' The judgment and decree dated 24-5-1990 passed by the learned Additional District Judge, Faisalabad have been assailed in this revision petition by one of the two defendants in the suit. It arises out of the following circumstances.
2. Respondent No,1, filed a suit, initially against the F.D.A., respondent No,2, claiming therein that he was owner in possession of land measuring 6 Marlas and 3 Sarsahis by virtue of the Notification of the Government of the Punjab dated 22-2-1979. It was averred that the disputed land was in his possession since 1965. The Faisalabad Development Authority had conducted a survey in which the name of the petitioner was also included and he was entitled to the grant of proprietary rights, instead, he was being threatened with dispossession.
3. On the application of the petitioner (Masjid Maktab Anwar-e-Madina) it was impleaded as defendant No,2 to the suit. The case of the petitioner was that the land in dispute, alongwith other piece of land, had been transferred by the F.D.A. In favor of the petitioner by order dated 22-8-1984 of the Director-General, F.D.A.
4. The suit was contested by the, petitioner and respondent No,2. The F.D.A. In its written statement stated that a survey was carried out in which House No,6 of respondent No,2 was recorded at Serial No,6 and in lieu thereof he was allotted Quarter No,476-K in the Allama Iqbal Colony, Faisalabad, which he refused to accept. In the written statement the petitioner raised a number of preliminary objections including that the case of the petitioner was not covered by the Notification dated 22-2- 1979.
5. Necessary issues were framed and the suit was tried. The learned trial Court found that the plaintiff-respondent No,2 was in possession of the disputed land. About the policy dated 22-2-1979 it was observed that it contained certain instructions and did not confer any right on the plaintiff for which declaration could be granted under section 42 of the Specific Relief Act. It was further observed that the land vests in the Government. Accordingly on 7-3-1988 the suit of the plaintiff- respondent No,1 was decreed only to the extent that the defendants in the suit were restrained from dispossessing the plaintiff illegally and without due course of law.
6. Respondent No,1 filed an appeal. The learned First Appellate Court found that the plaintiff was admittedly a resident of Katchi Abadi and according to para. 4 of the policy letter dated 22-2-1979 he was entitled to the proprietary rights. Accordingly his suit was decreed.
7. The learned counsel for the petitioner contended that the policy letter dated 22-2-1979 has been misconstrued and misapplied by the learned First Appellate Court and that the case of the plaintiff-respondent No,1 was pot covered thereunder because the said place was not being used as a dwelling house, rather a commercial activity were being carried out thereon. His further grievance is that the evidence as to the use of the place for residence or otherwise was not at all considered by the learned First Appellate Court. The plaintiff-respondent No,1, as per his own showing was an unauthorized occupant and, therefore, was not entitled to the declaration that he was owner in possession of the disputed property.
8. The learned counsel for respondent No,1 submitted that the F.D.A. In their written statement, had admitted that a survey was carried out and, therefore, the area where the disputed land is situated was Katchi Abadi and in accordance with the policy letter dated 22-2-1979 the plaintiff-respondent No,1 was rightly granted the declaration. It was further contended that no evidence was produced on the record as to the transfer of the disputed land in its favor as asserted by the petitioner.
9. Mr. Akbar Ali Qureshi, Advocate represented the Faisalabad Development Authority. According to him, the plaintiff-respondent No,1 was unauthorized occupant. On being questioned, he conceded that the area was notified as Katchi Abadi and in accordance with the survey carried out in 1975 and in accordance with the policy of the F.D.A. The plaintiff-respondent was offered Quarter No,476-K in Allama Iqbal Colony which he refused to accept.
10. The submissions made by the learned counsel for the parties have been considered. The case of the plaintiff was that he was an owner in possession by virtue of the policy letter dated 22-2-1979 of the Government of the Punjab in the Local Government and Rural Development Department. This policy letter contemplated transfer of proprietary rights to the bona fide residents of notified Katchi Abadies. Therefore, by virtue of this letter the plaintiff-respondent No,1 could, at best claim to be entitled to the grant of proprietary rights but this policy circular did not ipso facto make the residents of the Katchi Abadies, as the owners of the land in their possession. The matter, however, does not end here.
11. According to para. 2 of the said letter the bona fide residents of notified Katchi Abadies were entitled to the proprietary rights while according to para. 4, which has been relied upon by the learned First Appellate Court, although the ceiling for transfer of land was 5 Marlas yet those persons who had occupied more than 5 Marlas of land and constructed houses on them should be asked either to surrender the excess land or to pay the prevailing market price in the locality. A perusal of the aforesaid letter shows that the benefit was intended to be given to the residents of the Katchi Abadi to save them from being rendered as homeless. It was, therefore, necessary for the learned First Appellate Court to have examined the evidence as to the purpose for which the disputed place was being used P.W.1 stated that on the disputed site the plaintiff was not residing but there was a Fire Wood Stall. He, however, improved by stating that he was presently residing there and the Fire Wood Stall had been shifted to Faizabad. P.W.2 also admitted that on the site in dispute there was a Fire Wood Stall but again stated that the Fire Wood Stall had been shifted to Faizabad and the plaintiff was residing at the disputed site. He, however, admitted that to begin with there was a Fire Wood Stall at the disputed place which was shifted to Faizabad six months back. His statement was recorded on 2-2-1987 which means that till about the end of July, 1996, the disputed site was being used as a Fire Wood Stall i,e, for a commercial purpose. Thus, from the evidence produced on the record it is clear that the disputed site was not being used by the plaintiff for his residence even when the suit was filed on 2-9-1985.
12. It may also be noted that in his statement the plaintiff-respondent as P.W.3 admitted that he occupied the disputed site without the permission and the Quarter No,476-K, Allama Iqbal Colony, was allotted in his favor in lieu of the survey. He also admitted that in the disputed locality 10/12 families were settled who had been provided alternate accommodation by the Government and who had shifted from there. The effort of the plaintiff-respondent No,1 has been to get the disputed site transferred in his favor notwithstanding allotment of alternate accommodation. I have no doubt in my mind that the case of the plaintiff-respondent was not covered by the policy circular dated 22-2-1979 and even if it was covered the plaintiff was not entitled, to the declaration that he was owner in possession.
13. For what has been stated above, this revision petition is allowed. The impugned judgment and decree of the learned Additional District Judge dated 24-5-1990 is set aside with the result that the judgment and decree dated 7-3-1988 of the learned trial Court stands restored. No order as to costs.