2005 PLP 33 (CLC)

8. The arguments of Mr. Abdur Rashid Shaikh, learned counsel for the petitioners have fully been supplemented by Rana Luqman Ali Khan, Advocate appearing on behalf of legal heirs of Mansab Dad (3-C and 3-D), contending that the land allotted under any permanent scheme would prevail upon all temporary cultivation schemes and the proprietary rights of the land allotted under any permanent scheme would not be allotted to the allottee and the allottee under the temporary cultivation scheme has no vested right qua the allottee of a permanent scheme as per instructions of the M.B.R. issued from time to time and the decisions of the superior Courts. Further argued that against the order passed by the M.B.R. alternate remedy by filing a review petition under section 8 of Board of Revenue Act was available which had not been exhausted by the respondents before filing the civil suit. Further submitted that the resumption order if not challenged before any revenue/colony hierarchy, the same cannot be assailed before the Civil Court. He relied on case Hakim Dad v. Province of Punjab 2003 CLC 240.

9. On the other hand, the arguments of learned counsel for the petitioners have vehemently been opposed by the learned counsel appearing on behalf of contesting respondents, contending that the order of cancellation of land allotted to the respondents under "Grow More Food Scheme" was a perverse and illegal order and the term of lease of .the respondents had to expire on 4-8-1964. Further argued that the cancellation order had been passed without notice to the respondents/allottees in violation of the principle of natural justice in spite of the fact that the Colony Assistant vide his recommendations dated 14-7-1961 had recommended the case that the land allotted under Grow More, Food Scheme to the respondents be continued but the recommendations of Colony Assistant were declined by the District Collector and his order had been challenged by the respondents through an appeal before A.C.(R) who accepted the same on 27-11-1961. Further argued that the land in dispute was not reserved and included in the schedule for "Islamabad Oustees Scheme" and could not be allotted to the present petitioners. Learned counsel continued that the respondents are in possession over the suit-land since the day of their allotment under "Grow More Food Scheme" and are entitled for grant of proprietary rights. Further argued that any order passed without notice of hearing is an order without lawful authority. He placed reliance on case of Lila Ram v: Ghulam Ali 1991 SCMR

932. Learned counsel further argued that plaintiffs-respondents could file their declaratory suit at their option as they were in possession over the suit-land and the suit filed by them was within limitation. He relied on case of Fazal Begum v. Municipal Corporation, Lahore and 5 others 1983 CLC 1643. Further contended that the order of cancellation of the land of respondents was a void and erroneous order and the limitation for filing the suit is not attracted to this case. He relied on case of Muhammad Shafi v. Mushtaque Ahmad through legal heirs and others 1996 SCMR 856.

10. I have heard the learned counsel for the parties and perused the record with their kind assistance.

11. The moot issue that boils down for determination in this case is Issue No.7 which reads as under:-- "Whether the plaintiffs are lessees of the suit-land, under Grow More Food Scheme and thus are entitled to acquire proprietary rights? OPP The plaintiffs-respondents had prayed for declaration through decree of Civil Court to the effect that they are in possession of the suit-land as lessee under "Grow More Food Scheme" and entitled to the grant of proprietary rights in' terms of the said Scheme and further prayed for consequential relief/mandatory injunction against the defendants Province of Punjab directing the defendants to sell, the suit-land to the plaintiffs through private treaty at the rate mentioned in para.3 of the plaint.

12. The land in dispute had been leased out by the Collector Multan to Zafar Iqbal, Abdul Ghani, Muhammad Sharif, Mustafa, Khurshid, Mirjan and Sultan, in the year 1959 in Chak No.53/KB Tehsil Vehari for a period of five years and the possession was delivered to them but the respondents failed to bring 50% land under cultivation, therefore, the Collector for the breach of condition of lease had cancelled their land vide order, dated 24-6-1980 and allotted the same land to some other persons including Muhammad Yousaf on five years cultivation scheme on 4-6-1960. The allotment in favour of the plaintiffs-respondents was reviewed on the ground that the. Collector was not empowered to lease out the land beyond one year and five years lease could be sanctioned with the approval of Board of Revenue and modified the order of allotment to the extent of one year. The plaintiffs applied to the Collector that they have installed a joint tube-well and have brought the land under cultivation so their lease be converted into Tube-Well Sinking Scheme. The Collector against the recommendation of the Colony Assistant in favour of the plaintiffs, had allotted the land to Muhammad Yousaf etc. under Well Sinking Scheme. The order of allotment was challenged before the Additional Commissioner by the plaintiffs-respondents through appeals which were rejected. Eight revision petitions have been preferred by the plaintiffs-respondents before the M.B.R. Punjab who, vide consolidated order, dated 1-2-1963 accepted the same, setting aside the orders of Collector and Additional Commissioner, allotting the land in favour of different persons Muhammad Younas etc. under Well Sinking Scheme and extended the lease of plaintiffs-respondents from Kharif 1960 to Rabi, 1965 under Grow More Food Scheme.

13. The lease in favour of plaintiffs-respondents was not further extended after the expiry of period of five years. Thereafter, this land was further allotted to 'the present petitioners under "Islamabad Oustees Scheme" in the year 1966. The respondents started litigation and filed a civil suit at Lahore against Province of Punjab without impleading the petitioners as defendants in the suit and got an injunctive order in their favour. On coming to know about the said injunctive order, the present petitioners had applied to the Court for recalling of the injunctive order and impleading them as defendants in the suit and when this fact came to the knowledge of plaintiffs-respondents, they had withdrawn their suit from that Court and filed the subsequent instant suit at Multan in the year 1976 when Tehsil Vehari was included in District Multan. The possession of the land could not be delivered to the present petitioners under the, allotment orders under "Islamabad Oustees Scheme".

14. The Board of Revenue issued a Policy Letter No.2263-70-777 dated 31-3-1971 directing the concerned Collectors of the Province to restore the resumed land allotted to "Grow More Food" lessees and issued them proprietary rights subject to the conditions drat allottees of "Grow More Food Scheme" have not been ousted and subsequently the said land had not been allotted under any permanent scheme. It was further directed that if the land under Grow More Food Scheme had been allotted under any permanent scheme, the allottee be given alternate land with same rights and privileges.

15. On 16-1-1974 Zafar Iqbal made an application before the Member (Colonies) Board of Revenue for the cancellation of land allotted in favour of petitioners under Islamabad Oustees Scheme. The Board called for report from D.C. Multan but Zafar Iqbal etc. respondents have already filed a civil suit at Lahore without impleading the D.C and the Petitioners as defendants in the suit. The lease in favour of plaintiffs-respondents had not been extended further. The application for extension was pending before the Commissioner and the final order was not passed on the application of Zafar Iqbal against the allotment of the petitioners.

16. The most crucial objection of learned counsel for the respondents is that the land in dispute was not included or reserved for allotment of Islamabad Oustees Scheme and would not have been allotted to the petitioners. This matter had been brought to the notice of Board of Revenue and the Board in its meting dated 28-9-1968 had decided that it would not be adviseable to upset the allotment made for the "oustees of Islamabad" on the ground that the land had not been included in the list and the allotments were made without preparation of the list. It was decided that for the remaining area the list should now be prepared immediately and allotments .be made in accordance with these lists in future. In another Memorandum No.3734-82/44/4, dated 6-11-1982 issued by the Board of Revenue the relevant portion of which is reproduced as under:-- "In this connection attention is invited to para.2(i) of the minutes of the meeting held on 28-8-1968 to consider the cases of irregular allotment made to Islamabad oustees in the District Multan/Sahiwal, copy endorsed to you vide this office Endorsement No.4902-68/2246-CS-II, dated 16-10-1968, wherein it was decided that the allotments already made to these Islamabad oustees would remain intact and should not be cancelled merely on the, ground that the land had not been included in the lists (Schedules) or allotments were made without preparation of list (.Schedule)/it was further decided that for the remaining area the list (Schedule) should be prepared immediately and allotment made in accordance with these lists in future. These decisions were subsequently repeated in thus office Memorandum No.5495-68/2719-CS-II dated 9-12-1968." The copies of minutes of the meeting and the above referred Memorandum No.3734-82/44/4 are placed on record as Annexure "C-1" and "C-2" for further ready reference.

17. From the above discussion it is established that the Board of Revenue had granted approval to the allotments made to the Islamabad Oustees in District Multan without preparing the list of the area and they said allotment was confirmed by the Board which is the highest forum for the allotment of land. Consequently, this objection of learned counsel for the respondents in the given circumstances being devoid of force is repelled.

18. The other most important question to be determined by this Court is that whether the allottees under "Grow More Food Scheme" (Plaintiffs-respondents) are in continuous possession over the land in dispute and their lease was extended after the expiry of period of five years. In order to determine this question and also to reach to a correct conclusion with regard to the site possession. I have summoned D.O.R. Vehari along with record of allotment of land in favour of plaintiffs- respondents who, is present in Court and stated that except one file of Zafar Iqbal son of Hashmat Ali, no other file for allotment of land in favour of other respondents, is available in the office or record room and' that an application was filed by Zafar Iqbal applicant for the cancellation of land allotted in favour of the allottees under "Islamabad Oustees Scheme". In this application, General Assistant Revenue Multan has reported on 24-12-1973 that the land under the said Scheme measuring 101 Kanlas, 99 Kanais, 6 Marlas, 100 Kanals, 19 Marlas, 101 Kanals, 2 Marlas, 100 Kanals, 100 Kanals, 10 Marlas and 100 Kanals was allotted under Special Scheme (Islamabad Oustees Scheme) in favour of Mst. Qudrat Jan, Mst. Mahram Jan, daughter of Pahlwan, Mansab Dad son of Manda, Siddique son of Feroze, Khuda Dad son of Samandar Khan, Fajja son of Manda and Faiz Alam son of Mandia respectively, vide allotments order dated 7-6-1966. This order as well as order of cancellation had not been challenged or set aside by any competent authority and same still hold field. After the scrutiny of evidence and examination of record it is manifestly clear that no order of restoration or extension of lease of plarntiffs-respondents under "Grow More Food Scheme" had been passed. The plaintiffs miserably failed to establish their case that after the expiry of period of lease in the year 1965 their lease was further extended. According to the present Revenue Record and the report of Revenue Patwari Khasra Nos.20, 22/1, 22/2, 23, 24, 25, 22/1, 2/1, 24/4, 7, 8, 25/7, 14, 15, 16, 17, 15, were leased out to Abdul Ghani son of Kamboh under Grow More Food Scheme but at site presently Muhammad Ishaq son of Muhammad Ali is in possession over these Khasra numbers. Khasra Nos.22/1, 2/1, 24/4-8 are in possession of one Hashmat Ali son of Fauju; Khasra No.24/7 is under possession of Muhammad Ishaq son of Ali Bux while Khasra Nos.25/7-14-15-16-17 is under possession of Muhammad Hussain son of Iraqi.

19. Mst. Qudrat Jan daughter of Pahlwan was allotted land in Khasra Nos.10/20, 21, 12/10, 11/1, 11/2, 12, 13, 14, 15, 16; 17, 18, 19/1, 19/2, 22/1, 22/2, 23/1, measuring 101 Kanals, which was previously leased out in favour of Khurshid son of Muhammad Din who had surrendered his rights in favour of Mst. Qudrat Jan and Mansab Dad vide a compromise deed Mark "C" and said Khurshid one of the plaintiff of instant suit had withdrawn the suit to the extent of Mst. Qudrat Jan and Mansab Dad, allottees of Islamabad Oustees Scheme and the suit of Khurshid to the extent of respondents Nos.2 and 3 had been dismissed as withdrawn vide order, dated 6-10-1999 passed by this Court.

20. One Bashir Hussain Shah son of Nawab Hussain Shah caste Syed is an illegal occupant over the above mentioned Khasra numbers allotted to Mst. Qudrat Jan.

21. The land measuring 100-K, 19-M, situated in Khasra No. 12, Qilla No.23/2, 24, 25, 13/12, 9, 10, 11, 12; 19, 20, 21, 22 was allotted under the scheme to Mansab Dad which was previously leased out to Khurshid son of Muhammad Din who had withdrawn his suit against Mansab Dad and according to the report of Revenue Patwari the said land is also in illegal possession of one Bashir Hussain Shah and none of the allottees under Grow More Food Scheme is in possession over the said Khasra numbers.

22. The land measuring 100 Kanals, 10 Marlas, had been allotted to Pahlwan son of Mir Ahmad Khan bearing Khasra Nos.5/7, 13, 15/2, 16/1, 18, 22 to 25, 29, .6/19, 20, 21, 22, 8/1, 2, 3, which was previously leased out under Grow More Food Scheme in favour of Muhammad Sharif and Abdul Ghani who are still in possession over the same.

23. The land measuring 100-K, 9-M, bearing Khasras/Qilla Nos.22, 2/2, 3, 4/1, 5 to 14 had been allotted to Mst. Fazal Jan daughter of Pahlwan under Islamabad Oustees Scheme which was previously leased out under Grow More Food Scheme to Zafar Iqbal son of Hashmat who is not in possession over this land. One Hashmat son of Fauju caste Jat is an illegal occupant of the same and some of the land is under illegal possession of one Muhammad Ishaq son of Ali Bux who had died.

24. The land measuring 99 Kanals, 6 Marlas had been allotted bearing Khasras Nos.15/5, 6, 7, 8/1, 8/2, 13/1, 13/2, 14 to 17, 18/1, 18/2, 23/1, 23/2, 24, 25, in favour of Mst. Mahram Jan daughter of Pahlwan, under Islamabad Oustees Scheme and this land is in illegal possession of one Marjan, Sultan sons of Allah Ditta, Muhammad Hanif son of Sultan Joiya, Tallat Mahmud son of Muhammad Munir. Copies of the report of Revenue Patwari with regard to the present status of the land in dispute are placed on record as Mark "C-3" to "C-8".

25. To substantiate their possession, the plaintiffs-respondents have produced copies of record of rights and Khasra Girdawari for the period 1960 to 1965, wherein they are entered as occupant of the land in dispute. All the documents of record of rights and copies of Khasra Girdawaries pertain to the years 1959 to 1965 but after that period there is no evidence on record to establish the continuous possession of the plaintiffs-respondents. The pre-condition for issuance of proprietary rights in favour of the allottees of "Grow More Food Scheme" is that they 'should not have been ousted/dispossessed or the land not allotted to any other person under any other permanent scheme: It is established that after the expiry of period of five years of lease in favour of plaintiffs-respondents under "Grow More Food Scheme" the lease was neither extended in their favour nor they were in continuous possession over the same except Abdul Ghani and Muhammad Sharif sons of Abdullah and Bulki respectively, respondents Nos.3 and 4.

26. Through the instant suit, the plaintiffs-respondents as stated in the preceding, paragraphs, have prayed for a decree to the effect that they are entitled for the grant of proprietary rights. Section 36 of Colonization of Government Land Act barred the jurisdiction of Civil Court with regard to the matter arising under the said Act which reads as under;-- "A Civil Court shall have no jurisdiction in any matter of which the Collector is empowered by this Act to dispose of and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act." This question had been dealt with in case of Alam Sher reported as 1998 SCMR 468, wherein, it was observed by the Honourable Judges of Supreme Court of Pakistan that Civil Court was not competent to interfere where Revenue Courts/Authorities had exclusive jurisdiction. In this case the plaintiffs have filed the suit for declaration, for their entitlement to get ownership rights of land on the basis of possession under "Grow More Food Scheme". The Collector and Additional Commissioner refused to grant proprietary rights to the plaintiffs and they instead of going to Board of Revenue in revision filed a civil suit for declaration to the effect that they were entitled to get proprietary rights of the land in question on the basis of possession. The trial Court decreed the suit. Appellate Court set aside the judgment and decree of the trial Court on the ground of lack of jurisdiction by the Civil Court. The judgment of the Appellate Court was affirmed by the High Court in second appeal. Honourable Supreme Court had refused leave to appeal, confirming the view of the High Court. The same view was followed by the Honourable Supreme Court in Muhammad Ishaq v. Abdul Ghani's case 2000 SCMR 1083.

27. In the case in hand, the plaintiffs-respondents have not been able to prove on record their entitlement for grant of proprietary rights as they had not fulfilled the condition's. Except two persons, all other respondents allottees under "Grow More Food Scheme" were not in continuous possession over the same nor they have been able to establish that they had brought 50% of the land under cultivation. They instead of approaching the revenue authorities have filed the civil suit while it was the exclusive jurisdiction of revenue/colony hierarchies to determine the rights of plaintiffs-respondents for grant of proprietary rights, therefore, this Court in following the principles in the cases referred to above, would not be competent to declare the plaintiffs-respondents entitled for the purchase of suit-land. This argument finds support from the cases of Abdullah v. Allah Ditta 1998 SCMR 2749 and Muhammad Shafi v. Hayat Khan PLD 1978 Lah. 1228.

28. For what has been stated above it is crystal clear that the plaintiffs-respondents, except Muhammad Sharif and Abdul Ghani, who are uptil now in continuous possession over the suit-land, have failed to establish their Lights for the grant of proprietary rights in their favour thus, the findings of lower Appellate Court cannot sustain hence, reversed and that of trial Court is restored. 29; The right of the plaintiffs-respondents was prejudiced when their land was cancelled in the year 1960 by the Collector and that order had not been challenged by them before the next higher authority, while it was in their knowledge. The right to sue accrued to the plaintiffs -respondents from the date of cancellation of their land by the Collector and subsequently when the land was allotted in favour of the present petitioners in the year 1966 they have been litigating the allotment of the land made to some other persons under "Tube-well Sinking Scheme" and their revision petition was accepted by the M.B.R. who extended their period of lease uptil 1965 but they omitted to challenge the order of cancellation and subsequent allotment in favour of the petitioners before any revenue hierarchy or any other competent Court. Article 14 of the Limitation Act is attracted to a case where an order is passed by the Administrative/Executive Officer and limitation provided to challenge the same is one-year, Article 120 of Limitation Act would be applicable, only when the cause of action will accrue to the litigant who is in possession over the land in dispute from the time of threat to his rights. This Article has provided period of six years for filing the suit from the date when right to sue accrues. In the case in hand as discussed earlier the plaintiffs-respondents are not in continuous possession nor arty order for restoration of their possession or extending the period of lease had been produced by them to bring their case within the period .of limitation. The time would start functioning against the plaintiffs -respondents from the date of cancellation of their land and subsequent allotment in favour of the petitioners. The instant suit had been filed by the plaintiffs-.respondents on 11-3-1976 much after the expiry of the period of limitation, therefore, no option is left with the Court to observe that the suit filed by the plaintiffs-respondents was beyond period of limitation. Consequently, the findings of the lower Appellate Court on issue No.2 observing the suit to have been filed within the period of limitation being contrary to law is hereby reversed.

30. As discussed earlier it has been proved on record that except Abdul Ghani and Muhammad Sharif, no other respondents/allottees under "Grow More Food Scheme" is in continuous possession over the suit-land, therefore, the suit to the extent of non-occupants-plaintiffs, respondents is not maintainable as they have not prayed for consequential' relief of possession Accordingly, the findings of the trial Court on issue No.3 are reversed.

31. Already the plaintiffs-respondents had filed a civil suit in the Civil Court at Lahore in the year 1968 and got stay order which was vacated on 17-12-1974. The plaintiffs Nos. 1 to 3 and 6 had withdrawn their suit on 18-2-1975 with permission to file fresh suit on payment of Rs.80 which had not been deposited. Order 23, rule 1; sub-clause (3), C.P.C. provided that where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule 2, it shall be liable for such cost as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Sub-clause (b) of sub-rule (2) of Rule 1 of Order 23 further provided that there are other sufficient grounds for allowing the plaintiffs to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit grant the permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. It would mean that Court can allow the withdrawal of the suit imposing certain conditions, permitting the plaintiffs to file fresh suit. "

32. In this case while allowing the plaintiffs to withdraw the suit the Court had imposed cost of Rs.80 on the plaintiffs which they were bound to deposit the same before or at the time of filing the subsequent/present suit. This legal point was discussed in case of Sajid Gul and others reported as AIR 1947 Pesh. 43 wherein the Court had observed as under:-- "Where the plaintiff has been allowed to withdraw his suit and is permitted to bring a fresh suit on condition of his paying the cost of suit to the defendant before the institution of the fresh suit, the second suit would not be competent if the condition precedent to the institution of such a suit has not been fulfilled."

33. As the condition was imposed on the plaintiffs-respondents 44 file subsequent suit subject to the payment of cost of Rs.80, the burden to prove such fact was on the plaintiffs whether they have deposited the said cost in the Court at the time, presenting the instant suit and in absence of payment of cost fresh suit is liable to be dismissed being incompetent for in absence of payment of costs which was a condition for filing fresh suit, there could not be. a proper suit before the Court and the High Court in such circumstances could reverse the findings of Courts below. Reference in this respect can be made to the case of Malang Dad v. Mst. Mah Pari PLD 1993 SC 6 but it would not be in the interest of justice to non-suit the plaintiffs on mere technicalities of procedure. The Court could direct the plaintiff to pay original cost plus further specified cost for the omission on his part. No such order has been passed by the Court. Had the Court directed the plaintiffs- respondents to deposit the costs imposed to them while allowing. to withdraw their previous suit and the plaintiffs-respondents would have been contumacious in obeying the order, then on this sole ground the suit ' was liable to be dismissed and if they have tendered the cost subsequently then the plaint would be deemed to have been properly presented and it must be taken to have been filed on the date on which the cost was tendered. In this respect reference can be made to the case of K.P. Kesavalu Naidu v. A.R. Venkatarama Chettiar and others AIR 1942 Mad. 35.

34. From the scrutiny of the record, it is manifestly clear that no such effort was made either by the plaintiffs or by the Court for the payment of costs, therefore, issue No.5 is disposed of accordingly.

35. So far as Issue No.1 is concerned for misjoinder of necessary parties, it was not pressed by the learned counsel for the parties before this Court.

36. The above discussed factual and legal aspects of the case had not been attended to by the learned lower Appellate Court and the impugned judgment and decree had been passed in clear violation of the dictum laid down by the superior Courts in the cases referred to above. Accordingly, the judgment and decree of lower Appellate Court is not sustainable in law, hence, set aside and as a result whereof, the instant revision petition is accepted and the judgment and decree of the trial Court, dismissing the suit of the plaintiffs respondents, is restored.

37. According to Revenue Record and present position at site, Abdul Ghani son of Bulki and Muhammad Sharif son of Bulki, respondents Nos.3 and 4 are in continuous possession over the suit-land measuring 234 Kanals as lessees under "Grow More Food Scheme" who brought the land under the plough, therefore, it would not be appropriate and in the interest of justice to dispossess them from the land in question after about 44 years, hence, they are directed to approach the Revenue hierarchy for the issuance of proprietary deeds and if the concerned competent authority is approached by them and respondents Nos.3 and 4 fulfilled the terms and conditions for the purchase of proprietary rights, the Revenue authority after determining their entitlement will issue conveyance deeds in their favour. This land was allotted to one Pahlwan petitioner No.4 under "Islamabad Oustees Scheme" so, he is directed to approach the Senior Member, Board of Revenue for alternate land available or pointed out by him anywhere in the Punjab. The M.B.R. will allot the land in the same right and privileges to him within a period of sixty days after the receipt of this order. There shall, however, be no order as to costs. S.A.K./M-365/L Revision accepted.