This revision under section 115 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 4-4-1996 passed by learned Civil Judge as upheld on appeal by an Additional District Judge on 17-10-1994.
2. It was on 19-8-1991 that respondents (herein referred to as plaintiffs) brought a suit for permanent injunction restraining the petitioners (herein referred to as defendants) perpetually from interfering in the occupation and possession of the plaintiffs over the suit land in any manner whatsoever and further restraining them from interfering in the construction work of the plaintiffs in any manner. This decree was claimed on the ground that the plaintiffs were owners in possession of land measuring 3 Kanals, 7 Marlas and 89 Sq.Ft bearing Khasra No.16872/6006, Khewat No.2113/1, Khatuni No.5791/1, as per Register Haqdaran Zamin for the year 1984-85 situated in the revenue estate of Ichhra, Tehsil Lahore Cantt, District Lahore, having purchased the same from one Qasim A.I son of Shan Muhammad, who was claimed to be the owner vide mutation No.24044. The plaintiffs asserted that they purchased this land through registered sale-deed bearing No.6853, dated 29-6-1991, and subsequently Mutation No.26229 was also sanctioned in favour of the plaintiffs. It was averred that on 28-3-1991, the plaintiffs applied for demarcation to Tehsildar Lahore Cantt, who did order for demarcation on 30-3-1991 and the demarcation was duly made on 13-5-1991. According to the demarcation, the land in question was situated outside the Scheme of the defendants, they have no concern whatsoever with the same and, therefore, could not stop the plaintiffs from making construction. By filing a written statement, the claim was denied by pleading that the suit land in fact formed part of original Khasra No.6006 measuring 102 Kanals, 3 Marlas and 194 Sq.Ft, which was acquired in 1957 for New University Campus, by LIT/LDA. Thereafter, the University retained 53 Kanals 11 Marlas and 53 Sq. Ft. And restored 48 Kanals, 12 Marlas and 141 Sq. Ft to LIT/LDA. It was stated that vide report No.1101, dated 9-7-1962, the restored area was taken over by LIT/LDA. Later on award in respect of this land was delivered and compensation paid to the owners. The restored land, therefore, absolutely vested in the LIT/LDA free from all encumberances.
The land was later on developed alongwith the other acquired land and came to form part of New Garden Town Scheme (herein referred to as the Scheme). It was pleaded by the defendants that Plots Nos. 17, 18, 19, 39-A, 39-B and 45 fallingwithin the Scheme are lying vacant. These plots belong to the defendantsand they are not in physical occupation of anybody. It was reiterated in para. 4 of the written statement that the disputed Khasra number fell within the Scheme. Certain legal objections like absence of cause of action, of jurisdiction of the Court and form of suit etc. Were also taken. As a result of the pleadings as many as ten issues were framed, upon which the parties went on trial. Both the parties produced oral as well as documentary evidence. As noted above, the trial Court decreed the suit on 4-4-1994 and this decree was upheld by an Additional District Judge on 17-10-1994.
3. In support of this revision, it has been strenuously contended by the learned counsel for the defendants/petitioners that both the Courts have conveniently ignored relevant and vital evidence in favour of the defendants. In this connection it is pointed out that one of the plaintiffs, appearing as P.W.1, has totally admitted the case of the defendants, but the two Courts have not cared to advert to the same. It is urged that an entirely erroneous view has been taken by the two Courts by confining themselves to the statement of D.W.1 only who has gone out of way to make a concessionary statement in favour of the plaintiffs although his statement is belied by unimpeachable documentary evidence, again conveniently ignored by the two Courts. It is submitted that plaintiffs attempted to fraudulently occupy and acquire Plot No.19 of the Scheme of the defendants under the garb of sale-deed pertaining to Khasra No.16872/6006. It is pointed out that documents produced by the plaintiffs like site plan (Exh.P.6) and (Exh.P.9) bely their own case as the suit land, according to these documents, falls within the Scheme and nobody except LDA- defendants are the owners of land within the Scheme, the same having been acquired way back in early 1960 and subsequently developed. In this connection learned counsel has further relied on the documentary evidence (Exhs. D.1 to D.5) which, according to the learned counsel, has been ignored by the two Courts.
4. The above contentions are not accepted by the learned counsel for the plaintiffs. Their learned counsel has taken me through the entire evidence to show that the findings recorded by the two Courts are free from any error and have been correctly arrived at. Learned counsel has generally supported the reasoning of the two Courts.
5. Out of the issues arguments have been addressed only on issues Nos.1 and 8 and it seems that these are the crucial issues. The review of the entire evidence does show that some of vital pieces of evidence, as discussed hereafter, have been totally ignored by the two Courts. By and large the trial Court as well as the appellate Court has gone by the statement of Muhammad Siddique, Naib Tehsildar (D.W.1) and strangely enough they have not cared to examine and A look into the statement of Khan Muhammad Mazhar (P.W.1), who being one of the plaintiffs, had approached the Court for a decree and was required to prove his case. The examination of this statement establishes that plaintiffs have not been able to prove their ownership in respect of plot No. 19, Ahmad Block, New Garden Town, Lahore. Similarly the case of the plaintiffs has not been examined keeping in view Exhs.P.6 and P.9, their own documents which establish that the plot to which the plaintiffs were laying claim to, fell within the Scheme and any land falling within the Scheme can only be transferred by the petitioners defendants and not by anybody else.
6. It will be seen that the plaint has been drafted in a manner which does not mention plot No. 19 of Ahmad Block of the Scheme. In fact the plaint is scrupulously silent to the name of the Scheme itself and it barely asserts that the land in dispute does not fall within the Scheme of the defendants and in para. l the land is described by reference to its agricultural description i.e., Khasra number, Khewat number etc. During trial, attempt seems to have been made top, connect the described land to Plot No. 19 of Ahmad Block of the Scheme and it is in this attempt that, in my considered judgment, the plaintiffs have badly failed. As is apparent from the record, the plaintiffs' case is inconsistent. Even before me the plaintiffs are not sure of their case. Their learned counsel has been arguing inconsistently. Sometimes it was urged that if a decree in respect of the suit land as described by its agricultural markings was given, the plaintiffs would be satisfied. However, on other occasions it was seriously argued that plaintiffs are in occupation of plot No. 19 of Ahmad Block of the Scheme and the decree has been rightly issued by the two Courts in respect of the same.
6-A. Exh. P.1 is the title deed of the plaintiffs. Now this document makes an interesting reading. This document states that Qasim A.I, vendor, resident of 19-- Ahmad Block, New Garden Town, Lahore, is the owner of the suit plot which is bounded by plot No. 18 on the East, 45 feet road on the West, road on the North and plot No.39-A, situated in Ahmad Block, Garden Town. Lahore, on the South and measures 3 Kanals, 7 Marlas and 8 square feet and comprises of Katsra No.16872/6006, Khewat No.2213/1, Khatuni No.5791/1, within the limits of Mouzas Icchra, Tehsil Cantt, District Lahore, on the strength of entries in Register Haqdaran Zamin for the year 1984-85, by reference to Mutation No. 24044 as per Fard Patwari and the vendor has all the rights to sale the plot and hereby sells it to the plaintiffs for a sum of Rs.18,50,000. It is further recited in the sale-deed that the area is outside the Scheme. The analysis of this document shows that what is being sold is plot No. 19, Ahmad Block of the Scheme and it is the case of the vendor that this plot comprises of Khasra No.16872/6006. The inconsistency is apparent. It is beyond dispute that the land falling within the developed scheme of L.D.A., belongs to defendants and it is they who sell it under the relevant law, rules and instructions. How could Qasim A.I sell this plot, has not been explained by learned counsel for the plaintiffs in spite of his best efforts.
7. Exh.P.6, the site plan produced by the plaintiffs shows that plot No. 19 falls within the red line, which designates the area of the Scheme as stated by D.W.2. In fact, in cross-examination, it was elicited from this witness by the plaintiffs that on the part plan (Exh.D.l) the red line indicates the area of New Garden Town Scheme. The comparison of Exh.D.l and Exh.P.6 shows that they are identical documents. This witness further denied the suggestion that the area falling within red line was not part of any scheme of the L.D.A. Ex.P.6, therefore, belies the assertion that the plot they purchased from Qasim A.I vide Exh.P.I, was outside the Scheme of the L.D.A.
8. Under issue No. l defendants have been successful in proving that the suit area/plot was in fact acquired by LIT/LDA way back in early 1960s. Exh.D-2 is the document showing that the area mentioned therein was restored to L.I.T. By the Punjab University and Khasra No.6006 is mentioned therein as, having been delivered to the defendants Exh.D.5 is the copy of the award which shows the names of the owners, the area taken from them and the compensation paid to each. Khasra No.6006 finds mention in Exh.D.5.
9. The argument of the learned counsel for the plaintiffs that the plaintiffs are interested only in Khasra No.16872/6006, which is altogether independent Khasra number and has nothing to do with Khasra No.6006 is absolutely baseless. It is amply clear that Khasra No.6006 consisted of roughly about 102 Kanals which was totally acquired in 1957-58 and not of this area about 48 Kanals were returned to the petitioners-defendants vide Exh.D.2. One of the plaintiffs, appearing as P. W.1 admitted all these facts. He admitted that Khasra No.6006 had total area of 102 Kanals, 3 Marlas and 164 square feet. He admitted that this Khasra number was acquired for the University Scheme.
He admitted that out of this about 53 Kanals was retained by the University and the balance was restored to LDA/LIT. He also admitted that the plaintiffs' disputed plot was part of this. He also stated that their disputed plot was part of the area retained by the University. As noted, the claim of P.W.1 that the disputed plot is part of the area retained by the University is belied by the document Exh.D.2 and in any case, if Khasra No.6006 was acquired in its entirety, as has been admitted, the plaintiffs have to be knocked out. They need not be concerned whether the disputed plot is part of the area retained by the University or the area restored to LIT/LDA. How can the plaintiffs acquire ownership of a small part of Khasra No.6006, as claimed by them, when the whole of Khasra No.6006 has been admittedly acquired. The answer has to be in the negative and the learned Courts below have committed grave error in holding that the disputed are was not acquired by the defendants. It is held that the area was acquired by the defendants and belongs to them. It may be noted that the plaintiffs' learned counsel miserably failed to show that Khasra No.16872/6006 acquired any independent status and, if so, under-what circumstances and under whose orders.
10. It is interesting and relevant that while the sale-deed (Exh.. P.1) is in respect of specific Khasra number, Khewat number and khatuni number, but plaintiffs' document (Exh. P.2), the consequential mutation is not in accord with the recitals in the sale-deeds. According to mutation sanctioned on 18-7-1991, the plaintiffs have been recorded to be the transferee of 67/1237 shares of Khasra No.16872/6006 measuring 6t Kanals, 17 Marlas and 94 Square feet. It goes without saying that at best the plaintiffs would be a shareholder in the Khasra number and without division they cannot lay claim to any specific portion of the Khasra number. No effort at all has been made to explain the le disharmony between the recitals of the sale-deed (P.1) and the mutation (P.2). In the presence of the fact that the whole Khasra No. 6006 was acquired, as noted above, it was obligatory upon the plaintiffs to have shown that they had validly purchased part of this Khasra number viz, 16872/6006. No effort whatsoever was made in this respect. Their evidence is totally silent as to how Qasim A.I, their vendor, come to own this land. In the sale-deed (P.1) it is stated that Qasim A.I is shown as the owner by Mutation No. 24044. It is well-settled that mutation as such is not a document of title. How did Qasim A.I acquire any interest in this land, is not clear from the present record and as has been noted above, the plaintiffs either by design of otherwise failed to establish the title of their own vendor.
11. The subject of sub-division of survey or Khasra number is dealt with in section 133 of the Punjab Land Revenue Act, 1967, read with rule 67 of the West Pakistan Land Revenue Rules, 1968. Under rule 67 ibid Khasra number may be divided into so many sub-divisions, as may be required in connection with the acquisition of right or for any other reason with the sanction of the Collector.
There is nothing on record to establish that Khasra No. 16872/6006 was carved out of Khasra No. 6006 in terms of rule 67 (ibid). All these facts were necessary to be proved under issue No.8, since the plaintiffs on the basis of facts alleged were claiming a decree for permanent injunction which could only be given to them if they were able to establish title to the plot on the basis of facts alleged in the plaint. Plaintiffs have miserably failed to lead evidence to show that their own vendor was legally entitled to transfer the suit land to them which in any case stood acquired decades ago.
12. Much stress has been laid by the learned counsel for the plaintiffs upon the statement of D.W.1 and the report on the application (Exh.P.5) D.W.1 is the Naib-Tehsildar, I.C.A. Branch of the L.D.A., who stated that the total areas of Khasra No.6006 was 102 Kanals, 3 Marlas and 194 square feet, out of which 53 Kanals, 11 Marlas and 53 square feet was of the University and remaining 48 Kanals, 12 Marlas and 141 square feet belong to LDA/LIT. He further stated that Award in respect of 48 Kanals, 12 Marlas and 141 square feet was announced on 26-10-1962 and before that the possession of this area was taken by LIT/LDA on 9-7-1962, vide report No. 1101. He also stated that the disputed Khasra No.16872/6006 is situated in this area. After stating all the above facts, this witness stated as follows:----- Only one question was put to this witness in cross-examination and the witness admitted that the said Khasra number is that of Mouza Icchra. In other words, the plaintiffs accepted the entire statement of this witness regarding the extent of the area of Khasra No.6006, its acquisition and division between the University and LIT/LDA and its consequential passage. This is also admitted by one of the plaintiffs as P.W.1. The two Courts have relied on the latter part of the statement of this witness (P. W.1) that the disputed area does not fall within the Scheme of L.D.A. What has been conveniently ignored by the two Courts as well as by the learned counsel for the plaintiffs that if Khasra No.16872/6006 is part of the area of 48 Kanals acquired by the LIT/LDA and about whom award was delivered on 29-10-1962, as this witness states, then the plaintiffs are completely knocked out and even their ownership is thrown to serious clouds. It would not be material thereafter to examine whether Khasra No.16872/6006 is or is not situated within the Scheme of the L.D.A. Although from the other unimpeachable evidence on record it, is established that this area falls within the Scheme of New Garden Town, Lahore as the whole of the area of 48 Kanals, 12 Marlas and 141 square feet falling to the lot of LIT/LDA after division with University, fell within the red line as reflected in Exhs.P.6, P.9 and D.1 and is I adjacent to the area. Plots Nos. 18, 19 etc. Are shown to exist. The reliance of the two Courts on the statement of D.W.1, therefore, is erroneous and had the Courts properly analysed the statement of this witness, the conclusion they have arrived at would have been different.
13. Apart from the statement of D.W.1, repeated emphasis was laid by the learned counsel for the plaintiffs on Exh.P.5, to claim that the two Courts below are correct in decreeing the suit on the basis of this document. Exh.P.5 is an application dated 13-8-1991 made by Malik Khan Muhammad, one of the plaintiffs to Land Acquisition Collector, L.D.A., Lahore, for obtaining to objection certificate in respect of Khasra No.16872/6006 measuring 3 Kanals, 7 Marlas situated in Mouza Icchra, Tehsil Lahore Cantt, District Lahore. On the back of the application is the order in Urdu recorded by the Collector on 20-8-1991. The order records the history of Khasra No.6006 and stated that out of it 48 Kanals, 12 Marlas and 14 square feet was acquired by L.D.A., while with the balance area of this Khasra number measuring 53 Kanals 11, Marlas and 53 square feet, L.D.A. Has no connection. The order then states that according to demarcation report of the Local Commission on the orders of Tehsildar, 67/1237 share of Khasra No. 16872/6006 measuring 61 Kanals, 17 Marlas and 94 square feet and which share comes to 3 Kanals, 7 Marlas, is outside the acquired land of L.D.A. In other words, it has not been acquired. Reference is then made to an earlier letter dated 20-4-1985 to the previous owner. The order finally says that in these circumstances, the area measuring 3 Kanals and 17 Marlas covered by Mutation No. 26229 in favour of the plaintiffs has not been acquired. The application alongwith the report was directed to be returned to the applicant, Malik Khan Muhammad Mazhar, one of the plaintiffs. Relying on this report, the two Courts have held that the suit land does not form part of New Garden Town Scheme of the L.D.A. This reasoning, in my judgment, is entirely frivolous. To begin with, there seems to be no occasion for obtaining the so- called no objection certificate. The matter could clearly be resolved by demarcation and not by issue of no objection certificate. Secondly, the applicant himself avers that he is the owner of Khasra No.16872/6006 measuring 3 Kanals, 7 Marlas situated in the Ahmad Block, Garden Town, Lahore. In para. 3 of the application, the plot in question is described by the bounded properties, and according to this it is bounded Plot No.39-A on the South and Plot No. 18 on the East. Once again locality (New Garden Town) is not mentioned with Plot No. 39-A or Plot No. 18. The reference obviously is to Plots Nos. 39-A and 18 of the New Garden Town Scheme. Once again if, according to the applicant/plaintiff, the plot is situated in Ahmad Block, Garden Town, Lahore, and is bounded by other plots situated in the same, then how can anybody declare that it is outside the acquired area of the L.D.A. Even this document of the plaintiffs established beyond challenge that Khasra No.6006 measuring 48 Kanals, 12 Marlas and 14 square feet fell to the share of L.D.A. After the remaining 53 Kanals, 11 Marlas and 53 square feet was retained by the University. If the whole stands acquired by LDA/LIT, it is irrational to suggest that the part would stand excluded` from acquisition. The Land Acquisition Collector has not at all looked into this aspect. Further, the Land Acquisition Collector does not seem to hate given his own reasoning or judgment. He has simply referred to the earlier demarcation report as well as the letter dated 20-4-1985 and then proceeded to state that an area of 3 Kanals, 17 Marlas is outside the acquisition made by the LIT/LDA. This learned officer has not even cared to consider that mutation in favour of the applicant-plaintiff was only that of 67/1232 share out of whole of the area and without proper division and demarcation, nobody would come to a conclusion as to what part of the whole of Khasra No.16872/6006 came to the share of the plaintiffs and where was it located. No reliance whatsoever, in the circumstances, could be placed on this document as the same simply follows the demarcation report (Exh.P.8) to which 1 will now refer as learned counsel has further laid great stress that this report coupled with other documents discussed above, clinches the issue in favour of his clients.
14. Exh.P.8 is the report prepared by Sardar A.I, Local Commissioner, dated 20-4-1991, in pursuance to the order dated 30-3-1991 passed by Tehsildar, Lahore Cantt, on an application dated 28-3-1991 made by Qasim A.I, the vendor of the plaintiffs through Mr. Z.H. Raja. Advocate. It is averred in the application that on 7-1-1989 Mutation No. 24044 was sanctioned in favour of the applicant in respect of Khewat No.1960, Khatuni No. 5308, Khasra No.16872/6006 measuring 61 Kanals, 17 Marlas, to the -extent of 3 Kanals, 7' Marlas and 8 square feet and it was asserted that since the mutation, the land has not been demarcated. The request was made that the applicant's area be directed to be demarcated either through a commission or otherwise. The application bears an order dated 30-3-1991 by the Tehsildar appointing Haji Sardar A.I, retired as Local Commissioner, as per request of the applicant.Exh.P.8 is the report, which after giving the necessary history of the ownership of the applicant, stated that the Local Commissioner has done the needful on the strength of a site plan of the L.D.A. The report stated that on the spot an area of 3 Kanals, 7 Marlas and 8 square feet has been carved out/demarcated and necessary burjees have been fixed on the four corners. The report also states that this area is outside the Scheme, but once again the name of the Scheme is not given. The report further states that the applicant and everybody present felt satisfied and that the report be sent back to the Tehsildar. On the back of the report it is written under the signatures of Tehsildar, Lahore Cantt:------- The plan referred to in Exh.P.8 is produced as Exh.P.9.
15. The two learned Courts below have gravely erred in relying on the application (Exh.P.7), the report (EXh. P -R) arid the plan (Exh.P.9). No credence whatsoever can be placed on the report on the simple ground that this is in breach of section 117 of the Punjab Land Revenue Act, 1967, read with rule 67-A of the Land Revenue Rules, 1968, as added in Punjab by notification dated 23-11-1973.
Under section 117, it is the Revenue Officer alone who has the authority to make demarcation and to define the limits of any estate or any holding, field or other portion of an estate, Under section 4(23). The Revenue Officer means having authority under this Act to discharge the functions of a Revenue Officer. Section 7 of the Act lays down the classes of Revenue Officer who are (a) Board of Revenue, (b) the Commissioner, (c) the Collector, (d) the Assistant Collector of the First Grade and
(e) the Assistant Collector of the Second Grade. Tehsildar is defined in section 11 of the Act and it means the Chief Officer entrusted with the local revenue administration of a tehsil and he shall exercise such Dowers and discharge such duties of an Assistant-Collector, as may be expressly conferred or imposed on him by or under this Act.
16. When an application for demarcation or defining the limits is made to a Revenue Officer under section 117 of the Punjab Land Revenue Act, 1967, the same is dealt with under rule 67-A of the Land Revenue Rules, 1968. The rule in depth enumerates the steps to be taken by the Revenue Officer in dealing with such applications. Under sub-rule 4(c)(v), the Revenue Officer is bound to cause a notice in Form XXXIII-P to be issued in duplicate to any other person whose presence at the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer. The rule also lays down that after completion, the entries in the register maintained for the office shall be made.
17. The above review of the legal provisions suffices to show that the report Exh.P.8 alongwith plan (Exh.P.9) is an outright illegality. The application being addressed to Tehsildar and assuming that he was Revenue Officer having been specially authorised under section 11 of the Act, (although there is no material to hold that), he had himself to do the demarcation. The appointment of Haji Sardar A.I, a retired Revenue officer, as Local Commissioner to do the job is completely without sanction of law. Neither section 117 of the Act nor rule 67-A of the rules authorise demarcation by a local commissioner muchless a retired official and that also of the choice of the applicant as is recorded in the order dated 30-3-1991. Further, even if the report (P.8) was made by an authorised person, under the law it could still be disregarded as the local commissioner as well as Tehsildar did not give any statutory notice to the L.D.A. Who, if not considered necessary, could expediently be heard and be present at the time of the exercise. I am very clear in my mind that the whole exercise culminating in P.7, P.8 and P.9 is an exercise in futility and does not establish the case of the plaintiffs except that the plaintiffs/their predecessor has been trying to deliberately connect the area covered by disputed Khasra No.16872/6006 to plot No. 19 of Ahmad Block of New Garden Town Scheme of L.D.A. It is unfortunate that neither the learned trial nor the appellate judge reverted to the law on the point and proceeded on the assumption as if the reports made by the local commissioner were the gospel truths and need not be scrutinized, or deeply examined alongwith the other documents and the evidence on record. It will also be profitably noticed that Tehsildar himself has passed no order. He simply says; "13/5/1991 ---Hasbe Raport ehl commission nashandehi hu cchoki hai, Dakhel dafterhua--- He does not even say that he approves of it. In other words, it is not his "demarcation". He abdicated his authority in law which is entirely illegal, to say the least.
18. As Exh. P.5, the report of the Land Acquisition Collector dated 28-8-1991, is based on the demarcation report (Exh.P.8) and the later has no legal basis to stand and is-a void document, Exh.P.5 sinks for this reason along although the report (P.5) can otherwise not stand the test of scrutiny as noted above.
19, For the reasons stated above, the findings of the two Courts below under Issues Nos. l and 8 are hereby set aside. Issue No. l is decided in favour of the petitioner-defendant, while Issue No.8 is decided against the respondents defendants. It is held and declared that respondents have no right or interest in plot. No. 19, Ahmad Block, New Garden Town Scheme, Lahore. Consequently, they have no right to occupy and possess the same and their suit is liable to dismissal and the same is hereby dismissed with costs throughout. This petition is accepted.
20. Before parting with this Judgment, I cannot restrain from observing that the conduct of the then Tehsildar, Lahore Cantt, and Muhammad Siddique, the then Naib-Tehsildar, L.C.A. Branch, L.D.A., Lahore, has been proved to be dubious and they are shown to have conducted themselves in an entirely shady manner. In particular, the Tehsildar Lahore Cantt, has acted in an entirely illegal manner and has conducted the so-called "demarcation" in utter disregard of the provisions of law, as noted above. It would be open to the petitioners to initiate and seek initiation of appropriate legal proceedings against these persons.