2007 PLP 1271 (YLR)

MAULVI ANWARUL HAQ, J.

On 9-4-1985 the respondent filed a suit against the petitioner. In the plaint, it was stated that the respondent is a refugee from District Hasar and the suit property was transferred to him vide order dated 21-2-1977 of the Additional Settlement Commissioner. The petitioner has started claiming ownership of the land. It was then abruptly stated that the petitioner is in unauthorized possession of the land. With these averments, he sought a declaration that he is owner of the suit land and also prayed for a decree for possession. The petitioner in his written statement took the plea that the land was transferred to it on 20-9-1951. Its price was paid. The possession was taken on 29-9-1951 and Boys and Girls School stands constructed thereon. Following issues were framed by the learned trial Court:-:- (1) Whether the plaintiff has neither locus standi nor cause of action to bring this suit? OPD. (2) Whether the suit is not maintainable in its present form? OPD. (3) Whether the suit has not been properly valued for purpose of court-fee and jurisdiction, if so, its effect on valuation? OPD. (4) Whether the suit is liable to dismissal under section 11, C.P.C.? OPD. (5) What is the effect of the preliminary Objections Nos.7 and 8? OPD. (6) Whether the plaintiff is owner in possession of the property in dispute? OPP. (7) Relief. Evidence of the parties was recorded. Vide judgment and decree dated 23-6-1987 the suit was decreed. A learned Additional District Judge, Multan, dismissed the first appeal filed, by the petitioner on 14-5-1989.

2. Mian Habib-ur-Rehman Ansari, Advocate/learned counsel for the petitioner contends that the impugned judgments and decrees have been passed without even examining the RL-II (Exh.P.2) which was the sole basis of the claim of the respondent. According to the learned counsel, in the first instance, the suit land was never transferred to the- respondent vide the said document and, in the second, admittedly, the land being urban property, the same could not have transferred against a rural claim. He relies on the case of Muhammad Ramzan and others v. Member, (Rev.)/CSS and others (1997 SCMR 1635). Malik Javed Akhtar Wains, Advocate/ learned counsel for the respondent, on the other hand, has tried to support the impugned judgments and decrees.

3. I have gone through the trial Court records which have been requisitioned. Before I proceed further, I deem it proper to reproduce here the description of the land as given in the plaint in part "B" of its heading:-

4. Now according to Exh.P.2 which purports to be a certified copy issued from the records of another civil suit, in the first instance, Khasras No.279/Min four Marlas and 261/Min 14 Marlas were proposed. I may note here that it is written that the land is "Ghair Mumkan School". There is a note dated 4-5-1970 that according to the report of the Patwari the said land has been acquired and the Khata cannot be allotted. Then report dated 2-4-1970 is also available on this very document stating that the proposed Khata stands acquired for Municipal Committee, Multan, by the Central Government and is not liable to allotment. There is then an order dated 9-9-1972 stating that fresh proposal be made. On 14-9-1972 Khasra No.220/Min measuring 18 Marlas against 10 Units vide order dated 9-9-1972 of ADC was proposed. The order dated 21-2-1977 reads as follows:--

5. Now Exh.P.1 is the plan of the land comprising Khasras Nos.279 and

261. To my mind upon a plain reading of Exh.P.2, the land shown in the plan Exh.P.1 and mentioned in the plaint comprising Khasras Nos.279 and 261 was never transferred to the respondent. I may further note here that no revenue record pertaining to the Khasra No.220 has been produced by the respondent whereas Jamabandi pertaining to year 1944-45 is Exh.D.5.

6. Now in the said case of Muhammad Ramzan and others, the Honourable Supreme Court of Pakistan has observed that vide notification dated 16-5-1973 issued by the Chief Settlement Commissioner, Punjab, treated all available evacuee urban land including the one not yet confirmed to any person, against units, as building sites and that any allotment order for adjustment against Produce Index Units procured by private person was completely devoid of lawful authority.

7. It is but apparent on the face of the record that both the learned Courts below have completely failed to read the evidence c on the record rather the very document being solely relied upon by the respondent to get the relief. The civil revision accordingly is allowed. Both the impugned judgments and decrees passed by the learned Courts below are set aside and the suit filed by the respondent is dismissed. However, no orders as to costs.

8. The records of the learned trial Court be remitted back immediately. H.B.T./M-102/L Revision allowed.