2006 PLP 2485 (YLR)

MUHAMMAD SAYEED AKHTAR, J.

Plaintiff/respondent filed a suit on 20-7-1985 for possession of Ihata Number 1372 measuring 7 Marlas, 1 Sarsahi. It was averred in the plaint that the plaintiff/respondent purchased the aforesaid Khata from one Muhammad Boota vide registered sale-deed dated 17-1-1982. The defendant/petitioner was not owner of the adjacent 'Ihata No.1371. He demolished the intervening wall between two Ihatas and illegally occupied the same. The suit was resisted by the defendant/petitioner on the ground that the delivery of the possession of Khata Number 1372 was never made by the Government/Collector under section 10(4) of the Colonization Act, 1912. Out of the pleadings of the parties, following issues were framed:-

1. Whether the plaintiffs are owners of the disputed property and the defendant is an unauthorized occupant of the same?

2. Whether the plaintiffs are entitled to mesne profits for the undue advantage?

3. Gained by the defendant, if so, to what extent?

4. Whether the plaintiffs have got no cause of action and locus standi to file this suit?

5. Whether the suit has been properly valued and stamped? OPP

6. If Issue No.4 is not proved then what is the correct valuation and how much is the deficiency in court-fee? OPD

7. Whether the defendant is coming in continuous possession of the disputed property for a period of more than 12 years and thereby has matured his rights therein through prescription? OPD

8. Whether the defendant has effected improvements by making construction of a building over the disputed property, if so, whether he is entitled to get compensation for the same in the extent the suit is decreed? OP

9. Relief. The learned trial Court, after recording the evidence of the parties, decreed the suit vide judgment dated 22-12-1991. The petitioner remained unsuccessful before the learned Additional District Judge in his appeal on 22-10-1999.

2. Learned counsel for the petitioner contended that originally one Ghulam Rasool son of Ghulam Muhammad purchased the Ihata in open auction, but he was not delivered the possession by the Collector. Muhammad Boota, subsequent vendee from Ghulam Rasool and plaintiff-respondent also did not have the possession of the Ihata. He argued that sale without possession is defective. The title of the plaintiff/respondent was also defective. The petitioner was in possession for last 20/25 years. Reliance was placed on Ghulam Hussain v. Fateh Muhammad and 9 others (1987 SCMR 1115), Allah Ditta v. Ali Muhammad and another; (1990 SCMR 1577) and Ghulam Farid v. Member (Judicial), Board of Revenue, Punjab, Lahore and 5 others (PLD 1995 Lahore 178).

3. Conversely learned counsel for the respondent submitted that sale of Ihata and delivery of possession has not been questioned by the Government/ Collector. The petitioner has no right to say that the title of the respondent is defective. The decree stands executed.

4. I have gone through the judgments of the Courts below, perused the record and considered the arguments of the learned counsel for the parties. Admittedly, Ihata in question was purchased by one Ghulam Rasool in open auction. He sold the same to Muhammad Boota, who in turn alienated the same to respondent vide sale-deed dated 17-1-1982. The Government/Collector has not questioned the title of the plaintiff/respondent. In the authorities relied upon by the learned counsel for the petition, the Collector had cancelled the allotment of the tenant on the ground that possession of the land was not delivered to the tenant as such the tenancy was defective. The said authorities are not applicable to the instant case. The case of the plaintiff/respondent is that the petitioner was the owner of the adjoining Ihata. He occupied the Ihata in dispute by demolishing the intervening wall. The petitioner has not been able to rebut the same. The title of the respondent is proved on the record. The decree also stands executed. Both the Courts below have concurrently decided against the petitioner. This petition has no merit and is dismissed leaving the parties to bear their own costs. F.B./S-91/L Petition dismissed.