2023 PLP 1261 (YLR)

ASIM HAFEEZ, J.

Provincial Government through this Civil Revision assails judgment and decree dated 22.04.2011 of the first appellate court, whereby respondents' suit for declaration was decreed by setting-aside judgment and decree of learned trial court, dated 01.06.2009, in terms whereof respondent's suit was dismissed.

2. Facts of the case are simple. Muhammad Khan - predecessor-in-interest of the respondents -- (deceased) filed suit for declaration and permanent injunction on 08.12.1998, wherein proprietary rights were claimed against the property, based on policy decision, offering land through sale by private treaty, to unauthorized occupants, subject to the conditions, contained in Notification 3137-93/ 3342-CSVI dated 12.10.1993 ('policy decision'), suggesting sale against payment of market price, plus 10% surcharge on account of sale by private treaty and 50% penalty for unauthorized construction/occupation. It is alleged that respondents had sought purchase of land under the policy decision but before any such sale was made, upon fulfilment of conditions, rights in the land were transferred in favour of the Punjab Housing Department on 05.10.2000, transaction was mutated vide Mutation No.88. Provincial Government defended the suit, objecting to the rights allegedly claimed. Issues were framed and evidence recorded, whereupon learned trial court dismissed suit on the ground of failing to prove any right in the land and entitlement thereto - with respect to the policy decision. Learned trial court recorded findings to the extent that claim based on alleged adjustment of land remained unsubstantiated. Learned appellate court reversed the decision of the trial court and decreed the suit vide judgment and decree dated 22.04.2011. Hence, this Civil Revision.

3. Learned Law Officer submits that deceased respondent had claimed proprietary rights based on policy decision, alleged adjustment of land and entitlement as being part of the Katchi Abadi Scheme. And learned appellate court decreed suit while upholding claim of the deceased, being dweller of Katchi Abadi, without appreciating that none of the conditions of policy decision were fulfilled. Adds that deceased had, simultaneously, claimed ownership and entitlement to land, based on adverse possession, which pleas are mutually destructive. Contends that no proprietary rights were conferred on the deceased, who had never claimed fulfilment of conditions of policy decision - Notification dated 12.10.1993. Learned Law Officer further submits that illegal and unauthorized status of the deceased was established with respect to the land, which was transferred to the Housing Department in the year 2000.

4. Conversely, learned counsel appearing for the respondent submits that transfer of property in favour of the Housing Department is illegal and unlawful, effected during the pendency of the suit for declaration. Submits that alleged transfer was made pursuant to Notification dated 03.02.1971, which is not applicable to the case at hand. Further submits that petitioners are in possession of the land for the last five decades.

5. Arguments heard. Record perused.

6. While perusing plaint, it is evident that respondent deceased had claimed ownership qua suit land based on adjustment, however, no record was produced in this behalf. Deceased sought proprietary rights against the offer made by virtue of policy decision

Notification dated 12.10.1993. It is not disputed that terms and conditions of Notification were not fulfilled, nor compliance of conditions was pleaded. In the midstream, deceased claimed entitlement to land being part of Katchi Abadi Scheme - nothing in this behalf was alleged in the plaint. Learned appellate court failed to appreciate that claim beyond the pleadings has had no legal effect. It is established that before the transfer of the property to Housing Department the terms and conditions of Notification dated 12.10.1993 were not fulfilled. Deceased had not established that payments were made as per the conditions of policy decision. Mere issuance of policy, when subjected to the fulfillment of terms and conditions, no enforceable right can be claimed. Hence, no legal basis was available for filing a suit for declaration, in the absence of any enforceable rights. Learned trial court has rightly observed that no benefit of Ex-P-29 could be claimed in wake of ownership of the TDA, and thereafter transferred to the Housing Department. Deceased, represented through legal heirs - respondents - was required to prove alleged entitlement to land - issue No.1 - but same failed to establish alleged entitlement and proof of fulfilment of conditions of Notification dated 12.10.1993. It is evident that deceased Muhammad Khan filed application for seeking proprietary rights on 08.12.1998 - same date when suit was filed - for claiming benefit of Notification dated 12.10.1993, after lapse of five years, which showed lack of seriousness. Muhammad Khan admitted the ownership of TDA, jeopardizing claim on the basis of Katchi Abadi. Deceased cannot otherwise travel beyond the scope of pleadings, and even evidence led outside the pleadings has no relevance and value. In wake of the contents of the application, switching entitlement to claim grant of rights, being dweller of Katchi Abadi is sufficient to denude claim of any credibility. No right qua property was established, disentitling him from seeking decree of declaration, in terms of section 42 of the Specific Relief Act, 1877.

7. Learned appellate court committed gross errors of law, misconstrued the evidence, which constitute irregularity in the exercise of jurisdiction, calling for invoking of revisional jurisdiction.

8. This civil revision is allowed, and judgment and decree dated 22.04.2011 of appellate court is, hereby, set-aside and judgment and decree of trial court, dated 01.06.2009 was affirmed. No order as to the costs. SA/P-2/L Revision Petition allowed.