' This regular second appeal is directed against the judgment and decree of the trial Court dated 21-3-1972 and that of the learned District Judge, Sahiwal dated 20-1-1973 whereby the appellant's suit for a declaration to the effect that the order dated 9-1-1967 of the Collector allotting Ihata No.95/112 in favour of defendant No.1 was illegal, void and without jurisdiction and ineffective against the rights of the plaintiff and also for the grant of permanent injunction as a consequential relief was dismissed.
2. The brief facts are that the plaintiff filed the suit on the pleadings that the Ihata in dispute formerly bearing No.95 and later numbered as 112 situated in Chak No.113/12-L Tehsil and District Sahiwal was allotted in favour of Fateh Muhammad son of Rehmat Ullah by the Collector, Sahiwal in the year 1950 for the purpose of erection of a flour mill. After obtaining the possession he erected the flour mill (chakki) and later on sold the Malba of the flour mill together with the machinery in favour of Salamat All Shah son of Bullay Shah. The appellant-plaintiff purchased the Malba of the Ihata and the machinery of the Chakki on 1-9-1954 and later got its allotment in his favour from the Collector, Sahiwal and he was eversince in possession of the same and was utilising it. The plaintiff further alleged that he gave several applications to the Colony Assistant, District Sahiwal that effect may be given in the revenue record in his favour but the officials of the Colony Branch were putting him off by saying that the file had been sent to the Commissioner for assessment of rent and that it would be given effect to in the revenue papers on the receipt of the file. The appellant kept on sending applications through registered post and in the course of those proceedings he received a post card from that office. In the meanwhile, defendant No. 1 Allah Ditta in collusion with the revenue staff and the officials of the Colony Branch, obtained the allotment of the Ihata in his favour illegally and without notice to the appellant on 9-1-1967. Against this order the appellant preferred an appeal before the Additional Commissioner (Revenue) which was dismissed on 12-11- 1968. The legality of the order dated 9-1-1967 was challenged on the ground that the Ihata in dispute had been allotted to the appellant in the year 1960 and before that it was allotted to another person namely, Fateh Muhammad and he had been continuously in possession of the Ihata and was utilising the same. The further ground taken was that the allotment in favour of defendant No.1 was made without summoning the appellant and hearing him, despite the fact that in the Jamabandi Sakni the appellant was shown to be in possession and that this fact was within the knowledge of the Collector. After the allotment in favour of defendant No.1 a notice under section 32 of the Colonization of Government Lands Act for plaintiff's eviction was issued which was contrary to law. It was further averred that respondent No.1 on account of enmity had collusively obtained allotment of the Ihata despite the full knowledge that the Ihata in question was already regularly allotted since 1950 and was in possession of the plaintiff.
3. The suit was contested by Allah Ditta defendant/respondent No. 1 who filed his written statement.
He took a preliminary objection that the Court had no jurisdiction in view of section 36 of the Colonization of Government Lands Act, the plaintiff not being in possession of the Ihata. On facts it was stated that the Ihata in dispute was never allotted to the plaintiff or Fateh Muhammad and that in para. 1 of the plaint he had mentioned a concocted version and that the Ihata in ques tion was allotted to defendant No.1 in a regular manner and further that the Chakki on the spot was constructed in an unauthorised manner which was lying sealed. It was further stated that the Ihata containing the flour mill was in fact a residential Ihata. The order of the Collector was stated to be with jurisdiction. As regards the appellant not being summoned or heard, a stand was taken that since he was not a party to the proceedings, therefore, it was not necessary to summon him. The plaintiff, it was stated, had no cause of action.
4. On the pleadings of the parties, the trial Court framed four issues.
These were:--
(1) Whether this Court has no jurisdiction to try this suit?
(2) Whether the plaintiff is in possession of the Ihata in dispute as an allottee of defendant No.2?
O.P.P.
(3) Whether the order of allotment of defendant No.2 dated 9-1-1967 is illegal, ultra vires and void for reasons given in para. No.4 of plaint?
(4) Relief.
The plaintiff in support of his case appeared as P.W.9 and also produced eight other witnesses some of whom were the officials and others were private persons. He also produced documentary evidence Exhs. P.1 to P.9 to substantiate his case. The respondent appeared as his own witness and produced two documents Exh. D.1 to show the plainiff's ownership of land in another Chak and Exh.
D.2 a copy of the Roznamacha of the Patwari to show that the flour mill and Baithak had been sealed by a Qanungo on 21-1-1967.
5. The trial Court on issue No.2 held that the question of allotment of Ihata by the Collector in favour of the plaintiff was to be decided on the basis of a formal order and he was afraid that pral evidence produced by the plaintiff was of little help. It was further observed that even if the version of the plaintiff that the formal allotment order was not available was accepted, no revenue paper had been produced from which it could be gathered that the order was passed by the Collector in favour of the appellant. The trial Court further held that the only documentary evidence produced by the plaintiff was a letter addressed to him asking to appear in connection with the allotment proceedings but this could not be taken to be a substitute for the allotment order. He observed that it was the case of the appellant that he was told that the papers had gone to the Commissioner for confirmation but according to the trial Court no law had been shown to change his firm view that the Collector was the final authority in cases of allotment of Ihata and not the Commissioner. The trial Court considered it unnecessary to refer the matter to the Commissioner and on this reasoning he held that the plaintiff was not in possession of the Ihata in dispute as allottee of defendant No.2. Against issue No.3, it was noted that it had already been held that the disputed Ihata never stood in the name of the plaintiff. The Collector therefore, had no doubt that the Ihata was available for allotment. He further observed that no law had been shown to him which necessitated the despatch of notice to any person in occupation of Ihata before deciding the question of allotment. He failed to find any illegality in the impugned order.
Under issue No. 1, the order of the Collector was held to be valid and consequently the civil Courts were held to have no jurisdiction.
6. The matter was then taken up in appeal before the learned District Judge. While affirming the findings of the learned trial Court, the learned District Judge in his impugned judgment dated 20-1- 1973 held that under section 10(4) of the Colonization of Government Lands Act no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until such written orders had been passed and he had taken possession of the land with the permission of the Collector. The appellant was held to have not taken possession of the Ihata in dispute in pursuance of any written order nor it was taken with the permission of the Collector. His mere possession over the Ihata in dispute, it was held, did not confer any right or title on him. It was further held that all official acts are presumed to be done in a regular manner, therefore, the Collector had passed a valid allotment order in favour of respondent No.1 and where the Collector is empowered to dispose of a matter under the Act, the jurisdiction of Civil Court to decide the matter is barred. On this reasoning, the appeal was consequently dismissed.
7. After hearing both the sides and carefully perusing the record, I am constrained to hold that the trial Court proceeded to decide the suit in a rather cursory manner and took into consideration one-sided picture of the case. It was the bounden duty of the trial Court to have examined the evidence on record and to draw proper inferences therefrom. This has not been done. The deposition of the official witness Ghulam Bari (P.W.2) to the effect that the Ihata in dispute was given to Ali Muhammad before allotment to Allah Ditta has not at all been taken into consideration.
Similarly, no reference was made nor the evidence of any other witness considered even with respect to the fact whether the allotment order had been made in favour of the petitioner. In a case where the record was shown to have been misplaced or destroyed, the secondary/oral evidence of the official witnesses as well as the learned Advocate regarding the passing of an allotment order required due consideration. There is not a word to be found in the impugned judgment of the learned trial Court to any evidence led at the trial by the plaintiff-appellant. He has proceeded on suppositions and conjectures and on that basis recorded the findings which cannot as such be blessed with any sanctity in law. Issue No. 3 has similarly been decided by him on the basis of erroneous assumption made under issue No.2 and on that basis it was held that there was no need of any hearing or notice to the plaintiff. It is further crystal clear on perusal of Exh.P.7 that the office note which was merely approved by the Collector clearly mentioned availability of residential Ihate measuring 15 Marlas whereas the Ihata which the plaintiff had purchased from Salamat Shah and was in his possession measured 17 Marlas 7 Sarsahis and was under a flour mill which is a category by itself under the scheme governing grant of such Ihatas. On the contrary, it has been assumed in ignorance of this material fact that the allotment order made in favour of respondent No.1 pertained to the entire Ihata of the flour mill. This is clearly based on misreading or non-reading of the impugned order of the Collector Exh.P.7. Such a finding, therefore cannot be sustained.
8. Next, I find force in the submission of the reamed counsel for the appellant that every allotment order under the Colonization of Government Lands Act is final unless set aside by any competent authority in appeal, revision or review in due course of law. It stands proved from the unquestioned testimony of P.W.7 Salamat Shah that the Ihata in dispute had been purchased by him from the original allottee Fateh Muhammad and thereafter it was got allotted by him in his favour and he was paying to the Government rental of Rs.36 per year. This witness was not cross-examined by respondent No.1 and thus his evidence was accepted as correct. Therefore, it follows that unless the allotment order made in favour of Salamat Shah from whom the appellant had purchased the machinery, engine and the flour mill had been lawfully cancelled and the occupant evicted, the same could not have been allotted in favour of respondent No.1. Furthermore, the note put up to the Collector was also misleading and based on suppression of facts. It no where truely mentioned the previous history of allotment of the Ihata in question and the construction of flour mill and existence of other construction thereon. A false impression was, therefore, sought to be given as if it was an ordinary residential Ihata which was available for utilisation and for allotment to respondent No.1. The two-word order of the Collector, therefore, approving any such misleading note cannot be blessed with any legal sanctity. The impugned order of the Collector dated 9-1- 1967, therefore, was clearly without jurisdiction being based on wrong assumptions as to material facts. It stands admitted in respondent No.1's own statement and otherwise is a common ground between the parties that over the Ihata in dispute flour mill had been in existence since a number of years. The description of the Ihata, therefore, as residential in distinction to an Ihata for flour mill which is a category by itself was again based on a false representation.
9. It may also be observed that on proper construction of the Government Instructions which governed the case of the appellant dated 18-4-1970 and 12-1-1971 and as interpreted by the Board of Revenue in the case Chakmal v. Suleman PLD 1972 Rev. 123 do support the case of the appellant. The Board of Revenue in this case held as under:-- "6.According to Government orders contained Memorandum No.1065-70/1177-CL.IV, dated 18-4- 1970 and No.1866-70/96-CL. IV, dated 12-1-1971 it has been laid down that any genuine refugee who has been in continuous occupation of any Ihata for the last 10 years should not be disturbed and his occupation should be regularised by the Revenue Authorities. The order of the Assistant Commissioner and Collector Syed All Kazim, C.S.P., dated 5-10-1970 is defective to the extent that he has not taken into account the standing order of the Government in this regard and has proceeded to upset the possession of Suleman in spite of the evidence of Lambardar Fateh Muhammad of Chak No.37 that Suleman was living in half of the Ihata for the last 12 years, Vide Government Notification No.837-C, dated 1st March, 1933 also it had already been held by the Government that sites occupied by proprietors or by Crown tenants of agricultural land and sites occupied by tenants not holding direct from the State was a proper utlization of village sites. In view of the above clear directions and decision of the Government not much weight can be given to the contention of the petitioner that because of his unauthorised occupation Suleman should be dispossessed from part of Ihata No.37 at this stage."
' This aspect of the matter has been completely lost sight of by the two Courts below.
10. In so far as the judgment of the learned District Judge is concerned, it suffered from the same infirmities as have been noticed in the judgment of the trial Court. The learned District Judge ignored from consideration the material evidence of P.W.2 and of P.W.7. The learned District Judge only adverted to Exhs. P.1 and P.2 and the evidence of Ch. Muhammad Anwar, Advocate (P.W.4) and the one-line reply of the plaintiff-appellant in the course of the cross-examination. He kept out of consideration the entire other documentary as well as oral evidence and failed to draw proper inferences therefrom after due consideration. Had the learned District Judge considered the evidence of Salamat Shah (P.W.7) which went unchallenged, he would not have drawn an adverse inferene against the appellant on the ground that no allotment order in favour of the said witness had been produced. When it otherwise stood proved that Salamat Shah had been allotted the lhata in dispute, non-production of the formal allotment order was hardly of any consequence.
Similarly, the statement of official witness P.W.2 that the Ihta had been given to the appellant before it was allotted to respondent No.1 has also been kept out of considertion. Therefore, the affirmance by the learned District Judge of the lacunic findings of the trial Court in such a situation while ignoring the mass of material evidence on the record and without applying his conscious mind to the same and drawing proper inference therefrom suffers from a patent illegality and such findings are not immune from scrutiny before the High Court in second appeal or revision.
11. It must further be observed that the plaintiff has been able to substantiate his plea that proceedings were taken on his application for formal allotment of the Ihata in his favour. Issuance of a notice Exh. P.1 was duly proved by P.W.3 Mazhar Hussain. It was also proved that it was in the hand of the Ahlmad and was issued under the signatures of this witness as he was a dealing Clerk.
This notice pertained to the year 1960 when respondent No.1 had not entered the scene. The dates are clearly mentioned on the post card and the seal of the post office is clearly visible as pertaining to April, 1960. The testimony of the learned counsel (P.W.4) who conducted these proceedings on behalf of the appellant has also not received due weight which it deserved.
12. In the facts and circumstances of the case in hand, the order of the Collector as already held was not a lawful order and as such there arose no question of the ouster of jurisdiction of civil Courts. It must be again observed that no allotment in favour of respondent No.1 could be made unless the previous allotment whether in favour of the appellant or in favour of Salamat Shah had been lawfully cancelled by a competent authority. The other vitiative infirmities in the order of the Collector have already been pointed out. The basic order of the Collector thus having been found to be void, the subsequent order of the Commissioner upholding the same would be equally void.
13. There is another aspect of the matter. The trial Court itself on the one hand held that the case of allotment in favour of the appellant had gone up for confirmation before the Commissioner while on the other hand he held that it was unnecessary so to do as the competent authority was the Collector himself. Be that as it may, even on the view that the trial Court has taken, if an allotment order had been made and the case was sent for mere confirmation to the Commissioner which, according to him, was unnecessary this would have no bearing on the validity of the order of allotment made by the Collector as competent authority. The same position has been construed differently by the appellate Court which as already observed has failed to apply its conscious mind to the evidence on record both oral as well as documentary.
14. It is also well-settled that the rights of the parties cannot be allowed to be defeated merely on the basis of misplacement or destruction of the record. There was sufficient evidence on the record to substantiate the assertion of the appellant that allotment had been made in his favour and subsequently the record had been misplaced and was not forthcoming. This found corroboration from the testimony of P.W.2 Ghulam Bari and other evidence on the record.
15. The findings of the two Courts below, therefore, are reversed and it is held that the jurisdiction of the Civil Court was not barred and the appellant was in possession of the Ihata in dispute as an allottee and the order of allotment in favour of defendant No.1 dated 9-1-1967 is illegal and without jurisdiction for reasons already recorded.
16. This appeal in fact ought to be treated as a revision and I do so accordingly in view of the value of the suit for purposes of court-fee and jurisdiction.
17. The net result is that this revision is accepted and the impugned judgments and decrees of the learned Courts below are set aside. The suit of the petitioner is decreed in the terms that the impugned order of the Collector dated 9-1-1967 is declared to be illegal, void and without jurisdiction and ineffective against the rights of the petitioner and so are the notice and steps taken against him for his eviction from the Ihata in dispute in pursuance of section 32 of the Colonization of Government Lands Act. The petitioner being an allottee of the Ihata in dispute is entitled to conferment of rights in the light of the Government policy and schemes governing the grant of Ihatas. At any rate, he is entitled to the benefit of memoranda of the years 1970 and 1971 as he fulfils the conditions of being a refugee who remained in possession of the Ihata in dispute for well over ten years. In the circumstances of the case however, there will be no order as to costs.