' This judgment purposes to dispose of three Civil Revisions (Civil Revisions Nos.2272, 2273 and 2274 of 2003) arising out of one and the same consolidated judgment, disposing of three appeals by the First Appellate Court, involving common questions of law and facts and similar matters. These revision petitions are directed against the judgment and decrees dated 27-10-2003 passed by the learned Additional District Judge, Lahore, whereby three appeals of the respondents were accepted and three suits of the petitioners in all the three revisions, were ordered to be dismissed, reversing judgment and decrees dated 16-12-1987 passed by the trial Court.
2. Precisely, facts leading to these petitions are that three, different suits for declaration and permanent injunction were filed before the trial Court, one by Mst. Malka Durrani etc. Second by Wikki Durrani and third by Col. (R) Sh. Siraj Din, with similar averments that they are owners in possession of their respective houses constructed in the period around 1974 and at that time the area underneath their houses was neither in the control of the respondents nor they had introduced any scheme in area around these houses. All the three plaintiffs/petitioners claimed exclusive ownership over the land, which was constructed by them by incurring heavy expenses.
Respondents brought Muhammad Ali Johar Town, a residential scheme, under the provisions of Punjab Acquisition of Land (Housing) Act, 1973 and proposed to acquire land including the houses of the petitioners. The complained act of the respondents was, inter alia, challenged by way of civil suits on the ground that this Act is not applicable to the constructed areas and the proposed action of the respondents being violative of the Constitutional warrantees, cannot be allowed to be sustained. All the three petitioners prayed in their respective suits, a permanent injunction against the respondents restraining them from interfering in their lawful ownership/ possessory rights, in any manner, whatsoever.
3. Respondents being defendants in all the three suits controverted the assertions of the petitioners and pleaded in their separate but similar written statements that all the three properties fall within the area of Johar Town Scheme, which was duly notified under sections 4(1) and 13 of the Act, 1973.
These properties were pleaded to have acquired and included in the award dated 5-2-1981, announced by the Land Acquisition Collector. Controversial pleadings of the parties necessitated framing of issues and recording of evidence, of the parties. Learned trial Judge, who was seized of the matter, after due appraisal of the evidence vide his judgment and decree dated 16-12-1987 decreed all the three suits of the petitioners.
4. Respondents being aggrieved of the decision of the trial Court dated 16-12-1987 filed three different appeals before the learned Additional District. Judge, Lahore and therein moved applications under Order XLI, rule 27, C.P.C. Seeking permission to produce documents by way of additional evidence i.e. (i) Letter No.DLD/LDA/631, dated 27-7-1995, (ii) Notings. Nos.347 to 386 from File No.JTNB/II/11 of LDA and (iii) Letter No.JT NB/Misc .11/11/3679, dated 9-7-1990 showing that land of the petitioners was adjusted, as it is, in Johar Town Scheme of the respondents, who had also issued No Objection Certificates to the petitioners. This application after contest by the respondents, was accepted vide order dated 24-11-1999. First Appellate Court after allowing additional evidence to the petitioners, itself recorded the evidence of the parties and thereafter vide a consolidated judgment and decrees dated 27-10-2003 accepted all the three appeals of the respondents, setting aside the judgment and decrees dated 16-12-1987 of the trial Court and dismissed the suits of the petitioners. Petitioners aggrieved of this appellate judgment which is at variance to that of the trial Court, have come up in revisional jurisdiction of this Court for setting aside the appellate decision. A preadmission notice to the respondents was issued for today and respondents have appeared through their learned Legal Advisor to contest these revision petitions..
5. Learned counsel for the petitioners submits that some parts of the properties of the, petitioners were left out for construction of ring road within the area of Muhammad Ali Johar Town Scheme, whereas their houses were adjusted by the respondents out of negotiations, inter parties.
According to him, respondents having issued No Objection Certificates to the petitioners, acknowledging adjustment of their properties, could not include their properties within the scheme area but the First Appellate Court has incorrectly not relied on the evidence recorded by it proving these assertions on the ground that the petitioners did not amend their plaints, raising such assertions therein. Learned counsel for the petitioners also contends that though right of the respondents to acquire properties of the petitioners, stood challenged in the plaints yet if at all any amendment was needed for this purpose, the Appellate Court had ample power to allow amendment iii this behalf under exercise of its suo mow power. It has also been urged that though respondents subsequently rescinded their No Objection Certificates on the ground that those were issued contrary to their policy, but those go a long way to show that properties_ of the petitioners were adjusted in the scheme area which was not opposed to any policy of the respondents. He further elaborated his arguments by saying that Appellate Court was under a legal obligation to decide the lis on the basis of entire evidence on the file but the Appellate Court has not considered the evidence recorded at appellate stage in spite of permission by it vide order dated 24-11-1999.
According to him, evidence on the file may have been discarded, by the Appellate Court but should have been considered at the time of final determination of the dispute.
6. Learned counsel for the respondents has refuted the arguments of the petitioners, has supported the appellate judgment and has urged that though evidence regarding issue of No Objection Certificates by the respondents was recorded by the Appellate Court, but it could not have been considered without corresponding amendment in the pleadings. According to him, it is settled that there could be no findings without those facts having pleaded. Learned counsel for the respondents contends that No Objection Certificates referred by the petitioners stood cancelled as those were opposed to the policy of the respondents and thus created no right of adjustment of their properties within the scheme area which already stood acquired through an award dated 5- 2-1981. It has also been submitted that acquisition laws do not differentiate between the constructed sites and the land because structures constructed if served from the land would make it acquisition-able.
7. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Undeniably, the Appellate Court has not considered the entire evidence on the file, especially evidence produced by the petitioners at appellate stage. It has been excluded from consideration on the ground that there is no corresponding 'amendment in the plaints of the petitioners. Petitioners had averred in their suits that their properties cannot be included in the proposed scheme and such an assertion was enough to challenge right of the respondents to take over their properties. Petitioners had produced, by way of additional evidence, Notings Nos.347 to 386 from File No.JT-NB-II/11 of the L.D.A. That case of adjustment of their lands was considered by the Adjustment Committee under the orders of its Director-General dated 3-5- 1995. These notings have a reference to the meeting dated 2-7-1995 that certain points touching adjustment of the land of the petitioners were brought under discussion and it was ultimately proposed that structures at the site as determined by the Land Acquisition Collector on 13-5-1990 with mandatory spaces, as per building regulations, may be adjusted. This meeting was attended by Director-General Planning, Deputy Director Town Planning and Convener Adjustment Committee/ALA. It also appears that an order was accordingly passed on 6-7-1995, adjusting properties of the petitioners. It is not understandable that a decision in a high power committee, as noted above, could subsequently be recalled on the pretext that it was contrary to the policy of the respondents. Be as it may, since this evidence has erroneously been excluded by the Appellate Court from consideration, I refrain from commenting any more on the merits of the case, as I have a mind to remit this case back to the Appellate Court for its decision afresh, after considering the entire evidence on the file.
8. I have examined the judgment of the Appellate Court. There are certain passing remarks about the stance of the petitioners that their land was adjusted by the respondents, in paragraphs 10 and 18 of the judgment but this documentary evidence was excluded for the reasons above mentioned and was not considered for the purpose, for which it was brought on file. Though right to acquire under Act of 1973 properties, like the one owned by the petitioners, is doubtful, in view of Constitutional warrantees, yet case of the petitioners for adjustment was decided by Adjustment Committee under the orders of the Director-General, out of negotiations and according to rules by-laws and policies of the respondents and their case should have been decided viewing this aspect of the case. Since these matters were not taken into consideration by the Appellate Court, I am left with no other option except to set aside the judgment and decrees dated 27-10-2003, passed by the learned.
' Additional District Judge, Lahore, and to remand the cases to him, for fresh decision in accordance with law, as observed above. All these three revision petitions are consequently accepted with the result that respondents' all the three appeals will be deemed to be pending before the Appellate Court and shall be decided, after hearing the parties and considering the entire material on the record. Parties shall appear before the. Additional District Judge, Lahore, on 27-1-2004. There will be no order as to costs.