2001 PLP 1884 (YLR)

CH. IJAZ AHMAD, J.

Briefly the facts of this case are, that the respondent/plaintiff filed suit for declaration with consequential relief against the appellants before the Civil Judge, 1st Class, Gujaranwala on 26-5-1995, originally qua the land measuring 2 Kanals and 2 Marlas alongwith alternate prayer that respondent/plaintiff be allotted alternate pots by the appellant. Subsequently, respondent/plaintiff filed application for amendment of the plaint which was allowed on 12-10-1995. The contents of amended plaint reveal that Model Town Scheme Gujranwala came into existence vide Notification, dated .1-1-1957. Originally charge of the Scheme was under the Department of Improvement Trust. The D.C. was ex officio Chairman of the Improvement Trust. Subsequently, Department of Improvement Trust was substituted with Gujranwala Development Authority in the year 1989. The aforesaid Scheme came under the control of Gujranwala Development Authority in the year 1989. The respondent plaintiff claimed ownership of land measuring 4 Kanals comprising Khewat No.1351 Khutuni No.2177 and Khasra Nos.1957/278 and 1958-278 at Mauza Dhully Tehsil and District Gujranwala. Out of the land in question land measuring 2 Kanals and 2 Marlas came under Model Town Scheme Gujranwal which comprising Khasra No.1957/278 whereas the remaining land measuring 1 Kanal and 18 Marlas was still in the ownership of respondent-plaintiff. The respondent/plaintiff filed objections at the time of acquisition proceedings initiated by the Improvement Trust Department qua the land in question. The land was not acquired by the Improvement Trust. The respondent/ plaintiff in his objections proposed the Improvement Trust either his own land should not be acquired or if at all inevitable for acquisition then the substituted plot should be allotted to the respondent/plaintiff for his compensation. The appellant did not allot any plot to the respondent-plaintiff in lieu of land acquired by the Improvement Trust to the respondent/plaintiff. The Chairman of Improvement Trust issued orders for the allotment of substituted plot in favour of respondent/plaintiff. Consequently respondent/plaintiff received the amount to the tune of Rs.1,500 for the Malba but the appellant/defendant failed to allot any substituted plot to the plaintiff/respondent. The appellant also allegedly disposed of remaining owned land measuring 1 Kanal and 18 Marlas of respondent-plaintiff without any justification. The latter land was not even acquired by the appellant/defendant prior to the disposal of the land in question. The contents of plaint further reveal that appellant/defendant had taken over the land owned by respondent/plaintiff under the colour of acquisition. The appellant/defendant alienated the land in question of respondent/ plaintiff to Dr. Muhammad Ishaque. The contents of plaint further reveal that the respondent/plaintiff did not get any relief from the appellant/defendant. The appellant defendant filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following:-- ISSUES (1) Whether this Court lacks jurisdiction to try this suit? OPD (2) Whether notice according to law has not been served, hence suit in hand is liable to be dismissed? OPD (3) Whether the suit -is time-barred? OPD (4) Whether the suit is bad for lack of court-fee and jurisdiction? OPD (5) Whether the plaintiff is entitled to get decree for declaration to the effect that substituted plot in place of acquired land measuring 2 Kanals, 17 Marlas under Model Town Scheme, Gujranwala to the plaintiff? OPP (5A) Whether the report of the Local Commission is liable to be set aside? OP Parties

6. Relief. The trial Court decreed the suit vide impugned judgment and decree, dated 24-4-1996; hence the present appeal.

2. The appellant's counsel submits that learned trial Court failed to frame the issue in accordance with the pleadings of the parties; that respondent-plaintiff did not claim possession of the property in question but the trial Court granted relief over and above the pleadings of respondent/plaintiff to him that learned trial Court was erred in law after framing of the issues appointed Local Commission in order to cut short the entire procedure set forth under the provisions of Civil Procedure Code. The learned trial Court appointed Local Commission in spite of the opposition of appellant/defendant. The appellant/defendant filed objections against the report of Local Commission whereas the respondent/plaintiff filed an application for amendment of the plaint. The learned trial Court accepted the application filed by the respondent/plaintiff for amendment in the plaint without deciding the objections of the appellant/defendant qua the report of Local Commission. The amended plaint reveals that respondent/plaintiff sought declaration and direction to the appellant/defendant for making the allotment in his name but failed to pray for the possession of the property even in the amended plaint. The trial Court also framed Issues Nos.5 and 5-A after the amendment in the plaint; that judgment of trial Court is result of misreading and non reading of the record specially the documentary evidence. The respondent/ plaintiff relied upon Exh.P.1 whereas the appellant/defendant relied upon Exh.D/1 is one document which reveals Register Haqdaran Zameen for the year 1989-90. Exh.P.1 reveals that Muhammad Hussain etc. are the owners of land measuring 2 Kanals and 2 Marlas vide Khasra No.1957-278 in the column of tenant the Department of Improvement Trust was mentioned above whereas Exh.D/1 reveals that Muhammad Hussain owner of the land in question measuring 5-4/9 Marlas according to his share in the said khasra and in column No.4 Improvement Trust mentioned as tenant. The learned trial Court wrongly relied upon Exh.P/1 which shows that land in question measuring 2 Kanals 2 Marlas belonged to Muhammad Hussain etc. whereas the document Exh.D/1 reveals the entitlement of respondent measuring 5-5/49, 119 Marlas according to his share. Exh.P/2 was also wrongly relied upon by the trial Court which reveals that father of plaintiff/respondent Karim Bakhsh is owner of 4 Kanals in Khasra No.278 alongwith Qatab Din etc. Qaim Din. This document does not reveal that respondent/ plaintiff is exclusively owner of 4 Kanals; Exh.P.3 is sale-deed, dated 4-7-1940 which did not reveal at all that the land was transferred to the father of respondents after Partition and remained in the name of father of plaintiff/respondent, similarly Exh.P.4 also reveals that land belonged to Qaim Din; Karim Bakhsh and Elahi Bakhsh son of Abdullah 2/9 share measuring 11 Kanals, 2-2/9. This document also does not reveal what is the share of father of respondent/plaintiff coupled with the fact that respondent-plaintiff did not bring on record sufficient material to connect that the land belonged to his father since 1911 till filing the suit or acquiring the land allegedly by the appellant/defendant. Exh.P.5. also reveals that land measuring 2 Kanals, 2 Marlas in Khasra No.1957/278 belonged to Muhammad Hussain to the extent of his share 2/59 which comes to 5-4/9 Marlas. The appellant/ defendant also relied upon Notification of Acquisition 1st January, 1957 Exh.D/2. The respondent/plaintiff did not bring on record any document qua the entitlement of remaining land measuring 1 Kanal, 18 Marlas. The learned trial Court decided the case on surmises and conjectures without adverting to the evidence on record and specially totally misread the documentary evidence; that suit -was intentionally and, deliberately got entrusted to the Court of Mian Muhammad Maqsood Ahmed, Civil Judge 1st Class, Gujaranwala by adding a note by learned counsel for respondent/ plaintiff on the plaint that there are three other suits pending adjudication before the said Court whereas no other suit was in fact pending in the said Court which time and again was pointed to the learned trial Court but with no result. The trial Court executed the decree and delivered the possession to respondent though no decree for possession allegedly has been passed. The execution petition filed by respondent/plaintiff before the executing Court was withdrawn and transferred to the Court of learned Civil Judge, Gujaranwala by the Division Bench of this Court vide order, dated 2-7-1996, Mian Maqsood Ahmed, Civil Judge 1st Class was also directed to submit report as to the allegations levelled by the appellant's counsel who submitted report which was placed on record as is evident from order dated 11-7-1996. He further submits that land in question was allegedly acquired in the year 1957 whereas the respondent/plaintiff filed suit after 38 years on 26-1-1995 and the learned trial Court was erred in law to decide issue No.3 against the appellant. He further submits that learned trial Court was erred in law to rely upon the photo copies of the letters of the Chairman Improvement Trust Department dated 18-7-1986 and 1-2-1989. He further submits that respondent/plaintiff failed to explain delay of thirty eight years to file a suit against the appellant. He further submits that D.W.1 submitted in his evidence that the land in question was acquired in the year 1957 and learned trial Court was erred in law to reject the notification Exh.D/2 qua the Scheme floated by the Government of West Pakistan under the provisions of Punjab Town Improvement Act, 1922 for development of scheme in question. He further submits that land in question had already been allotted to City Zone Welfare Society, Gujranwala through Education Foundation qua the plot in question. Litigation is pending adjudication before this Court in W.P. No.13545 of 1993 Welfare Punjab v. Government Development Society as is admitted by P. W. 2 in Examination-in -Chief.

3. Syed Zain-ul-Abadin, Senior Advocate submits on behalf of the respondents that trial Court has decreed the suit after proper appreciation of evidence on record. He further submits that respondent/ plaintiff is penalised by the inaction of the public functionaries. He further submits that Issue No.3 was rightly decided by the trial Court in favour of the respondent/plaintiff as the respondent/plaintiff approached the appellant for redressal of their grievance through various applications. Specially applications filed by respondent/plaintiff on 18-7-1986 and 1-11-1999 respectively. The Chairman of Improvement Trust Predecessor -in-Interest of the appellant has passed the order in favour of the respondent/plaintiff in the following terms:-- Allotted plot area 2 Kanals, 2 Marlas out of Scheme 'Model Town to Mr. Muhammad Hussain appellant and directed the staff to demarcate the same at site at once. Halqa Patwari Model Town Scheme is directed to demarcate 2 Kanals, two Marlas plot of Mr. Muhammad Hussain. He further submits that Local Commission has submitted report after spot inspection against the appellant. He further submits that trial Court was justified to hold that appellant or predecessor-in-interest of the appellant had no authority whatsoever to take over the property of the respondent/plaintiff without acquiring the same under the provisions of Land Acquisition Act or under the provisions of Punjab Town Improvement Trust Act, 1912. He further submits that appellant cannot be wriggled out from the orders passed by the Chairman Improvement Trust on 18-7-1986 and 1-2-1989. He further submits that documents were brought on record, therefore, trial Court was justified to take notice of the documents and this Court is also under the law bound to take notice of the documents in spite of the fact that the documents were not exhibited. He further submits that respondent/plaintiff had brought sufficient record by oral evidence as well as by documentary evidence to prove the title of the respondent/plaintiff qua the land in question but the appellant-defendant failed to bring on record a single document to prove that the land in question was acquired by the appellant or their predecessor-in-interest. He further submits and heavily relied upon paras.2 and 3 of the Plaint and replies in the written statement regarding the paras. 2 and

3. He further submits that respondent failed to point out any illegality or infirmity in the impugned judgment. He further submits that the impugned judgment is in accordance with the law laid down by the Hon'ble Supreme Court of Pakistan. In support of his contention he relied upon the following judgment:-- 1999 SCMR 2610 Province of Punjab v. Abdur Rehman Shaukat.

4. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. It is better and appropriate to reproduce para. 8 of the plaint to resolve the controversy between the parties:

The aforesaid para. clearly reveals that the respondent/plaintiff has admitted in his plaint that the land was acquired by the predecessor -in-interest of the appellants or appellant. It is also admitted fact that the Scheme was floated by the predecessor-in-interest of the appellant or appellants in the year 1957. Subsequently the land was acquired as is evident from evidence of D.W.1 and Exh. D.2 Notification, dated 1st January, 1957. It is admitted fact that appellant brought on record applications of respondent/plaintiff, dated 18-7-1986, 1-2-1989 and the orders of the Chairman Improvement Trust on his application. We have examined the original record. Both the applications and the orders of the Chairman Improvement Trust, dated 18-7-1986 and 1-2-1989 are photo copies. It is settled proposition of law that in case of loss of primary evidence in such eventuality the secondary evidence is to be brought on record subject to the condition that sufficient material must be brought on record qua the loss of primary evidence by virtue of Chapter 5 of Qanun-e-Shahadat Order, 1984. The respondent/plaintiff failed to bring on record secondary evidence in the shape of the plot copies of the aforesaid documents in accordance with law. It is admitted fact that respondent/plaintiff did not file any application before the trial Court to summon the aforesaid original applications/orders and the trial Court also did not summon the same. It is settled proposition of law that where the original letter of the Government was not summoned a copy of the letter was held to be not admissible in evidence. In arriving to this I conclusion we are fortified by the following judgments:-- PLD 1960 Karachi 297 Ibrahim Saley Mawate's case; PLD 1974 Law Note 125 Lal Muhammad's case and 48 Indian Cases 375 Hazari Lal v. Har Govind. In view of what has been discussed above the trial Court was erred in law to rely upon the aforesaid letters/orders, therefore, finding of the learned trial Court on issue No.3 reversed and the suit of the respondent/plaintiff is dismissed as time-barred. Now we intend to appreciate the evidence on record qua the other issues it is better and appropriate to reproduce the documentary evidence to resolve the controversy between the parties. Exh. P. I reveals asunder:

Exh.P.2 reveals as under:

Exh.P.4 reveals as under:

Exh.P.5 reveals as under:-- Exh. D.1 reveals asunder:

Exh.P.3 sale-deed, dated 4-7-1940 in favour of father of the respondent/plaintiff. Exh.D.2 Notification qua the Scheme in question, dated 1-7-1957. In case the aforesaid documents are put in juxtaposition then the respondent/plaintiff failed to bring on record any document qua their entitlement during the period in question i.e. 52 to 57 Exhs.P.1, P.2, P.4, P.5 and D.1 also reveal that respondent/plaintiff or his father is co-sharer in the land in question qua 2/9th share. This brings the case in the area that the document relied upon by the appellant Exh.D.1 reveals that respondent/ plaintiff is owner of land measuring 5-4/9 Marlas. The respondent/plaintiff failed to bring on record any document to show that the status of the property in question at the time of acquisition or at the time when the possession of the land in question was taken by the predecessor-in-interest of the appellants or appellant in the year 1957. The sale-deed, dated 7-7-1940 did not reveal the status of the property in question in the year, 1957. It is pertinent to mention here that respondent/plaintiff as mentioned above failed to bring on record latest status of the property in question in the Revenue Record. It is also settled proposition of law that the respondent/plaintiff had to prove his case on its own footing and cannot entitle under the law to get the benefit of weaknesses of the appellant/defendant. In view of what has been discussed above the finding on Issue No.5 is reversed. The learned trial Court adopted a noval procedure after framing issue and without recording any evidence appointed Local Commission without the consent of the appellant/defendant. Subsequently the respondent/plaintiff filed an application for amendment of the plaint. In this view of the matter the finding on Issue No.5-A is also reversed. It is settled proposition of law that each and every case is to be decided on its peculiar circumstances and facts. The judgment cited by the learned counsel of the respondent is distinguished on facts and law and has no relevancy to resolve the present controversy between the parties. In view of what has been discussed above this appeal is accepted with costs. Q.M.H./M.A.K./G-104/L Appeal allowed.