2008 PLP 749 (SCMR)

MIAN SHAKIRULLAH JAN, J.

This petition is directed against the judgment and decree of the Lahore High Court, Lahore, whereby Civil Revision filed by the petitioners against the judgment and decree of the two Courts below was dismissed.

2. The background of the case is that respondent No.1 Nazir Ahmed filed a suit for declaration with consequential relief of permanent injunction claiming ownership of the land being a transferee from the original allottee to whom the land was allotted vide Mutation No.836, dated 6-11-1990, challenging order, dated 30-8-1994 passed by the Board of Revenue petitioner No.2 whereby allotment of the original allottee was cancelled to be declared against law void and illegal and ineffective on his rights. According to the plaint, one Talib Hussain Shah predecessor-in-interest of respondents Nos.2 to 4 was allotted a piece of land in Toba Tek Singh, District under Grow More Scheme in the year 1956 which was made by him cultivable. This land was resumed however, under another scheme to accommodate such-like affectees, the allottee was allotted some other land. The allottee after fulfilling the requisite formalities i.e. the payment of price etc. registered sale-deed No.859 was executed and registered in favour of the successors of the allottee on 9-9-1990 as the original allottee died in the meanwhile and the Mutation No.833 was sanctioned on 12-9-1990. This land was sold to Mst. Niaz Bibi vide Mutation No.834, dated 2-10-1990 who onward transferred it in favour of respondent No. 1/plaintiff through exchange Mutation No.711 dated 27-10-1990. The Board of Revenue proceeded to cancel the allotment order purportedly after issuance of notice to the original allottee on 23-8-1994, but without notice to the subsequent vendee including the plaintiffs by exercising its jurisdiction under section 16 of the Punjab Colonization of Government Lands Act, 1912. The plaintiffs/respondents being aggrieved of the cancellation order filed the instant suit which was contested by the petitioners/defendants as a result of which issues were framed and evidence was recorded and ultimately his suit was decreed with a similar result before the Appellate Court and also the Revisional Court. Against which now the present petition has been filed.

3. We have gone through the impugned judgment and also available relevant record. According to the impugned judgment, the respondent was condemned unheard as no notice has been issued to him despite the fact that after allotment of the property to the original allottee, it was transferred to him through a valid legal process with its subsequent entry in the Revenue Record in his name and was also in possession of the property. The notice statedly to have been issued to the original allottee was also found not to be supported from the record. The powers with regard to the cancellation under sections 16 and 30(2) of the Act can be exercised only in case of tenancy and not in case of permanent allotment as in the instant case and moreso, with a prerequisite condition of fraud and misrepresentation and the impugned order was held as without jurisdiction by further observing that if the petitioners felt aggrieved of the allotment order, the remedy for them was to be filed a civil suit and not in the manner in which they have proceeded. The objection of the department with regard to the notification qua the allotment of the land within the prohibitory zone of two miles of Municipal Limits was also properly attended to through the impugned judgment and it was held that once the land was made available for allotment and it was transferred and settled on the allottee, then it would supersede the notification imposing such prohibition. At the end the High Court while concurring with the judgment of the two Courts below have held that there is no misreading or non-reading of evidence to justify interference in the judgments of the Courts below.

4. Since all the points raised before the High Court found properly attended to and met reasonably and we see no flaw in the impugned judgment to justify interference. Consequently, we see no force in this petition and the same is dismissed. H.B.T./P-47/SC Petition dismissed.