MUHAMMAD FAHEEM WALI J. This Judgment of mine will decide the fate of following petitions, tiled within the purview of Section 115 of the Code of Civil Procedure (Act-V) 1908, being the outcome of one and the same Judgement of the appellate Court below.
1) Civil Revision No.112-D of 2015 Atta Muhammad and another v. Govt. of Khyber Pakhtunkhwa and others 2) Civil Revision No.105-D/2015 Nabi Bakhsh and Others v. Govt. of Khyber Pakhtunkhwa and others 3) Civil Revision No.60-0/2015 with CM No.53-D/2021 Mst. Riaz Fatima through Legal Heirs v. Govt. of Khyber Pakhtunkhwa and others
2. Concise background of all these petitions is that the petitioners Atta Muhammad etc and Nabi Bakhsh etc of revision petitions No.112-D/2015 and 105-D/2015, with Abdul Jabbar etc and Allah Nawaz Khan, filed four separate declaratory suits before the learned Civil Court with a unanimous prayer that they are owners in possession of the property comprising Khasra No 6509, as described in the head-note of plaint, and defendants have no concern, whatsoever, with the same; and therefore, the allotment of said Khasra in favour of defendant (Mst. Riaz Fatima) coupled with transactions based on the said allotment are illegal, unlawful and liable to be cancelled. As against petitioners/ plaintiffs claimed that they are entitled to get the proprietary rights in accordance with Scheme No.1 of 1976, but their application for said purpose was wrongly filed vide order dated 24.06.1992 by the Deputy Settlement Commissioner, D.I.Khan. As a consequential relief, they prayed for perpetual mandatory and prohibitory injunction against defendants to direct them to transfer ownership rights in favour of plaintiffs, cancel the allotment of Khasra No.6509 and restrain them from claiming the Khasra No. 6509 as their belonging.
3. Defendants, contested the suit by filing their written statement, and then all the suits were consolidated by the learned trial court vide order sheet No.43 dated 17.05.2010. Upon framing consolidated issues and recording evidence as such, learned Civil Judge-VII, D.I.Khan, dismissed all the four suits through a single Judgment dated 14.10.2010. Discontented with the dismissal of suits, three set of plaintiffs out of four suits, except plaintiff Allah Nawaz, filed their separate Civil Appeals.
Mst. Riaz Fatima through legal heirs, aggrieved of the findings of learned trial court recorded under issue No.4, also preferred a separate appeal. Finally, after hearing all the contesting parties, the leaned Additional District Judge-IV, D.I.Khan, dismissed all the appeals through a consolidated Judgment dated 23.01.2015. Now the parties, except Abdul Jabbar etc (plaintiffs of third suit) have preferred above referred civil revisions, wherein Atta Muhammad etc and Nabi Bakhsh etc (plaintiffs) have questioned the concurrent findings of the courts below and prayed for the decree of their suit; whereas, Mst. Riaz Fatima through legal heirs (defendant) questioned the same to the extent of findings recorded under issue No.4 with an ultimate result to dismiss the suits of plaintiffs.
4. I have heard arguments of the highly competent counsels, appearing on behalf of parties, as well as learned Assistant Attorney General and Assistant Advocate General representing, respectively, the Federal and Provincial Governments; and have gone through the record with their able assistance.
5. A threadbare perusal of the record reveals that the Khasra No.6509 is, undeniably, a built-up property comprising houses which have been coming in possession of plaintiffs since long.
Plaintiffs prayed to convert their possessory rights into proprietary rights on the basis of Scheme No.1 of 1976 under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (the Act 1975). Besides the claim of plaintiffs, there is another claimant of Khasra No.6509 i.e. defendant Mst.
Riaz Fatima, who claims the same on the basis of allotment vide RL-II.
6. Now, the entire controversy between parties, for the purpose of determination by this Court, can be converted into following queries: i. Are plaintiffs (Atta Muhammad etc and Nabi Bakhsh etc) the owners in possession of the houses comprising in Khasra No.6509? ii. Is defendant (Mst. Riaz Fatima) rightful to claim ownership of the Khasra No.6509 on the basis of allotment vide RL-H?
7. Before determining the answer of above questions, the Court deems it apposite to refer hereunder the legal background of the lis. Initially, on 26.03.1958 the Government of Pakistan in order to provide for the payment of compensation to certain displaced persons and the rehabilitation of others, for the matters incidental thereto or connected therewith enacted the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Under the provision of section 3(1) of the said Act the Central Government of Pakistan acquired all the evacuee properties of D.I.Khan, other than agricultural land. Thereafter, another statute known as "Displaced Persons (Land Settlement) Act, 1958" was promulged w.e.f. 23.09.1958 for the permanent settlement of displaced persons on land and for matters incidental thereto or connected therewith. The former law dealt with mainly urban build-up properties and the latter law dealt with agricultural properties.
8. For the purpose of transfer of urban properties comprising houses and shops to claimants under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the Chief Settlement Commissioner published a Scheme, Called Settlement Scheme No.1. Per Clause No. 37 of this scheme, the property used to be transferred provisionally to the eligible claimants by means of a "Provisional Transfer Order" (PTO), followed by a "Permanent Transfer peed" (PTD), an absolute document of title, subject to fulfilment of the conditions mentioned in the PTO. In case of urban buildings, changes were to be made by the Urban Property Tax Department, in the PT-1 Form.
9. As regards agricultural land the procedure was that an allotment had to be made to an eligible person and his name was entered in a register called, Register in Form RL/II. Once a permanent transfer had been made, a mutation would be entered for deletion of the name of the Federal Government as an owner and making an entry in favour of the transferee.
10. In the year 1975, the settlement laws were repealed and entire hierarchy of the Settlement Department cease to exist and new officer under the name and style of 'Notified Officer' was introduced who alone after the repeal of evacuee law can function with a limited and restricted jurisdiction qua the pending proceeding. The Settlement authorities have, thus, become functus officio.
11. Now coming to the controversy, in order to answer the first question, suffice it to say that petitioners/plaintiffs claimed that they, after the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, being occupiers of the houses applied for the transfer of ownership in view of the Scheme No.1 of 1976 formulated under the ibid Act; however there is nothing in black and white which may suggest any logical conclusion of their said application or any order of a 'Notified Officer'. Though petitioners produced certain receipts showing deposit of the amount towards settlement fee but sole receipts without any PTO[1] or PTD[2], as disused in the above paras, cannot be an alternate of a title document. Argument of learned counsel for petitioners that the names of petitioners have been entered in the PT-1 form as being owners; nevertheless, such entry too is not beneficial to them for the reason that basic documents of title are PTO and PTD, and Register PT-1 is the basic documents in property tax record, which contains particulars, descriptions, ownership, possessions, use, gross annual rental value, and the annual rental value of the properties which is prepared from a survey of property by the Excise and Taxation Department.
Undeniably, petitioners have been in the possession of houses over Khasra No.6509, and their names have been so entered by the Excise and Taxation Department. PW-2, the official of Excise and Taxation Department, in his cross-examination further clarified that the Register PT-1 reveals the occupier of land and it does not pertain to proprietary rights.
12. Thus, there can be no cavil with the proposition petitioners/plaintiffs could not establish their ownership through any documentary evidence and their possession, application for allotment and slips/challan showing deposit of settlement fee cannot hypothetically be treated as PTO or PTD.
The declaration so sought in the plaint by plaintiffs was based on their purported ownership, which they have failed to prove. Legally, a declaration can be sought only against an existing rights and new rights cannot be established by filing a suit under Section 42 of the Specific Relief Act, 1877.
While rendering this view I am fortified with the dictum laid down by the august Supreme Court of Pakistan in the case titled Muhammad Jameel and others v. Abdul Ghafoor (2C22 SCMR 348) wherein august court was pleased to hold: "Further, the possession of the suit "lhata" was prayed for by the respondent plaintiff. Admittedly, the suit "lhata" is owned by the Federal Government and rights in the "Ihata" after allotment, if any, to the allottee were not conferred by the Federal Government. As per the pleadings of the respondent plaintiff, some portion was purchased by the petitioners-defendants. He seeks a declaration of rights claimed by him in the "Thaw". We are concerned with the question whether a declaration could be granted in such a situation. It is by now a well settled principle of law that no declaration of title can be passed without impleading the real owners and that none could confer a better title in property than he himself possessed.---In our view, when the plaintiff claimed a declaration of title, without a pre-existing right, suit for declaration was not competent and the courts below should not have granted a declaratory decree when no pre-existing rights were available with the respondent-plaintiff in the suit "lhata"."
13. In this regard further reliance may also be placed on the case titled Muhammad Siddique (deceased) through LRs and others v. Mst. Noor Bibi (deceased) through LRs. and others (2020 SCMR 483). Hence the answer to first query is in negative.
14. Now adverting to the second query and it has already been discussed in the preceding Paras that a build-up property could only be allotted through PTO and PTD and MAI is issued only for the allotment of agricultural land and no buildup property can be allotted or transferred on the basis of RLII. According to Misal-e-Haqqiyat, for the year 1967-68 (Ex.P.W.5/D-1) Khasra No.6509 measuring 01 13 has been refered as Ghair Afumkin Makan. Similarly the Patwari Halqa, during his evidence as PW-5, in unequivocal terms stated that the Khasra No.6509 is consisting of houses since prior to settlement and as such there is no entry of said Khasra in the 'Harvest Inspection Register'. As such, the land in question was purely a building site, therefore, the same was not available for allotment against outstanding verified claims of agricultural land and any mischief played in contravention to the law deserved immediate reversal. Reliance is placed on the cases reported as Ali Muhammad through LRs & Others v. Chief Settlement Commissioner and others (2001 SCMR 18221) and Muhammad Ramzan and others v. Member (Revenue) Chief Settlement Commissioner and others (1997 SCMR 1635).
DW-1, in his cross-examination admitted that the Claim vide RL-II of Mst. Riaz Fatima was in respect of rural area. In view of the guidance provided by august apex Court in Muhammad Ramzan's case
(ibid) by holding that, "The claimants with unsatisfied entitlement could resort to any other remedy available under the law, but were not entitled to obtain allotment of urban land in satisfaction of pending units as alternate land/measure or otherwise."
15. A plain reading of Ex.P.W.4/R, Ex.P.W.4/R-3 and Ex.P.W.4/R-I reveal that the son of allotee Mst. Riaz Fatima requested for allotment of Khasra No.6509 in exchange of the allotted Khasra numbers which came under the road. His application was filed by the Deputy Commissioner/Deputy Settlement Commissioner D.I.Khan vide order dated 07.06.2000. The Hon'ble Supreme Court of Pakistan in a judgment reported as Member Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore v. Abdul Majeed and another (PLD 2015 SC 166) has held that the Chief Settlement Commissioner/Notified Officer is not competent to allot any fresh or alternate land to anybody. As far the entry of Mst. Riaz Fatima in the record of rights as an owner of Khasra No.6509 is concerned, the same cannot be of any legal consequence in her favour, in view of the facts that Khasra No.6509 was a building site and could not be allotted under RL-II; and the claim of said lady was for rural area while Khasra No.6509 is an urban property and lastly the Robkar No.77/PB dated 12.06.1990 (Ex.P.W.4/R-5) does not include Khasra No.6509. More-so, the original RL-II has not been brought on record. In the absence of valid allotment of Khasra No.6509 in favour of Mst. Riaz Fatima, the record of rights cannot create a title unless demonstrated to be backed by a valid transaction. Although, under Section 52 of the West Pakistan Land Revenue Act, 1967, presumption of truth is attached to the Revenue Record and the same cannot be challenged without sufficient and convincing evidence. Nevertheless, a person acquiring any title pursuant to any document has to prove that the transferor, of his own volition, transferred the ownership, whereas in this case, the document of creating title i.e. RL-H is defective, and therefore, on the basis of a defective title, entries in the record of rights cannot be taken as absolute. Reliance in this regard is placed on the case of Mehr Khan v. Basaee (PLD 2008 SC 12) and Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs (PLD 2011 SC 657). In this view of the matter the answer to the second query is also in negative.
In the nutshell, there is no merit in all the three Civil Revisions and therefore the same stood dismissed with listed CMAs leaving the parties to bear their own cost. Kanal marlas