1994 PLP 2262 (MLD)

The dispute relates to Plot No.74/B commercial situated at Ghulam Muhammad Abad Colony, Lyallpur (now Faisalabad), which was allotted/transferred to one All Muhammad. Since the rules permitted an allottee to transfer his rights to another person with the permission of the authorities, it was transferred by Ali Muhammad to the appellant with such permission which was duly granted to him. The plot was allotted to the appellant. There is no dispute that the price of the plot was about Rs.2,000 which had been paid to the respondent. A transfer fee @ 10% of the total price of the plot was to be paid to respondent which according to respondent was not paid by the appellant, therefore, through order, dated 26-6-1967 the allotment of the said plot was cancelled. This order was challenged by the appellant through suit from which this appeal has arisen.

2. The respondent in the written statement did not deny that the plot was transferred/allotted to the appellant. It was also admitted that the price of the plot i.e. Rs.2,050 had also been paid. The plot was allotted to the appellant on 9-4-1%0 and only the transfer fee @ 10% of the price of the land was due from him due to non-payment of which the allotment was cancelled through the order challenged in the suit.

3. The trial Court after examining the evidence elaborately and carefully came to the conclusion that no notice was issued to the appellant calling upon him to pay the transfer fee which was only an amount of Rs.200, therefore, the order passed by the authorities for cancellation of the allotment was invalid and did not effect the ownership rights of the appellant as regards the said plot Was concerned. The suit was decreed through judgment dated 9-4-1973 which was assailed by the respondent in appeal before the lower appellate Court. The appeal was accepted through judgment, dated 20-4-1974 on the main ground that document Exhs.P/1 and P/2 which are letter, or an application, written the appellant satisfied the requirement of issuance of notice for payment of the transfer fee. The appeal was accepted through judgment dated 20-41974 and dismissed.

4. I have heard learned counsel for the appellant and Mr. Ashiq All Who has appeared on behalf of respondent with the record. In the written statement though a plea was raised by the respondent that the appellant failed to make payment of the transfer fee in spite of notice issued to him but in the evidence no such notice was produced. The reliance was made on the aforementioned two documents which were moved by the appellant to contend that the requirements as regards cancellation of allotment for failure to make the payment of transfer fee had been complied with. I have examined Exhs P/1 and P/2. Exh.P/2 is copy of letter dated 9-7-1966 written by the appellant to the Urban Rehabilitation Officer, Secretary District Allotment Committee Satellite Town, Lyallpur in which he stated that in April, 1960 he had been permitted to further transfer Plot No.74/B, Ghulam Muhammad Abad Colony, Lyallpur and the dues up to that stage had already been paid but he had not received letter of acceptance which may be sent to him through registered post. Exh.P/1 is copy of letter, dated 19-8-1966 through which the request made in Exh.P/2 was repeated with reference to the said letter. I am afraid if these two documents written by the appellant could in any manner and by stretch of reasonings be construed, as if requirement of law, as regards issuance of notice for payment of transfer fee had been complied with. Order, dated 26-6-1967 challenged in the suit through which the allotment of plot in the name of the appellant was cancelled does not recite that earlier to that any notice was issued to the appellant to make payment of the transfer price.

5. The findings recorded by the lower appellate Court in the impugned judgment are based on acute misreading of the record. On the other hand the findings given by the trial Court are based on correct appraisal of evidence and suffered from no illegality.

6. The judgment dated 20-4-1974 passed by the lower appellate Court for the foregoing reasons is not sustainable. The appeal is accepted. The said judgment is set aside and that of the trial Court, dated 9-4-1973 stands restored. The appellant is however, directed to deposit the transfer fee @ 10% of the price of the plot within two months from today. There will be no order as to costs. H.B.T./A-669/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.