' CH. MOHAMMAD IQBAL, J.---Through this review petition, the petitioner has prayed as under:-- "It is, therefore, respectfully prayed that this petition may please be accepted and the impugned order dated 15.01.2016 passed by this honourabe Court may be recalled or modified to the extent that instead of revision petition, the suit may be allowed to be withdrawn and the competent authority shall not be influenced by any findings recorded by the learned Courts below entirely on a different issue for grant of Proprietary Rights."
2. Brief facts of the case are that Provincial Government is owner of land measuring 37-Kanals 05- Marlas falling in Khewat Nos. 178, 179 situated in Chak No,92/12-L Tehsil Chichawatni, District Sahiwal. The said land was given to the petitioner on lease under Fish Farm Scheme vide order dated 08.07.1980 by the District Collector, Sahiwal. On 30.12.2010 vide mutation No,1076 the land was resumed in favour of the state. The petitioner filed an application on 29.12.2003 for grant proprietary rights under Notification No, 3744-2007/3224-CL-II dated 10.12.2003. The petitioner filed a Writ petition No,13915/2010 and obtained direction from this Court for the decision of said application vide order dated 28.12.2010 and in compliance of above said order, the Member (Colonies), Board of Revenue, Punjab rejected his application vide order dated 15.01.2011. The petitioner filed civil suit for declaration with permanent injunction contending thepein that according to the above mentioned Notification dated 10.12.2003, he became entitled for proprietary rights of the state land and also challenged the resumption order dated 30.12.2010. The learned Civil Judge, Sahiwal after recording the evidence of both the parties vide judgment and decree dated 13.05.2014 dismissed the suit of the petitioner. The petitioner preferred an appeal before the learned Additional District Judge, Sahiwal which was dismissed vide judgment and decree dated 27.11.2015. The .Petitioner filed Civil Revision No,48-D of 2016. Before this Court and challenged the aforementioned judgments and decrees which was also dismissed as withdrawn on 15.01.2016. Hence, this review petition.
3. Heard. Record perused.
4. From the perusal of record, it reveals that state land measuring 37-Kanals 05-Marlas falling in Khewat Nos.178, 179 situated in Chak No,92/12-L, Tehsil Chichawatni, District Sahiwal has been resumed vide mutation No, 107.6 dated 30.12.2010. The lease period of the petitioner has already been lapsed, as such, he is in illegal possession of the state land and will be treated as an encroacher and as per policy dated 10.12.2003 no person shall be eligible to purchase the state land unless he is a regular lessee of the Colonies Department holding valid lease hold rights of state land as mentioned in Para 2(h) which is reproduced as under:-- "Lessee means a person holding lease under an approved lease scheme for commercial purpose like petrol pump, CNG station, shops, hostels, Fish farms, Nursary Farms, Poultry farms etc".
' Under Para 3 of the policy, only a regular lessee is eligible to purchase the state land but the petitioner is not regular lessee as he has not complied with terms and conditions of the lease. Para 3 of the said policy is reproduced as under:-- "3. ELIGIBILITY ' No person shall be eligible to purchase state land under these conditions unless he is a regular lessee of Colonies Department holding lease of state land, mentioned in para 2(h) above."
' As it is evident from the terms and conditions of the policy, the said facility/right was given only to the regular lessees but admittedly the petitioner is not a regular lessee, the land has already been resumed and he is an unauthorized occupant. The application for obtaining the proprietary rights of the petitioner was dismissed by the Member (Colonies), Board of Revenue, Punjab vide order dated 15.01.2011. Petitioner's civil suit and appeal thereof were also dismissed declaring the suit land as Charagah which legally could not be allotted to him. Against the concurrent judgments and decrees of the two Courts below, he filed a civil, revision in this Court which was withdrawn by his counsel Ch. Abdul Sattar Goraya, Advocate Supreme Court of Pakistan after due deliberation over the matter. The order of withdrawal 'of the civil revision was dictated in the open Court in presence of the petitioner's counsel who did not make any request at that moment before this Court which plea has been taken in this application rather he simpliciter withdrew the revision just to avail the alternate remedy.
' It is appropriate to elucidate the nature of evidence led by the petitioner to substantiate his case.
The petitioner produced Muhammad Afzal (Halqa Patwari) as P.W-1 who admitted that the land was resumed and resumption mutation No,1076 dated 30.12.2010 was incorporated in the revenue record. Further stated that the petitioner is not a regular lessee and after incorporation of the resumption order, he is an illegal occupant. Abdul Jabbar (Town Site Clerk Colony Branch) appeared as .PW-2 and stated that the land has already been. Resumed. He admitted that the land in question is a Charagah and it cannot be allotted to any person. Ghulam Rasool (present petitioner) himself appeared as PW-3 who admitted that the state land has already been resumed. He also admitted that the land in question is a Charagah. Muhammad Taj appeared as PW-4 and admitted that the land in question is a Charagah and has already been resumed by the competent authority. The learned Civil Judge, Sahiwal after discussing all the evidence and policy dismissed the suit of the petitioner on merits vide judgment and decree dated 13.05.2014 and appeal of the petitioner was also dismissed by the learned Additional District Judge, Sahiwal vide judgment and decree dated 27.11. 2015.
' Further, the petitioner has admitted that the disputed property is Charagah and under Para 10 of the notification dated 10.12.2003, Charagah land could not be allotted to any person which is as under:-- 'The state agricultural land already on lease with the lessees under Temporary Cultivation Lease Scheme will not be sold to the sitting lessees and will be resumed/surrendered from the lessees and shall be sold through open auction provided that the land classified as Charagah and land situated within prohibited zone shall not be sold."
Even otherwise, the petitioner is an illegal occupant. It is settled principle of law that he who seeks equity must do equity, whereas an illegal occupant is not entitled to have any discretionary relief.
The law is leaned towards those persons who believe in the rule of lay and not those who took the law in their hands. Reliance is placed on the cases reported as Fazal ur Rehman and others v.
Province of Punjab through District Officer (Revenue), Bhakkar and another (2014 SCM R 1351) and Muhammad Sharif through L. Rs, v. Province of Punjab through District Officer Revenue, Pakpattan (2014 SCM R 334).
From the perusal of Order XXIII, Rule 1, C.P:C., the procedure of withdrawal of suit, it is necessary that the Court must be satisfied before allowing the withdrawal of a suit that there is some formal defect in the pleadings of parties by virtue of which the suit may not proceed or there may be some other sufficient grounds for the withdrawal. But in this case, the suit of the petitioner was decided by the learned civil court on merits after recording. The evidence and the appeal of the petitioner was also dismissed by the learned appellate court and if the petitioner is allowed to do away with judgments rendered against him by simpliciter withdrawal of the suit would amount to set aside the decisions of subordinate Courts which could not be undertaken at this stage as the judgments and decrees have secured some sort of finality and have gained the status of binding effect between the litigating parties.
It is made clear that Order XXIII, Rule 1, C.P.C. The plaintiff does not have a right to withdraw the suit at his own free will affecting the rights of the defendants and also the rights of third parties which might have been created by or arisen from the orders passed Or proceedings taken in the suit.
Admittedly the lease of the petitioner has already been expired. The petitioner has neither requested nor extension of lease period was granted to him by the competent authority. He is getting benefits from the state land since 2003 onward as an illegal .Occupant without paying even a single penny to the state. It would amount to injustice toward the adverse party which have achieved the judgments and decrees creating an unalterable right of title in its favour after facing the painful prolonged litigation. Even otherwise, the revision petition is not in continuation of the suit.
Through this review petition, the petitioner prayed that the order dated 15.01.2016 passed by this Court be recalled or modified and the petitioner, be allowed to withdraw the suit which is not permissible under the law as settled by the Hon'ble Supreme Court of Pakistan in the .Case reported as "Haji Muhammad Boota and others v. Member .(Revenue), Board of Revenue, Punjab and others" (PLD 2003 SC 979), where of the relevant portion whereof is reproduced as under:-- 'It was further held in the above case that the withdrawal would not be allowed if it results in perpetuating a fraud or injustice. The Court may in such circumstances decline the petitioner to withdraw the suit. The Court may also in appropriate cases where it comes to the conclusion that the purpose of withdrawal of proceeding is only to prevent the Court from passing an order undoing a wrong or an injustice done to party or the withdrawal would deprive the Government or a public functionary to receive or recover the public dues, or the withdrawal would otherwise defeat the ends of justice, decline the prayer for withdrawal."
5. In view of above, the request of the petitioner for withdrawal of the suit is hereby turned down and the instant review petition is dismissed.