Monday, 3 August 2015

Implementation of Exchange in Revenue Records

PLJ 2004 Lahore 1779
TARIQ RASOOL etc.--Respondents C.R. Nos. 307 £ 308 of 2000, heard on 16.3.2004.
Specific Relief Act, 1877 (I of 1877)--
—-S. 42-Clvil Procedure Code (V of 1903), S. 115-Implementation of
exchange in revenue record claimed by plaintiffs-Factum of exchange
v/as admitted by both parties and witnesses-Trial Court dismissedplaintiffs suit while Appellate Court decreed the same--Both plaintiffsand -defendant on basis of exchange which was effected through consent
decree of Court took possession of their exchanged land and carried on
construction thereon-Official of petitioner who appeared in Courtadmitted allotment of land in question in favour of contesting parties andundertook that if parties approach Housing Department for transfer,such Department would have no objection in as much as, entire townwherein land was situated was in the ownership of Housing Department-­Judgment and decree of Appellate Court in favour of plaintiffs wouldthus, warrant no interference.                                    [Pp. 1781 & 1782] A
Mian Shahid Rasool, Advocate for Petitioner. Mr. Gohar Razzaq, Advocate for Respondent No. 1. Mr. Naveed Sheharyar, Advocate for Respondent No. 2. Date of hearing: 16.3.2004.
Since Civil Revision No. 307/2000 and C.R. No. 308/2000 relate to the same subject matter between the same parties, therefore, through this single judgment both these civil revisions are decided.
2. Brief facts in these civil revisions are that suit for declaration was filed that the plaintiff is owner in possession of Plot No. 54 situated in Block No. 4 Jauharabad District Khushab and the Defendant No. 2 has got no right to interfere into the possession of the plaintiff and the Defendant No. 1 is under a duty of law to implement the transfer of property in the name of plaintiff. Plot No. 54 was allotted to the Defendant No. 2 and Plot No. 41 was allotted to the predecessor-in-interest of the plaintiff and they were both real brothers. In view of their private compromise the entire expenses for the construction were borne by the wife of Defendant No. 2 on plot No. 41 and on Plot No. 54 the cr.lire expenses were borne by the prcdecessor-in-intcrcst of the plaintiff and it was decided by both the brothers th:it this exchange will be incorporated in the field report and the plaintiff is in possession of Plot No. 54. Written statement was filed by the Province ofPunjab raising seven preliminary objections on the point of law. In Paragraph I of the written statement they admitted that the disputed plot was given to IlafizKhalil Ahmad Magistrate, Jhang. Agreement between the allottee anil the department took place on 20.6.1972 and the plot was transferred to him vide order dated 1G.7.197G on the basis of agreement. Plaintiff had no right or interest in the said plot. Six issues were formulated and the learned trial Court dismissed the of the plaintiff r/;.'e judgment and decree dated 2.1.1999. On appeal the learned appellate Court reversed the judgment and decree of the learned trial Court I'iclcjudgment and decree dated 21.6.1999. This judgment and decree is assailed by the Province of Punjab while Respondent No. 2 did not challenge the judgment and decree passed by the learned appellate Court.
3.   Arguments advanced by learned counsel for the petitioner arethat the Plot No. 41 was allotted to Ashiq Rasul and Plot No. 54 was allotted
to  Hafiz   Khalil  Ahmad.   Ashiq  Rasul   had  died  and   his  legal   heirsRespondents Nos. 2 to 7 arc the plaintiffs. Both the allottees arc realbrothers. An agreement to sell was reduced into writing between thedepartment and the aforesaid allottees dated 19.8.1972, map was sanctioned
on  15.12.1973 after  taking permission iVom the Town Committee andconstruction was made. Now both the brothers have exchanged their plotsand they have come for incorporation of the entries through a civil suit,which was dismissed by the learned trial Court and the learned appellate
Court has reversed the judgment and decreed passed by the learned trial
Learned counsel for the respondents argued that the petitioner isin no way aggrieved by the judgment and decree passed by the leu rued trial
Court, as the plots stand transferred in the names of plaintiffs father andthe respondent and both  have through  private compromise made anexchange and the department is bound to incorporate the exchange in thenames of the plaintiff and tiie defendant.
I have heard the learned counsel for the parties and perused therecord. From the perusal of judgment passed by the learned trial Court Issue
No. 1 in respect of jurisdiction and Issue No. 2 the prayer of implementation
of alleged agreement were decided in favour of the contesting defendants andthe learned trial Court observed that any decree for declaration on the basisof any agreement cannot be granted to the plaintiff and suit in the presentform is not proper. While deciding Issue No. 5 the learned trial Courtobserved that Defendant No. 2 against whom the plaintiff claims his title isnot the owner of disputed plot and the decree dated 31.5.1997 passed infavour  of Defendant No.   2  has  not been  entered with  the  Housing 
Department hence so far Defendant No. 2 is not owner of the disputed plot because mere decree docs not create any right until and unless it is given effect according to law. Learned appellate Court reversed the findings of the learned trial Court on Issues Nos. 1, 3 and 4 and cbscl'vcd that statement of PWS and admission of D\VS has been ignored by the learned trial Court. Defendant No. 2 has given a consenting written statement. Record shows that disputed plot was transferred by Defendant No. 1 in favour of Ilafiz Khalil Ahmad and subsequently on the basis of agreement Hafiz Khalil Ahmad had carried out exchange of Plot No. 51 with Plot No. 41. In these circumstances Defendant No. 1 was not justified by not to record the legal heirs of Ashiq Rasul as owners in possession of the premises in dispute. On Issuo No. 5 the learned appellate Court observed that Ex. P-l.shows that Khalkl Mchmood a; pea red before Mian Muhammad Yousaf Saqi, learned Civil Judge, Jauhari.bad and got transferred Plot No. 54 in favour of Hafiz Khalil Ahmad. Ex. D-I the lease purchase agreement and Ex. D-2 the copy of agreement and Ex. I'-'J the allotment order, this much evidence is sufficient to prove that originally Plot No. 54 was allotted in the name of Ilafiz Khalil Ahmad and he paid the price for the same and during those days real brother ofllafiz Khalil Aumad \vas allotted Plot No. 41. Hafiz Khalil Ahmad and Ashiq Rasul carried out exchange and raised construction at Plot Nos. 41 and 54. Written statement of Defendant No. 2 is also available on the record. \Vhcn this was a state of affair, certainly appropriate way for the department was to have incorporated the appellant-plaintiff as owner/ allottee of Plot No. 54 Block No. 4 Jauharabad so findings of learned trial Court oil Issue No. 5 are not in accordance with law and the same are accord!ugly reversed.
(5. Perusal of the evidence shows that plaintiff produced PWs-1 to 4 in support of his claim and DW-1 appeared on behalf of the Province of Punjab. P\V-3 Ilafiz Khalil Ahmad appeared and stated on oath that he was allotted Plot No. 54 i.nd Plot No. 41 was allotted to his brother Ashiq Rasul. The expenses for the construction of Plot No. 41 were borne by his wife and the expenses for tho construction cf Plot No. 04 were borne by his brother and according to the family settlement the plaintiff is owner of Plot No. 54. PW-4 is Ashiq Rasu!, lie supported the plaint. DW-1 is Zafar Ilayat Head Clerk he stated on outh that Plot No. 41 was allotted to Ashiq Rasul and he is the owner of plot, Ashiq Rasul has died and his legal heirs are in possession as owners although no mutation of inheritance has taken place and the allotment order is Ex. D-l, agreement to lease Ex. D-2 and the application of legal heirs Ex. D-3, DW-2 stated that Plot No. 54 in Block No. 4 measuring 10 marlas was allotted to the Defendant No. 2 in the Year, 19G9 and later on this plot was transferred to Khalid Mehmood. Copy ofagreement Ex. D-I, Agreement Ex. D-2 and copy of transfer order is Ex. D-3. In cross-examination he admitted that if the legal heirs of Ashiq Rasul and Khalid Mehmood defendant approach the department for transfer the department will have no objection as entire Jauharabad is in the ownership of Housing Department. P\V-2 Khalid Mehmood admitted that House No.
54 has been decreed in favour of Hafiz Khalil Ahmad through consent decree and he has no relationship with Plot No. 54 and there is no dispute existing between them.
7. Keeping in view the entire oral as well as documentary evidence no substance exist to interfere in the judgment and decree passed by the learned appellate Court. Instant Civil Revisions are dismissed. No order as to costs.
(A.A.)                                                                            Revision dismissed.

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