DR. FAQIR MUHAMMAD vs MAJ. AMIR MUHAMMAD ETC.S

ORDER

ASLAM RIAZ HUSSAIN, J -This order shall dispose of two petitions (C. P. S. L. A. No. 558/77 and 559/77) both filed by Dr. Faqir Muhammad, one against the acceptance, by the High Court, of R. S. A. No. 573/71, filed by Major Amir Muhammad Khan, and the other against the acceptance of it. S. A.

No. 861/71. Filed by District Housing Officer, Lyallpur (now Faisalabad) by separate orders dated 15- 6-1977, the main order having been recorded by the High Court in R. S. A. No. 573/71.

2. The facts giving rise to the present petitions are, briefly, that the Government of Punjab acquired some land in Lyallpur for a housing scheme known as Peoples Colony, Lyallpur, which had been framed under the Punjab Urban Improvement Act, 1952. Plots were allotted under this scheme to various persons for construction of houses. Plot No. 40-D was allotted to Dr. Faqir Muhammad (petitioner) in November, 1954, and agreement (Exh. P. 1) was executed between the Government of West Pakistan (now Punjab) and the petitioner on 4-8-1960 and possession of the plot in question was delivered to the petitioner on 5-10-1960. Under clause (4) of the said agreement the petitioner-allottee was required to construct a house thereon. A note under clause (4) provided that he would submit an applica--tion for construction, within six months otherwise his allotment shall be cancelled and the land resumed. Accordingly the petitioner approached the office of the District Housing Officer (hereinafter called the DHO) and submitted an application for sanction of the building plan, but according to the petitioner, the same was not entertained as the office had no order to receive the same. The petitioner moved an application (Exh. P. 7) on 18-1-1961 requesting the DHO for permission to file the building plan, intimating him about his earlier attempts to file an application and the refusal of the relevant official to receive the same due to lack of instructions. He also stated therein that construction of the house could not be taken in hand unless the plan was approved and if the construction was delayed he would not be responsible for the same. He requested for permission to be sent to him to submit, an application for approval of the building plan. In reply to this application the petitioner received a letter (Exh. -P.

8) from the DHO allowing him to submit the requisite plan, on which the petitioner filed an application, dated 11-4-1961. After he submitted the application the petitioner does not appear to have pursued the matter diligently for about four years and on 28-7-1965, he received a notice dated 15-6-1965 calling upon him to show cause as to why the allotment made in his favour should not be cancelled. The petitioner replied vide Exh. P. 12, stating that he had already paid the full price of the plot- and had also submitted the plan which bad not till then been sanctioned by the relevant official. Finally, on 4-11-1965, he received a letter that the plot had been cancelled from his name. Against this order he filed an appeal before the Deputy Commissioner, which was dismissed. The said plot was then, allotted to Major Amir Muhammad (respondent No. 1 in C. P. No. 558). The petitioner thereupon filed a suit under section 42 of the Specific Relief Act, 1877 before the Civil Judge, Lyallpur (now Faisalabad), for a declaration to the effect that the plot in question belonged to him and that he was in possession thereof as its owner. He also prayed that the order of the. D. H. O. Dated 8-11-1965, cancelling the allotment from his name was illegal and void: He prayed further, by way of consequential relief, that perpetual injunction be issued against the respondents restraining them from interfering with his possession of the plot in question. The case was contested by the respondents --defendants and on the pleadings of the parties the following issues were framed: -

(1) Whether the plaintiff is the owner in possession of the plot in suit ?O. P. P.

(2) Whether impugned order of the District Housing Officer, Lyallpur dated 8-11-65 cancelling the allotment of the plot in the name of the plaintiff is illegal, void and inoperative ? O. P. P.

(3) Whether this Court has no jurisdiction to try this suit ? O. P. D.

(4) Whether the suit is not maintainable ? O. P. D.

(5) Relief.

3. The learned Civil Judge by his judgment dated 4-6-1969, held issues Nos. 1 and 2 against the petitioner. On issue No. 3 he held that the Court had jurisdiction while regarding issue No. 4 he observed that the same had not been pressed by the defendant and was, therefore, decided against him. But in view of his finding on issues Nos. 1 and 2 he dismissed the suit. The petitioner filed an appeal before the District Judge which was heard by Mr. Muhammad Amir Malik, Additional District Judge, Lyallpur, who vide his judgment dated 15-5-1971, reversed finding of the learned Civil Judge on issues Nos. 1 and 2 and armed his findings on issues Nos. 3 and 4, as a result whereof he accepted the appeal and decreed the suit in favour of the petitioner. Feeling aggrieved the Government of Punjab through the D. H. O. As well as Major Amir Muhammad Khan (the new allottee) filed separate R. S: As. Against the said judgment. The High Court heard the two appeals together and accepted both of them vide the two impugned judgments dated 15-6-1977, on the ground, firstly, that since the agreement (Exh. P. 1) had not conferred any right of ownership on the petitioner a declaration to the effect that he was owner of the plot in dispute could not be made in his favour and, secondly, that in view of the nature of the suit he ought to have prayed for further or consequential relief by way of specific performance of the agreement. The learned Judge in Chamber also observed that if he had brought a suit for specific performance of the agreement he would have been entitled to a decree.

4. Feeling aggrieved Dr. Faqir Muhammad has filed two separate petitions (C. P. S. L. A. No. 558 and C. P. S. L. A. No. 559 of 1977), against the said judgment one accepting the R. S. A. Filed by Major Amir Muhammad Khan (the new allottee) and the other accepting the R. S. A. Filed by the Provincial Government.

5. We have heard the learned counsel for the petitioner at considerable length and have carefully one through the judgments of the three Courts below. As already mentioned above the learned trial Judge; and the learned Addi--tional District Judge confined themselves to only discussing whether or not the petitioner had applied for the sanction of the plan within the specified period, and if so, whether the cancellation of his allotment and allotment of the same to Major Amir Muhammad, was legal and omitted to consider the legal issues altogether. It is before the High Court that the competency of the suit was challenged, and therefore, the judgment of the learned Judge in Chamber is devoted mainly to consider the maintainability of the petitioner's suit Under section 42 of the Specific Relief Act. It is evident from reading of the heading of the plaint that the declaration sought by the petitioner was regarding status as he had prayed that he be declared as owner in possession of the plot in question. It is well settled that in a suit under section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiff's right to any legal character or with respect to any right as to property claimed by him. In the present case the petitioner-plaintiff sought a declara--tion with regard to his legal character as owner of the plot in question, but as observed by the learned Judge in Chamber, a reading of the agreement (Exh. P. 1) shows that it had not conferred any such right on the petitioner and that by the said agreement he had merely been permitted to enter the, land and make construction thereon, provided the site plan had been go It approved. We are, therefore, of the view that the learned Judge in Chamber was justified in accepting the respondents' appeals on this ground alone. We also agree with the observation made by the learned Judge in Chamber that in a suit under section 42 of the Specific Relief Act the petitioner was required under law to ask for all other relief, which were open to him.

The relevant prayer for consequential relief in the present case, as rightly pointed out by the learned High Court Judge, would have been for specific performance of the agreement. But the petitioner had not asked for it.

6. We feel that the petitioner did have a case on the basis of the Agreement, but unfortunately he did not pursue the correct remedy or ask C for the correct relief due to lack of proper legal advice.

But his own fault lay in not showing greater vigilance in pursuing his application for approval of the site plan.

7. In view of the aforementioned observations both the petitions are dismissed.