1985 PLP 549 (SCMR)

‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908) , 5.115‑‑Revision arising from suit for possession‑‑Government share in land purchased in auction‑‑Entitlement of claimed area not established‑‑Defendants failing to appear after submitting written statement‑‑Suit dismissed exparte Decision confirmed in appeal, revision‑‑Suit for possession simplicitor, held, not maintainable in circumstances‑‑Decision being based on proper consideration of relevant material, not open to interference ‑‑Leave to appeal refused. Muhammad Munir Paracha, Advocate Supreme Court instructed by Ch.Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 2nd December, 1984. M.S.H.QURAISHI, J.‑‑ This is the plaintiff's petition for leave, who has failed throughout. He had purchased, in an auction, 3/5 share of land comprised in Khasras Nos.1445, 1446, 1401, 1361, 1415, 1416 and 1444, on 15‑12‑1976 for the sum of Rs.900 against the reserved price of Rs.12,

300. According to the petitioner, the total land being 324 Kanals 6 Marlas, the share sold came to 194 Kanals 11 Marlas. However, according to the bid‑sheet, the area put to auction was 174 Kanals 12 Marlas. In the relevant mutation of the purchase, bearing No. 3164, he was shown to have purchased only 3/57 share of the land, measuring 17 Kanals 1 Marla. He, thereupon, brought a suit for possession of 194 Kanals 11 Marlas of land. The Government of Pakistan, defendant No.l, remained ex parte, while on behalf of the Province of the Punjab, defendant No.2, and Settlement Officer, Attock, defendant No.3, the Naib‑Tehsildar and the Tehsildar submitted written statement which was to the effect that the area actually auctioned was 174 Kanals 12 Marlas and not 194 Kanals 11 Marlas and that out of the same, an area of 157 Kanals 17 Marlas was to be excluded having been allotted temporarily to Jammu and Kashmir refugees. Thereafter these two defendants also failed to make appearance, with the result that the suit was heard ex parte but dismissed by the trial Court. An appeal and revision also failed.

2. The appellate Court held that in the Jamabandi for 1971‑72 names of several persons had been entered as owners; that the share of the Federal Government, which was subject‑matter of the auction, could not be ascertained; that no mutation showing alienation of the land in favour of the Federal Government was produced; and that except Khasra No.1445, the rest of the land was in possession of tenants and as such the suit for possession against them was not competent before the Civil Court. The appellate Court also felt that Rs.900 could not reasonably be the price of the land for which the auction price had been fixed at Rs.12,300.

3. The arguments advanced before the High Court were that the suit could have been treated as one for declaration of title; that the extent of the area put to auction was 3/5 share of the land which is borne out by the bid‑sheet; that the petitioner being a bona fide purchaser for valuable consideration, his rights stood protected and that the respondents /defendants having not entered appearance, the evidence produced by the petitioner had gone un rebutted and could have been relied upon The contentions. however, did not prevail. The High Court held that the respondents' denial of the petitioner's right operated as a clog on his title and as such he ought to have sued for declaration of his title and that his suit for possession simplicitor was, in the circumstance, not maintainable. The High Court further held that the petitioner had failed to discharge the burden of proof that the area claimed by him had actually been auctioned in his favour.

4. After hearing learned counsel, we are satisfied that the judgment of the High Court proceeds upon proper consideration of the relevant material and requires no interference. The petition is, therefore, dismissed. M. I. Petition dismissed.