1993 PLP 1248 (CLC)

Ch. M.Z. Khalil for Respondents Nos.l and

2. Syed Jamshed Ali on behalf of Mian Saeed‑ur‑Rehman Farrukh for Respondent No.3. Date of hearing: 7th August, 1991. This judgment will also dispose of Writ Petition No.513/R of 1979 as common questions of law and facts are involved in both of them. petitioners' revision petition against the order dated 2‑7‑1978 passed by the Deputy Administrator (RP) rejecting the forms submitted by the petitioners seeking transfer of the plots in dispute, has been challenged.

3. The dispute relates to a portion of Khasra Nos.210, 211 and 212‑min which was an evacuee property. Fateh Muhammad petitioner No.l is in possession of part of Khasra No.212 measuring 6 Sarsahi over which he has constructed a room. Petitioner No.2 is also in possession of a portion of Khasra No.212 measuring 6 Sarsahi over which he has also constructed a house. Petitioner No.3 is in possession of portion of Khasras Nos.210 and 212 measuring one Marlas 8 Sarsahi and petitioner No.4 is in possession of portion of Khasras Nos.211 and 212 measuring 6 Sarsahi over which he has constructed a shop. Muhammad Sharif petitioner in the connected Writ Petition No.513/R of 1979 is also in possession of a portion of the said property over which he is also running a shop.

4. The petitioners filed forms seeking transfer of the portions occupied by them to the Settlement Department firstly under Scheme No.VIIl framed under the Displaced Persons (Compensation & Rehabilitation) Act, 1958. Subsequently they also made applications under Scheme No.IX framed under the same Act. On the other hand respondent No.3 which is a mosque being managed by the Cooperative Society made an application to the Government for acquisition of land measuring one Kanal 13 Marlas 8 Sarsahis over which the mosque had been constructed. The Provincial Government on 23‑8‑1977 passed order that respondent No.3 could not seek transfer/acquisition beyond the area claimed by it. However, subsequently on 15‑10‑1977 the same officer passed an order directing the Deputy Settlement Commissioner for disposal of forms of the petitioners in accordance with law if they were found entitled to under the original scheme and if not under the later scheme i.e. Scheme NO.IX. In the meantime respondent No.3 also applied under Scheme No.VIII for transfer of the said plots in, dispute because according to the learned counsel for respondent No.3 land measuring one Kanal 13 Marlas 8 Sarsahis had otherwise been acquired and transferred to respondent No.3.

5. The case was taken by the Deputy Administrator (RP) who after recording evidence held that all the petitioners were in occupation of different portions under their possession as tenants of respondent No.3 because they had been paying rent to respondent No.3, therefore, they could not seek transfer of the property as they were not in possession of the same independently in their own rights, as such, the said plots were transferred to ‑respondent No:

3. The petitioners feeling aggrieved filed revision petition before the Administrator (RP) which has also been dismissed. Hence this writ petition.

6. Learned counsel for the petitioners argued that the evidence recorded by the Deputy Administrator (RP) was misread and further that the evidence produced by the petitioners regarding construction raised by them has not been taken into consideration.

7. The argument has force. The reference to the evidence produced by the petitioners in the impugned orders is just a passing reference and the said evidence has been processed and appraised according to the settled principle of appraisal of evidence. The petitioners produced witnesses to prove that the construction over the plots in dispute were raised by them. The copies of the receipts which were issued by respondent No.1 acknowledging receipts of rent from the petitioners show that the receipts were regarding payment of Attia' on which against the relevant column the amount has been shown to have been received as rent of the portion occupied by each petitioner. I am afraid the receipts could not advance the case of respondent No.3 as the case of the petitioners was that they had been paying donation to 'the mosque and not rent of the property. This coupled with the fact that originally respondent No.3 claimed land measuring one Kanal 13 Marlas 8 Sarsahis only and when asked learned counsel for respondent No.3 frankly conceded that if the plots in dispute are excluded the land under the mosque would be exactly one Kano] 13 Marlas 8 Sarsahis. It was subsequently that respondent No.3 started laying claim to the plots in dispute. No cogent evidence has been produced by respondent No.3 to show that the construction existing at the plots was raised by respondent No.3. Had it been raised by respondent No.3, the respondent No.3 would have been in possession of at least some entries in the account‑books of the mosque for the purchase of the material and payment of wages to the labour employed for raising the construction which was not produced. Mere assertion of the President of the Society that the constructions were raised by respondent No.3 were not sufficient proof. The D.S.C. Sahiwal submitted a report on 23‑5‑1977 after inspection of the spot that the building of the mosque was independent of the houses and shops in possession of the persons named in sub‑para (b) in which the names of the petitioners have been given. He also observed that the construction of tenements was of different kind and nature than that of the mosque and the shops built within the mosque situated on the north side thereof. This is sufficient to furnish strong evidence that the portion of the property occupied by the petitioners was not constructed by the mosque. This document has been appended by the respondent with the ‑writ petition.

8. Learned counsel for respondent No.3 argued that so far as Muhammad Sharif in the connected Writ Petition No.513/R of 1979 is concerned he admitted that he was the tenant under the mosque, therefore, to that extent the case of respondent No.3 was fully proved.

9. I am afraid the argument in the circumstances of this case is wholly misconceived. It is well‑settled law that any admission made erroneously or in ignorance of the rights of the maker or the law is not binding on the maker of the admission if the same could be shown to have been made under mistake of facts and was otherwise erroneous. There is no independent evidence that respondent No.3 raised the construction. The receipt issued to Muhammad Sharif petitioner is also of the same nature which was issued to the other petitioners which was for payment of `Apia'. The very act of construction of mosque over the property which was evacuee property was not permissible under the Islamic law and the entitlement of the mosque in these circumstances to claim rent from the occupants of the property was an act which did not create any right in favour of mosque. The said petitioner is not bound by the admission as the same is wholly misconceived and erroneously made. The petitioners cannot be deprived of their rights under the law particularly when the mosque has been held to have no title to the land over which the construction was allegedly raised to derive any benefit from such occupation. I am not inclined in the facts and circumstances of this case to dislodge the petitioners once again after about 44 years of the creation of Pakistan who have already suffered a lot and their disturbance at this stage would have the consequences to depriving their families of the roof which is available to them.

10. Both the writ petitions are accepted. The order dated 2‑7‑1978 passed by the Deputy Administrator (RP) and the order dated 25‑4‑1979 passed by the Administrator (RP) arc hereby declared to have been passed without lawful authority and of no legal effect for the foregoing reasons. The Notified Officer shall transfer the portions of the plots to the petitioners in both the writ petitions according to their possession against the price to be determined in accordance with law and the scheme framed under the repealed laws. The Chief Settlement Commissioner/Member, Board of Revenue (Settlement) is directed to entrust the case to a notified officer to do (he needful. There will be no order as to costs. AA./F‑285/L , Petitions accepted.