JUDMGENT The respondent filed a suit for possession against the petitioner about Ihata No,17 measuring 12 Marlas situated in Chak No,99/12-L on 8-11-1965. The title claimed by the respondent was that the disputed Ihata stood allotted to him by Settlement Authorities through an order, dated 12-12-1959 which is placed on record as Exh.D.2. It is further submitted that physical possession was also delivered to the respondent on 4-2-1959 and to that effect rapat was also entered in the daily diary which is placed on record as Exh.P.4. The respondent constructed three rooms on the Ihata and the same were given to the petitioner who is a 'relative of the respondent on his asking till he gets his own Ihata. It is also averred in the plaint that when respondent was asked for possession the petitioner filed declaratory suit against the respondent on 23-9-1963 claiming himself to be owner of the disputed Ihata. This suit was withdrawn on 24-10-1963. Another suit was filed by the petitioner on 23-2-1965 which was contested by the respondent and same was also ultimately dismissed by the Senior Civil Judge Montgomery vide judgment, and . decree dated 15-7-1965. This judgment is placed on record as Exh.P.1. The petitioner went in appeal which also failed vide judgment and decree dated 8-10-1965. This judgment is placed on record as Exh.P.2. The petitioner's Second Appeal Regular Second Appeal No,1002 of 1965 was also dismissed on 27-5-1977. Copy of judgment is placed on record as Exh.P.3.
2. After the dismissal of the petitioner's appeal in the earlier round before the learned District Judge the respondent filed instant suit on 8-11-1965 for possession. The petitioner filed his written statement and claimed that he is in possession since 1960. The plea of adverse possession was also taken. The title of the respondent was denied. Learned trial Court framed various issues and recorded evidence which the parties wished to adduce and vide judgment and decree dated 24- 2-1983 the suit of the respondent was decreed and mesne profits at the rate of Rs,35 per month from 23-9-1963 till delivery of possession were also allowed. The petitioner went in appeal against the said judgment and decree which was dismissed by learned Additional District Judge vide judgment and decree dated 10-10-1985, hence, this petition.
3. Learned counsel for the petitioner contends that Ihata in dispute was allotted to the petitioner by Collector vide order dated 13-12-1980 and the petitioner has also deposited entire sale price of the Ihata. This allotment order was placed on record during the appeal in additional evidence as Exh.D.4. It is argued by the learned counsel that the property in dispute is not evacuee property but it was State land. It could not have been allotted to the respondent by Settlement Authorities and it being a State land was rightly allotted by the Collector to the petitioner through Exh.D.4. It is next contended' that the allotment order dated 12-12-1969 passed in favour of the respondent by the Settlement Authorities is illegal and without lawful authority inasmuch as under section 2(3) of the Displaced Persons (Land) Settlement Act, 1958, the land is described as agricultural land. Since this is not agricultural land, therefore, the allotment order was beyond the jurisdiction of Settlement Authorities. It is further submitted that the Settlement Authorities had no authority to allot village immovable property till the introduction of Scheme No,7 on 7-8-1961. It' is finally contended that the previous litigation rested mainly on the point that the petitioner's second suit without permission of the Court was not competent and any observation made therein by the civil Court upto High Court with respect to the merits of the case are not binding on the petitioner. He relies on Janda Singh and others v. Kasar Singh and another (AIR 1930 Lahore 149).
4. On the other hand learned counsel for the respondent while referring Exh.P.1 which is judgment of the learned Senior Civil Judge, he refers to decision made on issue No,3 wherein it was held by learned Senior Civil Judge that during the previous round of litigation the plaintiff (now petitioner) is not owner of the disputed plot. It is also held that the plaintiff (now petitioner) occupied the disputed plot as tenant of the defendant (now respondent). It is next contended by referring Exh.D.2 judgment of the learned District Judge in the previous round of litigation in para. 4 of the said judgment it is held, "moreover, the dispute related to the allotment of an evacuee plot about which civil Courts had no jurisdiction". The contention is that the matter already stand settled regarding the nature of the property that the same, is evacuee and is not State land, therefore, the same cannot be allotted to the petitioner. It is also contended that allotment order dated 12-12-1959 was never challenged by the petitioner before any forum upto date, not even in the declaratory suit filed by the petitioner in the earlier round of litigation, therefore, the same cannot be now questioned. While relying on 1975 SCM R 173 it is contended that in the presence of earlier allotment order, dated 12-12-1959 no fresh allotment order as claimed by the petitioner dated 13-12-1980 could have been passed. It is finally contended that the petitioner never pleaded in his written statement about the character of the suit property i,e, whether the same is evacuee or State land, therefore, this cannot be argued by the petitioner at this stage.
5. I have considered the arguments of learned counsel for the parties and also perused the record of this case.
6. So far as the question of title of the respondent and the character of the property in dispute is concerned the same stand already settled in the earlier round of litigation by way of which it was decided that the respondent is the owner of the plot dispute in view of allotment made in his favour vide order dated 12-12-1959. It was also settled that the plot in dispute is an evacuee plot. The petitioner also never challenged the said allotment order in favour of the respondent which has attained finality. Even otherwise in the presence of earlier allotment order in favour of respondent the Collector had no authority to pass a fresh allotment order in favour of the petitioner and treating the same as State land when already the civil Court has held that the plot in dispute is an evacuee property. So far as the question as to whether the allotment order dated 12-12-1959 was rightly passed the petitioner is not in a position to argue this point inasmuch as he neither pleaded it nor threw it under challenge upto date, before any forum. Even otherwise findings of the two Courts below are concurrent. Learned counsel for the petitioner has not been able to point out any misreading or non-reading on record.
7. For what has been stated above, I find no merits in this revision petition which is accordingly dismissed.