' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of the learned Lahore High Court, Lahore dismissing Civil Revision No.2038 of 2005 filed by the appellant.
2. Briefly stated the facts of the matter are that one Badar Din was allotted the suit land under the Jadeed scheme in 1971 and he deposited 1/10th of the consideration amount. Thereafter per the appellant he became a tenant of Badar Din and later on agreed to purchase the land from said Badar Din but the transaction could not be consummated since the land was resumed by the Government of Punjab vide order dated 14-8-1977. This order was assailed by the appellant as well as Badar Din in separate appeals before the Additional Commissioner Revenue, Multan but the same were dismissed vide order dated 5-12-1979. The appellant also did not have any success before the Board of Revenue. After this round of litigation the appellant filed a civil suit for his remedy but failed as the plaint was rejected. He challenged this before the Learned Lahore High Court which remanded the matter to be decided afresh on merits but the suit was withdrawn by the appellant. During all this time the Appellant remained in possession of the suit land.
3. The appellant then moved an application on 29-9-1980 under the Notification No.3215-79/3973- C-II, dated 3rd September, 1979 to the District Collector, Sahiwal for getting proprietary rights which was dismissed on 26-8-1981. The appeal filed against the order was also dismissed on 11-3-2002 on the ground that he was unqualified under said notification as he already owned land measuring 100 kanals and his wife 4 acres. The revision against such dismissal order was turned down on 18- 12-2004 and so also the Review Petition was dismissed by the Member Board of Revenue on 26-2- 2005. Yet again the appellant filed a fresh suit against the decision of the Revenue Authorities which was also dismissed by the learned Civil Court under Order VII, Rule 11, C.P.C. As being devoid of any cause of action. The same fate was meted out in the Appeal filed before the appellate Court and as noted above the Revision Application was dismissed by the Learned Lahore High Court as well.
4. Ch. Muhammad Ashraf, learned Senior Advocate Supreme Court for the appellant in support of this Petition submits that the previous round of litigation was resorted to by the appellant for asserting his contractual rights i.e. The first suit was based upon the agreement to sell with Badar Din which failed hs the land in question was repossessed by the Government of Punjab. Thereafter, he filed another civil suit but decided to withdraw the same and pursue his remedy before the revenue hierarchy which culminated in the revision Petition before the learned Lahore High Court and dismissal of the same. Consequently, it cannot be said that there was no cause of action at all.
In support of his submissions Learned Senior Advocate Supreme Court has relied upon the cases of Abdul Rab and others v. Wali Muhammad and others (1980 SCM R 139), Muhammad Khan and others v. Province of Punjab and others (2007 SCM R 1169) and Muhammad lqbal and 3 others v.
Mst. Rehmat Bibi 'through Legal Heirs (1998 CLC 11). Per learned Advocate Supreme Court the appellant's rights, have never been agitated on merits and hence without giving the right to lead evidence etc. In support of his claim the suit could not be dismissed by the Learned Civil Court as well as by the Appellate and Revisional Courts. Hence, he has prayed that the matter be remanded back to the Learned Civil Court for adjudication in accordance with law.
5. On the other hand Mr. Muddassar Khalid Abbasi, learned Assistant Advocate-General, Punjab has submitted that the appellant's rights had been adjudicated not once but twice and he has failed both before the Civil Court as well as revenue hierarchy and hence the suit had been correctly dismissed without any cause of action as being barred under section 11, C.P.C. i.e. As res judicata.
6. Learned Assistant Advocate-General has further submitted that the appellant is in illegal possession of the land since 1977 and he could not take any benefit under the notification in question as he has already owned 156 Kanals of land which he had transferred to his wife and son's names on 25-7-1978. Consequently, he was not eligible under condition 3 of the definition i.e. He was not either landless or owner of less than a subsistence holding. In rebuttal learned Advocate Supreme Court appearing for the appellant has submitted the scheme was launched in 1979 and the land was alienated by the appellant in 1978 hence, he was eligible when the scheme was launched. In support of this proposition he has relied upon the case of Muhammad .Aslam Baloch v. Member, Board of Revenue (Colonies) Punjab and 2 others (1988 CLC 356).
7. We have heard learned Senior Advocate Supreme Court as well as learned Assistant Advocate- General, Punjab and perused the record with their assistance including the original revenue record.
8. It would be seen that under the scheme dated 3-9-1979 proprietary rights were to be given to those eligible lessees who had a temporary cultivation lease. Eligible lessees have been defined as either landless persons or owners of less than a substance holding i.e. 12.5 acres and had been in continuous cultivating possession of the leased land since before Kharif 1977. In the first place it has not been established before us whether appellant was a temporary lessee of the Government and in fact this could not be so since according to his own contention he had agreed to purchase the land from Badar Din who was the original allottee. Secondly, the conduct of the appellant has also to be examined as he firstly tried to obtain the land- based on the consent decree in the suit filed by him against Badar Din seeking specific performance of an agreement to sell which was passed without impleading the Province which admittedly was the owner of the suit lands The second suit was withdrawn by him as not pressed and thereafter he approached the Revenue Authorities for his remedy which as noted above was denied to him. Now finally he approached to Civil Courts again for his remedy.
9. In our opinion, the learned High Court has correctly observed that as per condition No. 13 under the notification the land cannot be allotted to a person who has occupied the same without the consent of the lessee and/or the previous permission of the competent authority. Learned counsel for the appellant has failed to show as to how he came under the possession of the land which he has been cultivating for his own benefit for a number of years. Secondly it would be seen that the appellant owned more than the subsistence holding and it matters not that he had transferred his land to his wife and son in 1978 as the definition of family in para 5 of the notification includes lessees wife, parents, minor children, dependants etc. To that extent the case of Muhammad Aslam Baloch (Supra) is distinguishable as land in question was transferred to the lessees' married son.
Consequently, appellant was correctly non-suited by the lower forums below. In fact, in our opinion proceedings should be initiated against the appellant for recovery of Government dues for having illegally occupied the land in question. Order accordingly.
10. For all the foregoing reasons this appeal is dismissed.