RASAAL HASAN SYED, J. This civil revision petition impugns judgments and decree dated 06.5.2009 and 18.2.2011 of the courts below whereby suit for permanent injunction filed by the respondents/plaintiffs was decreed and appeal there against was dismissed.
2. Facts with precision are that Muhammad Arif Khan [now represented by respondent Nos. 1(i) to (vi)] and others, instituted a suit under section 54 of Specific Relief Act, 1877 for permanent injunction to restrain the petitioners/defendants ("LDA") permanently from depriving of holding possession over the suit property in any manner or from causing any damage thereto. Case set up in the plaint was that respondents/plaintiffs were owners of 12 kanals and 15 marlas of land situated in khasra No. 13538/1 (06 kanals and 13 marlas), khasra No.13532 (01 kanal and 04 marlas), khasra No. 13589 (03 marlas), khasra No. 13590 (09 marlas) and khasra No. 13566 (04 kanals and 06 marlas) in village Samsani Khoe, Niaz Beg Thokar, Tehsil and District Lahore in terms of mutation of inheritance; later the rights of co-owners in khasra No. 13538/1 were also acquired vide sale deed No. 11864 dated 14.6.1981. LDA prepared a residential scheme known as Muhammad Ali Johar Town (Phase-II) (the "Scheme"); the property owned by the plaintiffs/respondents was surrounded by Block-P of the Scheme; LDA were carrying out development works to provide basic amenities to the dwellers of the Scheme and in this process they were bent upon usurping the respondents' property; that the act of LDA was without any legal justification, unwarranted and against the policy announced by LDA for the Scheme; that as per LDA's policy other residents of the area whose construction fell within the Scheme were allowed to retain their constructed properties against adjustment; and that the respondents who were bona fide owners in possession were entitled to retain the property in the adjustment policy as it used to be in their possession prior to the announcement of Scheme. It was added that the respondents were ready to have "adjustment" from LDA as per law and rules, but their request was not acceded to. In this backdrop, the respondents/plaintiffs prayed for a decree for permanent injunction to restrain LDA permanently from depriving them of ownership and possession of property.
3. LDA apart from legal objections as to the maintainability of the suit, took the following stance as contained in paragraph No. "1" of their written statement:
1. Denied. That land bearing khasra Nos.13532, 13538, 13566, 13589 and 13590 situated in village Niaz Baig, stands acquired by the LDA for it's a residential scheme namely Johar Town. Notification, under sections 4(1) and 13 of the Punjab Land Acquisition (Housing) Act, 1973 were issued on 6-11- 1980 and 5-1-1981 respectively. The possession was taken over by the LDA on 20th to 25th, June 1981 of Land bearing Khasra Nos.13532 measuring 1-K 4-M (Vacant), 13589 measuring 4K-15M, 13590 measuring 10K-12M (vacant), of village Niaz Baig, under section 13 of the said Act. It is further mentioned that possession of land measuring 2K-9M out of Khasra No.13538 was taken over on 20th to 25th, June 1981 and 24-6-1990. It is further mentioned that the symbolic possession of land bearing Khasra No.13566 measuring 10K-15M and 13538 min of Village Niaz Baig was taken over by the LDA on 17-8-1981. The award was announced on the 9-10-1982, regarding Khasra No.13532 measuring 1K-4M at Sr.No.195 in the name of Messrs Ramzan Bibi, Muhammad Arif, Muhammad Anwar, and Mst. Noor Jahan, which was subsequently amended and the name of Msf. Nusrat Ahmad daughter of Shfat Ahmed, upto the extent of measuring 1K-2M, the award regarding Khasra No.13566 was announced on 9-10-1982 at Sr. No. 195 in the name of Messrs Ramzan Bibi, 1/8 Shares, Muhammad Arif 7/20 Shares, Muhammad Anwar 7/20 Shares, Mst. Noor Jahan 7/40 upto the extent of 4K-6M and at Sr. No.211 measuring 6K-9M, in the name of Tariq Hamid, (1K-5M-180Sqft), Khalida Tariq measuring (1K-5M-180 Sqft) Raza Tariq measuring (1K-5M-180 Sq ft), Ali Tariq measuring (1K- 5M-180Sqft) Saeed Tariq measuring (1k-5M-180 Sq ft). The award regarding Khasra No.135388 was announced at Sr. No.195 measuring 2K-10M in the name of Ramzan Bibi 1/8 Shares, Muhammad Arif 7/20 Shares, Muhammad Anwar 7/20, and Mst. Noor Jahan 7/40 Shares. Thereafter, land measuring 1K-14M was mutated in the name of Shahbaz son of Muhammad Anwar and this order was incorporated in the award by the L.A.C. LDA's order dated 5-8-1986. In this way land measuring 16- Marlas remained in the name of plaintiffs Nos.1 to 4 as per their shares, and award of land measuring 2K-14M at Sr. No.204 in the name of Messrs Ijaz Mahmood Arif measuring 1K-14M, Mir Ijaz Mahmood measuring 1K-OM and the award of land measuring 2K-4M vide Sr. No.206 is in the name of Messrs Mumtaz Hussaini measuring 1K-14M, Mst. Shamim Akhtar measuring 10M. The award of land bearing Khasra No.13589 measuring 3M is at Sr.No.195 in the names of plaintiffs and at Sr.
No.199 measuring 4K-12M in the name of Messrs Muhammad Siddique measuring 1K-13M, Muhammad Rafiq measuring 3M, Muhammad Ibrar measuring 3M, Nausheen Hameed measuring 1K-14M, Rehana Hameed measuring 9M, Mir Ijaz Mahmood measuring. The award regarding Khasra No.13590 is at Sr.No.195 measuring 9-M in the names of plaintiffs as per their shares and at Sr.
No.201 measuring 10-K, 3-M in the name of Messrs Murtaza Hussain measuring 3K-8M, Safia Begum 3K-7M, Noor Ellahi measuring 1K 14M, and Amir Ali measuring 1K-14M. In this way as per record award plaintiffs are awardee up to the extent of 5K-16M as per shares Ramzan Bibi 1/8 Muhammad Arif 7/20, Muhammad Anwar 7/20, Mst. Noor Jahan 7/40. It is not known that how much purchasers from the plaintiffs have not contacted to the land Acquisition Collector for correction of Award. The mutation mentioned in the plaint bearing No.14137 is not available in the office of the land Acquisition Collector. Moreover, the version of plaintiff No.1 is absolutely wrong. Detail regarding ownership in Khasra No.13538 has been given in the para."
It was also stated in reply that the land in dispute had been acquired by LDA and that LDA had also Rot the vacant possession of disputed land and that all formalities were fulfilled. In this backdrop maintainability of the suit, the existence of cause of action and locus standi of the plaintiffs were questioned.
4. Issues were framed, oral and documentary evidence was received, whereafter the learned Civil Judge decreed the suit on 06.5.2009. Appeal filed by LDA ended in dismissal; in result, both these judgments are challenged in the instant revision petition.
5. Learned counsel for LDA argued that the courts below did not examine evidence in correct perspective nor considered the case as pleaded by LDA and that by complete misreading and non-reading of pleadings and the oral and documentary evidence, the suit was decreed by the learned Civil Judge and that the learned Addl. District Judge affirmed the judgment without complying with the preconditions of Rule 31 of Order XLI, C.P.C. It was added that the case set up by the respondents/plaintiffs was completely misunderstood, the real questions were not attended to and the suit as well as appeal were mechanically disposed of and that the impugned judgments suffered from serious legal infirmities. Contrariwise, learned counsel for the respondents supported the judgments of courts below and maintained that the entire evidence was considered, the rule applicable to the subject was duly examined, the suit was rightly held to be maintainable and that no material misreading of evidence could be pointed out.
6. Deeper examination of the pleadings and evidence adduced by the respondents reveals that factum of acquisition of suit land in the Scheme as also the Award announced by the Land Acquisition Collector were not specifically denied. In fact, the respondents/ plaintiffs themselves alleged in their plaint that suit land was surrounded by Block-P of the Scheme and that as per policy they were entitled to the adjustment of constructed unit, as it was, in the Scheme. For better appreciation it will be appropriate to reproduce relevant portions of paragraph Nos. "1" and "4" of the plaint which are as under: "1...The defendants have chalked out a residential scheme known as "Muhammad Ali Johar Town"
Phase-II, the property owned by the present plaintiffs is surrounded by Block-P of the Scheme known as "Muhammad Ali Johar Town", the defendants are carrying out development works to provide the basic amenities to the dwellers' of the Housing Scheme and in pursuance thereof are bent to usurp the property of the plaintiffs without any legal justification, therefore, this act of the defendants is absolutely illegal, unwarranted by law and against the policy announced by the defendants for the scheme known as "Muhammad Ali Johar Town". As per policy of the defendants, the residents of the area whose construction fall within the scheme, "Muhammad Ali Johar Town" were allowed to retain their constructed property against the adjustment, the plaintiffs who are the bona fide owners in possession of above referred suit property and are residing there with their families for the last so many decades cannot be deprived of their ancestral properties. The plaintiffs are also entitled to retain their property in Adjustment Policy which was already in possession and use of the plaintiffs much prior to the announcement of the scheme "Muhammad Ali Johar Town".
4. That be that as it may, the very purpose of law to acquire land for housing purpose is to provide housing facilities to the citizens and not to make the citizens suffer a loss at the cost of others. The plaintiffs are ready to have and "ADJUSTMENT" with the defendants as per law and rules.
(emphasis supplied)
7. Perusal of plaint leaves no room for doubt that the respondents did not question the acquisition of the property or disputed the existence of acquisition proceedings. Rather their case was that as per LDA's applicable policy for the Scheme they were entitled to the adjustment of the occupied unit in the Scheme and that they were ready for adjustment as per policy and that they were entitled to retain their constructed properties against such adjustment. As against this LDA's response was that the land bearing khasra numbers mentioned in the relevant paragraphs of the written statement were acquired for the Scheme; notifications under sections 4(1) and 13 of the Punjab Land Acquisition (Housing) Act, 1973 were issued on 06.11.1980 and 05.1.1981 respectively.
Possession of the land was taken over by the LDA on 20 to 25.6.1981 which was vacant and that Award of the land was announced on 09.10.1982 and that as per Award and amendments made therein, the land of the plaintiffs was part of acquired property and also that the possession of vacant area was taken over by LDA while the possession of the area occupied by Ghair Mumkin Abadi had not yet been secured.
8. In view of the pleadings, the dispute was not as to the initial ownership of landowners in the acquired property. Rather, it was as to whether the respondents/plaintiffs could claim adjustment in the Scheme as per LDA's policy and whether the plaintiffs ever applied for the same and, if so, what was the fate of such application and whether the respondents fulfilled the prerequisites to become entitled to exemption or adjustment qua the property in dispute. The courts below did not advert to the real questions nor recorded any findings in regard thereto. Strangely enough, the learned Civil Judge observed that the witness of LDA as PW4 admitted that the land was not acquired. This was a complete misreading of the statement as the witness had only stated that he had brought Part B of Award File and that possession of a portion of land was not taken due to Abadi or being "Ghair Mumkin". The impression gained by the learned Civil Judge was based on misreading of statement of the witness. The appellate court, however, observed that this witness stated about the possession; but despite that the learned Addl. District Judge did not examine the real issues including as to what was the Exemption Policy, what were its parameters or preconditions to claim adjustment, did the respondents/ plaintiffs fulfill those parameters, whether the respondents/ plaintiffs ever apply for adjustment of any portion of property and, if so, what was the fate of that application.
9. In so far as the respondents' evidence is concerned, Sarfraz Arif appeared as PW-1, who claimed himself to be the attorney of the respondents/plaintiffs. In his statement he deposed that the land of respondents at "Mauza Niaz Beg, Samsani Khoe" Lahore was included in Block-P of the Scheme and reflected as plot Nos. 9 to 18 and that in a part of the land the respondents/plaintiffs had constructed a poultry farm, installed a tube-well and that the portion of the property in possession of the plaintiffs/respondents comprised 06 kanals and 13 marlas and that out of 12 kanals, the respondents/plaintiffs were claiming adjustment of 06 kanals and 13 marlas.
10. The witness deposed that as per LDA's policy in respect of acquired property under the Scheme, the owners-in-possession of constructed area were given the right of adjustment. In his cross- examination the witness admitted that the property in dispute was taken over by LDA in 1978 and that they had not applied for adjustment rights as per policy nor any adjustment was allowed by LDA under the policy. It is notable that PW1 claimed to have been appointed vide power of attorney dated 18.3.1997 (Exh-P1) while the acquisition proceedings started in the year 1980-81. Being so his statement was hearsay in respect of the events which took place before his appointment as attorney, however, the respondents having produced him, cannot escape the admissions made by him in his deposition which were to the effect that the suit land did fall in Scheme and that the respondents were only claiming adjustment rights and that the respondents/plaintiffs had not applied for adjustment nor LDA had allowed any adjustment under the policy.
11. Obviously, claim for the adjustment in terms of the Exemption Policy, if any, could only be made after one had accepted the lawful acquisition of property and in these circumstances, the courts below committed material illegalities in failing to attend to this aspect of the matter that went to the very root of the case. Other witness of respondents, PW2 Muhammad Rasheed, though admitted in his cross-examination that he could not disclose the khasra numbers of land yet in his statement-in-chief he deposed that the plaintiffs had their residence and poultry farm in land measuring 06 kanals and 13 marlas and that this portion of the property was part of LDA's Scheme as plot Nos. 9 to 18 and that LDA intended to forcibly take the possession and that as per policy the owners were entitled to claim rights of adjustment of the constructed unit.
12. Mian Muhammad Shafi, Naib Tehsildar (LAC Branch), LDA appeared as PW4 and deposed that the proceedings for possession were carried on 09.10.1982 and that the possession of land measuring 04 kanals and 06 marlas of khasra No. 13566 could not be obtained by LDA in view of the Abadi and that out of 02 kanals and 10 marlas in khasra No. 13538 a portion comprising 01 kanals and 15 marlas was Ghair Mumkin of which the possession was not taken. Curiously the learned Civil Judge completely misread the statement of PW4 by assuming as if the witness had deposed that the property was not acquired; though the witness only deposed about the possession of a portion of acquired land. DW1, Akhtar Ali, Assistant Director LDA produced file No. JTNB.II.5614 and deposed that the Scrutiny Committee had declared the proceedings as bogus.
Perusal of Exh-D1 which is a copy of the office order issued by Director (C&I) LDA shows that there were certain complaints about the exemption/allotments, issuance of NOCs, sanction of building plans, permission to mortgage, etc. due to. which the Scrutiny Committee was constituted which observed that file Nos. 1 to 127 mentioned in Exh-D1 were defective and accordingly declared the same to be discarded whereupon the proceedings regarding exemption/ allocation/issuance of NOC, etc. against those files were stopped. The courts below by misreading the letter assumed as if the acquisition proceedings were dropped, though the document did not give any such indication.
Even otherwise, under section 19 of the Punjab Acquisition of Land (Housing) Act, 1973 the acquisition proceedings could only be withdrawn by the Deputy Commissioner after following the requisite procedure. In the instant case, no such order or de-notification of the acquisition proceedings was ever issued or produced nor it was the case of the respondents/plaintiffs that the acquisition proceedings had been dropped. Instead, the case throughout pleaded by the respondents/ plaintiffs was that they were entitled to continue possession of the property in terms of adjustment policy related to the Scheme. Being so, the conclusions drawn by the courts below were based on complete misreading and misinterpretation of the documents and non- consideration and non-reading of the pleadings as also the material evidence.
13. Coming to the merits of the respondents' case as noted supra, they though claimed to be the beneficiary of the adjustment policy under the Scheme, yet they did not produce copy of the policy or any other material to prove that they had ever applied for availing the benefit of the adjustment policy if any and complied with the necessary conditions to avail such adjustment.
14. In the course of hearing of this petition, learned counsel for LDA produced a copy of the judgment by a learned Single Judge of this Court in Civil Revision No. 1966 of 2006 titled "Muhammad Yousaf (deceased) through L.Rs. and others v. Lahore Development Authority" which had arisen out of a dispute regarding the property acquired under the same Scheme and a suit for declaration with consequential relief tiled by the landowners for seeking declaration as to the exemption/adjustment of the existing residential building as per policy was dismissed in appeal which judgment was also affirmed by this Court. It is noted that in the said judgment, the relevant paragraph "h(1)" of the Exemption Policy in respect of the Scheme was reproduced as under: "Existing residential houses lawfully constructed will be adjusted in the scheme on the following terms: 1) The owner will be exempted 30% of the covered area as per policy, and Reserve Price will be charged on the excess area already existing under his house of given to him on his request. This will apply to a proper house, not merely one room and boundary wall. Proper house must consist of at least one living unit to include a drawing room, a dining room, a kitchen, a bath room, and a bed room. The area enclosed by the boundary wall would not automatically be considered to form part of a house. Uncovered space shall not be more than what is laid down in LDA bye-laws as front space. rear space and side space. The small area that cannot be otherwise utilized may be given at Reserve Price if it is in excess of 30% exemption on the recommendation of DLD and TP after their site inspection and final approval by the DG, LDA.".
It is plain from bare reading of the operative part of the Exemption Policy that the adjustment in the Scheme could only be granted to the residential houses lawfully constructed. The exemption could be up to 30% of the covered area and reserve price could be charged on the excess area already existing under the house.
15. As per policy proper house had to consist of at least one living unit, uncovered space could not be more than what was laid in the LDA bye-laws; had front space, rear space and side space; the small area which could not be utilized otherwise could be given on reserve price if it was in excess of 30% exemption on the recommendation of DLD and TP after site inspection and final approval by DG, LDA. It is thus obvious that for seeking adjustment/exemption the landowners had to approach the acquiring department for appropriate orders after inspection of site and satisfaction of the prerequisites and that on completion of formalities certain charges were to be paid; even the development charges were not exempted and that the construction had to be shown as lawful construction.
16. The respondents in this case neither produced any record of adjustment if ever applied for or granted or of the compliance of pre-requisites contemplated by the policy. Except the oral statement of the witnesses, no documentary proof of having raised the construction by obtaining requisite sanction or of filing application for exemption or for any order for adjustment or for compliance of the pre-requisites of the policy as required by the department, was produced. So much so none of the plaintiffs appeared in the witness-box and opted to produce PW 1 as attorney who having been appointed in 1997 was simply making a hearsay statement as to the events which took place in the year 1980-81. It was, therefore, a case of no evidence.
17. The respondents/plaintiffs simply claimed permanent injunction which could be granted only if there were admitted rights either under a contract or under the statute, which were being violated.
The respondents having failed to produce any proof of having been allowed adjustment of 06 kanals and 13 marlas of residential unit and having failed to produce any record of adjustment, could not simply sue for the injunctive relief; particularly when such claim was disputed. In the peculiar circumstances without seeking declaration of ownership of residential unit under sanction/approval of competent authority, the suit for permanent injunction simpliciter was not maintainable. Even otherwise the land having been acquired, Award having been announced, the Acquiring Authority or the Land Acquisition Collector had to proceed with the performance of statutory duties of taking over the possession by removing encroachments for delivery of possession to the persons who were entitled to have the same and, as such, no injunction could be granted to interfere with the performance of public duties of any department of Federal or Provincial Government in view of the bar under section 56(d) of Specific Relief Act, 1977. Since neither the exemption record was produced nor any material or document was produced in evidence to prove that the property was exempted/adjusted under the Adjustment Policy, after compliance of the legal formalities as qua pre-requisite for the adjustment/exemption, the respondents/plaintiffs could not be granted any relief of injunction to restrain the petitioners/LDA from performing their statutory duties.
18. As to the objection that the findings of fact recorded by the courts below could not be interfered with in revisional jurisdiction, the same is devoid of substance. It is trite that ordinarily the findings of fact if based on correct reading of evidence and are in accordance with law, cannot be interfered with; but where the findings are based on mis-reading and non-reading of material evidence, misinterpretation and misconstruction of oral and documentary evidence and are suffering from material illegality and jurisdictional error. the exercise in revisional jurisdiction becomes necessary. In the case of "Muhammad Akhtar v. Mst. Manna and 3 others" (2001 SCMR 1700) it was observed to the effect that where the evidence has not been examined in-depth it will be a case of misreading and non-reading of evidence which results in serious miscarriage of justice and it can be rightly reversed. In "Samar Gul and others v. Mohabat Khan and others"
(2000 SCMR 974) it was observed that to the effect that it was established law that if concurrent findings of the courts below are the result of misreading of evidence on record, it becomes the duty of the revisional forum to set the wrong right in accordance with jurisdiction exercised under section 115, C.P.C. In "Nabi Baksh v. Fazal Hussain" (2008 SCMR 1454) it was observed to the effect that no exception could be taken to the exercise of revisional power and setting aside of findings if based on misreading and non-reading of material available on record. In "Nazim Ud Din and others v. Sheikh Zia Ul Qamar and others" (2016 SCMR 24) it was observed to the effect that concurrent findings of fact if are erroneous on account of misreading and non-reading of evidence were not sacrosanct and did not preclude from interference in revisional jurisdiction to correct such factual error which arose on account of the amiss. It was further observed that to the effect it was settled law that ordinarily the revisional court would not interfere in the concurrent findings of fact recorded by the first two courts of fact but where there is misreading and non-reading of evidence on the record which is conspicuous, the revisional court shall interfere and can upset the concurrent findings, as well as where there is an error in the exercise of jurisdiction by the courts below and/or where courts have acted in the exercise of its jurisdiction illegality or with material irregularity.
19. In the instant case as noted supra serious misreading and non-reading of oral as well as documentary evidence was made by the courts below. Incorrect conclusions were drawn by misreading of evidence and in the absence of any admissible evidence to prove the right of adjustment, application for its approval by the competent authority. compliance of preconditions for adjustment and payment of requisite charges for the excess area, the courts below proceeded to pass a decree which was legally unsustainable and the findings of the courts below suffer from material illegality and jurisdictional error which being not sacrosanct, need to be interfered with in the revisional jurisdiction.
20. For the reasons above, the instant revision petition is allowed. The impugned judgments and decrees of the courts below are set aside, in result, the suit of the respondents/plaintiffs stands dismissed.