2001 PLP 710 (CLC)

Resolution No.34, dated 29‑6‑1956 the petitioner is entitled to be adjusted plots against 2/3rd of his said land and to be paid compensation against 1/3rd of the said land. This was also the prayer made in the suit.

2. The respondent took up the defence that the said Khasra Nos. were owned by Rahim Bakhsh son of Ghaseeta and Umar Din son of Dhola and since the petitioner was not entitled to any adjustment he was accordingly informed through a letter, dated 5‑8‑1974. Following issues were framed:‑‑ (1) Whether the plaintiff has got no cause of action and locus standi? OPD (2) Whether the suit is not maintainable in its present form? OPD (3) Whether this Court has got jurisdiction? OPP (4) Whether the‑ plaintiff is entitled to exemption of 2/3rd and compensation to 1/3rd in respect of land measuring 3 Kanals, 18 Marlas and 31 Sq.ft. by virtue of Resolution No.34, dated 29‑6‑1956? OPP (5) Whether the plaintiff is entitled to a decree for permanent injunction? If so, on what terms and conditions? OPP (6) Relief. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 5‑5‑1984. A first appeal was filed by the petitioner. The appeal came to be heard by a learned Additional District Judge, Lahore. A perusal of the Additional District Judge's judgment gives an impression that he found all other issues in favour of the petitioner but proceeded to non‑suit him on the ground of laches. Through some process of reasoning which is not comprehendible the learned Additional District Judge also held that the suit is barred by section 21(g) of the Specific Relief Act, 1877. Be that as it may, the appeal was dismissed on 7‑3‑1989.

3. Mian Nisar Ahmad, learned counsel for the petitioners argues that the deceased petitioner had proved the case fully .as pleaded by him in plaint and as such was entitled to be adjusted and compensated in terms of the policy admittedly declared by the respondent itself. Sardar Mohabbat Ali Dogar, learned counsel for the respondent, on the other hand, argues that the land had been acquired and its possession had also been taken over, yet the petitioner managed to purchase the land from the erstwhile owners.

4. I have gone through the certified copies of the records appended with this Civil Revision as also the learned trial Court's record that has been summoned. I have already referred to the pleadings of the parties above. The sale‑deed in favour of the petitioner is Exh.P.2 the mutation is Exh.P.3. The sale was incorporated in the records for the year 1961‑62 vide copy Exh.P.4. Out of this very land some land was acquired vide award, dated 4‑11‑1961 Exh.P.5 (for Walten Airport). Exh.P.8 is Resolution No.34 passed on 29‑6‑1956, whereby it was agreed that 2/3rd of the area of the owners should be exempted and 1/3rd be taken towards roads and open spaces for which compensation is to be paid. Exh.P.9. is the copy of the minutes of the meeting of the Lahore Improvement Trust, Lahore, dated 22‑3‑1961. This document has been admitted into evidence without any objection from the respondent and till date it has not been denied that the document does not pertain to the record of the respondent. This document clearly narrates that the petitioner is the owner of land measuring 3 Kanals, 16 Marlas and 661 Sq.ft. and that he is to be adjusted an area of 2 Kanals, 10 Marlas and

194. Sq.ft. Even some plots are mentioned in Block "H" and Block "C" to be reserved for the petitioners and others.

5. To my mind the petitioner has proved his case as set up in the plaint and to similar effect is the finding of the learned Additional District Judge. The said argument of the learned counsel for respondent is neither here nor there. The argument is based on document Exh.D.3 which is a report of possession being taken over on 24‑4‑1957. Learned counsel is not in a position to state as to whether the possession was taken under section 16 or 17 of the Land Acquisition Act, 1894. However, the matter is clarified in thel said Resolution itself which directs taking over of possession under section 17 of the said Act. This possession would not have the effect of extinguishing the title of the owner or vesting of the land in the Provincial Government or for that matter in the respondent.

6. Coming to the reason given by the learned Additional District Judge for dismissing the appeal, the present suit has been filed in the year 1980 (on 11‑I‑1980). It is a matter of record that at no stage was the title or the claim of the petitioner denied. I have not been able to locate any letter, dated 5‑8‑1974 duly tendered on record as has been relied upon by the learned Additional District Judge. However, I have been able to find a letter, dated 5‑12‑1978 Exh.P.7, which states the detail of compensation for the Walten Airport Scheme. There is nothing on record to suggest that the suit is either barred by time or by laches. Similarly, the other reasons stated by the learned Additional District Judge as to applicability of section 29(g) of the Specific Relief Act, 1877 is also without any basis either in fact or in law. E There is no question of any performance of contract. The petitioner has proved to be the owner of the land which had been taken over by the respondent on a certain promise and representation through its Resolution. The Constitution of the country vests the citizens with a fundamental right to hold to own and to acquire property and their property is not to be taken away otherwise then in accordance with law. The respondent having admittedly taken over the land is bound to adjust the plots and to pay compensation as represented by it through the said Resolution admittedly passed by it. The learned Courts below have thus, refused to exercise jurisdiction vested in them by law by passing the impugned judgments and decrees and have acted otherwise with material irregularity in exercise thereof. This Civil Revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed with costs throughout as prayed for. H.B.T./M‑455/L Petition accepted.