Allah Ditta vs Province Of Punjab etc.

Stereo. H C J D A 38

Judgment Sheet

LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

Civil Revision No. 97-D of 2012 / BWP

Allah Ditta.

Versus Province of Punjab and 3 others.

JUDGMENT

Date of Hearing: 02.12.2021 Petitioner (s) By: Raja Muhammad Sohail Iftikhar and Rafique Qadir Alvi, Advocates.

Respondent(s) Mr. Shahid Mahmood, Assistant By: Advocate General.

Abdul Jalil Khan, Advocate for Respondent No. 4.

ABID HUSSAIN CHATTHA, J: The brief facts leading to this Civil Revision are that the Petitioner filed a suit for declaration against the Respondents seeking proprietary rights, which was decreed by the Trial Court on 11.04.2009. However, in Appeal filed by Respondents No. 1 to 3, the said Judgment and Decree dated 11.04.2009 was reversed and the suit of the Petitioner was dismissed vide Judgment and Decree dated 18.01.2012. During pendency of the Appeal, Respondent No. 4 filed an application under Order 1, Rule 10 of the Code of Civil Procedure, 1908 (the “CPC”), which was accepted vide Order dated 22.11.2011 and, as such, Respondent No. 4 became a party to the lis.

2.Learned counsel for the Petitioner argued that the Judgment and Decree passed by the Trial Court was in consonance with law, whereas, the Judgment and Decree passed

by the Appellate Court is against the law and facts, based on misreading and non-reading of evidence. The Appellate Court erred by not recognizing the right of the Petitioner as sub-tenant based on continued possession over the suit property for about 20 years. The Petitioner was entitled to the grant of proprietary rights in accordance with the Notification dated 17.07.1995 issued by the Secretary Colonies of the Government of Punjab.

3.Learned counsels for the Respondents vehemently argued that the Judgment and Decree passed by the Appellate Court is in accordance with law. Since the decision of District Officer (Revenue), Bahawalpur attained finality, the jurisdiction of the Civil Court was barred under the law. The right of the Petitioner as sub-tenant was never established and there is no allotment letter in favour of the original allottee which can be relied upon with respect to any entitlement of the Petitioner.

4.Arguments heard and record perused.

5.The onus to prove that the Petitioner was entitled to the grant of proprietary rights in terms of the Notification No. 1289- 95/25245/CLI dated 17.07.1995 (the “Notification”) regarding suit property fully described in the plaint, was placed upon the Petitioner. PW-1 deposed that the suit property was allotted to one Manzoor Ahmad in the year 1978, who gave the suit property to the Petitioner as sub-tenant. He is in continued possession for the last 20/22 years and has made the barren land cultivable. He is entitled to the grant of proprietary rights in terms of the Notification. He admitted that he filed an application before the Assistant Commissioner/District Officer (Revenue), which was dismissed without hearing the Petitioner. He candidly admitted that the land was never allotted to him. PW-2 & PW-3 corroborated his stance. Conversely, DW-1, Halqa Patwari categorically stated that the suit property was not allotted under

any scheme to any person and belongs to the Provincial Government. He admitted that the Petitioner is in possession of suit property as per Crop Survey Register (Ex.P-1) but the Petitioner has since been dispossessed being an illegal occupant. DW-2, a Clerk of Colonies Department deposed that the Petitioner filed an application before District Officer (Revenue) on 11.02.2004, which was dismissed in default on 01.10.2007. He also testified that the suit property was never allotted to Manzoor Ahmad as alleged on 14.08.1978.

6.After examining the evidence on record and perusing the Judgment passed by the Courts below, this Court is of the considered view that the Petitioner was not entitled to the grant of proprietary rights for the following reasons:-

(i)The right of the Petitioner as sub-tenant flowed from the right of the original allottee, namely Manzoor Ahmad. However, he is not a party to the suit nor was produced as a witness. No document is on record which establishes that the right of sub- tenancy was created by him except oral assertions duly rebutted by the Respondents.

(ii)Original letter of allotment was not produced on record. A photo copy of the allotment letter (Mark- A) cannot be read in evidence. Reliance is placed on case titled “State Life Insurance Corporation of Pakistan and another Vs. Javaid Iqbal” (2011 SCMR 1013) where it is held that document not produced and proved in evidence but only ‘marked’ could not be considered by courts as a legal evidence of a fact.

(iii)Admittedly, the proceedings before District Officer (Revenue) were initiated by the Petitioner himself

and after its dismissal in default the same were not revived and, as such, attained finality. It is trite law that the matter which falls within the jurisdiction of the Revenue Hierarchy and their jurisdiction must be decided as such. Reliance is placed upon cases titled “Ameer Abbas Sial Vs. Province of Punjab” (2020 CLC 792) and “Administrator, Thal Development through EACO Bhakkar and others Vs. Ali Muhammad” (2012 SCMR 730), wherein, it is held that when the statute provides a proper procedure for resolution of issue and the Petitioner himself sets it into motion and leaves it unattended, the approach to Civil Court was unwarranted which is forum of last resort.

(iv)Perusal of Khasra Gardawari on record only shows the possession of the Petitioner from 1991 onwards, which, does not prove lawful possession arising from the original allotee in terms of scheme of allotment especially when there is a categoric denial as to the grant of any allotment in favour of Manzoor Ahmad.

(v)Section 36 of the Colonization of Government Lands (Pb.) Act, 1912 clearly provides that Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under the Act, ibid. Accordingly, there is no adjudication by the competent revenue officers

regarding the claimed right in terms of the terms and conditions of the scheme.

(vi)Importantly, Order of District Officer (Revenue) was not impugned in the suit. The reliance placed by the Petitioner on case titled “Allah Bakhsh and 3 others Vs. Assistant Commissioner, Ahmadpur East and 3 others” (1998 CLC 1607) is not attracted to the facts and circumstances of the case for the reason that the Petitioner could not establish his status as sub-tenant.

7.In view of the above discussion no enforceable right as sub-tenant as claimed by the Petitioner is established, therefore, this Court is in agreement with the Judgment and Decree passed by the Appellate Court. Even otherwise there is no misreading and non-reading of evidence on record which may warrant interference in exercise of revisional jurisdiction of this Court. This Petition being devoid of any merit is dismissed.

(Abid Hussain Chattha)

JUDGE

Muhammad Bilal