'SH. HAKIM ALI, J.---- Muhammad Ashraf Bashir and seven others (legal representatives of Bashir Ahmad), had initially filed a suit for grant of permanent injunction against Municipal Committee, Rahimyar Khan through its Chairman to the effect that defendants be restrained from interfering into their ownership and the possession of the plaintiffs, upon the lands in dispute, the details of the lands provided in Para No,1 of the plaint was in the following form:- "Khata No,273 (min), Khatooni No,656, Rectangle No,533/10, Killa No,3-Jeem (6 Marlas), Killa No,8 (4 Kanals, 17 Marlas) and Killa No,13-Jeem (1 Marla), total land measuring 5 Kanals 4 Marlas, situated in City Rahimyar Khan".
' It was also pleaded in the aforesaid suit that out of these lands, 3 Marlas of land was sold out to Jam Ali and others. So, remaining land of 5 Kanals, 1 Marla was their owned property while defendant had refused to sanction map for the construction of shops and other structure upon the aforementioned land, when it was applied for to Municipal Committee, Rahimyar Khan by the plaintiffs. This suit filed on 29-4-1980 was afterward amended with the permission of the Court. The suit was transformed into nature of declaration with prayer of recovery of possession, grant of compensation for use and illegal occupation of lands in dispute, at the rate of Rs,3,500 per month from the date of illegal possession till delivery of possession, to the plaintiffs. The amended plaint filed on 15-12-1983 was also contested. It may be mentioned here that after the amendment in the plaint, a few more defendants were also added. So, all these defendants had filed a joint written statement. Issues were framed upon the disputed factual and legal controversies, between the parties. After production of evidence and evaluation of evidence brought by the parties on record, the suit was dismissed on 22-7-1990, while appeal filed before learned Additional District Judge, Rahimyar Khan could not succeed which was also dismissed on 30-9-1996. Hence, this civil revision.
2. Petitioners learned counsel submits that the petitioners predecessor-in-interest Bashir Ahmad was owner of the lands in dispute (details of which has already been delineated), as he had got it through pre-emption decree dated 29-8-1941, for which Mutation No,193, dated 29-1-1941 was also sanctioned in favour of Bashir Ahmed vide Exh.P.3. This land was never acquired by Municipal Committee, Rahimyar Khan although Municipal Committee, Rahimyar Khan had acquired other lands '- of the plaints predecessor-in-interest, namely, Bashir Ahmad. Notification dated 10-9-1950 (Exh.D-54) had not included therein the land noted above. Therefore, the forcible possession by Municipal Committee, Rahimyar Khan for Model Town Improvement Scheme of Rahimyar Khan was illegal and the petitioners/plaintiffs were entitled for recovery of possession along with mesne profits. Learned counsel also submits that land of Ashraf-ud-Din, husband of Mst. Zainab, Maqbool and Bashir although was acquired but that was a separate and different land and not the land in question. He has referred to the statement of P.W.3 Nazir Ahmad Patwari to show that as the land was being wrongly and incorrectly noted in the possession of Municipal Committee, Rahimyar Khan therefore, Nazir Ahmad Patwari had corrected it upon the application of Bashir Ahmad who was dismissed from Service due to this correction made by him in the Revenue Record but afterward was reinstated upon appeal filed by him. Therefore, the judgments and decrees of the learned Courts below may be set aside.
3. Respondent's learned counsel submits that the land in dispute was included in the Model Town Improvement Scheme of Rahimyar Khan. As per learned counsel for the respondent, total owned land of Bashir Ahmad was acquired by Municipal Committee, Rahimyar Khan under section 202(3) of the Bahawalpur Municipal Act, 1943 and nothing was left with Bashir Ahmad in his ownership. It has further been submitted by the learned counsel that the lands acquired, were noted in the list, wherein this land was also included. Learned counsel has referred to Exh.D.60 for that purpose. He has also referred to para. No,9 of the judgment of learned Additional District Judge, in which learned Judge has dealt with Issue No,4 exhaustively, which was framed for the purpose. According to the learned counsel Issue No,4 was decided in favour of Municipal Committee, Rahimyar Khan by both the learned Courts below. Therefore, concurrent findings of facts recorded in favour of respondent, Municipal Committee, Rahimyar Khan may not be set aside or reversed by this Court.
Forgery was committed by Patwari by manipulating wrong entries into Jamabandies, for which he was proceeded against. Bashir Ahmad had himself got recorded a statement, in which he had admitted that all his owned land was acquired by the Municipal Committee and nothing was left with him. Learned counsel, has placed reliance on Exh.D.57, statement of Bashir Ahmad, deceased.
He has also referred to statement of D.W.4 Muhammad Maqbool, who had recorded that statement. In Jamabandies, ranging from 1952-53 to 1972-73 (Exh.D.12 to Exh.D.17), Municipal Committee, Rahimyar Khan was shown as owner of the land in dispute. Therefore, suit filed by petitioners was rightly dismissed by both the learned Courts below. No misreading or non-reading of evidence by the learned Courts below has been pointed out by learned counsel for the petitioners.
4. Heard. Record perused. The real question in dispute between the parties is that "as to whether Municipal Committee, Rahimyar Khan as it then was in the year 1950 had acquired the above- noted disputed land of Rectangle No,533/10 from its owner, namely, Bashir Ahmad or not?"
According to respondent/Municipal Committee, there is a list Exh.D.46, in which the land in dispute was included. Before discussing the other grounds analysis of this list is undertaken. Although at Serial No,3 of the above-noted list, the land in dispute has been shown to be of Khata No,79/2, yet question arises as to whether this list has got any authenticity, validity or it can be considered to be a notification under section 4 of the Land Acquisition Act or any other document having a value for the transfer of the land of Bashir Ahmad, predecessor-in-interest of plaintiffs in favour of Municipal Committee, Rahimyar Khan.
5. Firstly, this is only a list having no authenticity as it has not been proved on the record in accordance with law. Moreover, who had prepared it and whether this prepared list was based upon any document or was ever acted upon or not? If so, when it was acted upon and what was the number of notification, in which this land was included for acquisition purpose, nothing was brought on the record to this effect. This list is not verified by any competent Revenue Officer.
Therefore, to my considered opinion, it has got no worth and value to be believed for the purpose of presuming alienation of land from plaintiffs in favour of the Municipal Committee, Rahimyar Khan.
6. Secondly, referred has been made to a Notification No,55-L-G, dated 10-9-1950 (Exh.D.54) in the record of the case. According to respondent's learned counsel, this was the notification, through under which the lands of the persons/owners were acquired. As the copy of Exh.D.50 (notification) produced with the file was not clear, so I sent for the original Government Gazette, Bahawalpur from High Court Library, Bahawalpur, which I have examined myself. Above noted Notification No,55-L-G, dated 10-9-1950 was published in Government Gazette, Bahawalpur, on 14th September, 1950. The whole notification has been perused but rectangle number of the land in dispute has not been found to be included therein. In other words, the disputed land was not part and parcel of the aforementioned notification. Therefore, it can safely be held that the land in dispute was not acquired by Municipal Committee, Rahimyar Khan through this notification. Therefore, this notification is not of any assistance to the case of the Municipal Committee/respondent.
7. Thirdly, the other contention of the learned counsel for respondent that Bashir Ahmad had admitted himself that there was no other land left for their income, therefore, land in dispute might be considered to have been acquired, is a very strange argument, which is not legally tenable in the eye of law. On the basis of statement of Bashir Ahmad, Municipal Committee does not become entitled to be considered the owner of the land in dispute. I have examined Exh.D.57 but there is no mention or admission by Bashir Ahmad that the land in question was acquired by Municipal Committee, Rahimyar Khan. I have examined each document separately and minutely. Most important fact oozing out from the record is that compensation has been granted to Bashir Ahmad for the land measuring 4 Kanals and 12 Marlas only vide Serial No,8 of Exh.D.42, which is list prepared with regard to the land acquired and the amount of compensation to be paid to the owners. In the list, Bashir Ahmad has been shown at Serial No,8 and total land acquired from his ownership is 4 Kanals, 12 Marlas and compensation has been shown for that land, while the land in question is to the extent of 5 Kanals and 1 Marla. Therefore, it can be easily distinguished that the land noted in Exh.D.42 is not the land, which is being claimed by plaintiff. In fact, the land which was acquired from Bashir Ahmad was another and different land, which was owned by him along with his relatives, Maqbool Ahmad and others. Land in dispute has not been shown to have been acquired through any valid document by Municipal Committee, Rahimyar Khan, or by its predecessor-in-interest.
8. It may be worth-mentioning here at this stage that acquisition of land is to be made through documentary evidence which has not been produced by any such document by the Municipal Committee, Rahimyar Khan. It was the duty of it, to prove that the land in question was also acquired by Municipal Committee, Rahimyar Khan for the purpose of Model Town Improvement Scheme, Rahimyar Khan. All the documentary evidence has been thrashed out by me, but no where, I have been able to find that land in question owned by the plaintiff was ever or through any document acquired by Municipal Committee, Rahimyar Khan.
9. The contention of the learned counsel for respondent that forgery was committed with the entries of Jamabandies through collusion of Patwari has also been considered by me. I have not been able to locate from the record, the alleged allegation that due to alleged interpolation in the entries of Jamabandi, case of Municipal Committee for acquisition of land in question was proved.
The alleged alteration, at the most, could have shown the possession of Bashir Ahmad, instead of possession of Model Town Improvement Scheme, , Rahimyar Khan. The entries of Jamabandies cannot prove the acquisition of ownership of plaintiffs if there was no acquisition in fact. The acquisition notification was the document which could prove the acquisition of land in question in favour of Municipal Committee or the Model Town Improvement Scheme, Rahimyar Khan. This basic document is lacking to impart any such information regarding acquisition of the land. There is no document referred to by the learned counsel, from where it could be proved and held that land in question owned by plaintiffs was ever acquired by Municipal Committee, Rahimyar Khan. In other words, this allegation of alteration into entries of Jamabandies was not of any help to prove the case of acquisition of the land in question. For the transfer in favour of Municipal Committee, there must be separate independent documentary evidence from where it could be held that the land in question of the plaintiffs was acquired by Municipal Committee, Rahimyar Khan, or by its predecessor-in-interest.
10. On the record, there is Mutation No,2221, dated 26-5-1974, which was sanctioned with regard to land acquired for Mode Town Improvement Scheme, Rahimyar Khan from the owners of the lands in favour of Improvement Trust, Rahimyar Khan or by Municipal Committee, Rahimyar Khan. This mutation was brought on record as. Exh.D.55. Even in this mutation, land in question is not included.
Therefore, this is another proof that the land in question was never acquired by Municipal Committee, Rahimyar Khan for Model Town Improvement Scheme, Rahimyar Khan.
11. It may be explained here that in any Jamabandi, if entry with the possession of Model Town Improvement Scheme, Rahimyar Khan was shown as against and in question, it would not had the effect of transfer of land in question in favour of Municipal Committee, Rahimyar Khan automatically and without proper or relevant procedure adopted for that purpose. There must have been proof that this entry was based upon any acquisition process or in consequence of award of Land Acquisition Collector or any other documentary proof that the land in dispute was purchased or acquired through some other method, etc. By the Municipal Committee, Rahimyar Khan.
12. Accordingly, findings of learned Courts below cannot be upheld; which are not based upon correct appreciation of documentary evidence. Judgments of the learned Courts below are not based upon any documentary evidence from where it could be proved that land in question was acquired by Municipal Committee for Model Town Improvement Scheme, Rahimyar Khan.
Accordingly, by accepting this civil revision, I set aside the judgment and decree passed by the learned Courts below and decree the suit of the plaintiffs as prayed for.