MUHAMMAD MUZAMMAL KHAN, J. --- This judgment. Proposes to decide two Constitutional petitions, one in hand and the other Writ Petition No. 3248 of 1996, as both of those, raise similar questions of law/facts, arise out of alike circumstances/consolidated judgment and are between the same parties. Both of these petitions challenged the orders dated 31.12.1991, 15.3.1993 and 29:12.1995 passed by the Collector (Cons.), Additional Commissioner (Cons.) and Member (Cons.) Board of Revenue, to be declared illegal, void and of no legal consequence, whereby petitioner's appeals/revision petition were dismissed, respectively.
2. Succinctly, relevant facts are that petitioner applied to the Collector, Lahore on 12.9.1970 for acquisition of land measuring 213 kanals 17 marlas in two villages namely Hanjerwal and Niazbaig of District Lahore for laying a Housing Scheme in collaboration with Quranic Education Society, College for Boys and Girls for a sma ll Township so as to make the project, self-sufficient. The Collector issued a notification under section 4 of the Land Acquisition Act, 1984 on 16.2.1971 but by another notification dated 4.8.1971 the proposed area for acquisition was reduced to 209 kanals, 7 marlas. The petitioner deposited the estimated price of the land. The matter of acquisition was placed before the Governor Punjab whereafter notification under section 5 of the Land Acquisition Act, 1894 was published by the Collector, inviting objections from the land-owners but none of them raised any objection and instead filed reference before the Civil Court under section 18 of the Land Acquisition Act, 1894. The matter of compensation stood concluded through judgment of the Honourable Supreme Court dated 21.6.1978 in C.P. No. 678 of 1977. Thereafter. Mutation No. 12185, dated 8.7.1981 was sanctioned in C.L.R. favour of the petitioner by AC-II, which was subsequently reviewed under the order of the Collector dated 1.12.1981, and this reviewed mutation, dated 6.12.1981 included Khasra No. 13368.
3. Aamer Bashir etc. Being aggrieved, of order dated 6.12.1981 filed two appeals before the A.D.C.
(C)/Collector, who condoned the delay in filing the appeals and remanded the case to Consolidation Officer with a direction to re-examine the re-consolidation record, acquisition notification and award announced by the Land Acquisition Collector, whereafter, to decide the case afresh after hearing the parties vide order dated 20.9.1990 Additional Commission (Cons.) dismissed the revision petition on 24.12.1990, filed by the petitioner, against the remand order of A.D.C. (C).
4. Petitioner was not satisfied with the decision of the Additional Commissioner (Cons.) and consequently filed a revision petition before the .Member (Cons.) Board of Revenue, but remained unsUccessful as its revision petition was dismissed on 6.3.1991.
5. Since the remand order passed by the A.D.C. (C)/Collector dated 20.9.1990 remained intact, the Consolidation Officer, Lahore in post remand proceedings on 10.3.1991 returned a finding that new Khasra No. 13368 corresponded to old Khasra No. 1045 which was not included in notification dated 3.8.197.3 thus, the same did not belong to the petitioner.
6. PetitiOner then filed two appeals before the Additional Deputy Commissioner (Cons.) assailing the order dated 10.3.1991 but remained unsuccessful as the same were dismissed on 31.12.1991.
Petitioner then filed a revision petition before Additional Commissioner (Cons.), which too was dismissed' on 15.3.1993 and simiiariy, his revision petition before the learned Member, Board of Revenue failed on 29.12.1994. Petitioner, thereafter, filed instant Constitutional petitions, which were admitted to C.L.R. regular hearing and after completion of record, the same have now been placed for final determination. Respondents in response to notice by this Court have appeared and were represented through their counsel.
7. I have heard the learned counsel for the pates and have ,examined the- record, appended herewith. Petitioner's main stay of the case was on two documents, firstly being copy of "Parcha Khatooni" dated 26.5.1991 which contained an entry of allocation of Kasra No. 13368 against old Khasra Nos. 995-8360 and New Kasra Nos 13369 against Old Kasra No. 995-8361 and the other document was "Aks Shajra" which revealed; that new Khasras No. 13368 and 13369 were crafted out of land bearing old Khasra No. 995. This "Aks Shajra" was issued by the PatWari on 9.4.1991.
Respondents did not accept these two documents to be correct, without producing any proof to negate the entries, therein.
8. . Consolidation officer in his order dated 20.9.1990 did not refer to any revenue record to opine that new Khasra No. 13368 corresponded to Khasra No: 1045 which according to him, was not included in notification dated 3.8.1973. Apparently the findings returned by the Consolidation Officer are opposed to the entries in the above-referred two documents, which were also not taken into consideratiot by any of the respondents Nos. 5 to 8 while deciding the case. The Collector while passing the order dated 31.12.1991 on appeal arising out of post-remand proceedings, being influenced by findings in earlier round of litigation, concurred to his earlier view and this time again without consulting the revenue record.
9. Additional' Commissioner (Cons.) in his order dated 15.3.1993 gave the following verdict namely:- "I am afraid, the demand is not justified nor can serve any purpose at this stage as it would be an exercise in futility because Khasra Nos. 1045(Old)/13362. 13368 and 13370(New) were never got acquired by revision petitions nor they can have any claim on these Khasra Nos. There being no force in the petitioner's case, it is dismissed, with no order as to costs."
The. Order above reproduced is in itself confused and did not make any sense because the same was passed without any logic and without consulting the revenue/consolidation record.
10. Petitioner's revision petition was also decided by the Member (Cons.) Board Revenue, with alike exercise as was undertaken by the Additional Commissioner. Petitioner has produced original copy of the "Parcha Khatooni" and "Aks Shajra" which were in his possession since 1991 and tentatively supported his claim to new Khasra No. 13368, as its old Khasra No. 995 was included in amended notification under section 4 of the Land Acquisition Act, 1894.
11. Since this Court is not in a position to determine genuineness or otherwise of the documents relied by the petitioner Which were not considered by any of the officers working in revenue hierarchy thus no other option was left except to remand this case to respondent No. 5 (M.B.R.
(Cons.) for determination of rights of the parties and their respective claims of the above discussed Khasra numbers in light of documents in possession of the petitioner, revenue record taken over by the Consolidation Field staff at the time of start of consolidation operations and in consultation with their register of consolidation scheme besides having a look into the original "Wandas" allocated to them during the consolidation of holdings operation.
12. For the reasons note above, both these Constitutional petitions are accepted and the impugned order dated 29.12.1994 passed by the Member (Cons.) Board of Revenue, are declared to be void and non-existent, with the result, that petitioner's both revision petitions (ROR Nos. 1440 and 1441 of 1993) shall be deemed to be pending before the respondent No. 5 and will be decided by him afresh in light of the observation made above, after hearing all the concerned.. Parties are directed to appear; before respondent No. 5 on July 22.7.2006. There will be no order as to costs.
Case remanded.
2006 .C.L.R. 1791 [Lahore] Present: JAWWAD S. KHAWAJA, J.
Haji Sakhi Muhammad Versus Muhammad Nawaz Civil Revision No. 615 of 2006, decided on 27th June, 2006.
Civil Procedure Code (V of 1908)- ---S. 115---Recovery suit---Appellate Court below while upsetting determination of Trial Court dismissed the said suit as barred by time---Appreciation of law and facts-Civil revision petition in High Court-Validity-Said issue was expressly framed on the question of limitation---No mention of any alleged acknowledgment had been made. In testimony of petitioner/plaintiff---Civil revision .
(Paras 6,7,8)
(Suit for recovery of amount in question was dismissed as barred by time).
For the Petitioner: Naseem Ullah Khan Niazi, Advocate. For the Respondent: Abdul Wahid Chaudhry, Advocate. Date of hearing: 6th June, 2006.
JAWWAD S. KHAWAJA, J. Haji Sakhi Muhammad petitioner-plaintiff impugns the appellate judgment and decree dated 24.12.2005 whereby the decree of the learned Trial Court dated 6.7.2005 was reversed and a suit filed by the petitioner for recovery of Rs. 50,000/- was dismissed.
2. The case of the petitioner-plaintiff was that he had paid a sum of Rs. 50,000/- to the respondent for the joint purchase of a vehicle. The respondent initially purchased the vehicle which he then sold. He refused to return the amount of Rs. 50,000/- to the petitioner, whereupon the petitioner filed a complaint before the Monitoring/Complaint Cell, District Khushab. Learned counsel for the petitioner contends that the respondent stated that he obtained Rs. 45,000/- and undertook to pay the said amount by means of a written acknowledgment. The acknowledgment, however, has not been exhibited on record although a copy thereof has been shown to me by learned counsel for the petitioner.
3. The learned Appellate Court has dismissed the petitioner's suit on the short ground that it was time-barred. Learned counsel for the petitioner contends that the respondent had not raised any objection on the ground of limitation, and nor had the said issue been raised before the. Learned Trial Court. It was argued that if any such objection had been raised . And an issue had been framed, the petitioner would have proved the same by producing the written acknowledgment whereby the period of limitation was renewed, or secondary evidence of the same.
4. On the above basis, it is, contended that the impugned' appellate decree is not legally sustainable as it proceeds on premises which were neither raised in the Written statement nor agitated before the learned Trial Court or through an appropriate issue framed in the case. If this submission is correct, the issue of limitation would become a mixed question of law and facts requiring evidence as to any acknowledgement whereby the period of limitation was extended.
5. Learned counsel for the respondent has, however, taken me through the record has firstly adverted to paragraph-2 of the written statement in which a preliminary objection specifically asserting that the suit was time-barred has been raised. Secondly issue No. 3 was expressly framed on the question of limitation in these circumstances, the contentions of learned counsel for the petitioner that no objection had been raised as to limitation and no issue had been framed in respect thereof are not in accordance with the record.
6. Learned counsel for the respondent also took me through the testimony'of the petitioner Sakhi Muhammad who appeared as DW.2. Throughout his testimony he did not make any reference to the purported written acknowledgment which was allegedly executed by the respondent. On the contrary, the petitioner gave evidence of his application before the Monitoring Cell and the time which, according to him, was sought by the respondent to return the amount. No mention of any written acknowledgment has been made in the testimony of the petitioner. On the contrary, the respondent denied owing any amount* to the petitioner.
7. Learned counsel referred to the case titled Khurshid Ali and 6 others v. Shah Nazar (PLD. 1992 S.C.
822) to argue that mistakes of the parties should not result in the deprivation of their rights if they are found entitled to the same. I have gone through the cited precedent and find the same to be distinguishable on facts. In the cited case there were documents which had been dully exhibited on record but the original register, wherein the said documents were recorded,. Had' not been produced. It is, in these circumstances, that the Honourable Supreme Court came to the conclusion that the Trial Court had fallen in error by not summoning the original record. No such circumstances exist in-the present case. The cited precedent, therefore, does not advance the case of the petitioner.
8. In the above circumstances, I find no merit in this petition which is, therefore, dismissed.
Civil revision/.