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Petitioner: Capt. Dr. ABDUL WAHAB VS Respondent: PROVINCE OF PUNJAB and another
Court Name: Lahore High Court Judge(s): Muhammad Afzal Lone Title: Capt. Dr. ABDUL WAHAB vs PROVINCE OF PUNJAB and another Case No.: Revision No, 458-D of 1982 Date of Judgment:1986-02-11 Reported As: 1986 MLD 2049 Result: Revision dismissed
JUDGMENT
JUDGMENT ' This revision petition is directed against the judgment and decree dated 24-3-1982, passed by the learned Additional District Judge, Sheikhupura whereby the judgment and decree dated 28-1-1982 of the trial Court, dismissing the suit brought by the predecessor-in-interest of the petitioners for declaration 'and permanent injunction were upheld. 2. , The facts are that the evacuee agricultural land measuring 1571 Kanals 7 Marlas equivalent to 7636 produce index units, situate in village Jajja Kalan Tehsil Chunian District Kasur, allotted to respondent No,3, a displaced person from non-agreed area of India, being in excess of his entitlement, was surrendered by him under the provisions of M.L.R. 89/91. He was allowed to exercise his choice to purchase the surrendered land. He paid only one instalment of the price of the land. On 31st July, 1962, he executed an agreement in favour of two persons namely, Major S.M. Salim and Hafiz Muhammad Siddique whereby he sold away his 7636 produce index units to them, at the rate of Rs,1.12 Annas per unit; received the part payment; and further agreed to execute the sale-deed in their names; on issuance of P.T.D. Simultaneously, through an irrevocable as of general power of attorney, he appointed both of them as his attorney. They were authorized to further delegate the powers conferred on them and appoint attorney. 3. On the strength of the said power of attorney, on 9-1-1963, Major S.M. Salim, executed a deed of power of attorney in favour of Dr. Abdul Wahab and, further entered into an agreement with him. Dr. Abdul Wahab, died during the pendency of this revision petition, and was substituted by the petitioner. The purpose of these two documents, was that so far as the transations between respondent No 3 and Major S.M. Salim was concerned to, substitute the latter by the deceased.
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4. It appears that in February 1963, the then President of Pakistan visited Attari Game Reserve and found that the land was located within the area thereof. He desired, that the, land aforesaid, be kept as Game Reserve, and its owner given some alternate State land. According to the petitioners, in deference to the wishes of the President which was conveyed to the Provincial Government, alternate land measuring 2186 Kanals equivalent to 4708 produce index units, on Chak No,25/UCC, Tehsil Ferozwala District Sheikhupura was provided to the deceased and Hafiz Muhammad Siddique and its possession given to them by the Collector on 22-10-1964. 5. After this development, by virtue of an agreement dated 29-7-1967, Hafiz Muhammad Siddique, like Major S.M. Salim, also transferred his rights in the land in question to 'Dr. Abdul Wahab deceased, and further by a deed of power of attorney of the same date, constituted the latter as his attorney. The entire land thus, came to vest in the petitioners' predecessor-in-interest. 6. It has been contended that the area of the land in Chak No, 25/UCC given in exchange, fell short of the area of the land located in village Jajja Kalan. The deceased and Hafiz Muhammad Siddique took up this issue with the Board of Revenue and demanded that full area, equivalent to 7636 produce index units be given to them. It is pleaded that the land in Chak No, 25/UCC, was, 'banjar qadeem' and affected 'thur', the deceased developed the same and brought it under cultivation at a huge cost. 7. By letter dated 30-12-1970, the Board of Revenue, conveyed to the Deputy Commissioner, Lahore, its decision rejecting the proposal to exchange the land, opted by respondent No,3 under M.L.R. 89/91, with the said land in Tehsil Ferozwala. The Forest Department, was informed to acquire the land in village Jajja Kalan, under the Land Acquisition Act, if it was required by them and. The Settlement Officer, Sheikhupura directed to eject Dr. Abdul Wahab from the land aforesaid and recover from him the rent for the period, he remained in possession thereof. The petitioners' predecessor-in-interest brought W.P. No,51 of 1985, to challenge the validity of the decision of the Board of Revenue, but it was dismissed in limine with the observation, that his remedy lay in filing a civil suit. The Supreme Court refused to grant leave to appeal, on 6-10-1971. 8. It was thereafter, that Dr. Abdul Wahab deceased filed a suit for declaration, to the effect that the Board's order was void and ineffective on his rights in the land situate in Chak No, 25/UCC and that he was in its lawful possession. A decree for permanent injunction, restraining the respondents, from interfering with his"possession and the rights in the suit land, was, also prayed for. The suit was contested by the respondents on factual as well as legal plane. The learned Civil Judge formulated the following legal issues, on -the basis of the preliminary objections, raised in the written statement, by the respondents:- (1) Whether this Court has got no jurisdiction to try this suit? (O.P.D.). (2) Whether the plaintiff has got no locus standi to file this suit?. (O.P.D.). (3) Whether the suit is liable to be rejected under Order VII, rule 11 C.P.C.? (0.P.D.). (4) Relief. ' Both the parties led evidence, on consideration whereof, by his judgment dated 28-1-1982 the learned Civil Judge under issue No,1 found that the Court had territorial jurisdiction. However, his decision on the other issues, was in respondents' favour. Consequently, he rejected the plaint. 9. The deceased plaintiff filed an appeal, against the judgment and decree of the learned trial Court but the learned Additional District Judge who heard it, concurred with the findings of the trial Court. Upon the dismissal of his appeal, the deceased came to this Court under section 115, C.P.C. 10. The learned counsel for the petitioners, in his lengthy arguments has vehemently criticised the procedure followed by the trial Court in rejecting the plaint, under Order VII, Rule 11, C.P.C. And the learned Additional District Judge's refusal to intervene in appeal. He argued that in order to see as to whether or not the plaint discloses any cause of action, the Court cannot rely upon the defence version, but has to confine itself, to the contents of the plaint only; it has to start with the
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assumption that the facts narrated in the plaint are correct and find out whether even then no relief can be granted to the plaintiff. If this procedure was followed, the learned counsel went on to contend, there would have possibly been no occasion to frame the issues. According to him both the Courts below in deciding issue No,3 made a marked departure from the case law on the subject; that their decision.Is wholly influenced by the defence plea, but even then they ignored the documentary evidence brought on the record, by the deceased plaintiff. To high-light the provisions of Order VII, Rule 11, C.P.C. The learned counsel heavily relied upon Pahloomal Motiram v. Abdul Quddus Behari and others PLD 1971 Kar. 250, Seven Stars Goods Transport Co. (Regd.) v. The Administrator, Karachi Municipal Corporation, Karachi PLD 1976 Kar. 21, Hakim Saleem Ahmad v. Government of Sind 1982 CLC 269 and Mahmud Ahmed Butt v. Lahore Development Authority PLD 1981 Lah. 153. Referring to the alternate plea that the case was disposed of on merits, the learned counsel contended that in doing so, it was incumbent upon the trial Court to have considered and discussed the entire evidence, but it merely made a cursory reference to some of the documents and failed to advert to the bulk of the evidence. In his submission, such a decision is wholly faulty and cannot be treated as a decision on merits. 11. The precedents cited by the learned counsel for the petitioners no doubt support the propositions that while examining the question of cause of action, the Court should apply its mind to the facts disclosed in the plaint and not to the pleas raised by the defendant in defence. But in considering the contents of the -plaint, it is legitimate to treat the documents and the material referred to therein, as part thereof. In the instant case, in the plaint, certain orders of the Member, Board of Revenue and other public functionaries, have been mentioned. It is in this context, that in deciding issues Nos. 2 and 3, the learned Courts below, relied upon these documents. It may be observed, that the provisions of Order VII, Rule 11, C.P.C. Are not exhaustive of the circumstances in which a plaint may be rejected. The Court has the inherent jurisdiction to 'nip an incompetent suit at the earliest moment. In the words of S.M. 'Murshed, C.J., in Burmah Eastern Ltd. v. Burmah Eastern Employees Union and others PLD 1967 Dacca 190, such a suit "should not be allowed to further encumber legal proceedings". 12. I may usefully refer here, to the Supreme Court's observations in M. Moosa v. Muhammad etc. 1975 SCMR 115 which arose out of a suit for defamation, against a lawyer and others. The suit was founded on certain allegations, levelled against the plaintiff by the defendant's lawyer in the correspondence exchanged between the lawyers of the two sides. In the written statement, the defendant, pleaded that the publication was covered by the privilege of an Advocate; was made in the discharge of his professional obligations, as, a counsel and prayed for rejection of the plaint under Order VII, Rule 11, C.P.C. The Chief Justice of the Karachi High Court, upheld the defendant's plea and rejected the plaint. The Supreme Court declined to intervene in appeal and even rejected the review petition. The observations of the Supreme Court appearing at page 49 of the report, are reproduced below:- "His next contortion is that in a defamation suit, Rule 11 of Order VII of the C .P.C. , has no application. Sub-rule (a) of Rule 11 of Order VII,' C.P.C. Clearly says that a plaint may be rejected where 'it does not disclose a cause of action'. In the present case, if the plea of privilege, as held by this Court, was available, then the plaint did not disclose a cause of action either against Mr. Lakhani or the other defendants and therefore, the application was fully competent and, the plaint was rightly rejected." 13. Seemingly, the learned trial Court, treated the issues, as legal issues and disposed of the suit on the basis of the evidence on the record. But even if it is considered that the Court wholly proceeded under Order VII, Rule 11, C.P.C., its judgment could not have been set aside en that ground or on the, ground that it failed to frame issues on merits. It is evident from the record that the parties were alive to the questions in issue and went to the trial with full knowledge thereof. The deceased
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plaintiff had adequate opportunity to produce his evidence and he availed of the same. Apart from oral evidence he brought on the record, a fairly large number of documents to substantiate his case in the light of the contentions raised by the respondents. It is obvious that he was not taken by surprise. It is settled, that if the suit is conducted by the parties with awareness of the particular points involved in it, and they adduce evidence in support of their respective versions then merely because n specific issue was framed by the Court, would not render its decision as illegal. This view finds support from Dulhin Rajkishore Kuer . Muhammad Qayyum and others AIR 1942 Pat.366 wherein a Division 'Beech of the Patna High Court maintained - ' when, evidence was given and the question was raised in both the Courts below the decision cannot be assailed merely because there was an omission to frame a specific issue on the point." ' Again in Hiranmoy Bhaduri v . Probal Kumar Pramanik 205 I C 138 a Division Bench of the Calcutta High Court held:- "In spite of the defect in the frame of the issue, however, the parties in the present case' seem to have gone to trial, knowing full well what the question for decision was. At least the plaintiff was given an opportunity of meeting the point raised at the trial though not covered by the issue, and he cannot be heard to say that the defect in the frame of the issue prejudiced him when he did not avail himself of that opportunity." ' In Mst. Mitna v. Syed Fuzl Rub and others 13 M I A 573 a money suit, filed on the basis of a bond, was, decreed by the trial Court without settling the issues to be decided. In appeal the High Court of North Western Provinces Agra did not consider the omission of such a character, as to necessitate the remand of the case to the Court of the first instance. Even the Privy Council declined to intervene in second appeal and observed:- "The Court, however, nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a re-trial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section of the Civil Procedure Code. At in events, it appears on their Lordships that there is nothing in the Code which made it imperative upon the appellate Court, or now makes it imperative upon their Lordships, to yield to that objection, and, therefore, fully concurring' in the Observatiosns made by the appellate Court that I e was the duty of the Judge to settle the issues, and that it was much to be regretted that, he omitted to settle those issues, they still think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mistrial of the cause which vitiates all the proceedings and renders a new trial necessary." 14. The main argument on the petitioner's, side against treating the trial Court's judgment as one on merits, as already stated, is that it did not consider the petitioner's entire evidence. But this contention had no merit. The nature of the rights of the petitioners and that of their predecessors- in-interest in the land in dispute, the true character of agreements for sale, the attributes of the deceased's possession and the question of exchange, are the main issues on which the fate of his suit hinges. It is discernible from the record that the entire evidence having bearing on these points, was considered by the trial Court. At least, before me during the course of his arguments, the documents referred to by the learned counsel, are the same which find mention in the judgments of the Courts below. He has failed to show that the procedure followed by the learned trial Court resulted in any prejudice to the deceased/plaintiff. The trial Court's failure to frame issues on merits and its decision on the basis of issues Nos. 2 and 3, in my estimation do not vitiate its judgment. The fact that instead of dismissing the suit, the trial Court rejected the plaint, is, not of much
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significance. There is, thus, no good reason to denude the trial Court's judgment of its complexion as a judgment on merits. 15. The issue of exchangesis the pivotal point. In this respect, the learned trial. Court maintained that there was merely a proposal for exchange of the land in village Jajja Kalan, with that of Chak No, 25/UCC, but on consideration of the details thereof, it was rejected by the Board of Revenue on 30-12-1970. However, Dr. Wahab's stand, was that the documents Exhs. P.37 to P.41 comprised orders of .The Board of Revenue and established the exchange, but this argument was turned down. In the opinion of the learned two Courts below, these documents constituted internal noting of the department and did not clothe the deceased with any legal right, envisaged by section 42 of the Specific Relief Act, to sustain the suit for declaration. 16. These findings have seriously been criticised by the learned counsel for the Petitioner. He reiterated the arguments advanced on the basis of these documents, before the two Courts below and added that these being the certified copies of the orders passed by the Members, Board of Revenue, were admissible in evidence as part of the public record. According to him by virtue of these documents the exchange was fully proved; the irregularity, if any, in the transactions evidenced by the agreements dated 31-7-1962, 9-1-1963 and 29-7-1967 (Exhs. P.14, P.15 and P.5) stood cured but these were illegally excluded from consideration by the Courts below. ' I have examined the documents and do not feel persuaded to differ with the findings of the learned Courts below. Exh. P.37 is a part of the office noting dated 18-3-1966 whereby the Member, Board of Revenue, expressed his inclination to grant the permission for exchange to respondent No,3 and show the new area in the name of the latter. This noting cannot be regarded as an executable order and in any case, it was entirely for the benefit of respondent- No,3, who was asserting his own rights. In P.38, an office note dated 22-12-1967 of the Secretary, Land Utilization Department, was put, up before the Member (Land Utilization), on which he recorded his observation that the area sold to respondent No,3 could not be resumed; the question of exchange was not even adverted to by him. The next document Exh. P.39, again consists of office noting dated 23-10-1968 by the Secretary (Colony) with which the Member (Colonization) agreed. But the noting shows that the order had to be issued after obtaining prior sanction of the Member (Land Utilization), and when the file was passed on to that Department, the Secretary (Land Utilization) on 14-11-1968, put up the following note:- "If M.B.R. (L U) agrees, the case may be referred back to the Colonies Department for finalization of the case. It may be submitted that while allowing the exchange a formal order shall have to be passed giving the details (Khasra No,, village, etc.) of the area which is to be treated as surrendered land (worth 7636 units) so that we may correct our accounts." ' The Member (Land Utilization), seems to have agreed with this noting. Exh. P.40 so depicts. It appears that thereafter the case was placed in the meeting of the Full Board held on 23-4-1969, wherein vide Exh. P.41 the following decision was taken:- "The Full Board decided that the optee purchasers/occupants of the land may be consulted whether they are agreeable to accept the exchange on land for land basis or they insist that value of lands in exchange should be assessed on the basis of Produce Index Units. In the latter case they may be asked to give their choice of land elsewhere. It was further decided that Member (Colonies) Board of Revenue may decide the matter in the light of the abovementioned observations of the Full Board after holding a meeting with Secretary (Colonies), Secretary (Land Utilization) and representative of the Forest Department." 17. This decision was followed by the rejection of the proposal for exchange of the land vide Board's order Exh. P.25, challenged in the suit. It reflects, that in pursuance of the decision of the Full Board, respondent No,3 and Dr. Abdul Wahab were consulted, the relevant portion of Exh. P.25 in this behalf is reproduced below:-
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"............................................. The Settlement Officer, Sheikhupura, consulted the parties and he reported that:- (i) both Mr. Ahmad Saeed Khan and Dr. M.A. Wahab do not agree to exchange the land on the formula of Acre for Acre, (ii) Mr. M.A. Wahab insists on retaining the area presently occupied by him in Chak No,25/UCC which is. 2186 Kanals as against 1571 Kanals 2 Marlas, surrendered by Mr. R.A. Saeed Khan in Jajja Kalan. The P.I. Units value of the area occupied by Dr. M.A. Wahab is 4797 as against 3618 of the land in Jajja Kalan, and (iii) R.A. Saeed Khan wants to get the area in Chak No, 26/UCC. 2. That Board of Revenue has given the matter its careful consideration and it has been observed that M.A. Wahab and R.A. Saeed Khan neither agree among themselves nor have they agreed to abide by the decision of the full Board mentioned above. There is thus no way of settling the issue. The Board of Revenue, therefore, rejects the proposal of exchange of their land in Attari Games Reserve, District Lahore, with State Land in Sheikhupura District." In the face of the documents which are the anchor sheet of the petitioners rights, I wonder how it could be claimed that the exchange was approved by the Board of Revenue. The basis on which the deceased-plaintiff rested his case was wholly untenable.. The learned Courts below, therefore, justifiably came to the conclusion that the Board of Revenue did not sanction the exchange. These documents were not ignored. These were duly considered. But the interpretation put thereon by the plaintiff, was not accepted by the Courts. Even my appraisal thereof is also the same. There can be no doubt that the power to allow or refuse the exchange vested in the Board of Revenue. The Courts, therefore, had no jurisdiction to substitute their decision for that of the Board. In the circumstances of the case, no fault can be found with the rejection of the proposal. 18. The relief sought by the petitioner's predecessor-in-interest to protect his possession, was also denied to him and his version that he was lawfully inducted into the land, was discarded by the Courts below. It is in the deceased's statement dated 4-1-1982 that he was delivered possession under the orders issued on 4-1-1964 by the Deputy Commissioner Sheikhupura and an entry to that effect was made in the Patwari's 'roznamcha'. But this assertion did not find support from the 'roznamcha waqiati' got produced by the respondents as Exh. D.3. However, the deceased contended that the document was interpolated but this allegation remained unproved. In the Courts below, the respondents urged that the deceased managed to get the possession, unauthorisedly, in connivance with the lower revenue staff.' Their this submission prevailed with the Courts below. 19. It is urged that this finding is contrary to the record. In this respect, my attention has been specifically drawn to the letter dated 15-6--1967 (Exh. P.16), which shows that in response to an inquiry made by the Board, the Deputy Commissioner Sheikhupura conveyed to the Secretary (Colonies)' that the possession was delivered to Dr. Abdul Wahab, through the Tehsildar on 11-4- 1964. This communication finds mention in Exh. P.38. Similarly, there is reference to the delivery of possession in Exh. P.39 and Exh. P.40. The expression figuring in the office note dated 14-11-1968 (Exh. P.40) of the Secretary (Land Utilization) to the effect:- "possession of State land in Sheikhupura District was given obviously by the revenue staff in 1964, rightly or wrongly." is suggestive of the inference, that whatever the nature of the deceased's possession initially was, the authorities acquiesced therein and as the proposal of exchange remained under consideration of the Board, his possession was not objected to. It transpires from his statement, that in the year 1977, the Board of Revenue held an inquiry and the possession of the deceased was adjudged as unauthorised. I am of the view that after the Board's refusal to allow the exchange, his possession ceased to be lawful.
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20. On the argument, that possession was delivered to the petitioner's predecessor-in-interest under the proposed exchange, their learned counsel, has made, a vain attempt to defend the possession, under the doctrine of part performance. But the rule envisaged by section 53-A of the Transfer of Property Act cannot be invoked There is no written contract, which is sine qua non for application of this provision of law. The evidence of lawful induction of the deceased into the land is, also not, on the record. The letter of the Deputy Commissioner, Sheikhupura under which the possession is said to have been passed on to the deceased, has not been produced. Exchange as defined in section 118 of the Transfer of Property Act, contemplates mutual transfer G of ownership of one thing with another. However, here the land in both the villages belonged to the Government. The deceased rested his whole claim on the agreement and thus, had not acquired any right in the land in village Jajja Kalan much less the ownership. 21. In deciding the jurisdictional issue and the question of the locus standi of the deceased, to file the suit, the Courts below held that respondent No,3 was merely an optee under M.L.R. No,89/91, who did not pay the…
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