IQBAL AHMAD Versus PUNJAB PROVINCE

ORDER

The only point requiring consideration in this case is as to whether the petitioner was owner in possession of property in dispute. The petitioner filed a suit before the trial Court alleging that he was the real owner of the property in dispute and that its allotment was obtained in the name of respondent No. 4 Muhammad Rafiq from the Government as a Benamidar. The suit was contested and the following issues were framed:‑‑

(1) Whether the plaintiff is in possession of the disputed property and the suit is not maintainable in the present form? P.P.O.

(1‑A) Whether the suit is not maintainable in view of preliminary objection No. 2 of the written statement?

(1‑B) Whether the suit is barred by limitation?

(2) Whether the civil Court has no jurisdiction to entertain this suit? O.P.P.

(3) Whether the plaintiff has no locus standi to bring this suit? O.P.D.

(4) Whether the suit has been valued incorrectly for the purpose of court‑fee and jurisdiction? O.P.P. If so, what is the correct valuation for the said purpose? 0 . P . D .

(5) Whether the defendant No. 5 is a bona fide purchaser, for value without notice and what is its effect? O.P.D. Nos‑ 4 and 5.

(6) Whether the suit is cullusive with defendant No. 6? O.P.D.

(7) Whether the plaintiff is the owner of the property in dispute and the defendants have no concern with it, whatever? O.P.P.

(8) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? O.P.P.

(8‑A) Whether the impugned orders are illegal void for the reason mentioned in the plaint? 0 . P . D .

(9) Relief.

After recording the evidence the learned trial Court dismissed the suit by its judgment, dated 1‑2‑1984. The petitioner assailed the said judgment and decree in appeal which was also dismissed on 31‑7‑1986. It is noteworthy that during the pendency of the suit the plaint was amended by the petitioner so as to include the prayer for declaration that the cancellation of allotment of the property from the name of respondent No. 4 by order, dated 25‑7‑1970, was void.

2. The learned counsel for the petitioner has contended that though a plea was raised that the petitioner is the real owner and respondent No. 4 was only a Benamidar yet no issue on this plea was framed therefore, the judgments of both the Courts below are vitiated. This contention has no force inasmuch as issues Nos. 7, 8 and 8‑A adequately cover this plea and it has been so correctly held by the A Courts below. I have gone through the record which shows that the petitioner has produced evidence knowing well that he was to prove that he was real owner and defendant No. 4 was Benamidar in order to succeed on these issues. Omission to put specific word of Benamida in these issues or non‑framing of any issue on this does not vitiate the judgments of Courts below as it has not prejudiced the petitioner. Learned counsel for the petitioner complains that the plaint was amended with the permission of the Court in order to include the prayer for challenging the validity of order, dated 25‑7‑1970, therefore, the plaint shall be deemed to have been filed on the date when it was originally filed, therefore, it has been wrongly held that the suit was barred by time against the said order. Be that as it may, the finding on issue of limitation does not affect the merits of the case as it has been concurrently held by both the Courts below that petitioner failed to prove his case on issues Nos. 7, 8 and 8‑A. Both the Courts below have correctly held under these issues that the property admittedly vested in the Government and even respondent No. 4 was merely an allottee who is alleged to be Benamidar for the petitioner and no proprietary rights having been conferred, rather the allotment having been cancelled, on the ground that respondent No. 3 had violated terms and conditions of the allotment, therefore, there was no question of the petitioner being real owner of the property.

3. The learned counsel for the petitioner having failed to make out a case of misreading or non‑reading of, evidence justifying interference in revisional jurisdiction and having also failed to show, that Courts below committed any irregularity amounting to illegality has argued that he could apply for proprietary rights under the instructions by the Government. I am afraid, on this plea the judgments of both the Courts below regarding concurrent findings of fact could not be interfered with. If the petitioner has any right under any other instructions by the Government he shall be at liberty to purste the said remedy.

4. After hearing the learned counsel for the petitioner who has taken me through the evidence on record I am not satisfied that it is a fit case where I should exercise discretion under section 115, C . P. C . The revision petition has no merits. It is hereby dismissed in limine.

H.B.T./I‑63/L Revision petition dismissed.