'This is a revision petition against the judgment and decree dated 3-3-1996 passed by the learned Additional District Judge, Lahore whereby he had dismissed an appeal filed against the judgment and decree dated 18-12-1995 passed by the learned Civil Judge 1st Class, Lahore in a suit for declaration and permanent injunction.
2. Property No,S-36-R-12 Railway Road, Lahore is a composite Unit consisting of both commercial and residential portions. Muhammad Ahmad Mumtaz plaintiff had filed a suit for declaration to the effect that he is the owner of the Barsati' situated in the aforesaid Property No,S-36-R-12 Railway Road Lahore. He claimed its possession and mesne profits for a period of three years from the date of institution of the suit and also future mesne profits at the rate of Rs,300 per month. He also prayed for a permanent injunction restraining the defendants from alienating the property in dispute to any other person till the decision of the suit. The suit was contested and on the basis of pleadings of the parties as many as eight issues were framed, which are as following:--
(1) Whether the plaintiff is entitled to a decree for declaration against the defendants as prayed for? OPP.
(2) Whether the suit is not maintainable? OPD.
(3) Whether the suit is barred by the principle of res judicata? OPD.
(4) Whether the suit is mala fide, vexatious, baseless, false, frivolous and is liable to be dismissed?
OPD.
(5) Whether the plaintiff has not come to the Court with clean hands? OPD.
(6): Whether the plaintiff has no cause of action? OPD.
(7) Whether the suit is barred by limitation? OPD.
(8) Relief.
3. After recording the evidence of the parties, the learned Civil Judge Lahore proceeded to dismiss the suit on 18-12-1995. Against the said judgment and decree an appeal was filed which was dismissed by the learned Additional District Judge, Lahore vide his judgment and decree dated 3- 3-1996. Aggrieved of the judgment and decree of the Courts below, the petitioner has come up in revision.
4. Arguments have been heard and record perused.
5. It has already been mentioned above that Property No,S-36-R12, Railway Road Lahore is a composite unit consisting of both commercial and residential portions. Shop No,2 was allotted to Sh. Fazal Din deceased, father of the petitioner, vide order' dated 6-1-1960 (Exh.P.1) passed by Deputy Settlement Commissioner (Central-III) Lahore and by the same order Fazal Din was also given the residential portion including the Barsati. The said order was later challenged by one Ghulam Rasool and the aforesaid appeal was accepted vide order dated 6-7-1960 passed by Ch. Nasrullah Khan, Additional Settlement Commissioner (Judi.), Lahore, directing that the shop reserved for auction be transferred to the appellant. Thereafter. Muhammad Hussain and Muhammad Ahmad filed appeal which was heard by S. Muhammad Azhar, Additional Settlement Commissioner (Judi.) Lahore. However, the said appeal was dismissed as barred by time and also on merits. The aforesaid order dated 3-5-1961 was challenged by Muhammad Hussain, the predecessor-in-interest of the respondents through a revision petition which was decided by Muhammad Saeed-uz-Zaman, Settlement Commissioner by his order dated 31-3-1964 who through the said order set aside the transfer of flat in favor of Fazal Din, the predecessor-ininterest of the petitioner and directed that flat be transferred to Muhammad Hussain while the other flat and Barsati were transferred to Zahoor Ahmad as he was held to be more deserving than Fazal Din.
This order was again challenged by the petitioner in Writ Petition No,682-D of 1964 which was decided by Mr. Justice Muhammad Fazal-i-Ghani Khan vide his judgment dated 16-10-1968. The learned counsel for the petitioner has pointed out that in the first paragraph of the said judgment the statement of the counsel for the appellant is recorded to the effect that the petitioner had no objection if the order of the Settlement Commissioner transferring the portion in possession of Muhammad Hussain is allowed to stand. He has pointed out that in the order of Muhammad Saeed-uz-Zaman which was impugned before the Honourable High Court only a flat had been transferred to. Muhammad Hussain and thus the petitioner withdrew his claim to the flat which was transferred to Muhammad Hussain. He has submitted that through the aforesaid judgment the transfer of Barsati to Zahoor Ahmad by Muhammad Saeeduz-Zaman Settlement Commissioner vide order dated 31-10-1964 was set B aside and hence the setting aside the order of the transfer of Barsati through the order dated 31-3-1964 had the effect that the earlier order of transfer of Barsati to the petitioner stood restored. He has argued that it was this judgment of the Honourable High Court which had been misread and misconstrued by the learned Courts below. He has argued that in fact after the judgment of the High Court the Settlement Authorities issued the PTD (Exh.P.5) to the petitioner and v hich specifically mentions that the Barsati had been transferred to the petitioner. He has argued that it was a well-settled law that the Civil Court cannot go behind the PTD issued by the Settlement Authorities. In this respect he has placed reliance upon PLD 1984 SC 2131 and 1988 CLC 2304. He has asserted that the judgments of both the Courts below suffer from misreading and non-reading of evidence and the same are liable to be set aside.
6. On the other hand, the learned counsel for the respondents has argued that Fazal Din had applied through his C.S. Form only for transfer of shop in his possession and not for Barsati and that the Deputy Settlement Commissioner vide his order dated 6-14960 had allotted these properties.
Through the said order he had allotted the shop to. Fazal Din provisionally. He had also referred to the order of Ch. Nasrullah Khan, Additional Settlement Commissioner (Judicial), Lahore dated 6-7- 1960 by which he had accepted the appeal aforesaid filed by Ghulam Rasool against Mst. Umatul Qayyum and Fazal Din. Thereafter he has referred to the order of Additional Settlement Commissioner (Judicial), Lahore Division, Lahore dated 7-5-1961 and whereby he had dismissed the appeal filed by Muhammad Hussain: Referring to the order of Saeeduz-Zaman, Settlement Commissioner dated 31-7-1964 passed in the revision petition filed by Muhammad Hussain, he had submitted that in the said order the Settlement Commissioner had clearly mentioned that the Barsati is also in possession of Muhammad Hussain and in the said order the Settlement Commissioner had also observed that it was not understandable that the flat on the top of shop of Zahoor Hussain had been transferred to Fazal Din who had no connection therewith. He has argued that at the time of hearing of Writ Petition No,682-R of 1964, Ch. Khalil-ur-Rehman, Advocate, counsel for Fazal Din had made a statement before the High Court of West Pakistan that he had no objection if the order of the Settlement Commissioner, transferring the portion in possession of Muhammad Hussain was allowed to stand and the writ petition be dismissed to the extent of his portion. He has argued that on account of the said statement, the petitioner had relinquished his claim whatsoever to the property in possession of Muhammad Hussain and which definitely included the Barsati and hence the petitioner had no right to claim the transfer or ownership of the said Barsati as claim thereto had been relinquished by him by making statement before the Honourable High Court. He has argued that the entry in PTD was got made subsequently fraudulently and possibly through forgery and that at no stage the Barsati was ever transferred to the petitioner. He has argued that the judgments and decrees of the learned Courts below do not suffer from any misreading or non-reading of evidence and hence there is no justification for interference in exercise of revisional jurisdiction of this Court.
7. I have carefully considered the arguments advanced from both sides.
8. It has already been mentioned above that Property No,S-36-R-12, Railway Road, Lahore consisted of both commercial and residential portion and that Shop No,2 was allotted to Fazal Din, the deceased father of the petitioner, vide order 6-1-1960 (Exh.P.1) passed by Deputy Settlement Commissioner Central-III, Lahore and vide the same order Fazal Din was also given the residential portion including the Barsati. The aforesaid order was challenged by Ghulam Rasool and the appeal filed by Ghulam Rasool against Mst. Umatual Qayyum and Fazal Din etc. Was accepted .By the Additional Settlement Commissioner (Judicial) Lahore vide order dated 6-7-1960. Thereafter Muhammad Hussain filed an appeal which was dismissed by S. Muhammad Azhar, Additional Settlement Commissioner (Judicial) vide his order dated 3-5-1961. The order dated 3-5-1961 was then challenged by Muhammad Hussain, the predecessor-in-interest of the respondents, by filing a revision petition and which was decided by Muhammad Saeed-uz-Zaman, Settlement Commissioner vide his order dated 31-3-1964 and who vide the said order set aside transfer of flat in favor of Fazal Din, the predecessor-in-interest of the petitioner and directed that the flat be transferred to Muhammad Hussain while the other flat and Barsati was transferred to Zahoor Ahmad as he was held to be more deserving than Fazal Din. The said order was challenged by Fazal Din, the predecessorin-interest of the petitioners, through Writ Petition No,682-R of 1964 which was decided by Mr. Justice Fazal-e-Ghani of West Pakistan High Court, Lahore vide his judgment dated 16-10-1968. In the first paragraph of the said judgment, the statement of counsel for the petitioner is recorded to the effect that he had no objection if the order of the Settlement Commissioner transferring the portion in possession of Muhammad Hussain is allowed to stand.
The learned counsel for the petitioner has rightly pointed out that vide order of Mr. Saeed-uz- Zaman, Settlement Commissioner which was impugned before the Honourable High Court only a flat had been transferred to Muhammad Hussain and Fazal Din had, thus, withdrawn his claim to the flat transferred to Muhammad Hussain and not to the Barsati. The learned counsel for the petitioner has also referred to last portion of Paragraph No,10 of the judgment of the Honourable High Court dated 16-10-1968 and which reads as below:-- "The order of Mr. Saeed-uz-Zaman, Settlement Commissioner, dated the 31st of March, 1964, is, therefore, in excess of the jurisdiction vesting in him by law. The proceedings could not be resurrected on the miscellaneous application of Zahoor Ahmad within the meaning of Order 1, rule 10, C.P.C. Writ Petition No,682-R of 1964 is, therefore, accepted with no order as to costs and the order of Mr. Saeed-uz-Zaman Settlement Commissioner dated 31st of March, 1964 is quashed, so far as it pertains to the transfer of portion on Shop No,4, in favor of Zahoor Ahmad respondent."
' He has pointed out that the transfer of Barsati to Zahoor Ahmad by Mr. Saeed-uz-Zaman, Settlement Commissioner, vide his order dated 31-3-1964, was set aside.
9. It appears that the fact of setting aside the order of transfer of Barsati through order dated 31-3- 1964 had the obvious effect that the earlier order of transfer of Barsati to Fazal Din stood restored. It is also a fact that the PTD issued in favor of Fazal Din a copy of which is appended with the revision petition makes mention of Barsati as well. So long as the said PTD stands in favor of the petitioner, he can claim to D be the transferee/owner of the Barsati aforesaid. On the other hand, the respondents have not produced any such document i,e, PTD indicating that the Barsati had been transferred to them i,e, to their predecessor-ininterest namely Muhammad Hussain. I am of the considered view that the judgments and decrees of the Courts below are the result of non-reading and misreading of evidence and suffer from material irregularity and, as such, are liable to be set aside.
10. In consequence of what has been stated above, the revision petition is accepted, the judgments and decrees of the Courts below are set aside and the suit filed by the petitioner/plaintiff is decreed in his favor, with.Costs.
Revision .