2006 PLP 1056 (CLC)

SYED HAMID ALI SHAH, J.

Brief facts giving rise to the filing of this petition are that Property No.2/422 situated at Mandi Baha?ud-Din, was an evacuee property and remained continuously in the possession of the petitioner, where a Primary School was established since partition. The Municipal Committee/petitioner applied to the Deputy Settlement Commissioner for the transfer of the property. The Rehabilitation Commissioner, Rawalpindi, accepted the request and issued order, dated 6-3-1962, ordering the transfer of the property to the petitioner. The Deputy Settlement Commissioner required from the petitioner a certificate from Education Department, which was sent through letter, dated 9-8-1968 (Exh.P.2) Assistant Inspector of Schools, issued the certificate (Exh.P.3) to the effect that use of the transferred property, shall only be for education purpose. The Deputy Settlement Commissioner conveyed through letter, dated 15-8-1969 (Exh.P.4) that an amount of Rs.4,080 paid through cheque has been deposited in the account of property. Treasury challan (Exh.P.5), proves the payment of Rs.4,080 in respect of Property No.2/422. The property remained in the use and occupation of the petitioner, although Settlement and Rehabilitation Department failed to issue requisite transfer order in favour of petitioner.

2. Respondent No.3 served upon the petitioner notice dated 8-1-1987 (Exh.P.6) wherein respondent No.3 claimed rent of the suit, property from the petitioner. Respondent No.3 claimed that property was purchased by him in open auction in year 1970, the property finds mention in the schedule/list of properties at Serial No.19 (Exh.D.2). The respondent No.2 in order to prove the payment, produced relevant page of CSC-V Register, showing an entry that an amount of Rs.8,260 has been paid by the respondent No.3.

3. The petitioner filed suit for declaration on 10-4-1988, to the effect that petitioner is exclusive owner of the property in dispute and that the order of its subsequent transfer to respondent No.3, if any, is void, ultra vires and of no effect on the right of the petitioner. The suit was contested by the respondents, issues were framed and the parties led their respective evidence. The suit was dismissed vide judgment and decree dated 18-1-1993. The petitioner's appeal against the impugned judgment and decree was decided on 21-1-2000, which met the same fate. The petitioner has assailed in the instant revision petition the decisions dated 18-1-1993 and 21-1-2000, of the Courts below.

4. Learned counsel for the petitioner has vehemently argued that the transfer of property to petitioner stands proved from Exh.P.1 to Exh.P.6. Settlement Department has admitted the transfer of suit property, to the petitioner and also the payment of price. Not a single witness has stated that an amount of Rs.4,080 which the petitioner has paid as price of the property, was not the whole amount of consideration. The written statement filed by the respondents Nos. 1 and 2, is without any verification of record, which fact is evident from note of D.S.C. at the bottom of the written statement. He submits further that the respondent No.3 allegedly purchased the property in auction in the year 1970 and then slept over his rights until 1987. This fact alone proves that there was no purchase by respondent No.3 and the record was prepared fraudulently by respondent No.3, in connivance with the staff of other respondents. The respondent No.3 has failed to bring on record any agreement, sale certificate, order of Settlement Authorities regarding the confirmation of sale through auction in his favour and receipt of payment of auction price. The .Courts below have misread the evidence and revision, in this respect, is competent. He has referred to the case of 2004 SCMR 803 and Sultan Khan and 3 others v. Sultan Khan 2004 MLD 918.

5. Ch. Mushtaq Masood learned counsel for respondent No.2 has pointed out that suit property is State property, where children of masses, are getting education but unfortunately none has seriously contested the case. The petitioner has failed to produce any responsible officer or witness and instead a sub-engineer appeared as witness and made his statement only, regarding the construction of building, at the suit property. The respondent No.3 admitted that no transfer order was issued to him but the Settlement Department, went ahead to favour him and asserted in written statement that transfer order was issued to respondent No.3. The written statement by respondents Nos.1 and 2 was submitted without any reference to the record. He lastly contended that the written statement submitted by his clients is stated to be on the basis of entries in register, without specifically mentioning the source from where the entries were taken:

6. Heard learned counsel for the parties and perused the record.

7. Learned trial Court has dismissed the suit and the learned lower Appellate Court affirmed the said decision, that respondent No.3 has not produced a single document regarding the purchase of suit property. Mere mention of the property in the auction list and entry in the Register CSC-V, does not prove the purchase of the property by respondent No.3. It was essential for respondent No.3 to produce the order of confirmation of sale through auction, the challan regarding payment of the auction price in the Government Treasury and the proceedings for auction respondents Nos.1 and 2, in their written statement, have taken the stance that out of total price of Rs.8,568 a sum of Rs.4,080 was deposited by the petitioner and the balance amount was not deposited which resulted into cancellation of allotment, in favour of the petitioner. The respondents have not produced in evidence any record or proof, in this respect. The allotment once made, cannot be cancelled for non-deposit of balance amount. The respondent No.1, in such circumstances, could recover the balance amount from the petitioner as arrears of land revenue. While holding so, I am fortified by the law declared by the august Supreme Court, in the cases of Nawab Din and another v. Mst. Haseeb-un-Nisa and others 1980 SCMR 798; Mst. Majeeda Begum v. Deputy Settlement Commissioner-II and others 1980 SCMR 827; Mst. Roshan Jahan and others v. Settlement Commissioner and others 1988 SCMR 346 and Israr Ahmad and others v. Member, Board of Revenue/Chief Settlement Commissioner, Lahore and another 1997 SCMR 1559. The suit property, which is not forming the part ofl compensation pool, the sale thereof through auction is illegal. Neither c any issue is framed in this respect nor the evidence is led.

8. Respondents Nos.1 and 2 have submitted written statement, without any verification of contents of written statement from record. Respondents Nos.1 and 2 in their written statement have asserted that suit property was cancelled from the name of the petitioner and was sold in auction to respondent No.3 for a sum of Rs.8,

260. The sale was confirmed by Commissioner on 5-9-1970 and thereafter, transfer order was issued. Respondent No.3, on the other hand, has submitted in reply to para.2 on merit that transfer order has not so far been issued to him. Respondents Nos.1 and 2 have excelled in favouring respondent No.3. The written statement by respondents Nos.1 and 2 is without any reference to record and as such no sanctity is attached to it. Respondents Nos.1 and 2 have given the following note in the bottom of their written statement:-- Respondents have not referred to the register from where the relevant material was collected for written statement. The written statement of respondents Nos.2 and 3 carries no weight but the Courts below have ignored this fact. Admittedly the petitioner is in possession and no suit has so far been instituted by the respondent No.3 for possession. The question that the rights of respondent No.3 in the suit property, if any, are extinguished or not, has not been dealt in the impugned judgments. The lapse almost 17 years in issuance of notice has not been considered in the impugned judgments. The plaintiff has proved the allotment of land through Exh.P.l to Exh.P.5. The property once allotted to the petitioner is not liable to be cancelled, on the ground that balance amount was not paid. Respondent No.3 has failed to establish that suit property was purchased in auction. There is no receipt, treasury challan, order of confirmation of auction or transfer order in this respect.

9. For the foregoing reasons, this petition is accepted, the impugned judgments and decrees dated 18-1-1993 and 21-1-2000 passed by learned Civil Judge and learned Additional District Judge, Mandi Baha-ud-Din respectively, are set aside. Resultantly the suit of the petitioner is decreed in favour of the petitioner. M.B.A./M-184/L???????????????????????????????????????????????????????????????????????????????? Petition accepted.