' JAWWAD S. KHAWAJA, J.---The petitioners/plaintiffs are the legal heirs of Mehdi Hussain. They impugn the concurrent decrees of the learned trial Court dated 4-7-1989 and of the learned appellate Court dated 21-5-2002 whereby a declaratory suit filed by them has been dismissed.
2. The dispute between the parties relates to a plot of land bearing No.5-A/C measuring 7 Marlas 57 Sq. Ft. Situated in the Shahalam Damaged Areas Development Scheme (hereinafter the `Scheme'). The Scheme was made under the provisions of the Punjab Development of Damaged Areas Act, 1952, vide Notification dated 26-8-1957 issued by the Lahore Improvement Trust (hereinafter 'LIT) since succeeded by the Lahore Development Authority (respondent No.4).
3. It was the case of the petitioners that Plot No.5-A/C included Property No.2164-G, which was owned by Mehdi Hussain father of the petitioners, property No.2053-D and a portion of property No.2050-D. According to the petitioners, Properties Nos.2050-D and 2053-D were evacuee properties but had been acquired by the LIT with the approval of the Federal Government dated 16- 5-1957 for the purpose of Scheme. The Scheme itself covered an area of 37.68 acres.
4. It was also the case of the petitioners that in view of the fact that their father Mehdi Hussain was owner of Property No.2164-G comprised in the disputed plot, the plot was exempted in favour of Mehdi Hussain vide two identical registered agreements (Exhs.P.4/1 and P.4/2) executed by the LIT in favour of Mehdi Hussain against payment of Rs.12,670.50. The recitals in the agreements (Exhs.P.4/1 and P.4/2) are of relevance and for the sake of convenience, are reproduced as under:-- "Whereas the Trust had exempted House No.G-2164 in Shahalami Gate Scheme Area of the intended vendee measuring 1M 68Sft free of cost but on payment of development charges amounting to R$.455.81 and has agreed to sell the remaining area measuring 5M 214 sft falling in Plot No.5-A/C at the rate of Rs.1,500 per marla costing to (sic) Rs.8926.69. The total area of the plot thus comes to 7M 57 Sft.
' And whereas the said intended vendee has deposited with the Trust a sum of Rs.9382.50 being the amount agreed to be paid by the said intended vendee to the Trust by way of sale price and development charges as stated above apart from a sum of Rs.3288 as estimated cost of the structure of a part of House Nos.D-2050 and D-2053 standing on the plot. The said deposits amounting to Rs.12,670.50 shall be security to the Trust for the due performance by the said intended vendee of the terms of this agreement."
5. It is clear from the above recitals that the price, development charges and other dues were paid by the father of the petitioners to the LIT. At this point, it is necessary to note that Muhammad Shafi and Taj Din (predecessors-in-interest of the contesting respondents) obtained two PTOs (Exhs.P.5/1 and P.5/2) dated 8-7-1960 respectively in respect of Property No.2050-D. On becoming aware of these documents (Exhs.P.5/1 and P.5/2) the petitioners filed their declaratory suit claiming that they were entitled to Plot No.5-A/C which included the portion purportedly transferred to the aforesaid Muhammad Shafi and Taj Din. Only Muhammad Shafi chose to file a written statement while Taj Din did not come forward before the learned Courts below. His L.Rs. Are, however, represented in the present revision petition. They are the only contestants left in this case because the successors of Muhammad Shafi have already settled their dispute with the petitioners vide compromise recorded before the lower appellate Court. Their learned counsel has stated that even though Taj Din had not filed a written statement, his case can be supported by the evidence produced on record by Muhammad Shafi.
6. The claim of the petitioners has been resisted by the contesting respondents (L.Rs. Of Taj Din), firstly, on the basis of the PTOs (Exhs.P.5/1 and P.5/2) whereby, they claim, title came to vest in them.
As a corollary to this submission the jurisdiction of the Civil Court has also been challenged.
Secondly, it has been contended on their behalf that Property No.2050-D was vested in the Federal Government as part of the compensation pool and, therefore, could not have been acquired by LIT for the purpose of the Scheme. Thirdly, it was submitted that the said property was not, in fact, acquired by LIT because LIT had no power of acquisition. And finally, that Property No.2050-D was not covered by the Scheme.
7. The learned trial Court framed as many as 11 issues including that of relief. Issues Nos.6, 7, 8 and 10 are relevant for the disposal of the present petition and are reproduced as under:-- "(6) Whether the Civil Court has no jurisdiction to entertain and decide the present suit? OPD
(7) Whether the suit is barred by the provisions of sections 22 and 25 of the D.S. Act of 1958? OPD
(8) Whether the scheme and acquisition of land (property in dispute) is violative of and not maintainable under the provisions of Pak. Administration of Evacuee Property Act, 1957 and section 3 of the D.S. Act of 1958? OPD (9)
(10)Whether the transfer order, P.T.O. And P.T.D. Issued in favour of the defendants Nos.1 and 2 are void, ineffective and inoperative and not legally maintainable? OPP"
8. The learned Courts below unfortunately have proceeded on erroneous premises and have also misread the record. The appellate judgment, which affirms the findings of the learned trial Court, has been considered by me with the assistance of both learned counsel. The reasons, which prevailed with the learned appellate Court, and the errors therein are discussed below.
9. It has, firstly, been held by the appellate Court that the petitioners, at most, have an agreement to sell in favour of their predecessor and that such agreement alone does not create any right in favour of the petitioners unless a sale-deed is executed in their favour. This finding is based on the premise that Mehdi Hussain (predecessorin-interest of the petitioners) was only an intended vendee and was not the owner of the disputed plot of land.
10. The above observation of the learned appellate Court loses sight of two important facts; firstly, that the petitioners' father had paid the entire amount due to LIT by way of price, development charges and other sums as is acknowledged by the agreements (Exhs.P.5/1 and P.5/2:). The execution of a sale deed was a mere ministerial act and did not, in any manner, deprive the petitioners of their right in the disputed property. Secondly, if at all any party had a right to raise this contention, it was LIT (now LDA). LDA has not taken any objection on this score. On the contrary, it has acknowledged the petitioners as holding title in the suit property. This has been done through a letter dated 11-1-1984 addressed to the petitioners as legal heirs of lkehdi Hussain. The relevant portion of the said letter (Exh.P.W.4/3) is reproduced as under:-- "The title of Plot No.5-A Block `C' of Shahalami Gate Scheme previously standing in the name of your deceased father (Mehdi Hussain deceased) has now been transferred in your names, on the terms and conditions stipulated in the agreement for sale."
11. From the contents of the. Above letter it is abundantly clear that LDA had acknowledged that title in Plot No.5-A/C vested in the petitioners. This letter and its implications on the case have been ignored by the learned Courts below.
12. The learned appellate Court next has held that the petitioners were obliged to file a suit to seek specific performance of the agreements executed in favour of their predecessor by LIT and should have sought execution of sale deeds in their favour. After making this observation the learned Court has proceeded to hold that since the agreements are of the year 1964, the declaratory suit filed by the petitioners in 1974 was time barred. This finding is quite extraordinary considering that LIT/LDA have not disputed the title of the petitioners and have, on the contrary, confirmed the same vide letter Exh.P.W.4/3 referred to above. I am afraid, the learned Courts below have gone off on a tangent discussing issues not germane to the controversy in hand, rather than deciding the dispute which essentially is between the petitioners on the one hand and the contesting respondents on the other. LIT/LDA have, at no point in this litigation, disputed the right of the petitioners to the disputed plot.
13. The learned appellate Court has next proceeded to hold that there was no document to show that Plot No.5-A/C was included in the Scheme. In this context, although it has been noted that the- testimony of Muhammad Afzaal, Head Clerk, LDA (P.W.1) is relevant and favourable to the petitioners no weight has been given to the said testimony. It has been held that no documentary evidence was produced to prove that the disputed plot was included in the aforementioned Scheme.
14. This finding of the learned Courts below is also contrary to the record. Firstly, I need to note that P.W.l, who was the concerned functionary of LDA and who was armed with the relevant record; clearly deposed that Plot No.5-A/C was part of the Shahalami Gate Scheme and that such Scheme was a Damaged Areas Scheme made in 195I. He further confirmed execution of the registered sale agreements in favour of Mehdi Hussain and the receipt of Rs.12,670.50 from him. The other facts such as acquisition of the properties Nos.2050-D and 2053-D, the exemption in favour of Mehdi Hussain and the letter (Exh.P.W.4/3) in favour of the petitioners, was also confirmed in clear and unambiguous terms. The testimony of P.W.1 was sufficient to prove the facts stated by him.
15. However, additionally, . The petitioners also drew the attention of the Courts below to the case titled Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another PLD 1963 Lahore 499.
This precedent is relevant not only in terms of the law enunciated therein but also to show the existence of the Shahalam Damaged Areas Development Scheme. Paragraph 2 of the cited judgment is reproduced as under:- "Property No.E-457-S, parts of which are the subject-matter of the three writ petitions which are being disposed of by this order, is admittedly included in the Shahalami Gate Development Scheme of the Lahore Improvement Trust. The Scheme was sanctioned by the Provincial Government under section 6 of the Punjab Development of Damaged Areas Act XIV of 1952 and by the West Pakistan Government's Notification No.2727-C and T-57, dated the 26th of August 1957, copies of which will be found annexed to the written statement filed by the Lahore Improvement Trust in Writ Petition No.1397/R of 1961. Since parts of the property included in the Scheme and particularly the property mentioned above, which is the subject-matter of the dispute in these writ petitions, was evacuee property, the Lahore Improvement Trust moved the Central Government for sanction to acquire the same. The Central Government vide their Letter No.F-16(13)/56- P-II, dated the 16th of May, 1957 from the Deputy Secretary, Ministry of Rehabilitation, Karachi to the Secretary to Government of West Pakistan, Refugees and Rehabilitation Department, accorded their approval to the acquisition by the Government of West Pakistan under the provisions of the Land Acquisition Act, 1894, as modified by th Punjab Development of Damaged Areas Act, 1952 of the evacuee property as per details shown in the Schedule attached to that letter and included in Lahore 14 Development Scheme. The Schedule attached to that letter admittedly includes the property in dispute."
16. Learned counsel for the respondents did not have any satisfactory answer to the above. He merely contended that the relevant letters and documents, mentioned in the cited case, had not been produced before the learned trial Court. This submission, however, loses sight of the fact that the concerned functionary of LDA, namely, Muhammad Afzaal (P.W.1) had testified in proof of the facts noted in the cited case.
17. The learned Courts below have also proceeded on the premise that the Settlement Department had issued the P.T.Os. (Exhs.P.5/1 and P.5/2) and as a result, ownership in the property stood transferred to Muhammad Shafi and Taj Din (predecessor of the contesting respondents). This observation is not legally sustainable. It is noteworthy that the land for the Scheme already stood acquired by LIT and even the evacuee portion of the said land was acquired in 1957 as is apparent from the letters etc. Mentioned in the case of Sh. Muhammad Sadiq v. Chief Settlement Commissioner and another supra and the testimony of P.W.1. The Property bearing No.2050-D, therefore, was not part of the compensation pool when it was purportedly transferred to Muhammad Shafi and Taj Din on 8-7-1960. A copy of the letter dated 16-5-1957 issued by the Ministry of Rehabilitation, Karachi to the Rehabilitation Department, Government of West Pakistan, is on the record, which shows that approval was accorded to the acquisition of the land in the Scheme under the Punjab Development of Damaged Areas Act, 1952.
19. Considering that the disputed plot had ceased to be part of the compensation pool, there can be no objection as to the jurisdiction of the Civil Court because it was for the Civil Court to decide on the declaration of title sought by the petitioners.
20. In view of the foregoing discussion, I find that the impugned judgments and decrees of the learned Courts below proceeded on erroneous legal and factual premises and are, therefore, not sustainable. The same are, therefore, set aside and as a result, the suit of the petitioners is decreed against the L.Rs. Of Taj Din.