' SYED JAMSHED ALI, J.---the petitioner has assailed the judgments and decrees of the learned two Courts, whereby, suit filed by him for a declaration and injunction has concurrently been dismissed.
It arises out of the following circumstances.
2.. On 30-9-1980, the petitioner filed the suit with the averments that he was a refugee from District Amritsar, an area measuring 16 Acres was allotted in his favour in Chak No,527 G.B. Tehsil Sumandari District, Faisalabad, and for the purpose of his residence, he occupied 7 Marlas of land of residential Ihata No,91, the total area of which is 1 Kanal, 15 Marlas and 7 Sarsies. It was further averred that respondent No,2 was in possession of an area measuring 1 Kanal, 8 Marlas and 6 Sarsies of Ihata No,91 but through misrepresentation got transfer of the ntire area of the Ihata in his favour vide Mutation No,251 (sanctioned on 25-11-1976). His case was that on the basis of the aforesaid mutation which was void, respondent No,2 was out to disturb possession of the petitioner.
Accordingly, a declaration was claimed that he was in possession of area measuring 7 Marlas out of Ihata No,91, Mutation No,251 was illegal, void, mala fide and inoperative against the rights of the petitioner with a prayer for permanent injunction restraining respondent No,2 from interfering in the possessory rights of the plaintiff.
3. This suit was contested by respondent No,2. His case was that the petitioner was a trespasser on an area measuring 7 Marlas of Ihata No,91, he had earlier filed a suit of the same nature which was pending. On facts it was averred that the petitioner was allotted Ihata No,90 and had encroached upon area of 7 Marlas of Ihata No,91. The entire Ihata was transferred to him by way of registered sale-deed followed by Mutation No,251. Necessary issues were framed and the suit was tried.
4. The learned trial Court found that the Ihata No,91 was in the ownership of the Provincial Government, it was transferred to respondent No,2 vide registered sale-deed dated 22-11-1976, which was not even challenged in the suit that Mutation No,251 was attested on the basis of the aforesaid registered sale-deed. It was further observed that the petitioner had never applied for the purchase of the said Ihata. Accordingly, it was held that respondent No,2 was the owner of the disputed Ihata No,91 and the petitioner had no cause of action to bring the suit. The learned trial Court also found that plaintiff had earlier filed a suit on 28-7-1980 regarding the same property which was dismissed under Order IX, Rule 8 of the Code of Civil Procedure on 20-1-1981 and the second suit was hit by Rule 9 of Order IX of the C.P.C. The petitioner filed an appeal which was dismissed vide judgment and decree dated 18-12-1990.
5. The learned counsel for the petitioner contends that D.W. 1 and even Mahanga, respondent No,2, who appeared as D.W.3 had admitted that the petitioner was in possession of area measuring 7 Marlas of Ihata No,91. Reliance was placed on the letter dated 18-4-1970 of the Colonies Department of the Government of the Punjab, according to which, it was decided that a genuine refugee "who has been in continues occupation of any Ihata for the last 10 years should not be disturbed, if he is otherwise entitled to retain that Ihata according to rules. " (underlining is mine) and, therefore, he was entitled to retain possession of the disputed portion of the Ihata.
6. The submissions have been considered. The petitioner appeared as P. W.3 and admitted that he had not applied for allotment of the disputed portion of the Ihata. Even according to the dispensation being relied upon entitlement to retain the Ihata was to be determined in accordance with rules and unless the petitioner had made an application for the transfer of the disputed portion of the Ihata, his entitlement to retain the disputed portion of the Ihata could not be determined. Undisputedly the Provincial Government was recorded owner of the said Ihata and in the absence of any application by any contender, it could be lawfully sold in favour of respondent No,2 by the Provincial Government. In the written statement it was averred that the petitioner was allottee of Ihata No,90. The petitioner, while appearing as P.W.3 admitted that on the adjacent, that he was in possession of 6/7 Marlas which was being used as a cattle shed. It was also not demonstrated that the petitioner entered possession of the State land with the permission of the authorities concerned. He was, therefore, an authorized occupant whose possession could not be protected.
7. The petitioner, while appearing as P.W.3, admitted that he had earlier filed a suit which was consigned to the record on 20-1-1981. Perusal of the record shows that in the said suit, the petitioner had challenged Mutation No,251 attested on 25-11-1976 and had also claimed a permanent injunction. The said suit was dismissed under Order IX, rule 8 of the C.P.C. On 20-1-1981, the copy of the order is available on the record of the trial Court as Exh.D.5. Perusal of the record further shows that the petitioner made an application on 28-9-1980 to withdraw the said suit but not having been allowed to withdraw the said suit, he filed the instant suit on 30-9-1980. The application for withdrawal of the suit was however, dismissed vide order dated 17-11-1980, a certified copy of which is available on the record of the present suit. The second suit was filed during pendency of the first suit and was liable to be stayed. However, the first suit being prior in point of time and having been dismissed under Order IX, rule 8, the second suit was rendered as in-competent by virtue of Rule 9 of Order IX of the C.P.C. To meet this objection, the learned counsel relied on Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344. The said judgment is not on this issue.
8. For what has been stated above, I find no.Merit in this revision petition which is, accordingly, dismissed.