ORDER CH. IJAZ AHMAD, J.- Brief facts out of which present revision petition arises are that the land of the petitioner measuring one kanal bearing Khasra No. 474/3 situated at Mauza Peer Kalan, Tehsil and District Lahore was acquired by the respondents for residential scheme known as Township, Lahore. The respondents exempted plot No. 1 situated in Block-4, Sector-C/Il, measuring 10 marlas after development in the area in-question and terms of the policy of the respondents vide allotment letter dated 15.6.1972. The respondents also intimated the petitioner to contact Sub- Engineering of the respondents in-connection of delivery of the possession of the aforesaid allotted plot to her vide letter dated 18.4.1985. An agreement was also executed between the petitioner and the respondents qua the said plot on 18.1 1.1985. The petitioners submitted an application before the District Housing Officer of the respondents with request to allow her to pay outstanding of the plot in-question to the respondents. The respondents did not redress the grievance of the petitioner.
The petitioner being aggrieved filed a suit for declaration with consequential relief before the Civil ]judge 1st Class, Lahore against the respondents. On 22.9.1993, initially the scheme was floated by the Housing and Physical Planning Department. During the pendency of the suit, respondents Nos. 1 to 3 had transferred the scheme in question to Lahore Development Authority. The petitioner submitted an application for the amendment of the plaint which was allowed. The petitioner filed amended plaint against the Housing and Physical Planning Department and LDA. The respondents filed written statement of the amended plaint controverting the allegations levelled in the plaint.
Out of pleadings of the parties, the learned Trial Court framed the following issues:- Issues:
(1) Whether the plaintiff is entitled to the decree of declaration and possession in the light of prayer clause of plaint? OPP
(2) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD
(3) Whether this Court has no jurisdiction to try the suit? OPD.
(4) Relief.
2. The learned Trial Court decreed the suit vide judgment and decree dated 22.10.1999. The respondents being aggrieved filed an appeal before the learned Addl. District Judge, Lahore, who accepted the appeal vide judgment and decree dated 27.3.2001. Hence, the present revision petition.
3. The learned counsel of the petitioner submits that judgments of both the Courts below' are at variance. The learned first Appellate Court did not advert to the reasoning of the learned Trial Court, therefore, judgment of the first Appellate Court is not sustainable in the eyes of law. He further submits that the first Appellate Court was erred in law to decide the case against the petitioner and reversed the findings of the learned Trial Court by mis-reading Ex.P-1 allotment letter of petitioner dated 15.6.1972 which was also produced by the respondents before the learned Trial Court which was marked as Ex.D-1. He further submits that allotment in favour of the petitioner was not denied by the respondents. He further submits that first Appellate Court was erred in law to mis-read para No. 1 (II) of the allotment letter dated 15.6.1972 which reveals that the petitioner in excess of the area of allotted plot is in excess of her acquired land then has to pay full development charges and land acquisition charges for the excess area. He further urges that the petitioner has to pay the balance amount to the respondents after acquiring the possession of the plot in-question. The respondents failed to hand over the possession of the plot in- question, to the petitioner, therefore, the > petitioner was penalized by in-action of the respondents.-The learned Trial Court was justified to decree the suit; whereas first Appellate Court reversed ife findings without adverting to this aspect of the case. He further submits that possession was given to the petitioner by the respondents vide letter dated 18.11.1985; whereas in-fact the physical possession of the plot in-question was never handed over to the petitioner but this fact was not considered in its true prospectus by the first Appellate Court. He further urges that first Appellate Court was also erred in law to misconstrue the agreement to sell dated 18.11.1985 (Ex.P-5) and specially misread paras Nos. 1, 2 and 3. He further urges that the petitioner was non-suited only on the ground that the petitioner did not complete the formalities within prescribed period in terms of allotment letter dated 15.6.1972. He further urges that the respondents admitted the claim of the petitioner in para No. 4 of the written statement except that the petitioner did not complete formalities within prescribed period in terms of allotment letter, rules and regulations of the respondents.
4. The learned counsel of the respondents submits that plot in-question was allotted to the petitioner with specific condition as is evident from allotment letter dated 15.6.1972. The petitioner did not fulfill mandatory requirements mentioned in the allotment letter as well as in terms of scheme of the respondents, therefore, the first Appellate Court was justified to reverse the findings of the learned Trial Court after applying his independent mind with cogent reasons. He further urges that the respondents have taken definite stand in para No. 2 of the written statement that as per condition of the allotment letter, the petitioner was required to pay sum of Rs. 1,527/- as 20% provisional costs or total costs of the land within one month and execute agreement within stipulated period, failing which the allotment was liable to be cancelled automatically. The petitioner was also required to construct the building, thereafter getting the building plan approved by the competent authority. The petitioner deposited first instalment of 20% provisional costs of the plot in-question on 12.10.1972 and slept away. She did not turn-up to complete the other formalities, therefore, the allotment of the plot was learned to be cancelled in compliance with Government Order. The letter dated 18.11.1985 is fictitious document because it does not tally with the record. D.H.O, was not competent to execute an agreement with the petitioner after cancellation of allotment by the Government. D.H.O, was not competent to execute the agreement with the petitioner without approval of the competent authority. He further urges that impugned judgment of the first Appellate Court is in accordance with clause 3 of allotment letter dated 15.6.1972; whereas judgment of the learned Trial Court is in derogation of clause 3 of the agreement.
5. The learned counsel of the petitioner in rebuttal submits that judgment of the first Appellate Court is in accordance of para No. 7 of the allotment letter dated 15.6.1972; whereas first Appellate Court did not advert to para No. 7 of the allotment letter to the petitioner qua the plot in-question.
6. 1 have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.
7. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties. The land of the petitioner was acquired by the Housing and Physical Planning Department for Township Scheme. The allotment letter dated 15.6.1972 was issued by the respondents in favour of the petitioner with certain conditions. The petitioner had not deposited the remaining instalments qua the plot in-question in terms of allotment letter which the petitioner had to deposit within the period of 2 years from date of allotment but no payment was made within specified period. The petitioner preferred an application on 20.6.1988 with the prayer to allow her to deposit price of the plot in-question which the petitioner could not deposit under the provision of law. It is better and appropriate to reproduce the relevant provision of allotment letter dated 15.6.1972 to resolve the controversy between the parties:- I am to refer to your application form bearing Registration No. 126, dated 3.5.1971 for the allotment of a B-Category 10 Kanals/Marlas residential site in Lahore Township Scheme and to say that you have been allotted plot No. 1 in Block No. 4 Sector C-II measuring 10 marlas Lahore Township Scheme and as it is at site of category and area specified above in lieu of your land acquired for Lahore Township Scheme on the following conditions:- (i)-----
(ii) In case the area of allotted plot is in excess of your acquired land, you shall pay, the full development and land acquisition charges for the excess-area.
(2) In case you choose to pay the cost in instalments a sum of Rs. 1,527/- being the balance of 20% provisional costs of plot (in addition to the amount of Deposit-at-call receipt attached to your application form) should, please be deposited within one month from the issue of this communication and the remaining 80% within a period of two years/10 years from the date of allotment, in monthly/quarterly/annual instalments, as you may choose, alongwith interest % per annum. The interest will, however, bt dialoged at the penal rate of 9% per annum of instalments which are not paid on due date. The treasure challan may be deposited with the cashier of this office, one month from the date of issue of demand notice.
(3) If the payment demanded vide para (i) and 2 above (according to your choice), is not made within the stipulated period, this allotment will stand automatically revoked.
3.--- 4.----- 5.--- & 6---
7. Possession of the plot will be delivered after execution of prescribed agreement.
8. In case the aforesaid clauses of the allotment letter and facts are put in juxta position, then it is crystal clear that the petitioner did not deposit remaining amount to the respondents in terms of allotment letter which contained mandatory provision i.e. Clause-3. In case, the petitioner fails to deposit the remaining amount within prescribed period, then the plot in-question be cancelled automatically from the name of the petitioner. Coupled with the facts that the petitioner approached the respondents to deposit the remaining amount after 16 years. During the period of 16 years, the ground realities have been changed. It is settled' principle of law that no body is allowed to get benefit of his on mis-deed as per principle laid down by the Superior Court in the following judgments:- "G.M. Malik Chairman v. Province of Punjab, etc." (1990 CLC 1783); "Wali Muhammad and others v. Sakhi Muhammad and others {PLD 1974 S.C. 106).
The agreement to sell was executed between the petitioner and respondent D.H.O, on 18.1 1.1985 after the prescribed period of 2 years mentioned in the allotment letter dated 15.6.1972, the allotment order stand revoked automatically, in case the petitioner fails to deposit the remaining amount within prescribed period, as per law laid down by Honorables Supreme Court in Ameen's case (1984 SGMR 495) and Sadiq's case (1985 SCM R 654), thus, DHA was not competent to execute the agreement with the petitioner without permission of the Government. It is settled principle of law as regard findings of the learned Addl. District judge, Lahore on the aforesaid issues, it may be noticed that in his capacity as Appellate Court, the learned Addl. District judge possessed the jurisdiction to come to his on conclusion, qn the basis of evidence adduced before the learned Trial Court by the parties and resultantly, he could competently reverse the findings of the learned Trial Court on the questions of fact involved in the aforesaid issues. It is settled principle of law that findings on the questions of fact Or of law, whosoever erroneous the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under Section 115, CPC, unless such findings suffer from jurisdictional defect, illegality or material irregularity as per principle laid down by the Privy Council, in case "N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madrass" (PLD 1949 P.C. 26). The relevant observation is as under:- "This section empowers the High Court to satisfy itself upon three matters;
(a) that the order of subordinate Court is within its jurisdiction;
(b) that the case is one in which the Court ought to exercise jurisdiction,
(c) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is- satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusion of the subordinate Court upon the questions of fact or law."
No jurisdictional defect has, of course, been pointed. Out in this case and, similarly, no legal infirmity in the impugned judgment has been alleged."
The learned counsel of the petitioner failed to point out any piece of evidence which was mis-read and non-read by the first Appellate Court or decide the case in violation of the aforesaid principle laid down by the Privy Council.
In view of what has been discussed above, this civil revision petition has no merits and the same is dismissed.