CH. SHAHID SAEED, J. --- As common question of facts and law is involved in the above-mentioned civil revisions bearing Nos. 148 to 155 of 1998, therefore, I propose to dispose of the same by this single judgment as the same were directed against the judgment and decree dated 13.3.1998 passed by the learned Appellate Court, by way of which, the appeal of private respondents was dismissed and appeal of the Province of Punjab was accepted, and judgment/decree dated 28.11.1992 passed by the Trial Court was set aside which resulting into dismissal of suit for declaration filed by the petitioners.
2. Briefly, the facts are that the plaintiffs filed their respective suits for declaration alleging therein that they are being valid allottees of land, the detail of which is mentioned in the head note of respective plaints, acquired the proprietary rights through the order of the District Collector, Bahawalpur dated 24.3.1985 and the orders dated 18.11.1985 and 20.4.1989 passed by the Addl.
Commissioner, Bahawalpur and Member (Colonies), Board of Revenue, respectively, are against law and facts, void, ineffective upon the rights of the plaintiffs. It was also prayed as consequential relief that the defendants be restrained to interfere in the possession of plaintiffs regarding the suit property as well as transferring to any other persons in any manner.
3. The defendant contested the suits of the plaintiffs vehemently by filing, written statement wherein some preliminary objections were also raised that the Civil Court has no jurisdiction to entertain the suits, the plaintiffs are not eligible to obtain the lease of the suit land and all the proceedings in this connection were false, incorrect and invalid and the allotment was rightly cancelled by the Revenue Authorities, the suit land comes within the prohibited zone and was not available for allotment to the plaintiffs. From the factual controversy appearing on the pleadings of the parties, the learned Trial Court led to frame necessary issues. Thereafter both the parties were put to adduce their respective evidence. The plaintiffs produced oral as well as documentary evidence in support of their contentions but the defendants Nos. 1 to 3 failed to produce oral or documentary evidence, so right of these defendants to produce evidence was closed under Order 1.7, Rule 3 of CPC. Learned Trial Court decreed the suits of the plaintiffs vide judgment and decree dated 28.11.1992. Feeling aggrieved by the said judgment/decree, the defendants including the Province of Punjab preferred appeals before the learned Appellate Court, whereby vide judgment and decree dated 13.3.1.998 learned Appellate Court dismissed the appeals of private defendants while accepted the appeals of the Province of Punjab and suits filed by the plaintiffs were declared to be dismissed with no order as to costs: Hence, the civil revisions.
4. Learned counsel for the petitioners contended that the orders passed by the Addl. Commissioner and Member (Colonies), Board of Revenue are void, illegal and ineffective upon the rights of the plaintiffs. Learned Appellate Court has committed illegality by ignoring this aspect of the case that the plaintiffs were put in possession of the suit land on 8.10.1979 as is evident from Ex.P-3. Learned Appellate Court has misread the record while giving the findings with regard to the possession of suit land. The plaintiffs were granted lease by the order of District Collector, Bahawalpur after thorough investigation by the revenue field staff as well as on the recommendation of Assistant Commissioner, Bahawalpur. It has been further argued that the plaintiff had made the land in dispute cultivable by spending huge amount and hard labour. They have not only paid lease money but had also deposited whole of the price of the suit land in compliance of the decree passed by the Civil Court as was assessed by the Collector. So they had become owners and cannot be deprived from their right of ownership. That findings of learned Appellate Court on issues Nos. 2 and 3 are the result of incorrect enunciation of law and misreading or non-reading of evidence led in the suits, as such, the same is liable to be set aside. While the learned Trial Court rightly found eligible being valid allottee by the District Collector for acquiring proprietary rights as well as declared the impugned orders dated 18.11.1985 and 20.4.1989 passed by the Revenue Authorities as illegal, void, against law and facts on record and inoperative upon the rights of the petitioners/plaintiffs.
Learned counsel for the petitioners/plaintiffs further argued that it was the duty of the Addl.
Commissioner, Bahawalpur and the Member (Colonies), Board of Revenue as well as learned Appellate Court, to see this legal aspect of the cake that in case of breach of conditions, if any, no order for resumption of suit land could be passed if the breach of condition was rectifiable. Further .Stated that law does not permit that the plaintiffs who had made the land cultivable by spending a huge amount as well as hard labour should be thrown out merely on the basis of vogue of the Revenue Authorities, desire it to be sold by open auction. That as the Province of Punjab and its functionaries have failed to lead any sort of evidence in rebuttal and learned Trial Court rightly struck of the right of defendants to produce evidence under Order 17, Rule 3 of CPC and the said order was never challenged before any forum, so the suits filed by the plaintiffs merited the decree in their favour. It has been furthy'r contended that there was no material available with the Member (Colonies), Board of Revenue and decision is based on presumption. The plaintiffs were entitled to retain property throughout as once compensation and dues already were deposited then there was no room left to cancel the allotment. Reliance has been placed upon "Province of Punjab Vs. Abdul Latif and 2 others (PLD 1990 Lahore 66)". Learned counsel lastly contended that under Section 24 of the Colonization of Government Lands (Punjab) Act, 1912 no notice was ever given to the petitioner before cancellation of lease granted in the year 1979. Reliance is placed upon "2010 SCMR 511 and 2010 YLR 702 Lahore".
5. On the other hand, learned counsel for respondents argued that the plaintiffs were not in possession of land in dispute at the crucial time and it has been held by the Member (Colonies), Board of Revenue in its order dated 20.4.1989 while discussing the case of the plaintiff that they were not in cultivating position from crop Khareef 1979 to Rabee 1983. Reliance has been placed upon "Alam Sher through Legal Heirs Vs. Muhammad Sharif and 2 others (1998 SCMR 468)", "Muhammad /shaq Vs. Abdul Ghani and 3 others (2000 SCMR 1083)". Further stated that according to two Notifications dated 3.9.1979 and 20.4.1983, only those temporary cultivators were eligible for allotment of land, who were lessees holding temporary cultivation of state land in terms of Government policy and instructions, who were land less or owner of landless than subsistence holding, who had been in continuous cultivating position of suit land since Kharif 1980 but in this case the petitioners/plaintiffs are not in possession of suit land since the allotment. At the end, learned counsel stated that the judgment and decree passed by the Appellate Court is based on cogent reasons, thus, the same is liable to be sustained.
6. I have heard the arguments of learned counsels for the parties and perused the record minutely.
7. The main contention of learned counsel for the respondents is that the possession of suit land was not delivered to the plaintiffs. But Ex.P-3 itself shows that possession was delivered at the very early stage i.e. 8.10.1979. It is further evident from the record that the plaintiffs are throughout in possession of land which was given to them, if some Khasra Girdawaries were missing and they were not in possession at the time, it does not mean that the plaintiffs be ousted only on this ground, as they are still in possession since 8.10.1979. The plaintiffs are being paying the lease money regularly as is evident from the documentary evidence Ex.P-4 to Ex.P-8. It is also evident from the record that the plaintiffs were never served any notice as is required under Section 24 of the Colonization of Government Lands (Punjab) Act, 1912 and their allotment and proprietary rights could not be cancelled by the Addl. Commissioner, Bahawalpur and the Member (Colonies), Board of Revenue, being condemned unheard. Reliance can be placed upon "1990 MLD 2353" wherein it has been held that if the notice prior to cancellation of grant is not given, it means statutory requirement was not fulfilled and such order without notice is liable to be set aside.
8. Even otherwise the Revenue Authorities (defendants Nos. 1 to 3) failed to produce any sort of evidence to rebut the version of the plaintiffs. After filing of written statement as well as production of evidence by the plaintiff/petitioners, rights of the defendants/respondents was struck of by the Trial Court under Order 17, Rule 3 of CPC. The record which is available on the file, it can easily be ascertained that the decision made by the Trial Court is based on cogent reasons whereby all the documents were discussed. The decision given by the Member (Colonies), Board of Revenue is not speaking one. The plaintiffs have deposited price of the land after the decision made by the Trial Court. The plaintiffs have deposited price of the land after the decision made by the Trial Court. The plaintiffs simply cannot be ousted on the ground that some Khasra Girdawaries were not available as the periodical record of Khasra Girdawaries shows that the plaintiff are throughout in cultivating position of suit land. The only point of learned counsel for respondents that the Civil Court has no jurisdiction to adjudicate upon the matter and it was within the exclusive jurisdiction of the Revenue Authorities, is without any substance when the remedy was available to the plaintiffs to file a suit before the Civil Court to prove their case after passing the order of the Member (Colonies), Board of Revenue and Civil Court had ultimate jurisdiction to adjudicate upon the matter. On this score the arguments of learned counsel for respondents are not supporting and appreciated as only point of jurisdiction was argued and no other contentions of the petitioners/plaintiffs were rebutted. The jurisdiction of Civil Court to adjudicate upon the matter is well-settled principle of law which is held by this Court as well as by the august Supreme Court of Pakistan. Reliance can be placed upon "2007 SCMR 554" wherein it has been held that Section 36 of Colonization of Government Lands (Punjab) Act, 1912 does not give unfettered powers to officers working under the Act and bar of Section 36 of the Act would be available only where authorities acted within four corners of their jurisdiction otherwise. Civil Court would have jurisdiction to interfere where order passed under the Act was void or without jurisdiction or mala fide or in excess of jurisdiction. The judgments referred by the learned counsel for respondents do not favour the respondents as the order for cancellation of allotment was totally illegal, based on mala fide and without lawful authority as the petitioners/plaintiffs were condemned unheard and they are throughout in possession of land since their allotment.
9. Moreover, learned Trial Court while passing the judgment and decree has considered every bit of evidence produced by the plaintiffs and nothing is shown to have been overlooked any part of the record from its judicious consideration. Findings of Trial Court on question of facts and law are based on proper appreciation of oral as well as documentary evidence led in the suit. Thus, in view of the foregoing reasons, the instant civil revision is allowed and the impugned judgment and decree dated 13.3.1998 passed by the learned Appellate Court is set aside. The judgment and decree dated 28.11.1992 passed by the Trial Court is maintained.
Civil revision .