MUHAMMAD SAEED DAFTRI Versus MST. RAZIA BEGUM

Muhammad Sharif etc. petitioners‑plaintiffs were allotted Plot No.850‑C Peoples Colony, Lyallpur/Faisalabad in auction and possession delivered. The allotment was cancelled by the District Housing Officer, respondent‑defendants on 24‑9‑1965. This was challenged in a civil suit in the Civil Court which granted the decree on 7‑9‑1973. The respondents filed appeal which was accepted by‑ the learned Additional District Judge vide decree, dated 9‑1‑1975 and suit dismissed. So the present revision petition by the plaintiffs.

2. On the pleadings of the parties the following among other issues was settled:‑

"Whether the plaintiff is the transferee owner of the Plot No.850‑C and as such the order of cancellation is illegal? OPP."

This issue was answered in favour of the petitioners‑plaintiffs by the learned Civil Judge and the finding reversed by the first appellate Court. So the findings on the other issues stand affirmed.

3. The case in the plaint was that the plot had been obtained by the petitioners in auction, possession delivered and registered deed executed on 17‑3‑1962. After the delivery of possession a notice was served upon the plaintiffs for construction. Their financial position was weak and so they moved an application to the defendants‑respondents to allow them to sell the plot to ' Barkat and Afsar Shah. They (the plaintiffs) were asked to give proof of their weak financial position which was produced. Correspondence was going on between the parties till 16‑4‑1966 in this connection but when the file was inspected it was learnt that an order of cancellation had been recorded on 24‑9‑1965. In the written statement the agreement to sell dated 17‑3‑1962 was accepted. It was also pleaded that the conditions of auction had been violated, in spite of notice construction over the plot had not been raised, so the plot had been cancelled.'

4. The learned Civil Judge, on the basis of an application moved by the petitioners‑plaintiffs that there had been interpolation in the original record, summoned the original record on 15‑3‑1973 and noted that the notice issued was that the transfer of the plot to the plaintiffs was cancelled for not depositing the 30% of the price: Even now the original record has been seen and it shows that the words "payment of 30% cost of the plot" have been crossed. This approach attempted by the learned Civil Judge was out of the way. The Court is to decide the case on the basis of the material produced on the record. Unless the notice had been brought on the record the learned Civil Judge could not have based his finding upon the material (not before the Court). If a copy of the notice had been brought and the same was found to be in contradiction to the original record, the procedure adopted by the learned Civil Judge could have been approved. The same mistake was continued by the learned Additional District Judge who concluded that "default on account of other formalities" was admitted in the plaint. What those other formalities were, is neither here nor there. The notice of cancellation has not been proved on the record and so we cannot read anything into it. (Just out of imagination or on the basis of arguments raised before the Court). What we have on the record are the agreements to sell dated 17‑3‑1962 (D.W.1/1 and D.W.1/2) which show that within 24 months of the execution of the agreement construction was to be raised on the plot. Admittedly no construction was ' raised within the stipulated period. As pleaded in the plaint the financial position of the plaintiffs‑petitioners was weak and so they wanted to further' pass on their rights to Afsar Shah and Barkat for which they were in correspondence with the defendants‑respondents. This fact is clear from (EX.D.W.1/4). It is dated 26‑6‑1962. No evidence has been brought on the record by the parties when this chapter of permission to transfer the plot ended between the parties finally. If by their own conduct the respondents had been continuing correspondence with the petitioners for the transfer of the plot which transfer was sought for weak financial position and so inability to raise construction, the plaintiffs could not be blamed for that. The conduct of the defendants would be considered to be a contributory factor. There is no evidence on the record that for raising no construction within the stipulated period the plot was cancelled. No notice has been brought on the record. No action against any citizen can be taken adversely affecting his interest unless due notice is served and reply considered. No such attempt having been made, the finding recorded by the learned Civil Judge was correct, though for different reasons as observed above.

5. Resultantly the revision petition is accepted. The decree granted by the learned Additional District Judge is hereby set aside and that of the learned Civil Judge restored.

6. I have been informed at the Bar that now the construction is complete and even policy of the Government has been changed. If there has been some technical fault on the part of the plaintiffs, proper penalty under the rules may be considered to be imposed by the respondents, if desired.

A.A./M‑238/L Revision accepted.