MAULVI ANWARUL HAQ, J.--- The respondents served a notice dated 4.4.1989 followed by a notice dated 16.4.1989 on the petitioner threatening him to demolish some structures raised by her.
Feeling aggrieved she filed a suit against the respondents. According to the plaint the petitioner having purchased some land, got a plan sanctioned for construction and raised the structures in the year 1974. According to the plaint the respondents were abusing the process of law contained in the Punjab Local Government Ordinance, 1979 to facilitate an individual namely, Fauzia Ishaque.
It was contended that the matters between the said Fauzia Ishaque and the petitioner are already sub-judice and status quo order is in force. It was averred that no provisions of the said law has been violated by the petitioner. In reply the stand taken by the respondents in their written statement was that the petitioner had in fact encroached upon land belonging to Muzaffar Iqbal and others.' Violation of the sanctioned plan was also alleged. The learned Trial Court framed issues. Recorded evidence of the parties and proceeded to dismiss the suit of the petitioner vide judgment and decree dated 21.12.1991. An appeal filed by the petitioner was heard by the learned Additional District Judge, Lahore who dismissed the same on 28.5.1995. The present Civil Revision was filed. It came up for hearing on 29.10.1996 when it was contended by the learned counsel that the matter has been inquired into by the respondents and a Town Planner has reported that there is no encroachment by the petitioner and that the impugned notices are to be withdrawn. A notice was issued to the. Learned Standing Counsel, for respondent No. 1. The case was adjourned on a number of occasions to enable the said Standing Counsel to verify the averments of the learned counsel for the petitioner but he-was not able to do so. The parties are represented by their learned counsel. Certified copies of the entire record are available. This matter is being decided as a pacca case after hearing both the parties.
2. Learned counsel for the petitioner contends that neither in the notice nor in the written statement was there any allegation of encroachment against the petitioner on any land of the respondents.
Regarding the deviation from the approved plan the learned counsel submits that the same being internal in nature and not'-constituting the encroachment on respondents' property, it was subject to composition in accordance with law and the Rules. Learned counsel for the respondents, orr the other hand, has conceded that there is neither any allegation nor proof of encroachment by the petitioner on any Municipal property. He, however, insists that the structure in question are liable to be demolished being in violation of the approved 'plan.
3. I have gone through the certified copies of the record appended with the Civil Revision, -with the assistance of the learned counsel for the parties. I find that the learned Courts below not only allowed the respondents to walk out of their pleadings contained in their written statement but placed reliance on evidence which by all means is inadmissible while non-suiting the petitioner. I have already made reference to the contents of the written statement. It has not been alleged by the respondents that the petitioner has encroached on any Municipal property, or any road or street. The learned Courts below, therefore, misread the pleadings and consequently the evidence on record while recording their respective judgments. The evidence of the respondents alleging encroachment on Municipal street by the petitioner has been admitted and read in violation .Of the rule of secondum allegata adprobata. The Rule is that a party cannot be allowed to lead evidence in respect of plea not taken in the pleadings and even if such evidence is brought on record, the same cannot be looked into. Reference be made to the case of Messrs Choudhary Brothers Ltd., Sialkot Vs. The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others (1968 SCMR 804).
The proposition laid down in the said judgment has been consistently followed by the Supreme Court as also this Court. Even the learned counsel for the respondents has been candid and has admitted that it was not the case of the respondents that the petitioner has Made any encroachment on the Municipal road/street.
4. Had the learned lower Courts cared the properly read the sale -deeds Exs.R.2 and P.3, the matter could have been resolved very easily. The petitioner has purchased the land under her house from Ch. Ghulam Sadiq vide Ex.P.2 while Ex.P.3 is the sale-deed in favour of said Ch. Ghulam Sadiq by Mst. Fehmida Begum wife of Ch. Ghulam lshaque. A reading of Ex.P.3 would show that it to be correct that an area of 101/2 marlas was sold and it was described with reference to its Khasra No. 4566/1489/1490, however, the land sold is also described with reference to its boundaries: Ex.P.3 was executed in favour of Ch. Ghulam Sadiq on 16.4.1966. According to this document the land sold the said Ghulam Sadiq by Mst. Fehmida Begum is bounded as under:- East. Land of Moeenuddin, etc. West. 10 feet wide path.
North 30 feet wide road.
South - Building of M.I. Happy High School in possession of Ghulam Sadiq s/o Ghulam Muhammad.
This latter person is the vendee of Mst. Fehmida Begum and vendor of the petitioner. In sale-deed Ex.P.2 executed by Ghulam Sadiq in favour of the petitioner there is reference to sale-deed Ex.P.3 and the land is stated to be bounded as under:- East. Plot of land of Moeenuddin.
West. 10 feet wide path.
North. 30 feet wide road.
South. - Building of M.I. Happy High School.
5. I do not find anything on record, to the contrary, suggesting that the said description of the land in the two sale-deeds is not correct. Proceeding on the basis of the contents of Exs.P.2 and P.3 in the light of admission of the respondents that no encroachment exists on the road towards the North or the path towards the West, we are left with only the Eastern and Southern sides of the plot where encroachment could have been possible. As I have already stated above the property towards the South i.e. The building of the. High School is stated to be possessed by Ghulam Sadiq, the said vendor himself. There is nothing on the record that Ghulam Sadiq had ever alleged encroachment on the said School by the petitioner. I do find an order dated 8.4.1974 Ex.P.5 on the record passed by the Commissioner, Lahore Division. According to 'this order the Principal of the said School did make an application that a wall has been constructed in the School area and a notice was issued by the respondents to the petitioner. However, on appeal the respondents conceded that the notice is issued through oversight and was withdrawn. There is no other material on the record that any further proceedings were taken by the said School authorities or not. This leaves the Eastern side and here again I find that there is nothing on the record that the said Moeenuddin etc. Who had the plot or land on the Eastern side of the land sold to the petitioner by Ghulam Sadiq ever made any-allegation that the same had been encroached upon.
6. Learned Courts below have placed much reliance on the statement of D.W.1 Patwari. This witness had been in fact emphatic in his allegations that the petitioner is in. Possession of an excess area of 7% merles but there is nothing in his statement to suggest as to whom did the said area belong.
The allegation that there was some encroachment on the road or the street stands negatived by the written statement of the respondents as also the admission of the learned counsel that in fact no encroachment was made on the road or the street by the petitioner.
7. To my mind the evidence as it does not at all point out to any act of encroachment by the petitioner on Municipal land or for that matter any other land. It has been pointed out consistently by the superior judiciary that where there is any inconsistency between the area and the boundaries in a document and if boundaries are definite then it is the boundaries which are to prevail. Reference be made to the cases of Fazal Hussain and another Vs. Abdul Hamid (PLD 1971 Lahore 89) and Mundar Lal Sahu and others Vs. Jiwan Ram Marwari (AIR 1944 Patna 254). I have already stated above that there is nothing on the record to suggest that the boundaries stated in the two sale-deeds Ex.P.2 and P.3 are not correct. In this view of the matter the findings recorded by the learned Courts below holding the petitioner to be guilty of having committed encroachment on the land of respondents or some one else cannot be sustained.
8. This leaves the matter of deviation from the approved plan. In the absence of any encroachment on the Municipal land; the deviation being internal in subject to composition. It appears that neither of the parties had approached the matter with the said angle.
9. For all that has been stated above this Civil Revision is allowed. The judgments and decrees of both the learned Courts below are set aside and the suit of the petitioner is decreed with the observation that in the first instance the respondents shall point out the deviation if any made from the original plan to the petitioner who shall then approach the respondents for composition and the matter shall be dealt with and decided in accordance with law by the respondents. The parties to bear their own costs.