JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this single judgment I proposed to decide three Civil Revisions Nos.2579 of 2005, 1144 of 2006 and 320 of 2006 as the same are against the same judgment and decree.
2. Messrs Shaukat and Raza (Private) Limited, filed a suit for declaration and permanent injunction against Muhammad Sharif etc., Lahore Development Authority (L.D.A.), District Collector and Land Acquisition Collector LDA, claiming that respondents Nos.2 to 6 offered to sell the land measuring 28 kanals 2 Marlas having Khasra Nos.13060, 13061 and 13056/1, situated in Monza Niaz Baig Tehsil and District Lahore, to them against consideration of Rs.800,000 payable in two instalments. A sum of Rs.250,000 was paid on 9-1-1985 and the balance amount was agreed to be paid at the time of execution and registration of sale-deed. It is further asserted that respondents Nos.2 to 6 have assured them at the time of entering into sale agreement that property is free from any encumbrance and is not subject to any acquisition proceedings. Respondent No.1 made inquires, checked the revenue record and it was found that respondents Nos.2 to 6 are owners in possession of land in dispute and the same is free from any encumbrance. Respondents Nos.2 to 6 have also executed an irrevocable General Power of Attorney in favour of respondent No.1 and in part performance of agreement to sell handed over the possession of suit land to them. They invited objections from public at large through daily Pakistan Time on the proposed sale vide proclamation dated 16-1-1985. No one submitted objection against proposed sale, the respondent No.1 after taking over the possession got the land demarcated and ultimately the sale-deed was executed on 31-3-1985 and was registered on 2-4-1985. After that respondent No.1 applied to petitioner No.2 for sub-division of suit land. The said sub-division was' objected and petitioner No.1 claimed that they have acquired the land for M.A Johar Town Housing Scheme, vide notification dated 23-1-1982. Respondent No.1 challenged the notification through a writ petition which is reportedly pending disposal till today. It was further asserted that respondent No.1 is in process of exempting plots in lieu of acquired land in favour of respondents Nos.2 to 6 by taking an advantage of the wrong entry showing them awardees and the act of petitioner No.1 is illegal and they Be restrained to exempt the plots to respondents Nos.2 to 6 and to pay compensation thereof.
Respondents Nos.2 to 6 have also been requested to refrain from claiming themselves to be owner of suit property and from getting exemption from petitioner No.1, but of no avail.
3. The suit was resisted by respondents Nos.2 to 6 and petitioner. They filed their respective written statement. Respondents Nos.2 to 6 claimed their ownership and asserted that no doubt they had executed sale-deed but agreed consideration has not been made to them and as such sale-deed in favour of respondent No.1 is ineffective and void and asserted that they are awardees and as such they are entitled to receive compensation and exemption of plots. The petitioner claimed that land has been acquired for M.A Johar Town Housing Scheme. On 10-3-1982 according to Award No.91 respondents Nos.2 to 6 are the awardees having equal shares. It was further claimed that possession of land is with the L.D.A and as such any sale subsequent to acquisition is void and having no legal effect.
4. Learned trial court, out of divergent pleadings of the parties, framed the following issues: "ISSUES: Whether the plaintiff has come to the Court with clean hands, if so, its effect? OPD Whether the suit has not been filed by a competent authority? OPD Whether the suit is under valued, if so, then what is the correct valuation with what effect? OPD
(4) Whether the suit has been filed without any locus standi and cause of action? OPD.6
(5) Whether the court lacks jurisdiction to try this suit? OPD.6
(6) Whether the suit is barred by section 10, C.P.C.? OPD.6
(7) Whether the suit is time-barred? OPD.6
(8) Whether the suit is not maintainable in its present form? OPD
(9) Whether the defendant No.6 is entitled to recover special costs from the plaintiff under section 35-A of C.P.C.? OPD.6.
(10) Whether the plaintiff has paid full consideration of the suit land to the defendants Nos. 1 to 5?
OPD
(11) Whether the plaintiff has become full owner in possession of the suit land? OPP
(12) Whether the power of attorney dated 9-1-1985 is a fictitious document? OPD. 1 to 5.
(13) Relief
5. Both the parties adduced their respective evidence both verbal as well as documentary but after examining one witness by respondents Nos.2 to 6, their right was closed for adducing further evidence. Learned trial court vide judgment and decree dated 16-1-2001 decreed the suit in favour of respondent No.1 holding that respondent No.1 Shoukat and Raza (Pvt.) Ltd., are owners in possession of suit-land and are entitled to the exemption and compensation of the land according to acquisition policy.
6. The petitioner as well as respondents Nos.2 to 6 assailed the said judgment and decree through two separate appeals which both were dismissed vide judgment and decree dated 5-7-2005.
Hence, the present petition.
7. Learned counsel for petitioner L.D.A contends that M.A Johar Town Housing Scheme stand completed after acquiring land including the suit land under the Land Acquisition Act and as such sale in favour of respondent No.1 was void. The notification under section 4 of the Land Acquisition Act has been published in Punjab Gazette on 1-1-1982, notification under sections 17(4) and 6 of the Land Acquisition Act, 1984 has also been published in Punjab Gazette which shows inclusion of Khasra number in dispute. Further submits that notification under section 13 of L.D.A Act, 1975 has been published for the sanction of Housing Scheme. He further submits that while acquiring the land for M.A Johar 'Town Housing Scheme, notice under section 9(1) of Land Acquisition Act was published in all Newspapers of repute and were affixed in terms of said Section on a conseicubus place and award was finally announced after completing all legal requirements. The compensation was paid according to the acquisition scheme to the land owners and respondents Nos.2 to 6 are the awardees as per their record. Admittedly, the land in dispute is a part of M.A Johar Town Housing Scheme which was acquired prior to the disputed sale-deed in favour of respondent No.1. Any construction raised by respondent No.1 after the acquisition proceedings is without lawful authority and is liable to be demolished. He claims that petitioner is a corporate body meant for development of cities in the public interest and its every action is in public interest.
Lastly adds that respondent No.1 is not bona fide purchaser for value and their possession on the property is illegal.
8. Learned counsel for respondents Nos.2 to 6 claims that no doubt the sale-deed was executed in favour of respondent No.1 but respondent No.1 failed to pay the entire agreed sale consideration and as such sale-deed is without consideration having no force of law. Further submits that petitioner No.1 took over the possession after acquisition of land and as such no question of handing over the possession to respondent No.1 arose. Learned A.A.-G. Adopted the arguments of learned counsel of petitioner, however submits that respondent No.7 has no concern with the proceedings and they have wrongly been impleaded party to suit.
9. Learned counsel for respondent No.1 submits that land can only be acquired under the Land Acquisition Act, 1894 and non compliance of mandatory provision of law amounts to a violation of fundamental rights. He submits that under section 6 of the Land Acquisition (Housing) Act, 1973, a public notice and a personal notice to the owner are compulsory and admittedly no notice was issued to respondent No. 1. He submits that under Punjab Acquisition of Land (Housing) Act, after the notification under section 4 the notice under section 6 is required and then inquiry has to be conducted under section 7 by the Collector and after that the award can be announced. Record shows that no notice under section 6 was issued and petitioner has failed to place on record any award notified in the official gazette. Further submits that learned trial court has not framed the relevant issues qua the point of acquisition and as such the impugned judgment and decree is liable to be set aside. Further submits that petitioner, respondents Nos.2 to 6 and L.D.A have failed to prove their case by adducing cogent evidence. The documents got exhibited are not admissible under section 74 of Qanun-e-Shahadat Order. He submits that respondent No.1 is bona fide purchaser for value as at the time of purchase respondents No.2 to 6 were shown the owner in possession of land. He adds that no possession of land was ever taken by petitioner, respondent No.1 is in uninterrupted possession of land, they are managing the said land themselves. Learned counsel has relied on Collector Land Acquisition, Skardu and 2 others v. Mst. Khatija Begum (2006 CLC 1552), Government of Pakistan through Ministry of Defence Islamabad and another v. Collector Land Acquisition/Settlement Officer, Gilgit and another (2006 CLC 1641), W.Z. Studios Ltd., Lahore through Managing Director v. The Deputy Commissioner, Lahore District Courts, Lahore and 4 others (PLD 1996 Lahore 349), Multan Development Authority v. Ashiq Muhammad Khan and another (2005 SCMR 1289), Habibullah and others v. Taj Din alias Taj and others (2007 YLR 1692), Lahore Development Authority v. W.Z Studios and others (1999 SCMR 1576), Mir Fazal v. Land Acquisition Collector/ Assistant Commissioner (Saddar) Islamabad Capital Territory (ICT) Islamabad and 3 others (2005 MLD 168), Government of Sindh and 2 others v. Muhammad Usman and 2 others (1984 CLC 3406), Madan Gopal and 4 others v. Moran Bepari and 3 others (PLD 1969 Supreme Court 617) and Muhammad Yar v. Mst. Karam Jan and others (2010 MLD 444).
10. Heard. Record perused.
11. It is an admitted fact between the parties that respondent No.1 is claiming ownership on the basis of a registered sale-deed executed by respondents Nos.2 to 6 on 2-4-1985. Although respondents Nos.2 to 6 are denying the receipt of consideration and according to them the sale- deed was executed but consideration was not paid and as such the same is inoperative against their rights. Respondents Nos.2 to 6 have not produced any evidence. They only produced one witness and as such respondents Nos.2 to 6 have failed to establish their claim against the suit property to the effect that consideration was not paid to them. Further it is an admitted fact on record that they have not filed any suit for cancellation of registered sale-deed, the sale-deed being registered document is notice to public at large unless proved otherwise. Hence, the respondents Nos.2 to 6 have case to argue. In view of these facts, the main contestants are respondents No.1 and the petitioner, Lahore Development Authority..12. Respondent No.1 is claiming ownership of property purchased from respondents Nos.2 to 6 free from any encumbrance. In these state of affairs respondent No.1 has to prove that they are bona fide purchaser for value without notice, the property was free from any encumbrance, and was not acquired by the petitioner. The sale-deed is dated 9-1-1985. The petitioner has placed on record Exh.D-1, Punjab Gazette published on 10th March, 1982 which shows that the said gazette notification is modification of earlier notification dated 6-11-1980 published in extraordinary issue of Punjab Gazette dated 10-11-1980. The said notification shows the acquisition of Khasra Nos.13056 to 13064, khasra number claimed by respondents. Exh.D-2 shows that original owner of land is Muhammad Siddique and Muhammad Rafiq SODS of Mahr Din as per award dated 9-10-1982 but subsequently there is an endorsement which shows that vide document No.5636 and Mutation No.21675 Messrs Shoukat and Raza (Pvt.) Ltd., is owner of land. Name of respondents Nos.2 to 6 are also available in this document in column of ownership. Exh.D-4 is a document showing the possession proceedings. Exh.D-5 is also a possession proceeding which shows that possession of Khasra Nos.13056/1, 13060 and 13264 has been taken over by the L.D.A well before the execution of sale- deed in favour of respondent No. 1.
13. Admittedly the suit-land was acquired before the sale in favour of respondent No. 1. Now question arose, whether respondent No.1 is entitled of any notice under the Land Acquisition Act, and Punjab Acquisition of Land (Housing) Act (VIII of 1973) or not? As per the record, the acquisition proceedings were initiated on 23-1-1982 and at that relevant time respondent No.1 was not in picture. If it is assumed for the sake of arguments that respondent No.1 is a bona fide purchaser for value, they have to steps in shoes of their vendors. The vendors are not claiming nor challenging the acquisition proceedings and as such the argument of learned counsel for respondent No.1 to take refuge on the basis of certain alleged violation of Land Acquisition Act, 1894 and Act (VIII of 1973), are not available to them. Their dispute is that they purchased the land after inspecting the record and their sellers (respondents Nos.2 to 6) have assured them that property is free from any encumbrance and is not the subject-matter of any acquisition. The said undertaking is on the part of respondents Nos.2 to 6 and the petitioner is not party to that assurance or undertaking and as such the said assurance and undertaking could not be press in service against petitioner specially when respondents Nos.2 to 6 are not challenging the acquisition proceedings.
14. The petitioner has no doubt proved their case against respondents Nos.2 to 6 qua the purchase of land through registered sale-deed but their sale-deed or transfer of proprietary rights in the suit-land are subject to the acquisition proceedings which started long before the purchase of suit land and as such argument of learned counsel for respondent No.1 has no force when he claims that different notices under the Land Acquisition Act, or Punjab Land Acquisition (Housing) Act has not been issued. The respondents Nos.2 to 6 have taken specific stance that they never transferred the possession of land to respondent No.1. In reply to para. No. 6 of the plaint, the respondents have categorically admitted as under:-- "That the answering defendants has every right to acquire the land by legal means and that the plaintiff has no right because he has failed to fulfil his condition to make the entire consideration of the disputed land."
If respondent No.1 is suffering or suffered any loss due to acquisition of land by the petitioner that is not due to petitioner but purely it is matter between respondent No.1 and respondents Nos.2 to 6 and as such action of petitioner for acquiring the land or establishing a Housing Scheme cannot be challenged by respondent No.1 being nonexistent at the time of initiation of acquisition proceedings.
15. No doubt both the learned courts below have dilated upon The arguments of learned counsel for petitioner qua their challenge to acquisition proceedings but that was an exercise in futile for the simple reason that respondent No.1 is not the effected party. As far as the case of respondents Nos.2 to 6 is concerned, they have failed to produce any evidence for substantiating their defence that they have executed sale without the payment of consideration and as such both the courts below have rightly concluded against them and findings of learned courts below did not require any interference by this Court to the extent of validity of the sale-deed.
16. As far as claim of respondents Nos.2 to 6 against petitioner is concerned that has no substance and as such merits to be rejected.
17. As far as the findings of learned courts below on Issue No.3 are concerned, the respondents themselves claimed that they have fixed the tentative value of suit for the purposes of court-fee and jurisdiction as Rs.100,000 and affixed the court fee of Rs.7,500. The respondent's claim is that they have purchased the suit land against consideration of Rs.800,000 and as value for the purpose of court-fee and jurisdiction will be Rs.800,000 and the respondent No.1 is bound to pay the court-fee ad valorem, hence the findings of learned courts below on Issue No.3 are set aside and the respondent No.1 is directed to make good the deficiency of court-fee of A Rs.7500 within one month on issuance of certified copy of judgment.
18. The argument of learned counsel for petitioner that sale in favour of respondent No.1 is void is repelled for the reason that after acquisition of land the interest of respondents Nos.2 to 6 in the acquired property remained intact, they remain entitled to compensation and other benefits under the acquisition proceedings and that interest was purchased by respondent No. 1.
19. In view of above, the Civil Revision No.2579 of 2005 is allowed to the extent that findings of Issue No.3 are set aside and remaining judgment and decree of both the courts below is maintained.
Civil Revision No.1144 of 2006 and Civil Revision No.320 of 2006 are dismissed.
20. There is no order as to costs..