MUHAMMAD ISLAM BHATTI, J.- This judgment is intended to dispose of three connected matters C.R.
No. 223-D-1990, C.R. No. 1754-95 and C.R. No. 249-D-97.
2. The facts giving rise to these Civil Revisions, briefly stated, are that Ch. Ilam Din (petitioner in C.R.
223-90) purchased 7 knalas of land bearing khasra No. 4871/2916, 4875/2917, 4877/2918, and 4879/291?, situated in village Bhikhewal Tehsil & District Lahore for a sum of Rs. 18000/- from one Muhammad Ahmad s/o Ahmad Hassan by means of a registered sale deed dated 8-11-1975. The said Muhammad Ahmad sold this land to Ilam Din being the general attorney of the owner of this land namely Khalifa Ghaus Muhammad s/o Khalifa Dost Muhammad. This Ilam Din subsequently sold a plot measuring 18 kanals out of this land to/Mrs. M.B.Surayya for a sum of Rs. 6000/-0 on 14- 1-1976. Another piece of land measuring 18 marlas was allegedly sold by Ilam Din to Maqsood Elahi for a sum of Rs. 4500/- by means of a registered sale deed dated 5-4-1976. All this land was, however, acquired by the LDA whereafter applications were invited for exemption of plots. Ilam Din claims that in response to his application for the purpose, the LDA asked him by means of letter dated 10-7-1979 to file a certified copy of the mutation of sale in his favour which he accordingly did on 10-8-1979 but the LDA failed to take any action with regard to the exemption of the land or compensation therefor. Mrs. M. B. Surayya also claims that in response-to a letter by the LDA dated 15.7.1979, she submitted the requisite documents on 15.8.1979 but the LDA failed to take any action thereon. Similar is the claim of Maqsood Elahi.
3. Ch. Ilam Din brought a suit against the LDA as early on 2.9.1981 for a declaration to the effect that he was the owner of the land in dispute. As a consequential relief, he prayed for a direction to the LDA to exempt the plot and to make compensation in accordance with law. Similar suits were instituted by Mrs. M.B. Surayya and Maqsood Elahi on 2.9.1981 and 9.9.1981 respectively.
4. All these three suits were contested by the LDA. In the suit brought by Ch. Ilam Din, it was inter alia pleaded that allotment of disputed land in favour of Ghaus Muhammad, predecessor-in-interest of the plaintiff, was cancelled by the A. S.C.(C) Lahore vide his order dated 16.11.1962 and as such the plaintiff was not the owner of the said land. Parties in all the three suits were put to issues arising out of their respective pleadings, the reproduction of which shall amount to burdening this judgment un-necessarily.
5. In the suit brought by Ilam Din, he appeared as his on witness and produced Haji Ahmad Din Wasiqa Navees as PW 1 for deposing that the registered sale deed exh: PI dated 6.11.1975 had been scribed by him. The attorney, of the plaintiff and one Muhammad Bilal appeared as PWs in the suit brought by Mst. Surayya. Maqsood Elahi plaintiff, Ilam Din the vendor, and Haji Ahmad Dia the scribe of the original sale deed) exh: PI in the said suit appeared as PWs in the suit brought by Maqsood Elahi, Muhammad Amin Patwari LAC Branch, Muhammad Yousaf Patwari Exemption Branch and Muhammad Mazhar Alam Patwari LAC Branch of the LDA were examined as DWs in the suit brought by Ilam Din. Allah Bakha Naib Tehsildar LAC Branch LDA and Muhammad Iqbal Naib Tehsildar Exemption Branch appeared as DWs in the suit brought by Mrs. M. B. Surrayya while Abdul Karim Naib Tehsildar and Muhammad Yousaf Patwari appeared as DWs in the suit instituted by Maqsood Elahi.
6. After discussing the evidence on record, the learned Civil Judge, seized of the matter, gave his findings on the issues in the case and on the basis thereof he decreed the suit brought by Ch. Ilam Din by means of his detailed judgment dated 14.11.1987. On issue No. 1 which was the material issue, he concluded that an analytical consideration of the evidence on record showed that by producing registered sale deed Exh. PI, the plaintiff Ilam Din had proved that the disputed land had been alienated in his name by its owner Ghaus Muhammad and that the contention of the defendant that allotment of Ghaus Muhammad was cancelled by the ASC as per Exh. D2 was without force because Exh: D2 which was copy of record of rights, only contained a note in the remarks column that the allotment had been cancelled by the ASC vide his order dated 16.11.1962, but no copy of the said order had been produced by the defendant and it had also not been shown by the LDA that the ASC (C) was competent to cancel the said allotment. The learned Civil Judge observed further that it was incumbent on the defendant to have produced the relevant document to show that the said allotment had in fact been cancelled which it failed to do. No, therefore, came to the conclusion that the plaintiff Ilam Din was owner of the disputed land and was entitled to exemption of plot and the payment of compensation therefore.
7. The suit brought by Maqsood Elahi, however, failed because the learned Civil Judge seized thereof came to the conclusion that the plaintiff had not been able to show his title clear from any encumberances and that he was not convinced that Ilam Din was competent to alienate the disputed land in favour of the plaintiff in the presence of a note given by the revenue department with regard to the cancellation of this land. He, therefore, dismissed the plaintiff's suit with costs by means of his detailed judgment and decree dated 13.4.1988.
8. The suit brought by Mst. M.B. Suravyya was, however, decreed on 8.6.1994 by the learned Civil Judge with whom the case was then pending after he came to the conclusion that the plaintiff had succeeded in proving her ownership and entitlement to the exemption of the disputed land. Parties were, however, left to bear their on costs.
9. The appeal filed by the LDA against judgment and decree dated 14.11.1987 passed by Syed Nasir Ali Shah, the then learned Civil Judge Lahore, in suit brought by Ch. Ilam Din was, however, accepted on 2.5.1988 and the learned Addl. District Judge came to the conclusion that Ilam Din had not been able to produce the relevant revenue record clearly establishing his ownership and that the LDA had succeeded in showing that he was not the owner thereof as the said land was cancelled from the Khatta R.L. II of his predecessor-in-interest. He also observed that Ilam Din had failed to produce M.O.C. Alongwith application for exemption of land and as such his application was not considered by thew Controller. He, therefore, upset the findings of learned Trial Court oh the relevant issues, accepted the appeal and set-aside the impugned judgment and decree. There was, however, no order as to costs.
10. The appeal filed by Maqsood Elahi was also dismissed for similar reasons on 29.1.1995 because the learned Appellate Court came to the conclusion that the Trial Court had rightly appreciated the evidence brought on record and it could not be said that the suit brought by Maqsood Elahi was dismissed without any justification. The appeal preferred by the LDA (No. 105 of ?7) against Mst. M.B.
Surayya was accepted by the learned Addl. District Judge on 19.1.1997 after holding that Mst.
Surayya could not be declared to be the owner of the suit land. He, however, added that she could produce the relevant documents before the LDA and the latter might proceed in this matter and if it comes to the conclusion that she was entitled to exemption, the same should be allowed irrespective of the findings of the Court in this appeal. After accepting the appeal he set aside the impugned judgment and decree but left the parties to bear their on costs.
11. Aggrieved by these judgment and decrees, Ilam Din, Maqsood Elahi and Mrs. M.B. Surayya have come to this Court u/S. 115 of the C.P.Code claiming that the Courts below acted in exercise of their jurisdiction illegally and with material irregularity.
12. The relevant facts reproduced above indicate that it was Ilam Din who purchased 7 kanals of land comprising khasra Nos. 4871/2916 measuring 8 marlas, 4875/2917 measuring 3 kanlas 10 marlas, 4877/2918 measuring 2 kanals 4 marlas and 4879/2929 measuring 18 marlas from Muhammad Ahmad being the Mukhtar- in-Aam of Ghaus Muhammad who as per the revenue record was shown to be the owner of this land. He claimed in his suit as PW2 that after this land had been acquired by the LDA, he moved an application for its exemption and compensation therefore within time, but no action was taken on his application. He added that all the documents required of him were in fact produced by him before the LDA.
13. In the written statement filed by the defendant, besides certain preliminary/objections it was claimed, on facts, that the land measuring 7 kanals referred to in the plaint was previously entered in the name of Ghaus Muhammad s/o Dost Muhammad but according to order dated 16.11.1962 of the learned ASC Lahore, the name of the said Ghaus Muhammad was deleted and instead the property was mutated and entered in the name of the Central Government and that as such the Central Government being the owner, the possession was taken over by the defendant on 22.6.1976 without any compensation. It was also maintained that the plaintiff being not the owner of the property could not claim exemption of the plot and so such his suit was liable to be dismissed.
14. Issue No. 1 in the suit was in the effect whether the plaintiff was the owner of the suit land and was entitled to exemption and compensation? In order to establish his ownership, the-plaintiff placed reliance on exh: PI being the certified copy of the registered sale deed. Its perusal makes it abundantly clear that he purchased the area in dispute from Khalifa Ghaus Muhammad, its owner, as per the revenue record, through his Mukhtar-i-Aam Muhammad Ahmad. The sale through registered sale deed definitely established that he had become the owner of the said land. The defendant, however, produced certain officials of the LDA for asserting that the plaintiff was not entitled to the exemption or compensation since his predecessor-in-interest namely Ghaus Muhammad no longer remained the owner thereof as per the orders of the ASC Lahore referred to above. The learned Civil Judge adverted to this aspect of the case and after a detailed discussion came to the conclusion that it was incumbent upon the defendant to have produced the relevant documents to show that the allotment in the name of the Ghaus Muhammad had in fact been cancelled. He also took note of the fact that it had not been shown that the ASC was competent to cannel the said allotment. In appeal, however, the learned Addl. District Judge had a different view.
It was held by him that respondent/plaintiff had miserably failed to prove his ownership and as such he was not entitled to exemption of plot or to any compensation therefore.
15. After giving my earnest consideration to the arguments addressed at the Bar and the evidence on record, I cannot but agree with the learned counsel for the plaintiff-petitioner that the view of the learned Appellate Court was totally erroneous and based on faulty reasoning. Once the plaintiff-petitioner had by producing a certified a copy of the registered sale deed in his favour established that he had stopped into the shoes of Ghaus Muhammad whose name was duly incorporated in the ownership column of the record of rights, as per exh: D2 even relied on by the defendant, the learned Addl. District Judge was wrong in being carried away by only an endorsement/reference that the R.L. II No. 702 had been cancelled as per the orders of the ASC (L) dated 16.11.1962. In fact, if is not clear from exh: D2 as to who made this entry or whether it was duly incorporated in the ownership column of the record of rights. It is also questionable as to whether the ASC was competent to pass such an order and there is nothing on record to show that the LDA made any effort to justify their refusal to award exemption or compensation to the plaintiff.
16. Muhammad Yousaf Patwari DW 2 stated in his examination-in-chief that the plaintiff has moved an application for exemption appending therewith a photo copy of his registered sale deed but Collector (obviously L.A.C.) did not establish his ownership and as such no proceedings were carried out on the said application. This witnesses was obviously not competent to make any positive statement and that is why in his cross-examination, he first deposed that the plaintiff was not informed but then corrected himself and stated that the plaintiff was asked to produce R.L. II. He then volunteered that it was for the LAC Branch to say as to where was the R.L. II. On being further cross examined, he added that, the LAC never served the plaintiff with a notice to meet the claim of the Department that R.L. II in the name of Ghaus Muhammad had since been cancelled. It appears that the LAC proceeded on a wholly misconceived view. He should have carried out the requisite inquiry to ascertain whether the so-called order of the ASC (L) had duly been incorporated and given effect to in the revenue record. The refusal of the LDA to grant exemption or pay compensation to the plaintiff was, therefore, totally unjustified and uncalled for.
17. The learned counsel for the LDA Mian Muzaffar Hussain has proposed that the cases should be remanded to the Court of first instance for holding a fresh trial by affording an opportunity to both the parties to produce better evidence on this point. I am not impressed by this argument because remand should not be lightly ordered particularly if the evidence on the record is sufficient to decide the real question in issue.
18. Ilam Din sold certain pieces of land to Maqsood Elahi s/o Manzoor Elahi and to Mrs. M.B. Surayya through registered sale deeds and also to certain other persons and relevant mutations were duly entered and attested on the basis thereof by the revenue authorities, which is indicative of the fact that the order of the year 1962 allegedly passed by the ASC(L) was never acted upon for taken note of by the revenue authorities. The learned counsel for the petitioners has in support of his contention placed before the Court for perusal a certified copy of mutation No. 7855 of village Bhikhewal presumably issued on 28.1.1970 and another copy of Jamabandi for the year 1979-71 for asserting the name of Ilam Din was duly incorporated in the ownership column of the record of rights for the year 1970-71 and Maqsood Elahi s/o Manzoor Elahi purchased a piece of land out of his ownership as per the mutation referred to above.
19. Without commenting on these documents which are not a part of the judicial file but keeping in view the documentary evidence brought on record by the defendant itself, I have come to the conclusion that Ilam Din had become the owner of the land in question on the basis of a registered sale deed and was fully entitled to claim exemption and compensation and so were Maqsood Elahi and Mrs. M.B. Surayya, the other revision petitioners.
For all these reasons, I accept the Civil Revision filed by Ilam Din, set aside the impugned judgment and decree of the lower Appellate Court and uphold the judgment and decree passed by the learned civil Judge dated 14.11.1987. Similarly, the Revision Petition filed by Maqsood Elahi is also accepted and the judgments and decrees passed by both the Courts below are set aside. The civil Revision filed by Mrs. M.B. Surayya is also accepted, judgment and decree of the learned Addl.
District Judge is set aside and the judgment and decree of the learned Civil Judge dated 8.6.1994 is upheld.
The LDA shall bear the costs of the petitioners throughout.