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Civil Appeal No. 151 of 1979, decided on 28th April, 1982.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27‑1‑1979, passed in Intra‑Court Appeal No. 14 of 1979 against the judgment of a learned Single Judge of the said High Court, dated 8‑1‑1979, in Writ Petition No. 1416 of 1977).

------S. 25‑Housing Scheme‑Contended that by virtue of extra‑charges made in consideration for leaving open space at back of his plot, appel lant acquired a vested right in open space and as such no rights remained with Improvement Trust or its successors which could be transferred to respondent allottee‑Lahore Development Authority denying recovery of any extra amount from appellant‑Appellant relying on a copy of resolution allegedly passed at a meeting of Lahore Improve ment Trust and purporting to show an amount having been received by Trust from appellant on account of price of open space charges Document purporting to be a copy of resolution of Trust appearing to be spurious‑Appellant found to have made no reference to such document before High Court or to have made any attempt to get it summoned‑Appellant hence cannot be allowed to take advantage of such document for first time in appeal before Supreme Court‑Conveyance deed operating only to transfer rights to appellant in a specified plot and no rights having been created by such instrument in any other land and right in immovable property also being not capable of being created except by registered deed, no case, held, made out by appellant of any right in open space in question.

Muhammad Arif, Advocate and Ejaz Ahmad Khan, Advocate‑on‑Record for Appellant.

Raiz Ahmad, Advocate, Farooq Zaman, Advocate and S. Abid Nawaz, Advocate‑on‑Record for Respondents.

Date of hearing : 28th April, 1982.

‑Leave to appeal in this case was granted to consider the question whether the Lahore Improvement Trust, succeeded by the Lahore Development Authority can "convert a vacant place which, was so shown and notified in a scheme published by it under the Town Improvement Act (Punjab Act IV of 1922) into a residential plot, particularly when on the basis of its aforesaid character the authority bad charged a special price from person or persons to whom other adjoining plot or plots were allotted."

The appellant is the owner of a residential plot of land bearing No. 601 in the Shad Bagh Scheme, prepared by the Lahore Improvement Trust under the provisions of the Punjab Town Improvement Act, 1922, having purchased it on 22‑10‑19,64 under a registered sale deed for a consideration at the rate of Rs. 225 per marla. The case of the appellant is that he and some other adjoining plot owners were required to pay 'a sum of Rs. 75 per marls, in view of the fact that an open space measuring 4 kanals 3 marlas and 167 square feet, at the back of their plots was left open.

However, in 1974, under pressure and influence of the Minister in charge of the Trust, the latter carved out a plot, measuring 15 marlas and 17 square feet, from the said open space, assigned it as plot No. 600‑A and allotted it to respondent No. 1. The appellant and others lodged a protest with the Trust as a result of which, on 25‑4‑1974, the Trust cancelled the allotment made in favour of respondent No. 1. On a Writ Petition filed by respondent No. 1, the High Court of Lahore vide Writ Petition No. 166k/1975, by judgment and order dated 7‑6‑1976, quashed the order of cancellation and remanded the case for fresh decision after hearing respondent No. 1. The Lahore Develop ment Authority, respondent No. 1 herein, who succeeded the Trust, on reconsidering the matter, in compliance with the direction of the High Court, decided in favour of respondent No. 1 and restored his allotment, vide their letter, dated 20‑1‑1977.

The appellant thereupon challenged the decision of respondent No. 2 by means of a constitutional petition before the High Court and contended, inter alia, that by virtue of the extra charges made in consideration for leaving the open space at the back of his plot, he had thereby acquired a vested right in the open space and as such no rights, therefore, remained wits the Trust or its successor body, which could be transferred to respondent No. 1. The Lahore Development Authority (hereinafter referred to as the L. D. A.) denied that the Trust had recovered any extra amount from the appellant or the transferees of the neighbouring plots adjoining the open space in consideration for the existence of the open area in question. It contended that the prices of plots varied from year to year and that the time when the appellant purchased his plot, the price charged was as mentioned in the sale deed as the. price of the plot transferred to the appellant. It was further explained to the Court that this open space had been left vacant for the reason that high tension electric transmission wires were to pass over it, however, subsequently the area reserved for this purpose was found to be unnecessarily large and, therefore, a new residential plot bearing No. 600‑A was carved out of it and allotted to respondent No. 1. The learned Single Judge, before whom the Constitutional Petition came up for hearing, found no evidence in support of the appellant's contention that he had been charged extra consideration for the existence of open space at the back of his plot, and that there was nothing in the sale‑deed executed by the Lahore Improvement Trust to that effect or creating any rights in the said open space. The only reference to the open space in the deed was in connection with the description of the southern boundary of the plot, which in no way could be construed to confer any right whatsoever of the nature claimed by the appellant. The learned Judge also repelled the other contention raised to assail the competency of the L. D. A. under the Act of 1922 to convert a portion of the area for residential purposes, which had been reserved as open space in the original scheme. In this view of the matter, the learned Single Judge dismissed the petition of the appellant by his order, dated 8‑1‑1979. The appellant being aggrieved by the decision of the learned Single Judge took the matter by way of an Intra‑Court Appeal before a Division Bench of the Lahore High Court. The Division Bench concurred with the view taken by the learned Single Judge and dismissed the appeal in limine by their order, dated 27‑1‑1979. Hence the present appeal.

We have heard the learned counsel for the appellant and respondents at length and find no reason to disagree with the concurrent view of the Court below. The flimsy basis that there was in existence an open space on the southern side of the appellant's plot, is no basis in law for claiming a right in such open space, when admittedly the document of title viz., the sale deed is silent in regard to any such right or that any additional consideration was received by the Lahore Improvement Trust on account of the existence of the open space. The reliance on the Master Plan which shows an open space adjacent to the appellant's plot can hardly be of any legal support to the right claimed by the appellant. However, the learned counsel for the appellant placed strong reliance on Resolution No. 122‑A allegedly passed at an ordinary meeting of the Lahore Improvement Trust on 22‑6‑1958, which was not produced before the High Court as its certified copy was not made available. This Resolution purports to show that an additional sum at the rate of Rs. 40 per marla was received from the appellant on account of "front and back open space charges". The Resolution is in the following terms: ‑

Schedule Cost For Shad Bagh Scheme, Lahore ‑Regulation No. 122‑A passed at ordinary meeting of Lahore Improvement Trust held on 22‑6‑1968. Considered the proposal of Chairman to the effect that the following offers for the purchase on monthly instalment of the plots mentioned against each bargainer are accepted :

The genuineness of this document was seriously challenged on behalf of the L D A before us. It is contended that this is a forged document and seems to have been surreptitiously introduced into the record of the L D A at the instance of the appellant. Elaborating this submission, counsel pointed out that no such Resolution was passed by the defunct Lahore Improvement Trust on 22‑6‑1958 as is manifest from the Minute Book for the year 1958. It will be noticed that the so‑called Resolutions has been described in the document as "Regulation No. 122‑A". The argument was that the Trust never passed any regulations but used to pass resolutions. The price at the rate of Rs. 225 was shown to have been approved by the Trust, vide Resolution No. 55, dated 10‑7‑1948, which shows no extra amount being levied on account of the open spaces existing in front or at the back of the plot in question. One particular aspect of the so‑called resolution pointed out was that at serial No. 3, the name of one Mr. Ahmad Ali to whom also a plot bearing No. 667 was transferred purporting to include charges for front space at the rate of Rs. 40 per marla on the same date, viz. 22‑6‑1958, although the said Mr. Ahmad Ali was allotted the said plot in the year 1960 vide Resolution No. 25, dated 30‑6‑1960, on the basis of his application dated 19‑5‑1960.

In view of the submissions on behalf of the L D A, the document relied upon as Regulation No. 122‑A appears to be a spurious document. The appellant does not appear to have made any reference to this document before the High Court, and no attempt seems to have been made by him, if G such document existed on the record, to have summoned it or compelled its production. He cannot, therefore, be allowed to take advantage of this document at this stage for the first time before this Court. Be that as it may, the fact remains that the conveyance deed operates only to transfer rights t the appellant in plot No. 601 and no rights whatsoever have been created b this instrument in any other land vesting in the Trust situated in the vicinity of the plot. A right in an immovable property admittedly of the value or more than Rs. 100 cannot be created by an unregistered instrument in the form of offer and acceptance if it is not reflected in the final deed of conveyance. Such right can be muchless established by extraneous evidence outside the conveyance deed in the manner presently attempted by the appellant.

No case has, therefore, been made out by the appellant of any right in the open space in question

In the result, there is no merit in this appeal, which is accordingly dismissed, with costs.

Appeal dismissed.

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