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Petitioner: KARIM DAD VS Respondent: ARIF ALI AND ANOTHER
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: KARIM DAD vs ARIF ALI AND ANOTHER Case No.: Civil Revision No, 601 of 1970 Date of Judgment:1977-12-23 Reported As: PLD 1978 Lahore 679 Result: Petition accepted
JUDGMENT
JUDGMENT ' Arif Ali (plaintiff) was allotted the land in dispute, with effect from Rabi 1957 for three years, which term was later extended for another two years, under a scheme known as "Grow More Food Scheme", formulated by the Provincial Government in the form of "Statement of Conditions" under section 10 of the Colonization of Government Lands (Punjab) Act V of 1912 (hereinafter called the Act). The case of the plaintiff, as pleaded in the plaint, was that he was given possession of the land on 2440.1957 with the result that the term of the lease expired after Rabi 1962 (the precise date given In the plaint was October 1962). Some details and history of the "Grow Mote Food Scheme" are given on pages 44 to 51 of Appendix J to "the Colonization of Government Ludo (Punjab) Act, 1912" by Ch. Altai Hussain, 1966 Edition. A perusal of the same shows that in 1962 the Provincial Government decided that lands of those lessees, whose lease did not exceed 124 acres, will be settled on/with them on a fixed price, whereas lands of other lessees welch exceeded the aforesaid limit would be disposed of by auction. The concession of sale by private treaty, however, was not to apply to such leases which had terminated by or before Rabi 1962 (see page 49 of the above book). The plaintiff pressed that he bad a right to purchase the land in dispute by private treaty, but unfortunately the land was not given to him by the Collector, who, by means of his order dated 13,12-1962 (Exh. D/10) instead allotted it to a Manila Dam evictee Karim Dad, defendant No, 2. In this respect he referred to Board of Revenue letter dated 8-12-1961 which laid down that the allotment under the Grow More Food Scheme should not be extended any further and the area should be utilised for the resettlement of Mangle Dam and Islamabad uprooted families. In view of these facts he directed that the land in dispute should be treated as baqaya State land with effect from Rabi 1962. The plaintiff filed an appeal, but without any success as the same was dismissed by the
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Additional Commissioner on 6.1-194 (Exh. D/9 or Exh. D/13) as time-barred and also because according to him, the plaintiff did not qualify to get land by private treaty due to his lean having expired in 1961. At that juncture the plaintiff flied a suit against t 1 the Province of West Pakistan and (2) Karim Dad, submitting that : "Under the circumstances it is humbly prayed that a decree may very kindly be passed in favour of the plaintiff against the defendants for a declaration to the effect that the plaintiff is allottee in possession of the suit land mentioned in pars. 1 of the plaint under the Grow More Food Scheme and is entitled to acquire the proprietary rights in the suit land by sate through. Treaty and the order of the C. A./Collector Pakpattan dated 1342-1961 and of the Additional Commissioner dated 64-1964 and further allotment of the suit land in favour of defendant No, 2 is illegal, ultra plies, improper, arbitrary, malts fide, capricious, without jurisdiction and void and inoperative on the rights of the plaintiff for the acquisition of proprietary rights in the suit land by sale through private treaty. ' And for Perpetual Injunction restraining the defendants from In any manner interfering with the lawful possession of the plaintiff over the suit land as allottee under the Grow More Food Scheme. ' The plaintiff also prays for any other relief to which the lion able Court finds him entitled in law, justice and equity under the circumstances of the case." ' The claim of the plaintiff was refuted by the defendants who filed separate written statements. It was pleaded that the jurisdiction of civil Courts to decide a suit of this nature was barred under nation 36 of the Act, that the suit was time barred that as the plaintiff was out of possession, therefore, a simple declaratory suit in that form was not maintainable (without claiming consequential relief of possession etc.). The pleadings of the parties gave rise to the following issues I- "(1) Whether this Court has jurisdiction to try the suit ? (2) Whether the plaintiff is estopped by his conduct to file this suit? (3) Whether the plaintiff is in possession of the land in dispute and whether this suit is maintainable in its present form ? (4) Whether the suit is within time ? (5) Whether the suit land is properly and sufficiently described in the plaint, if not, with what effect? (6) Whether order of Collector, Pakpattan dated 13-12-1961 is null, void and inoperative upon the plaintiff's rights and whether the plaintiff is entitled to acquire proprietary rights in the suit land by sale through private treaty ? (7) Relit ' On issue No, 1 it was held that the Coast had the jurisdiction to try the suit. On Issue No, 2 it was held that there was no estoppel on the part of the plaintiff to file the suit. On Issue No, 3 it was held that the plaintiff being out of possession, a simple suit without consequential relief of possession was not maintainable, but then to cover this defect the learned civil Judge sue emu directed the plaintiff to amend the suit so as to add relief of possession therein ; On Issue No, 4 the suit was held to be within limitation as being regulated by Article 144 of the limitation Act IX of 1908 which it was held would be applicable to the suit which was to be filed in pursuance of the order of the Court sue mots directing amendment of the plaint as a suit for possession, and Si such, covered by a limitation period of 12 years. On Issue No, 5 the description of the suit land was held to be proper. On Issue No, 6 the order of the Collector dated 14-12-1961 was held to be void and it was found that the plaintiff was entitled to acquire proprietary rights in the suit land from Government by sale through private treaty, inasmuch as he was in possession at least upto 4-1.1963, vide &h. "D/3". Consequently, under Issue No, 7 the Court, by means of its judgment and order, dated 2-6-1970 granted the relief to the plaints in the following manner :-
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"In the light of my above finding on Issue No, 3 the plaintiff is directed to amend his plaint so as to make it a suit for possession. The amended plaint be filed on 15-6-1970. The decree for possession shall be prepared in favour of the plaintiff in the light of my findings on the remaining issue after the amended plaint is filed by revaluing the suit for the purpose of court-fee and jurisdiction and making up the deficiency of court-fee in accordance with the relevant provisions of the Court Fees Act and the Suits Valuation Act within the prescribed period of limitation as observed under Issue No, 4. If the plaintiff fails to comply with this order his suit shall be deemed to have been dismissed. In either event the parties shall bear their own costs., This judgment will form part of the order to be passed later." ' Karim Dad defendant No, 2 has come up in revision against the atom said judgment and decision to this Court wider section 115 of the Code of Civil Procedure. Learned counsel for the parties have raised a number of contentions which are presently being attended to." 2. Mr. Hassan Ahmed Khan Kan war, learned counsel for the plaintiff (respondent) has raised a preliminary objection submitting that as the judgment and decision impugned in this case is appealable in the form of a second appeal to this Court, therefore, the present revision petition was not maintainable. For this purpose he referred to samba 115 of the Code of Civil P104 cadre, which, at the relevant time when the petition was filed, namely, 6-7-1970, read as follows :- "115. Repulsion.-The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears - (a)to have exercised a jurisdiction not vested in it by law, or (b)to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, ' the High Court may make such order in the case as it thinks fit." ' The objection raised by the learned counsel for the plaintiff-respondent has no substance, frit/1, because in the C. P. C, (Act V of 1908) appeal are provided either against (a) an order or (b) against a decree. Appealable orders are mentioned in section 104 and Order LXIII, rule 1, C. P. C. And the present judgment, decision or order does not fall under any of the appealable orders mentioned therein. Secondly, no doubt, a decree is ordinarily appealable, but It is a common ground, that in the instant case no decree has yet been passed or prepared by the learned Civil Judge and the matter before him is still at the stage of scrutinizing the filing of a proper court-fee stamp or other incidental formalities etc. The impugned judgment itself directed that the decree was to be prepared "after the amended plaint is filed by revaluing the suit for the purpose of court- fee and jurisdiction and making up the deficiency of court-fee in accordance with the relevant provision of the Court-fee Act and the Suit Valuation Act within the prescribed period of limitation as observed under Issue No, 4". It is well settled that if there is no decree or so long as a decree has not been prepared an appeal is not competent. See Gela Ram and others v. Ganga Ram and others (1), Bantam Ganpatrao Bhoot v. Manohor Bhoot (2), Labh Singh v. Javitt Singh and others (3), Vamanacharya Rameharia v. Goeind Madhavacharya (4) and Sana Ullah and others v. Ghulam Qatar and others (5). For the various reasons hereinbefore given, the objection as to the maintainability of the present revision petition is overruled. 3. After having overcome the preliminary objection as above Sh. Maqbool Ahmed I, learned advocate for petitioner opened his case and argued that when the learned civil Judge found that the suit in a bare declaratory form was not maintainable, the proper order in the case was to refuse to grant any relief to the plaintiff as contemplated in section 42 of the Specific Relief Act I of 1877 which (so far as relevant for the present case (laid down that "any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make
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therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so". It was submitted that it was the duty of the Court to deal with the plaint as framed and that as there was no application, written or oral, by the plaintiff, seeking permission is amend the plaint and rather the plaintiff insisted to continue with the suit as framed by him and contended that the form of his suit as a mere declaratory suit was in order, the Court could not have of its own compelled or directed the plaintiff to amend the plaint after having found that the plaintiff was out of possession. The objection raised so far it concerns the Court suo motu directing amendment of the plaint seems to have substance. In VtatkataeheRa Cheat and others v. C. B. Narayana illyar and others (6), it was laid down that that "the plaintiff's pleader represented to the District fudge that he was unwilling to amend the plaint and, therefore, did not want the plaint to be returned for that purpose. In these circumstances the District Judge has no jurisdiction under the Code to direct the plaint to be returned for amendment. A plaint may be returned for amendment if a party applies foe it. (Order VI, rule 17). Under that provision of law it is not open to the District Judge to insist upon the party amending the plaint for the obvious reason that if he refuses to do so the District Judge has no means of earring out his order. He can only reject the plaint or dismiss the suit. This he should have done when the pleader declined to amend the plaint. The case does not fall within Order VI, rule Id. Nor does section 153 apply, under that section the Court itself may make any amendment. Here it is obvious it is not open to the Court of its own amend to convert the suit for declaration into one for possession". Same was the view upraised in Govinda Kumar Sur and others v. Mond Mohan Sen and others (7), where it was laid down that "the suit as framed must (1) AIR 1920 Lah. 395 (2) AIR 1943 Nag. 204 (3) AIR 1949 R Pb. 401 (4) AIR 1924 Bom. 33 (5)PLD 1958 Posh. 213 (6) 19 I C 672 (Mad.) (7) AIR 1930 Cal. 42 ' stand or fall on the allegations made therein and the character given to it by the plaintiff. It is a suit brought by the landlord against his tenants. If the Court holds that there is no relationship of landlord and tenant between the plaintiff and any of the defendants the proper course is to dismiss the suit as against that defendant. But there is no provision in the law that I am aware of which will entitle the Court to compel the plaintiff to change his suit into one of another nature". In Afehtab Singh v. Dayal Sigh (1). (Abdul Rashid, J.) it was laid down that "where the plaintiff bases his claim for possession on his title and defendant alleges adverse possession, the Court must determine the right of the plaintiff on the plaint as it is framed and not on one which in the opinion of the Court would be proper. It is not open to the Court to compel the plaintiff to amend the plaint so as to allege possession and dispossession". It was argued by the learned counsel for the petitioner that in the instant care arguments were heard by the learned civil Judge on 28.5-1970 and the judgment was reserved which was later announced on 24-1970. It was In final judgment later on that the learned ci Judge suo snots directed the plaintiff to amend the plaint without there any application, written or oral, for that purpose and without hearing the defendant-petitioner on this aspect of the matter. This factual position was not denied by the learned counsel for the plaintiff. In that view of this matter, it is obvious that a suo mate order directing amendment of the plaint was without jurisdiction on the part of the learned Civil ledge. 1 hold accordingly. 4. This, however, is not the end of the matter. The important question which still remains to be decided is whether on facts and in the circumstances of the case relief of possession was
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claimable by the plaintiff through a civil Court. It is to be noticed that the aforesaid claim has its roots in the Grow More Food Scheme and certain subsequent notifications which laid down fulfilment of certain conditions apart from the condition of tenure of lease for acquiring proprietary rights. In my opinion, therefore, as the right to claim possession depended /Was on the nature and the tenure of the lease, second!, on the fulfilment of the other relevant conditions issued a.m. Regarding settlement and payment of price and cultivation etc., thirdly passing of an order determining the nature and tenure of lease and entitlement of an applicant fourthly, execution of formal treaty by both the puttee, namely, grantor and the grantee and fifthly, the transaction was in all cases to remain subject to the control of the Board of Revenue, therefor., in these circumstances it manifest that the relief of possession in the instant case was not such relief which straightaway flowed from mere determination of simple ten of the lease as to when it expired or when it did not expire but also various other attending and connected matte which were to be oat by the authorities concerned though the cases where all the necessary ingredients relevant on the subject stand fulfilled may perhaps be appear differently in appropriate Courts. The civil Court in such a situation act with material Illegal and irregularity in the exercise of its Jurisdiction when considered the relief of possession as an automatic consequential relief forget-tins the outer relevant intermediate steps and other stages which had to massed before taking back possession from respondents/defendants concerned. The result is that the order directing amendment of the plaint, looked at t whatever angle, cannot be sustained. 5. The next pint argued lay the learned counsel for the de In petitioner was that lies civil Court had no jurisdiction to try the present suit. (1) AIR 1939 Loh. 172 ' He refers to section 36 of the Act which is headed. "Jurisdiction of civil Court barred as regards matters arising under the Act" and lays down that a 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 this Act." Learned counsel submitted that allotment of land or the grant of concession of purchase by private treaty is a matter which the Collector is empowered to dispose under the said Act and the civil Court had no jurisdiction about that matter or about the manner of exercise of any power in that respect. He also argued that even otherwise concession of sale was not by its nature or expression an "enforceable undertaking". "This brings me to a study of the relevant cue-law on the subject. At this stage reference may be made to an order dated 30-5-1968 of the Supreme Court in Civil Petitions for Special Leave to Appeal Nos. 146, 147 and 148 of 1968 reported in Province of West Pakistan and another v. Raldm Bakhsh and others (1) which reads as follows t- "Hamoodur Rahman, .1 .-The dispute in these cases relates to certain lands allotted under the Grow More Food Scheme. The respondents who were allottees under the said scheme claimed that they were entitled to purchase these lands by private treaty in terms of the Board of Revenue's Memorandum No, 2805/6212363-S;(3) III, dated the 8th August 1962. Hence they challenged the auction of these lands by the Collector, by filing suits. ' The suits were decreed by the trial Court and the decisions of the trial Court were upheld even in second appeal by the High Court. ' Hence the Province of West Pakistan and the Collector of Shahiwal seek special leave to appeal from the orders of the learned Single Judge dismissing the second appeal. ' The petitioners contend that they should be allowed to file petitions for Special leave from the order of the learned Single Judge because the same Is based upon a Division Bench decision in the case of Muhammad Akron; v. Niaz Ahmad W. P. No, 117 of 1964. This case is titled as Muhammad Aslant v. Muhammad Akram etc. And is reported Law Notes 1968 Leh. 176-
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' In these circumstances it is contended that it would be futile to file any Letters Patent Appeal. ' This appears to be correct. Hence the petitioners are allowed to move this Court for special leave to appeal from the judgment of the learned Single Judge of the High Court of West Pakistan at Lahore and leave is granted in all these three matters, because, leave has already been granted in the case of Ghulam Ahmad and others v. Board of Revenue, West Pakistan Lahore (Civil Petition for Special Leave to Appeal No, 501 of 1966) to consider this very question, namely, as to whether the promise of "concession of sale" contained in the Memorandum of the Board of Revenue referred to above was not by its nature or expression an enforceable under, taking. ' Since the Government is the petitioner in all these three cases, no security need be put in. These appeals will be heard with the appeal arising out of Civil Petition No, 501 of 1966. (Sd.) Fezkbar, J. (Sd.) Hamoodur Rahman, I." (1) 1968 SCM R 1328 ' Thus it appears that there were a number of cases on the subject which (include ins the above three cases) were later disposed of by the Supreme Court in final appeals on 8-44975. The final c Mel of the Supreme Court vi blob was passed in Civil Appeal No 243 of 1969 reads as follows :- ' Muhammad Aiwa Cheema, J.-These 28 civil appeals are connected matters having a common background and involving identical questions. ' They are disposed of by a consolidated short order, the controversy having been cut short owing to a concession made on behalf of the Government of the Punjab. Nine of these appeals were filed by private persons either against defunct province of West Pakistan or the Board of Revenue while the rest were filed by the Provincial Government and the Board of Revenue. ' The short background of the cases is that in order to 'meet foot shortage and give an impetus to food production in the country sometime in 1953-56 the ,-.Provincial Government framed a scheme known as the Grow More Food Scheme under which available plots of state land in colony districts were leased out foe self-cultivation to various persons initially for a period of five years. It was later decided to offer to the lessees having small holdings the option to acquire proprietary rights in their tenancies by means of private treaty, subject to the two-fold condition that the lease should have expired before 1961 and the land should not fall within five miles' radius from a Mandi, Town or Municipality. It appears that some lessees who would, otherwise, have been eligible for acquisition of proprietary rights were inevitably prevented from purchasing the land for no fault of theirs, Inasmuch as they could not get vacant possession of the land immediately after the order of allotment in their favour in Rabi 1956 and were thus, hit by the condition, apparently having no reasonable basis for its prescription, that their lease should not extend beyond 1961. Being thus denied "the concession to purchase" the land some of them having unsuccessfully approached the Revenue Authorities in the first instance invoked the writ jurisdiction of the High Court. Their Writ Petition No, 6ii4 of 1960 was dismissed by a D. B. Of the former High Court of West Pakistan vide order dated 15-7-1966. Eight of these appeals have arisen out of this judgment. Subsequently, however, a similar Writ Petition No, 658 of 1966 filed by some other lessees under the Grow More Food Scheme, who were likewise denied the concession to purchase the land was listed before another Bench of the same High Court which disagreeing with the earlier decision accepted the writ petition vide order dated 26-7-1968 repotted as Mohd. Ashraf v. Board of Revenue PLD 1968 Lab. 1155. It was held t' at the offer of the "concession of sale", made by the Government vide letter dated 28.6-1962 issued .By the Board of Revenue was available to the petitioners notwithstanding the fact that the terminus a quo of the lease in their case was subsequent to Rabi 1956. This judgment was
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challenged by the Province of West Pakistan in Civil Appeals Nos. 265 to 267 of 1971 and by the Board of Revenue in Civil Appeals Nos. 50 to 66 of 1971. ' Having once challenged the judgment of the High Court, it appears that the Provincial Government had a second thought and !Revising its previous policy issued a fresh Policy Letter No, 1488.71-1217-CL-M, dated the 26th of April 1971, whereby regardless of the time of expiry of the lease .11 allottees of state land under Grew More Food Scheme were offered the choice of acquiring proprietary rights subject to fulfilment of the terms and conditions of the grant. It is in view of this decision of Provincial Government that the appeals filed by the lessees are not contested by the Assistant Advocate General appearing on behalf of the Provincial Government. For the same reason he reeks permission to withdraw the appeals filed by the Government or the Board of Revenue. ' In view of the above position, appeals mentioned at Serial Nos. (1) to (8) are allowed while appeals at Serial Nos. (9) to (28) are dismissed as having been withdrawn. There shall be no order as to costs. (Sd.) Muhammad Yaqub Ali, J (Sd.) Salshaddin Ahmed, J (Sd.) Muhammad Aftal Cheema, J." Learned counsel for the plaintiff/respondent submitted that the aforesaid judgment of the Supreme Court lends a support to the view that the concession of sale was an "enforcible undertaking" and that is why that the Supreme Court accepted the eight appeals whereas Appeals Nos 9 to 28 were dismissed as having been withdrawn by the Government. The Supreme Court, according to the learned counsel, could have enforced only a lawful undertaking and not Ran unlawful one and if the Supreme Court based their…
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