CH. IJAZ AHMAD, J.--- I intend to decide. Civil Revision No. 1507 of 2000 and Constitutional Petition No. 2322 of 2001 by one consolidated judgment having similar facts and law and both the civil revision and Constitutional petition are dependent upon each other.
2. The brief facts out of which the present writ petition arises are that the Plot No. 2-W-9 which is situated at Madina Town (Chak No. 213-R.B.) Faisalabad was allotted by Respondent No. 2 to Respondent No. 1. An agreement was also executed between Respondent No. 1 and Respondent No. 2 on 21.5.1980. The plot in-question is measuring 8 marlas, 249 Sq. Ft. Possession of the plot in- question has been allegedly handed over to Respondent No. 1 by Respondent No. 2. Respondent No. 1 has made certain construction over the plot in question. Respondent No. 2 also allotted Plot No. 4- W-9 which is also situated in Madina Town, (Chak No. 213-R.B.) Faisalabad to the present petitioner/defendant in the suit. Respondent No. 1 has allegedly encroached the area of the plot of the petitioner. The petitioner has made complaint to Respondent No. 2. Respondent No. 2 has initiated proceedings against Respondent No. 1 to demolish the construction over the excess area, allegedly taken possession by Respondent No. 1 without any justification. Respondent No. 1 being aggrieved filed a suit for declaration with consequential relief, in the Court of Civil Judge Faisalabad. The contents of the plaint reveals that Respondent No. 1/plaintiff alleged that the disputed plot was allotted to her and the sale agreement was duly executed by Respondent No. 2/defendant No. 2 in favour of Respondent No. 1/plaintiff on 28.5.1980. She raised construction over it and also got erected the boundary wall. The contents of the plaint further reveal that . The area of the plot in-question is measuring 8 marlas, 249 Sq. Ft. At 1:00 p.m. Respondent No. 2/defendant No. 2 alongwith official of Respondent No. 2 came to the plot of Respondent No. 1/plaintiff and started demolishing the Eastern wall. Respondents/defendants 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 has got no jurisdiction to try the suit? OPD
(2) Whether the plaintiff has not come to the Court with clean hands. If so, with what effect? OPD
(3) Whether the plaintiff was allotted the disputed plot measuring 8 marlas, 249 Sq. Ft? OPP
(4) Whether the defendants are entitled to special cost, if so, to what extent? OPD
(5) Relief.
The learned Trial Court decreed the suit of Respondent No. 1/plaintiff vide judgment and decree dated 30.3.1989. The petitioner being aggrieved filed appeal before the Addl. District Judge, Faisalabad, who dismissed the same vide impugned judgment and decree dated 15.3.2000, hence, the present revision petition.
3. The learned counsel of the petitioner submits that P.W. 1 Muhammad Tariq, Record Keeper of the FDA admitted in cross-examination that Plot No. 2-W-9 measuring 7 marlas 244 feet was allotted to the Respondent No. 1/plaintiff. P.W. 1 further admitted in cross-examination that FDA had given plot more than entitlement to Respondent No. 1/plaintiff. The learned counsel of the petitioner further submits that both the Courts below misconstrued the evidence of P.W. 1, therefore, judgments of both the Courts below are result of misreading and non-reading of the evidence on record. He further submits that FDA in its written statement has specifically taken a stand that plot was allotted to Respondent No. 1/plaintiff measuring 7 marlas 244 Sq. Ft. And the possession of the plot was handed over to that extent to Respondent No. 1/plaintiff and site plan was also sanctioned in favour of Respondent No.1/plaintiff according to the measurement of plot measuring 7 marlas, 244 Sq. Ft. He further submits that according to the scheme of FDA Respondent No. 2 the plot could not be allotted to any person more than measurning 5 marlas. The category of the plots is reserved a .Cording to the Master Plan 5 marlas plot each, therefore, Respodent No. 1 has taken possession more than her entitlement without any justification. He further submits that both the Courts below misconstrued the evidence on record and did not advert to the evidence of D.W. 1 Zawar Hussain and D.W. 2 Muhammad Aslam Record Keeper.
4. The learned counsel of Respondent No. 2 also supported the case of petitioner and submits that both the Courts below have decided the case in favour of Respondent No. 1/plaintiff by misreading and non-reading the.Evidence on record. He further submits that Respondent No. 1 has not placed on record any order of the competent authority to allotment of the plot measuring 8 marlas, 249 Sq. Ft. Learned Counsel of the petitioner further submits that petitioner has filed an application for additional evidence, which was dismissed by the first Appellate Court without any justification.
5. The learned counsel of Respondent No. 1 submits that both the Courts below have given concurrent findings of fact against the petitioner and Respondent No. 2 and the learned counsel of the petitioner failed to point out any piece of evidence, which was misread or non-read by the Courts below. He further submits that this Court has very limited jurisdiction to interfere in the concurrent findings of fact and the petitioner failed to bring the case within the parameter prescribed by the superior Courts to interfere in the findings of fact recorded by the Courts below after proper appreciation of evidence. In support of his contentions, he relied upon the following judgments:- . Water and Power Development Authority vs. Mian Ghulam gari (1995 M LD 480), Rao Sakhawat Ali vs. Mst. Zahooran Begum (1999 M LD 198) and Muhammad Hussain vs. Umer Shah, etc. (1997 CLJ 459). He further submits that petitioner has not challenged the order of dismissing the application of the petitioner for producing additional evidence at the relevant time and also d'l not take a single gru,ind in the grounds of the revision petition before this Court, therefore, petitioner's counsel is not entitled to raise new plea, which was not taken by the petitioner in the grounds of the revision petition. He further submits that the petitioner Dilshad filed Constitutional Petition No. 21964 of 2000 before this Court without impleading Respondent No. 1 as respondent in the Constitutional petition to secure a direction from this Court on 31.10.2002 to the extent that respondent/FDA be directed to decide the application of the petitioner/Dilshad. The petitioner being aggrieved filed this Constitutional petition that both the Courts below have decided the case in favour of the petitioner/plaintiff and against the respondent/FDA, therefore, the respondent/FDA be restrained to take any action against the petitioner Mst. Safia Begum, on the application filed by Dilshad before the FDA.
6. The learned counsel of respondent/Dilshad submits that FDA is dutybound to decide the application in accordance with law and the respondent/Dilshad is satisfied it direction is issued to the FDA authorities to demarcate both the plots of the petitioner and respondent/Dilshad in accordance with the allotment letter issued by the FDA in their favour and Dilshad shall not press his revision petition. The learned counsel of FDA submits that action of the respondent FDA is in accordance with law, therefore, Constitutional petition be dismissed.
7. The learned counsel of the petitioner/plaintiff, in rebuttal, submits that FDA authority has no lawful authority to nullify the effect of the judgments of the Courts below when the matter has been finally decided by the competent Court in the judicial side.
8. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
9. It is admitted fact that respondent Dilshad has filed Constitutional Petition No. 21964 of 2000 without impleading the Respondent No. 1/plaintiff (Mst. Safia Begum) as respondent in the writ petition; therefore, respondent Dilshad secured the order from this Court by concealing material facts. In this view of the matter, this Constitutional petition is accepted and the order passed in the Constitutional petition of Dilshad is recalled on the ground that Dilshad has secured the order by playing fraud, by misrepresentation by not impleading the respondent/plaintiff as respondent in the Constitutional petition as the law laid down by Honourable Supreme Court in the following judgments:- "Nawab Syed Raunaq Ali vs. Chief Settlement Committee" (PLD 1973 S.C. 236) and "Principle K.E.M.
College vs. Ghulam Mustafa, etc." (1983 SCM R 196).
It is admitted fact that FDA has not filed any appeal against the judgment and decree of the Trial Court and also did not file any revision petition before this Court. Couple with the fact that petitioner has not produced any evidence and the petitioner has filed application for producing additional evidence before the first Appellate Court, which was rejected by the first Appellate Court as is evident from para 7 of the impugned judgment of the first Appellate Court and petitioner has not taken a single ground in the grounds of the revision petition before this Court qua this fact/decision. It is settled principle of law that parties are bound by their pleadings as the law laid down by the Honourable Supreme Court in Mst. Murad Begum vs. Muhammad Rafique (PLD 1974 S.C. 322). It is admitted fact that both the Courts below have given concurrent findings of the facts against the petitioner and this Court has very limited jurisdiction to disturb the concurrent findings of the Courts below while exercising power under Section 115 of CPC. The Privy Council has also laid down parameters to interfere in the findings of the Courts below while exercising power under Section 115 of CPC in "N.S. Vankatagin Ayyangar and another vs. The Hindu Religious Endowments Board Madras" (PLD 1949 PC 26). The relevant observation is as follow:--- "This section empowers the High Court to satisfy itself upon three matters (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with maternal irregularity, that is, by committing some error or procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
The judgment of the Privy Council is followed by this Court in "Board of Intermediate and Secondary Education, Lahore vs. Syed Khalid Mehmood" (NLR 1985 Civil 114). It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court. The learned counsel of the petitioner failed to bring the case within the parameter prescribed by Privy Council in the aforesaid judgment, therefore, revision petition has no merits. It is pertinent to mention here that petitioner has not produced any evidence before the Courts below. Respondent No. 1/plaintiff has produced following witnesses before the Trial Court: ---
(i) P.W. 1, Muhammad Tariq, Record Keeper FDA
(ii) P.W. 2, Zawar Hussain Shah, Account Clerk FDA has produced the following witnesses before the Trial Court: ---
(i) D.W. 1, Jawad Hussain, Building Inspector
(ii) D.W. 2, Muhammad Aslam, Record Keeper In case the evidence of all the aforesaid officials are put in juxta position then they are contradicting each other. In this view of the matter, the Director General FDA is directed to constitute a committee to probe into the matter and fix responsibility, who is responsible officer/official to create trouble to the citizens coupled with the fact that according to the written statement of FDA agreement was executed between Respondent No. 1 and Respondent No. 2 on 28.5.1980 according to which the measuring of the plot allegedly is not in accordance with the prescribed scheme of the FDA and is not in accordance with the statement of the aforesaid official witnesses, who are contradicting each other. He is directed to constitute a committee to probe into the matter qua the conduct of the responsible official/officer. In case the committee finds any of them is responsible then he is directed to proceed against that officer/official under Efficiency and Discipline Rules. In case the committee finds any of them is responsible for any mischief then the petitioner Dilshad would be compensated by FDA authorities and the amount, which would be paid by the FDA authorities to the petitioner Di!Shad, would be recovered. From the responsible officer/official of FDA as the law laid down in the following judgments: --- Semi Ullah Khan Marwat's case (2003 SCM R 1140)
Syed Yaqoob Shah's case (2002 SCM R 1120)
He is directed to complete this process within three months: He is further directed to submit his report to the Deputy Registrar (Judicial) of this Court within the stipulated period. The learned Legal Advisor of the FDA is directed to notify the order to the Director General, FDA for necessary action and compliance. Office is directed to provide one copy of this judgment to Mr. Muhammad Hanif Khatana, Addl. Advocate-General, who is directed to transmit the same to the Director-General FDA for necessary action and compliance.
With these observations the revision petition and the writ petition are disposed of.