JAWAD S. KHAWAJA, J.--- The petitioners/plaintiffs impugn the concurrent decrees of the learned trial Court dated 22-3-2005 and of the learned appellate Court dated 28-6-2005, whereby a declaratory suit filed by them seeking permanent injunction by way of consequential relief, has been dismissed.
2. The facts of the case are relatively straightforward. According to the petitioners, they are in possession of the suit-land under the Killa Fi Jee Scheme of the Government. In support of their claim, they produced on record Exh.P.3, which is the Jamabandi for the year 1993-94, and Exh.P.4, which is the Jamabandi for the year 1977-78. From these two exhibits, the possession of the petitioners, under the aforesaid scheme, is made out. Both Courts below have non-suited the petitioners on the ground that they had failed to produce any allotment letter in their favour.
3. The petitioners arrayed the Province, the D.O. (Revenue), Sheikhupura and the two private respondents as defendants in their suit. According to the plaint, the private respondents had collusively obtained a sale-deed (Exh.D.1) dated 10-1-2000 in their favour and were attempting to dispossess the petitioners. It is the private respondents, who contested the suit. They filed their written statement alleging therein that the sale-deed had properly been executed in their favour and they had, thus, become entitled to the suit-land. They also relied on a report showing that possession of the land had been delivered to them.
4. The Province also filed a written statement but thereafter, seems not to have taken further interest in the litigation. In the written statement filed by the Province, it was averred that the entries in the Revenue Record viz. Jamabandies (Exhs.P.3 and P.4) had been obtained by the petitioners in connivance with the concerned Patwari. As to the allotment/conveyance of the land in dispute in favour of the contesting respondents, para. 3 of the written statement sets out the case of the Province. In view of its relevance, para. 3 is reproduced as under:- "3. It is incorrect. The land in question was allotted to another affectee of Mangla Dam Project i.e. Imam Din son of Bagh Ali vide order, dated 12-5-1973 of the District Collector, Sheikhupura. A copy of the said order is attached as Annexure "R/1". Subsequently, the allotment in the name of Imam Din was withdrawn and the land was allotted to the predecessor-in-interest of the defendants Nos.3 and 4 by the .Commissioner, Mangla Dam Affairs vide Allotment Chit No.26, dated 8-3-1976.
Copy is attached as Annexure "R/2". Thus, the question of concealment of facts and loss of record is not in the field. The allotment was made by the Commissioner, Mangla Dam Affairs and was finally implemented by the order of the Honourable Lahore High Court, Lahore and the Member (Colonies), Board of Revenue, Punjab on equitable grounds. The Governors' Inspection Team scrutinized each and every case of Killa Fi Jee Scheme under which the plaintiffs falsely claim to be the allottees but their names were not found in the register, which was prepared in the year 1968.
Thus, this land was illegally occupied by the plaintiffs and remained in their illegal occupation for which they are liable for imposition of Tawan. The allotment was lawfully made by the defendant No.2 and was accordingly implemented in the Revenue Record and the plaintiffs have no cause of action to challenge the same."
5. The first point to be noted is that the Jamabandies (Exhs.P.3 and P.4) do mention the fact that the petitioners are in occupation of the land under the Killa Fi Jee Scheme. Learned counsel for the private respondents argued, firstly, that the names of the petitioners appeared in Column-8 of the aforesaid Exhibits and, therefore, no presumption of correctness attached to the same. To support his argument, he referred to the case titled Padahabi alias Pat Shahi v. Lal Din 2001 CLC 742 and the case titled Pervez Alam Khan and 15 others v. Muhammad Mukhtar Khan through Legal Heirs 2001 CLC 1489. There can be no dispute with the principle of law enunciated in the cited precedents.
However, the petitioners did not rely on Exhs.P.3 and P.4 alone. The petitioners and their P.Ws.
Testified that the petitioners were in possession Exhs.P.3 and P.4 were only corroborative of the testimony of the P.Ws. As to possession of the petitioners. At this point, it is relevant to note that neither the Province nor the contesting respondents made any attempt to produce in Court the register, referred to in para.3 of me written statement reproduced above, to prove that the petitioners were not in occupation of the suit-land under the Killa Fi Jee Scheme.
6. More important than the above, however, is the testimony of Muhammad Younus, who appeared as D.W.1. He claimed to be the attorney of the private respondents. He, in clear and unambiguous terms, testified that he or the private respondents had not visited 'the site and possession had never been delivered to them. It is also relevant to note that the private respondents themselves did not enter the witness-box to testify or submit to cross-examination under oath.
7. The defence of the private respondents is based firstly on the conveyance deed (Exh.D.1) in their favour dated 10-1-2000. Learned counsel for the said respondents, however, was unable to advert to any order showing the decision of the competent Revenue Authority to convey the suit property to the private respondents. Furthermore, there is material on record to indicate that the land, which is subject-matter of the present litigation, was different from land which might have been ordered to be transferred to the private respondents. For this purpose. I advert to the contents of para.3 of the written statement of the Province--- which has been reproduced above. Therein it has been noted that original some land was allotted to one Imam Din son of Bagh Ali, but this allotment was withdrawn and the said land was proposed for allotment to the predecessor-in-interest of the private respondents vide letter dated 8-3-1976.
8. The aforesaid letter was filed with the written statement as Annexure "R-2" I have seen the said document and find the same to be most relevant. This letter was addressed by .The Commissioner, Mangla Dam Affairs, Mirpur (AK) to the Deputy Commissioner, Sheikhupura. It is noted therein that Imam Din son of Bagh Ali was allotted land in Chak No.25/UC, Tehsil Ferozwala but the allottee had applied for monetary compensation instead of land. It is further specified in this letter that the allotment in favour of Imam Din was cancelled as he was paid monetary compensation. A request was, therefore, made by the Commissioner, Mangla Dam Affairs for cancellation of the allotment in the name of Imam Din and for allotment in favour of Misri (predecessor-in-interest of the private respondents). Necessary orders under section 10(4) of the Colonization of Government Lands Act, 1912 were sought in favour of the said predecessor of the private respondents.
9. Proceedings appear to have been undertaken by the office of the Deputy Commissioner, Sheikhupura on the aforesaid request. It is important to note that the land, which had been allotted to Imam Din and which was recommended for adjustment in favour of the predecessor of the private respondents, was located in Chak No.25/UC, Tehsil Ferozwala. At the back of the aforesaid letter, the record of proceedings shows that the EAC(R) had instructed the Patwari for the re- allotment of the land. The noting dated 21-5-1976 confirms that the said land was situated in Chak No.25/UC, Tehsil Ferozwala. On the other hand, the land, which is subject-matter of the present litigation, is situated in Chak No.14/RB, Tehsil Sheikhupura (now Tehsil Safdarabad). Learned counsel for the contesting respondents was asked if they had produced on record the decision of the competent functionary ordering transfer of the suit-land to the said respondents. He acknowledged that no such order was available on record. Considering the case of the petitioners that the deed (Exh.D.8) was fabricated, it was incumbent on the respondents to prove the same through evidence and by producing the order for transfer of the suit-land in their favour. This, the respondents failed to do. These circumstances undermine the title asserted by the contesting respondents on the basis of the conveyance deed (Exh.D.8), which deed itself has not been proved.
It is significant to note, at this stage, that the Province, which could easily have proved the document, chose not to produce evidence to prove it.
10. There is yet another aspect of the case which needs to be commented on. The respondents have produced on record Exh.D.3, which appears to be a memo dated 1-12-2001 addressed by the Assistant District Officer (Revenue), Sheikhupura, but it does not indicate the name of the addressee. According to this memo. Possession of the land measuring 88 Kanals, 2 Marlas located in Chak No.14/RB, Tehsil Ferozwala, which is subject-matter of the present litigation, has been ordered to be delivered to Misri. The proceedings for delivery of possession are noted in Exh.D.4 dated 7-12-2001. According to the same, possession of the aforesaid land was delivered to Misri through his representative Muhammad Hussain. These documents (Exhs.D.3 and D.4) are extremely dubious in nature and cannot be relied on. Firstly, it is worth noting that D.W.1, who appeared as attorney and witness on behalf of the contesting respondents, had clearly deposed, as noted above, that possession had never been delivered to the respondents. Muhammad Hussain, who finds mention in Exh.D.4 as representative of the respondents, was never produced. The respondents themselves never appeared in Court. Moreover, Misri, whose name appears in Exhs.D.3 and D.4, had died many years earlier as is evident from the power of attorney (Exh.D.1) produced by Muhammad Younus (D.W.1). Added to this, is the fact noted above that the proceedings, if any, which were taken for allotting land to Misri, were in respect of an area originally allotted to Imam Din in Chak No.25/UC, Tehsil Ferozwala and not in respect of the suit-land, which was in Tehsil Sheikhupura. All these circumstances detract from the authenticity of Exhs.D.3 and D.4.
11. It is unfortunate that the learned Courts below have not considered the above noted evidence and material aspects of the case. The impugned decrees, as such, are a result of non-reading of the record. The impugned decrees, therefore, cannot be sustained. The same are set aside.
12. Considering the circumstances, which have been discussed above, at the very least, the petitioners were entitled to an injunction to restrain the private respondents from interfering in their possession. The private respondents are accordingly restrained from disturbing the possession of the petitioners.
13. The judgment, however, shall not preclude the Province, through its authorized functionaries, from initiating proceedings in accordance with law to repossess and to deal with the suit-land as appropriate, if a determination is made that the petitioners are not entitled to possession of the land in question. Subject to this observation, this petition is allowed.