1. ' SHAFIUR RAHMAN, J.-By this direct appeal under Article 185(2) clause (d) the defendants challenge the judgment and decree of the Lahore High Court, dated 24-9-1984 whereby a regular first appeal filed by the plaintiff was accepted ; the judgment and decree of the trial Court was set aside and the claim of the plaintiff for possession of the land in accordance with the site plan (Exh. P. 3) was decreed allowing the appellants a period of three months to remove their superstructure and leaving the parties to their own costs throughout.
2. ' Aziz-ur-Rahman as an authorised attorney of Muhammad Shafi instituted a civil suit on 13-11-1977 claiming possession of an area measuring 4 Kanals 10 Marlas out of Khasra No, 542/543 of village Munir Hassan within the municipal limits of Rawalpindi City. The plaintiff's case was that he had been given a transfer order of this land which was duly demarcated on a site plan submitted to the Deputy Settlement Commissioner and the defendants-appellants had encroached upon it and raised constructions on it and they were not entitled to any interest in the same and were trespassers. At first an objection was taken to the value of the suit and the deficiency in the court- fee as originally the suit was valued at Rs, 8,000 and court-fee paid accordingly. On such objection having been raised the statement of the attorney of the plaintiff was recorded who admitted that the value of the land in the vicinity was in the neighbourhood of Rs, 30,000 per Kanal whereupon the Court ordered the plaintiff to revalue the suit and make up the deficiency in court-fee. An amended plaint was filed revising the value for the purposes of court-fee and jurisdiction to Rs, 1,35,000 and the deficiency in court-fee was made up. The defendants-appellants contested the suit on which the following issues were framed : "(1) Whether the suit is correctly valued for the purpose of court-fee and jurisdiction if not what is the correct valuation ? 0. P. P.
(2) Whether the suit is within time ? 0. P. P.
(3) Whether the plaintiff is the owner of the property ? 0. P. P.
(4) Relief."
3. ' As no evidence was led with regard to the revalued suit it was held that it was revalued correctly and the court-fee due on it had been paid. On the question of limitation, the trial Court held that as the plaintiffs were claiming dispossession and they could not prove their possession within twelve years of the institution of the suit it was barred by limitation. On the question of ownership, the trial Court held that Muhammad Shafi plaintiff and not his attorney Azizur Rehman was to prove his title and as Muhammad Shafi had not appeared in the witness-box and Azizur Rehman the attorney had claimed title from Muhammad Shafi om a date prior to the institution of the suit the ownership of the plaintiff Muhammad Shafi remained unproved. It was also found that the power-of-attorney in favour of Azizur Rehman was unregistered and as such he could not advance the case of plaintiff Muhammad Shafi. Finally, it was held that the land of which possession was sought was a portion of a larger area, which had remained demarcated and unidentified. On these findings, the suit was dismissed.
4. ' On appeal the High Court held that the plaintiff had instituted the suit not only on the ground of his possession and subsequent dispossession but on the basis of a transfer order issued by the Settlement Department and it was a case of title and was directed against trespassers and Article 144 was applicable and the suit being within twelve years and the position of the defendents- appellants being not any different from that of a trespasser the suit was within time. On the basis of the site plan filed along with the plaint and the demarcation of the property therein the High Court held that the property was identifiable and had in fact been identified. Azizur Rehman the attorney was found competent to institute the suit and also held competent to make a statement on behalf of the plaintiff whose non-appearance was of- no consequence to merits of the case. Hence the appeal was accepted and the suit was decreed in terms indicated.
5. ' Maulvi Sirajul Hag, the learned counsel for the appellants, contended before us that though Muhammad Shafi held a transfer order for 4 Kanals 10 Marlas of land out of Khasra No, 542/543 and had also an attested plan of the property so transferred to him his title to the property suffered from various legal defects. It was contended, that on going behind this title document one finds that Muhammad Nazir had been allotted a brick kiln located on part of these two Khasra numbers the major portion of which stood subsequently allotted to one Mst. Amina Begum and another.
6. Besides, it appeared that Muhammad Shafi plaintiff claimed interest in the brick kiln or a portion of it by a deed of association. According to the learned counsel, in respect of industrial concerns, there could be no deed of association at all and Muhammad Shafi could not on the basis of such a deed of association, acquire any title or interest. It was further contended that Muhammad Nazir the allottee had himself instituted a suit against Muhammad Shafi and his attorney Azizur Rehman challenging this deed of association and the transfer order and that suit was sub judice. Nazir had been impleaded in this appeal on his own request as a respondent on 16-3-1985 and had disputed the authenticity of the deed of association and the title and interest and the transfer order of Muhammad Shafi. As long as that matter was not finally settled Muhammad Shafi could not be allowed to, take up the matter and advance his title by getting the relief which has been granted. It was next contended that the suit of Muhammad Shafi was not on the basis of title but on the basis of his possession and subsequent dispossession and for that reason Article 142 should have been applied and as the appellants had remained in possession for the last 30 years or so, he could not be granted the relief. It was also contended that the plaintiff himself did not appear in the witness- box and his attorney was claiming to be the owner of the property and on account of his absence from the witness-box, Muhammad Shafi could not have been granted the decree. Finally, it was contended that the description of the property in the plaint was not sufficient to entitle the plaintiff to a decree as it was unidentifiable portion which he was claiming out of a larger Khasra number.
7. ' The learned counsel for the respondent has drawn our attention to the fact that out of sixteen defendants six had purchased by registered deeds the land on which they had raised constructions, Only six had appealed and the others had not. The transfer order issued by a competent authority under the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) paragraph 15 of the Schedule could not be challenged by the trespassers occupying the property. It is final and binding on the appellants and it establishes the title of the plaintiff. The property was identifiable because it stood demarcated on a plan countersigned by the Deputy Settlement Commissioner which was filed along with the plaint.
8. ' The recital in the plaint makes it abundantly clear that it was not on the basis of possession and subsequent dispossession alone that the plaintiff was suing the appellants. It was clearly on the basis of title. This appears from paragraphs 1 and 3 of the plaint which read as follows :- "(1) That the plaintiff is the owner of property known as Hari Singh Partab Singh Brick kiln, bearing Khasra No, 542/543, measuring 4 Kanals 10 Marlas situate on Marir Hassan Qasbati, Tipu Road, Rawalpindi. The said land was delienated and demarcated by the Settlement Department at the time of transfer of the said property in favour of the plaintiff and the plaintiff was put in physical possession of the same. The property in question is delienated and described in the plain attached hereto.
9. (2)
(3) That the defendants in collusion with each other have encroached upon the said property about two months ago and are occupying the same without any right, title or interest. Their possession is wholly unauthorised. The defendants raised some ramshackle construction over the said property without permission or without any sanctioned plan of the Municipal Corporation within the limits of which the property is situated. Consequently the Municipal Corporation in exercise of its Municipal functions demolished through its agency the constructions so raised. But the defendants continue to remain in unlawful possession."
10. ' The transfer order in favour of the plaintiff is dated 28-2-1977 and exhibited as Exh. P.
2. It was filed along with the plaint. The suit was instituted on 13-11-1977. We do not see how in the case of erstwhile evacuee property transferred from the compensation pool the suit filed so soon after the transfer order could be a suit on the basis of dispossession alone and how could the possession before acquiring title on the land be of avail in suing trespassers on the land. It was clearly a suit based on title derived from transfer order issued by the competent authority under paragraph 15 of Schedule to the Act.
11. As regards the locus standi of the defendants appellants who claimed no independent title or interest except that of trespassers or of having remained in possession of the land since long to go behind the transfer order the decisions of this Court in Jamal Din and others v. Mst. Pari Jan and 4 others (1) and The Chief Settlement Commissioner, Lahore (2) hold the field. It was held that persons who are neither allottees nor entitled to the transfer of the land cannot dispute in view of section 25 of the Act the transfer made in favour of someone else.
12. ' Paragraph 15 of the Schedule to the Act creates an entitlement of the claimants-allottees of unregistered industrial concerns and the instructions of the Chief Settlement Commissioner appearing on page 80 of the Manual of Settlement Law and Procedure (1960 Edition) provide for association with other claimants for transfer of industrial concerns and cinemas. However, we do not propose to undertake any further examination of this matter as it is a question already sub judice in the civil suit instituted by Muhammad Nazir against Muhammad Shafi. Muhammad Nazir has been allowed by us by our order dated 12-5-1985 to withdraw the claim, to be impleaded as a party to these proceedings and our order datedj,6=3-1985 allowing him to be impleaded stands recalled. The dispute' between Muhammad Nazir and Muhammad Shafi is left to be decided separately in the suit already pending.
13. ' The non-appearance of Muhammad Shafi personally as a witness does not prejudice his case because his authorized attorney did appear on his behalf. The attorney's statement that he had acquired a title to the
(1) 1984 SCM R 403 (2)PLD 1975 SC 331 property even before the institution of the suit had a background and an explanation which has been thoroughly examined by the High Court. Such a statement did not either impair the title of Muhammad Shafi or incapacitate the attorney from appearing and advancing the title and interest of Muhammad Shafi.
14. ' We find that none of the grounds advanced by the learned counsel for the appellant is tenable.
15. The appeal is consequently dismissed with costs.