MAULVI ANWARUL HAQ, J.---On 4-4-1985 respondents Nos.1 and 2 filed a suit against the petitioners are respondent No.3. In the plaint, it was stated that the said respondents were lessees in the land mentioned in para. 2 of the plaint for five years w.e.f. Kharif, 1975 to Rabi, 1980, they brought the land under cultivation. They accordingly became entitled to conferment of proprietary rights under the scheme, dated 3-9-1979 and filed an application within time for the purpose. They came to know that the said land has been allotted to Karam Dad, the predecessor-in-interest of the petitioners, on 7-9-1977. They filed an appeal which was dismissed by the Commissioner on 23-9-1984. A revision was dismissed by Board of Revenue on 20-12-1984. They questioned the said orders including the initial order allotment on the ground that the land could not have been allotted to the petitioners during the subsistence of their lease; the possession had not been delivered and that the land is not included in the Schedule of the Islamabad Oustees. They accordingly sought a declaration that they are allottees of the suit-land and are entitled to conferment of proprietary rights and that the said orders are illegal and void. The petitioners contested the suit. They contended that the suit is barred by time. The respondents were tenants under them and have been ejected under ejectment order, dated 8-1-1985 and execution is pending. They are estopped from challenging the title of the petitioners and that the civil Court has no jurisdiction under section 36 of the Colonization of Government Lands (Punjab) Act, 1912. On merits, it was stated that the suit-land was earlier twice allotted to Islamabad Oustees who obtained alternate land and then it was allotted to Karam Dad who obtained the proprietary rights and sale-deed was executed in his favour on 2-12-1980 by the Provincial Government and was registered on 10-12-1980. Regarding the appeal filed before the Commissioner, it was stated that it was barred by time and was lawfully rejected and so was the case with the revision. Issues were framed. Evidence of the parties recorded. Vide judgment and decree, dated 3-4-1991 the learned trial Court dismissed the suit. A first appeal filed by the respondents was dismissed on 6-7-1993 by a learned Additional District Judge. However, C.R. No.519-D of 1993 filed by the respondents was allowed by this Court and the case was remanded back to the learned trial Court. This time vide judgment and decree, dated 1- 3-1995 the learned trial Court decreed the suit of the respondents which" judgment and decree was affirmed by a learned Additional District Judge, Sahiwal, on 12-3-1996, while dismissing the first appeal of the petitioners.
2. Ch. Imdad Ali, Advocate/learned counsel for the petitioners. Contends with reference to the case of Muhammad Siddiq and 6 others v. Zafar Iqbal and 9 others (2005 CLC 33) that it was decided by the Board of Revenue as far back as on 28-9-1968, after noting that list or schedule has not been prepared for land to be allotted to Islamabad Oustees in Sahiwal and Multan Districts that the allotments already made should not be upset. This position was re-confirmed in a memorandum, dated 6-11-1982, duly referred to in the said judgment. The precise contention is that notwithstanding the fact that the land was not included in any schedule or the Islamabad Oustees, the allotment could have been validly made in favour of his clients. Thereafter, he refers to the case of Khuda Bakhsh v. Member (Colonies), Board of Revenue and 3 others (1981 SCM R 1134) to urge that the allotment to Islamabad Oustees being a public purpose and a permanent scheme, the lessees or allottees under temporary scheme cannot be preferred as they cannot claim proprietary rights in respect of such land. He has further tried to argue that the suit was barred by time and also that the ejectnient decree passed in favour of his clients would constitute res judicata and in any case constitutes estoppel. Malik Javed Akhtar Wains, Advocate/learned counsel for the respondents, on the other hand, relies on the case of Muhammad Rafiq and others v. Hashmat Ali and another (PLD 1992 SC 37) to urge that since there is no evidence that the land was included in the said schedule, its allotment was illegal and void. According to him, in the case being relied upon by the learned counsel for the petitioners it was held as a fact that the land was included in the schedule. According to him, once it is held that the land could not be lawfully allotted then question of limitation or estoppel would not arise at all.
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now the land was allotted to the petitioners vide allotment order Exh.P.6 on 7-9-1977. I find that the Collector, Sahiwal, imposed a condition that the allotment is to take effect and possession will be delivered upon the expiry of the temporary lease in favour of the respondents-temporary lessees which admittedly expired in Rabi, 1980 i.e. At a point of time when the notification, dated 3- 9-1979 had been issued regarding conferment of the proprietary rights. Now a reading of the judgments of the Hon'ble Supreme Court of Pakistan being relied upon by both the learned counsel does go to show without any ambiguity whatsoever that there is a legal requirement that a land to be allotted to an Islamabad Oustee had to be part of a list or schedule to be prepared by the concerned Revenue or Colony Officer in the manner suggested by the Capital Development Authority. In fact, in the judgments being relied by the learned counsel for the petitioners, there is a finding recorded by their Lordships that the land, in fact, was included in the schedule. The dictum is that notwithstanding the fact that the land had been allotted or leased out under a temporary scheme, there would be no bar in allotting the same or reserving the same for allotment under a permanent scheme like the Islamabad Oustees Scheme. In the judgment being relied upon by the learned counsel for the respondents, their Lordships did not interfere with the judgments of this Court declaring the allotment to be illegal and void for the reason that the land was not included in the schedule for the Islamabad Oustees.
4. It is further a matter of record that there is no evidence that the land ever formed part of such a schedule or list.
5. I do hold that the allotment was illegal and the question of limitation or estoppel would not be arising.
6. Now Ch. Imdad Ali, Advocate, has very rightly pointed out that the decree granted by the learned Courts below is beyond the prayer made by the respondents. He particularly points out that both the respondents were not lessees and 'both of them had not applied for the proprietary rights. He has further pointed out that the entire land comprising the temporary lease of the respondents was not allotted to the petitioners. Further points out that there is nothing on record that the application filed by the respondents allegedly for conferment of proprietary rights had been decided or not. The precise contention is that the matters should have been left for decision of the competent Colony/Revenue Authority as to the extent to which the allotment was to be cancelled with reference to the exact area of the land being held by the respondents on temporary lease vis- a-vis the area of land allotted and then sold to the petitioners and if at all a proportionate area ought to have been cancelled. Malik Javed Akhtar Wains, Advocate, has not much to say in this matter.
7. This civil revision accordingly is partly allowed inasmuch as the impugned judgments and decrees passed by the learned Courts below are modified and a declaration is granted that the allotment of the land which was comprised in the five years lease of respondents/plaintiffs w.e.f Kharif, 1975 to Rabi, 1980, to the petitioners/defendants under the Islamabad Oustees Scheme is held to be illegal and void with the result that the application filed by the respondents for conferment of . Proprietary rights shall be deemed to be pending before the successor-in-office of the Collector, Sahiwal, who shall decide the same. He will determine as to the exact area of land that was leased out to the respondents or one of them. He shall then determine as to how much out of the said leased area stood allotted to Karam Dad, the predecessor-in-interest of the petitioners under the Islamabad Oustees Scheme and thereafter if he finds the respondents entitled to the conferment of proprietary rights, only the said area shall be cancelled from the name of the petitioners and so far as the remaining area is concerned, the allotment as well as the sale-deed executed and registered by the Provincial Government in favour of the petitioners or their predecessor-in-interest shall remain intact.
8. A copy of this judgment be immediately remitted to the D. C . O. , Sahiwal.
9. No orders as to costs.