C.M. No.1107 of 2003 ' Through this application the applicants prayed for production of additional evidence. These documents have been detailed in para.5 of the petition. All these documents are letters issued by the Province of Punjab or its functionaries from time to time. All these letters being in its possession during all the periods when the trial was pending no justification whatsoever exist for permission of the production of its evidence as additional evidence.
2. Application rejected. JUDGMENT ' C.Rs. Nos.1326, 1327 and 1330 of 1999 ' Through this single judgment I intend to dispose of Civil Revisions Nos.1326, 1327 and 1330 of 1999.
2. The respondent-Ali Akbar Khan on 29-5-1984 filed a suit for possession of land measuring 3 Kanals and 2 Marlas situated in Chak No.59/JB Tehsil and District. Faisalabad as also for recovery of mesne profits at the rate of Rs.120 per month from 1981 to April, 1984. In the plaint it was inter alia alleged that he was owner of the suit property, which was rented out in the year, 1969 to defendant No.5-Sh. Bashir Ahmed for Ice Factory business. However, in the year, 1970 defendant Sh. Bashir Ahmed sublet the property in question to defendant No.4-Rana Muhammad Zafrullah Khan, Advocate who opened District Public School, Narwala Bungla in that property. That school was subsequently nationalized. According to the plaintiff defendant No.3 Headmaster Government District Public School, Narwala Bungla, Faisalabad had also illegally encroached upon further land belonging to him measuring 2 Kanals and 13 .Marlas. Accordingly a decree for possession as well as for rent at the rate of Rs.120 per month was made.
3. The plaintiff-Ali Akbar Khan on 4-9-1985 filed a second suit for recovery of possession of 2 Kanals, 13 Marlas as also for mesne profits at the rate of Rs.300 for-the last six years and in the future as well. The Province of the Punjab, Director of Schools, Faisalabad and Headmaster Government District Public High School, Narwala Bangla, Faisalabad were arrayed as defendants. In the plaint almost all submissions made in the earlier suit were repeated. It was also stated that after denationalization of the said school defendants Nos.2 and 3 not only encroached upon the said land belonging to him but also constructed rooms thereupon. Accordingly a prayer for recovery of possession as well as for the grant of mesne profits was made.
4. The third suit was filed by the said Ali Akbar Khan on 1-12-1987 praying that "Entry No.486 in Roznamcha Waqiati dated 15-4-1983 about Square No.89, Killa No.18.23 situated in Chak No.59/JB, Tehsil and District Faisalabad in the Revenue Record is illegal, void, ineffective upon the rights of the plaintiff and the same may kindly be cancelled". In the plaint it was alleged that the land detailed in para.1 was originally rented out to Bashir Ahmed who installed in ice factory on, it. However, later on Sh. Bashir Ahmad sublet that land to Rana Muhammad Zafar Khan r.AdvoOate, who established a private institution which was nationalized in the year, 1972. After de-nationalization the plaintiff filed two suits for recovery of his land as also rent and mesne profits. It was during' the pendency of these suits that he came across the impugned entry in the Revenue Record showing the land belonging to him as "Maqbuza District Council transferred to Education Department vide Letter No.1326 dated 12-10-102". That entry was sought to be cancelled by way of the suit.
5. The defendant-Province of the Punjab as well as the Education Department submitted that the school in question was nationalized on 1-10-1972 under Martial Law Regulation No.118 and since then it was under the control of the Provincial Government. Also that the suit-land identified in the first two suits already stood transferred in the name of the Department. It was further stated that since the time of nationalization the Education Department or the Province of the Punjab did not pay any rent to the plaintiff nor as a fact the plaintiff ever demanded any rent for the land on which a private school was already in existence on the date of its nationalization. The ownership of the plaintiff as also his right to recover the possession, rent or mesne profits was therefore, disputed.
6. After framing of issues in the three suits the learned trial Court allowed the parties to produce their respective evidence. The plaintiff himself appeared as his own witness in all the three suits and also submitted copies of Revenue Record to show his title to the property in dispute. In the first two suits the plaintiff while appearing as his own witness repeated the submissions earlier made in the two plaints. It was stated that he rented land to Sh. Bashir Ahmed on which he constructed an Ice Factory in the year, 1968 which proved to be a failure. Subsequently he rented out that building to an Advocate who started running a private school therein which was nationalized. In his cross- examination he admitted that the defendants never paid him any rent.
7. In the defence two employees of the Education Department who were teaching in the school being run by the respondent-Government of the Punjab appeared as witnesses. After recording evidence and hearing the parties the learned trial Court on 6-12-1995 decreed the first suit of the plaintiff mainly on the ground that the ownership of the property was not denied till the date of announcement of judgment which was otherwise supported from the Revenue Record. In the view of the learned trial Court the suit for recovery of possession having been filed only one year after de-nationalization of the school was well within time. That judgment was maintained by the learned Additional District Judge, Faisalabad on 14-6-1999 for almost similar reasons. The second suit was also decreed on 6-12-1995. That decree was also maintained by the Additional District Judge, Faisalabad on 14-6-1999. The third suit was decreed by the learned trial Court on 23-5-1993 holding that the impugned entries in the Roznamcha Waqiati had no value against the rights of the plaintiff who was an owner of the land and was therefore, entitled to declaration prayed for. That judgment and decree of the trial Court was also maintained by the learned Additional District Judge, Faisalabad on 14-6-1999. These three judgments have been assailed in the three revision petitions filed by the Province of the Punjab.
8. Heard the learned counsel for the parties. Learned counsel appearing for respondents relies upon re: The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others (1987 SCM R 1189) and re; Society of the Capuchin Fathers v. Government of Punjab and another (1996 M LD 1612) to contend that nationalization of privately managed schools and colleges did not amount to take over of the properties in which these institutions were housed. That proposition is settled and therefore, the respondent-Government of Punjab/ Education Department certainly cannot be allowed to take up that defence. However, in the case in hand the factual position certainly goes against the plaintiff/now respondent. It is an admitted position that the plaintiff gave some land allegedly on rent to a person in the year, 1968. It is also admitted that only after 1/2 years the tenant unauthorisedly sublet, the Ice Factory/ building constructed by him to a third person, who started running a school. That school was nationalized in the year, 1972 and during this period till the time of filing of first suit by the plaintiff in the year, 1985 not only the plaintiff remained out of possession but also no defendant ever attorned him. Also during this period the Education Department even after denationalization of the school raised further building at the site by spending huge amount. The learned trial Court disposed of the issue of limitation in the first suit in the following manner:- "The disputed property is nationalized in 1972. According to Exh.P-6 the entry of Education Department was made in 1983. There is nothing on record to show that even today, the ownership of the defendants was denied by the plaintiff. As discussed above, according to Exh.P-1 to Exh.P-7 the column of ownership is still in the name of plaintiff and entry through Exh.P-4 was made in column as cultivator. The suit was filed in May, 1984. Meaning thereby after on behalf of such entry, the defendants through MLR 118 nationalized the school and put its feet in shoes of defendant No.4 the original Controller of school therefore, the suit for possession of disputed property filed after one year and for recovery of mesne profit for previous three years is well within time."
9. The above reasoning is wide off the, mark and has no relevancy as far the issue of limitation was concerned. As noted above, the plaintiff never enjoyed the property or any control upon its since 1/2 years after the year 1968 when it was allegedly rented out to one Sh. Bashir Ahmed who constructed an Ice Factory thereupon. In para.3 of the plaint of the first suit it is expressly started that in the year, 1970 the alleged tenant of the plaintiff rented out the building to Rana Muhammad Zafar Khan, Advocate who established a school in that building. It is also admitted in the plaint and the statement of the plaintiff as a witness that neither the Education Department nor Rana M. Zafar Khan, Advocate, as manager of the private school ever paid him any rent. The plaintiff, therefore being out of possession since 1970 could not assert his ownership notwithstanding the entries in the Revenue Record in his favour during all these years. Before expiry of 12 years he ought to have asserted his title till the year 1982 which he failed to do. After de-nationalization, the Government of the Punjab stepped into shoes of the said private manager and continued to enjoy the fruits of an adverse possession without attorning the plaintiff. It also needs to be recorded that according to the plaintiff he has all along been asking the respondents to pay the rent but they never did so.
Therefore, mere entries in the Revenue Record were wrongly interpreted by both the trial Court as well as the first Appellate Court. In fact the learned first Appellate Court did not record any express finding as to the bar of limitation while the defendants had taken a specific defence on which an issue was framed.
10. As observed earlier, the findings of the trial Court Issue No.3-H in the first suit are totally irrelevant. So in the case with his findings on the issue No.2 regarding limitation in the second suit.
That issue was decided by the learned trial Court in the following words:-- "Issue No.2. Copy of Roznamcha Waqiati mark-A which is not objected by the defendants during the argument. The entry in column of cultivator in favour of defendants was made on 15-6-1983.
The suit was filed in September, 1985 for possession and recovery of mesne profit for previous three years and claim of the mesne profit beyond three years prayed by the plaintiff is time-barred as limitation for recovery of mesne profit is three years and limitation for filing of suit for possession is 12 years. Issue is decided accordingly."
11. The above findings of the trial Court are again clearly against law and the factual position. An entry in the Revenue Record in favour of the defendants were not a starting point of limitation when the plaintiff himself stated that in the year, 1970 a private school started in the building constructed by another person on his land and that the manager of the private school as also subsequently the Government of the Punjab after nationalization never paid him any sum of money despite demand. Even the contents of the plaint make it clear that the possession of the defendant No.4 in the first suit was hostile and it continued to be so even after nationalization and then denationalization. An entry in the Roznamcha Patwari which was challenged through the third suit needs to be ignored completely as far the issue of limitation was concerned. Even otherwise that entry in favour of the defendant-Department did not in any manner had the effect of transfer of title in favour of the respondents-Province of the Punjab or the Education Department.
12. The legal position therefore, remains that notwithstanding the vesting of title of land in dispute in the plaintiff, the first two suits filed by him after expiry of 12 years were barred by limitation and therefore, he could not be allowed either the possession of the disputed land or any compensation in the form of rent or mesne profit.
13. In view of the above the judgments and decrees recorded by the trial Court and by the Court of appeal in the three suits shall be set aside.
14. All three Civil Revisions shall, therefore, be accepted.