2008 PLP 1357 (SCMR)

MUNIR A. SHEIKH, J.

The respondent was proceeded against ex parte. Mr. M.A. Zafar, Advocate Supreme Court, learned counsel for the respondent has appeared today and made an oral request for allowing him to appear in this case. In the interest of justice, respondent is hereby allowed to enter appearance.

2. This appeal by leave of the Court is directed against the judgment dated 31-10-1996 of the Lahore High Court, Lahore whereby Constitution petition filed by the appellant impugning judgments of the two Courts below has been dismissed.

3. The facts of the case are that the land underneath the property in dispute measuring 1 Kanal comprising Khasra No.1061 was purchased by the appellant on which according to him he had raised construction. The total area comprising Khasra No.1061 was 12 Kanals. The portion of the said Khasra number of 1 Kanal purchased by the respondent was demarcated through a "Tatima" prepared by the Revenue Authority which was described as Khasra No.1061/3. The property in dispute was acquired by the appellant for a scheme. The question arose as to whether the respondent was entitled to exemption of the total area of 1 Kanal under the scheme for the reason that he had raised construction on the said land or 30% of the area assuming that the same was a vacant site, for according to the scheme, exemption to the extent of full area was permissible in case the construction had been raised and in the case of vacant site, a developed plot equivalent to 30% of the acquired area was to be granted as compensation.

4. The case of the appellant' was that no construction had been raised over the said area of 1 Kanal by the respondent, therefore, he was entitled to area equivalent to 30% in the shape of developed plot in lieu of the property in dispute and not the exemption to the extent of whole of the property.

5. The respondent challenged the orders of the L.D.A. by filing suit before the trial Court which was decreed through judgment, dated 9-4-1992. It was held by the trial Court that construction had been raised over the land of 1 Kanal in dispute, therefore, it was exempted as a whole under the scheme as a matter of right. The appeal filed by the appellant before the First Appellate Court was dismissed through judgment, dated 12-5-1996 against which revision petition filed by it was also dismissed through impugned judgment against which this appeal by leave of the Court is directed.

6. We have heard learned counsel for the parties and find that all the Courts below have recorded findings of fact in favour of the respondent that he had raised construction over the area, therefore, he was entitled to exemption to the extent of full area and not to developed plot equivalent to 30% of the area as it was not a vacant site. The portion of Khasra No.1061 purchased by the respondent was demarcated through "Tatima" as 1061/3, therefore, it was rightly held that he had purchased a specific portion demarcated from the said Khasra number over which he had raised the construction.

7. The findings of fact recorded by the Courts below have not been shown to have suffered from any legal infirmity such as misreading, misconstruction or non-consideration of any material piece of evidence.

8. Learned counsel for the appellant attempted to argue that the nature of construction raised by the respondent was not such which would fall within the ambit of the term "construction" defined in para. "H" of the scheme, therefore, he was not entitled to get exemption to the extent of full area as built up property.

9. We have gone through the record and find that this argument has also been raised on the assumption that the findings of fact recorded by the Courts below were not correct. As has already been observed, the said findings do not suffer from any legal infirmity, therefore, the Courts below have not committed any illegality in granting decree.

10. For the foregoing reasons, we find no merits in this appeal which is accordingly dismissed. No order as to costs. S.A.K./L-2/S?????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.