This revision petition is directed against the judgment dated 26.6.1998, passed by learned Addl.
District Judge, Gujranwala, whereby, appeal brought by respondents against the judgment and decree dated 17.1.1994, passed by learned Civil Judge, Gujranwala, was accepted and suit brought by them was decreed in their favour.
2. The relevant facts for the disposal of this revision petition are that Mst. Shamshad Begum etc. filed a suit for declaration etc. against the petitioners to the effect that they were entitled to get disputed plot (No, BXXIII-81) being legal heirs of Muhammad Musharaf and that orders dated 24.6.1976 and 25.10.1976 and Transfer Order No 69566 dated 3.11.1976 were based on fraud, collusive, ineffective qua their rights and were liable to be set aside. The respondents/plaintiffs stated that Muhammad Musharaf son of Abdul Ghani (predecessor-in-interest of Plaintiffs/Respondents No, 1 to 7), purchased disputed plot (No, B-XXIII-81 measuring 5 Marlas 125 ft.) on 23.10.1970 from Defendants Nos, 1 and 2 through open auction for Rs, 1700/-. They further stated that Defendant No, 3, Ghulam Huvssa in (predecessor-in-interest of petitioner) was in possession of-disputed plot but he failed to pay its price (Rs, 1326), therefore, he was declared defaulter uide order dated 8.4.1969 and plot was resumed under Scheme No, 8 and he (Ghulam Hussain) was accordingly informed about the same. The plaintiffs mentioned that later on disputed plot was placed in auction pool and the same was purchased by Muhammad Musharaf and the sale was confirmed in his favour.
He paid the remaining sale price (Rs, 1275) and disputed plot was confirmed in his favour.
Muhammad Musharaf submitted application before defendants for grant of proprietary rights and Defendant No, 2 cancelled B.S. Form No, 462 of Defendant No, 3 on 3.6.1971. The plaintiffs stated that Muhammad Musharaf died on 15.4.1974. Also that on 24.6.1976 Defendants No, 1 and 2 set aside resumption order and area of said plot was reduced to 4(1/2) marlas. He paid Rs, 1247/- and defendants illegally allotted disputed plot to Defendant No, 3 vide Transfer Order. No, 69566 dated 3.11.1976, therefore, they were constrained to file suit against the defendants. Ghulam Hussain, defendant mentioned in his written statement that proceedings regarding resumption were illegal, therefore, he filed appeal and resumption order was set aside. He further mentioned that proprietary rights had been given to him and that plaintiffs had not challenged order passed by Addl. Settlement Commissioner and Deputy Settlement Commissioner, therefore, the same had attained finality. Also that he had constructed a house over disputed plot and he was in possession of the same. Learned trial Court framed issues, recorded evidence of the parties and suit brought by plaintiffs/respondents was dismissed vide judgment dated 17.1.1994. The respondents filed appeal against the said judgment and decree which was accepted by learned Addl. District Judge vide judgment dated 26.6.1998. Hence, this revision petition.
3. I have heard the arguments and perused the record.
4. The case of petitioners is that they are owners of disputed plot as legal heirs of Ghulam Hussain (predecessor-in-interest of petitioner) but defendant (Settlement Department) resumed the same illegally. Also that appeal brought by Ghulam Hussain was accepted by Addl. Settlement Commissioner and thereafter Deputy Settlement Commissioner allotted disputed plot to him vide order dated 25.10.1976 and transfer order was also issued in his favour.
5. On the other hand, case of the respondents/plaintiffs is that Ghulam Hussain failed to pay price of the disputed plot whereupon Settlement department resumed the plot and it was placed in auction pool. Also that Muhammad Musharaf (predecessor-in-interest of respondents/ plaintiffs) purchased the same in open auction and paid its total price and sale was confirmed in his favour but Settlement Authorities illegally set aside resumption order passed against Ghulam Hussain and again transferred disputed plot in his favour. The record shows that disputed plot was allotted to Ghulam Hussain on 15.11.1965 for Rs, 1326/-. However, he did not pay sale price (Rs, 1326/-) despite notice, therefore, plot was resumed on 8.4.1969. He was informed about said order on 23.4.1969.
Later on suit property was placed in auction pool and Muhammad Musharaf son of Abdul Ghani purchased the same in open auction on 23.10.1970 and he paid its price. However, Ghulam Hussain filed appeal before Addl. Commissioner (Settlement) Lahore on 11.2.1971 against the resumption order and the same was accepted vide order dated 24.6.1976 (Ex. P. 12). The memo of appeal is Ex.
P.
11. The perusal of order dated 24.6.1976 shows that Settlement Commissioner remanded the case to Deputy Settlement Commissioner with the direction that he should re-examine the case and take fresh decision in accordance with law and on merits. Thereafter, Deputy Settlement Commissioner, Gujranwala directed Ghulam Hussain to make payment of land measuring 4(1/2) marlas. The perusal of memo of, appeal (Ex. P11) shows that Ghulam Hussain had mentioned the name of Muhammad Musharaf son of Abdul Ghani but he had not given his address. Likewise, perusal of order dated 24.6.1976, passed by Settlement Commissioner (Ex. P. 12) shows that the same was passed without hearing Muhammad Musharaf or his legal heirs (plaintiffs). It is pertinent to- note that on the said dated (24.6.1976) Muhammad Musharaf was not alive but Ghulam Hussain did not bother to implead his legal heirs as respondents. As noticed earlier, he had not given even address of Muhammad Musharaf in memo of appeal. The Deputy Settlement Commissioner passed order on 25.10.1976 but there is nothing on record to show that before decision the plaintiffs were also served with a notice. It has been mentioned in order dated 25.10.1976 (Ex. P13) that widow of the respondent through her counsel were present but petitioners/defendants have failed to produce any evidence in support of the same. As such, it becomes crystal clear that plaintiffs were condemned unheard. As mentioned above, Settlement Commissioner passed order on 24.6.1976 but before said order Ghulam Hussain had not brought on record the legal heirs of Muhammad Musharaf. Admittedly, Settlement Authorities had transferred suit property in favour of Muhammad Musharaf through open auction and he had paid its total sale price, therefore, it was necessary to issue notice to Muhammad Musharaf or his legal heirs and to hear them before deciding appeal but Settlement Commissioner passed order in their absence. Likewise, Deputy Settlement Commissioner passed order without hearing the legal heirs of Muhammad Musharaf. It is against the principles of natural justice. Reliance can be placed upon Mrs. Anisa Rehman us. P.I.A.C. and another (1994 SCM R 2232). So orders passed by Settlement Commissioner and Deputy Settlement Commissioner are liable to be set aside.
6. The most important aspect of the case is that Ghulam Hussain failed to pay price of disputed plot despite notice, therefore, Settlement Authorities resumed the same. Thereafter Muhammad Musharaf (predecessor-in-interest of plaintiffs/respondents) purchased said plot in open auction.
In the circumstances of the case, there was no justification to set aside resumption order and thereafter allot the plot in favour of a defaulter (Ghulam Hussain). As such it is clear from the record that proceedings regarding allotment of plot in favour of Ghulam Hussain after resumption order are illegal, and ineffective qua the rights of plaintiffs. So learned Addl. District Judge has rightly accepted their appeal and decreed the suit.
7. The perusal of judgment dated 26.6.1998 shows that learned Addl. District Judge decided the appeal brought by respondents after appraisal of entire material available on record. There is no illegality or infirmity in the impugned judgment. Likewise there is no misreading or non-reading of evidence and jurisdictional defect, therefore there is no justification to set aside the same.
8. The upshot of the above discussion is that this revision petition has no force and the same is accordingly dismissed. No order as to costs.