepted the cross‑objections and declared that the respondent was entitled to purchase proprietary rights at the rate of Rs.800 per Acre.

5. The Provincial Government then went in revision before the High Court. it was contended on behalf of the Provincial Government that the suit of the respondent was barred by the provisions of section 36 of the Colonization of Government Lands (Punjab) Act and that the finding of the Courts below with regard to the extent of the land in the village in which proprietary rights had been acquired was based on misreading of the evidence. The learned High Court refused to consider the objection with regard to the competency of the suit under section 36, ibid, for the reason that this objection had not been raised in the Courts below. It also declined to interfere with the concurrent finding of the Courts below with regard to the extent of the area in which proprietary rights had been acquired. Accordingly it dismissed the revision petition.

6. In this petition for special leave to appeal it is contended that the civil Courts were not competent to entertain the suit of the respondent on account of the bar contained in section 36 of the Colonization of the Government Lands (Punjab) Act and as its objection in this regard went to the very root of the jurisdiction of the civil Courts the High Court ought not to have declined to consider it. It is further contended that the finding that in more than 50$ of the area of the village the grantees had acquired proprietary rights was based on misreading of the evidence as the witness on whose statement the Courts below relied was merely referring to the position as it obtained in 1973 whereas the material date was 15‑3‑1948.

7. We are of the opinion that both the questions raised on behalf of the Provincial Government require further consideration. We would accordingly grant the Government leave to appeal. M.I./4354/S???????????????????????????????????????????????????????????????????????????????????????? Leave granted.