2010 C L C 642
[Quetta]
Before Muhammad Noor Meskanzai, J
Malik ZAHIR and others ----Petitioners
Versus
MUHAMMAD SALEEM and others ----Respondents
Civil Revisions Nos.66, 67, 68, and 69 of 2007, decided on 17th November, 2009.
(a) Specific Relief Act (I of 1877) ---
----S. 8---Possession ---Proof ---If a witness has not seen and visited disputed property for last
7-8 years back, then his statement to the extent of possession carries no legal weight.
(b) Specific Relief Act (I of 1877) ---
----Ss. 8 & 42 ---Declaration of title and recovery of possession ---Judgments at variance ---
Findings of Lower Appellate Court ---Scope ---Plaintiffs claimed that su it property was
ancestral property and sought declaration and recovery of possession ---Trial Court decreed
the suit in favour of plaintiffs but Lower Appellate Court allowed the appeal and dismissed
the suit ---Validity ---Infringement of vested right or leg al character was presupposed by S.42
of Specific Relief Act, 1877 ---Claim of plaintiffs was that property in dispute was ancestral
property but none of the plaintiffs' witnesses termed property in dispute to be ancestral
property of plaintiffs ---So even if all the plaintiffs might have been in possession of property
in dispute even then mere possession itself did not create a vested right nor could clothe
someone with legal character to maintain suit for declaration ---Relief within the ambit of
Specific Rel ief Act, 1877 required some ingredients enabling someone for a decree in his
favour which were lacking and missing ---Conclusions drawn by Lower Appellate Court
required to be given due weight, if the same did not suffer from any inherent defect,
irregulari ty or perversity ---Failure of defendants to prove their possession did not entitle
plaintiffs for a decree in their favour because plaintiffs had to prove their case at the strength
of their own evidence and they could not take benefit of weaknesses of def endants ---High
Court declined to interfere in the judgment and decree passed by Lower Appellate Court ---
Revision was dismissed in circumstances.
PLD 1985 Quetta 69 and 2005 CLC 1821 distinguished.
1999 CLC 252 ref.
(c) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 1(2) ---Filing of fresh suit on same cause of action ---Limitation ---After
withdrawal of first suit, limitation is to be reckoned from the date of filing of earlier
proceedings, as once limitation starts on same cause of action, th en it does not stop.
(d) Civil Procedure Code (V of 1908) ---
----O. VII, R. 1(e) ---Cause of action ---Scope ---It is bounden duty of plaintiff to state
categorically and in unequivocal terms as to how and when cause of action accrued to him.
(e) Civil Procedure Code (V of 1908) ---
----O. XLI, R. 23 ---Remand of case ---Principle ---Party cannot be allowed to take benefit of
his own fault ---Suit cannot be remanded just to allow a party to fill in gaps left by him.
Syed Mumtaz H. Baqri for Petition ers (in all cases).
Taj Muhammad Mengal for Respondents (in all cases).
Date of hearing: 30th October, 2009.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- By this common judgment, I intend to dispose
of Civil Revision Petitions Nos.66,67,68 and 69 of 2007 filed by petitioners against the
judgment/decree dated 31st January, 2007 passed by Majlis -e-Shoora, Nushki, whereby;
appeal of the respondents was accepted and judgment and decree dated 30th May, 2006
passed by Qazi, Dalbandin was set aside.
2. Fa cts succinctly stated are that petitioners filed a suit for declaration and permanent
injunction against the respondents before Qazi, Dalbandin, respective boundaries whereof are
as under: ---
Civil Revision Petition No.66 of 2007
East: Desert
West: Garden of Said Muhammad and others
North: Garden
South: Desert
Civil Revision Petition No.67 of 2007
East: Desert
West: Garden of petitioner
North: Garden of Khair Muhammad
South: Garden of petitioner
Civil Revision Petition No.68 of 2007
East: Land/Desert
West: Land and trees of Badal Khan and Abdul Karim
North: Land and trees of Abdul Bari
South: Land of petitioner
Civil Revision Petition No.69 of 2007
East: Balia and Desert
West: Balia and Naro Kaladi
North: Siapath, houses of Ha leem and Ali Murad etc.
South: Desert
It was case of the petitioners that they are in peaceful possession of their respective suit
properties as owners from the time of their forefathers. Upon the land of petitioners Hafiz
Gohar Khan, Jamal -ud-Din, 350 date trees exist, whereas upon the land of petitioner Malik
Zahir 172 date trees exist and there has been no interference from any corner including
respondents. It was further case of the petitioners that prior to filing suit, respondents started
interfer ence in the possession of petitioners, which resulted in filing of suit.
3. Respondents contested the suit by filing written statements,' wherein; they raised several
legal objections. Out of the pleadings of the parties, following respective issues were
framed: ---
Thereafter petitioners produced as many as seven witnesses in support of their respective
plaints and also produced certain documents, however; respondents did not produce any
defence witness and got recorded their statements; besides got exh ibited certain documents.
4. The learned trial Court after hearing both the parties, pro and contra decreed the suit of
petitioners vide judgment and decree dated 30th May, 2006. However; the respondents
feeling dissatisfied preferred appeal before learn ed Majlis -e-Shoora, Nushki, which were
accepted on 31st January, 2007 and set aside the judgment and decree passed by learned trial
Court i.e. Qazi, Dalbandin on 30th May; 2007, hence these petitions.
5. I have heard Mr. Mumtaz H. Baqri, Advocate for pet itioners and Mr. Taj Muhammad
Mengal, Advocate for respondents. Learned counsel for petitioners contended that the
evidence produced by petitioners have proved the ownership and title over the disputed
property, but the learned appellate Court failed to co nsider the evidence in its true perspective
and thus conclusions so drawn are perverse and unjustified. He next contended that while
discarding evidence of petitioners neither any reasons have been given nor the evidence has
been referred to, so evidence p roduced by petitioners have unjustifiably been discarded by
appellate Court that too without any rhyme or reason. He further submitted that the moment
when appellate Court arrived at the conclusion the Government of Balochistan was a
necessary party; in su ch circumstances, this was but inevitable upon appellate forum to have
ordered impleadment of Government of Balochistan as necessary party and the suit should
have been remanded back to the learned trial Court with the direction to petitioners to array
the Government of Balochistan as a party. It was further contended that the documents
produced by petitioners have proved the factum of possession of petitioners and
simultaneously interference by respondents was also proved, so in such circumstances,
restric tion of respondents from interference was/is legal right of petitioners. The learned
counsel vehemently urged that respondents have totally failed to prove through their evidence
that they have ever been in possession, so dismissal of suit by appellate Cou rt was
unjustified. The learned counsel stressed that the evidence on record has been misappreciated,
misconstructed and further the impugned judgment/ decree do not correspond with the
provisions of Order XLI Rule 31 C.P.C. and thus are unsustainable. Mor eover; Issues Nos.1
and 2 have erroneously been decided by appellate Court. The learned counsel finally
requested for setting aside the impugned judgment and decree passed by appellate Court and
also prayed for upholding of judgment and decree passed by le arned trial Court i.e. Qazi,
Dalbandin passed on 30th May, 2006.
On the other hand, Mr. Taj Muhammad Mengal, learned counsel for respondents
controverted the arguments so advanced by petitioners' learned counsel contended that the
learned appellate Court after evaluating the entire material on record has rightly come to the
conclusion that the suit filed by petitioners was incompetent, therefore; a just decision was
made. He further contended that petitioners while filing petitions have not annexed the en tire
record, particularly documents produced by respondents, thus on this score alone, petitions
are liable to be dismissed. He next contended that there is no misreading or non -reading of
evidence on the part of appellate Court, therefore; legally petitio ners were bound to prove
their cases to the entire satisfaction of Court and plaintiff cannot be allowed to take the
benefit of any weakness of respondents, so in these circumstances, the judgment and decree
impugned herein passed by appellate Court do not suffer from any illegality or any infirmity,
as such; same are liable to be maintained.
6. I have heard both the learned counsel for the parties and perused the record. At the very
outset, it would be pertinent to mention here that it does not appear fr om record that the cases
were consolidated by the learned trial Court, but nonetheless with some variation in P.Ws.,
rest of the statements are same; for instance in Civil Revision Petition No.66 of 2007 two
P.Ws. i.e. P.W.1 Eid Muhammad and P.W.2 Noor Muh ammad were examined, whereas;
statements of these P.Ws. were not recorded in other three petitions. Similarly; in Civil
Revision Petitions Nos.67 and 68 of 2007 the P.Ws. are the same i.e. P.W.1 Muhammad
Murad, P.W.2 Haji Muhammad Yasin, P.W.3 Muhammad Usm an, P.W.4 Karim Khan,
P.W.5 Haji Karim Bakhsh P.W.6 Mir Ghulam Sarwar and P.W.7 Abdul Bari attorney,
whereas; in Civil Revision Petition No.69 of 2008 P.Ws. are P.W. Haji Muhammad Yasin,
P.W.2 Karim Khan, P.W.3 Mullah Muhammad Murad, P.W.4 Muhammad Usman, P.W.5
Haji Karim Bakhsh, P.W.6 Mir Ghulam Sarwar and P.W.7 Abdul Bari attorney. Since there
were conflicting judgments rendered by trial Court and appellate Court, therefore; the
evidence was minutely scrutinized.
P.W. Eid Muhammad recorded his statement on 12th August, 2005 and stated the
boundaries as East: Desert, West: Trees and Desert of Syed Muhammad, North: dates
of Feroz Khan and South: Desert. He further deposed that petitioner is owner of date
trees and land, which are in their possession and re spondents have no right in the
possession of petitioners. In cross -examinations, he admitted that the witness was a
party against respondents in previous round of litigation, which was dismissed. He
also admitted that Malik Muhammad Zahir has got other bro ther and sisters, who
were not made party to the suit; voluntarily stated that petitioner is their elder.
P.W.2 Noor Muhammad after stating the boundaries stated that petitioner is owner of
the property -in-dispute and is in possession of date trees etc., however; he does not
know that who has taken the present crops of dates. In cross -examination in reply to
question No.1, he stated that lastly 7 -8 years ago, he has seen disputed property. He
admitted that 4 -5 years earlier he has recorded his statement i n this Court. He
expressed his ignorance regarding the valuation of the suit property. He admitted that
he has not, seen any document/title deed regarding the disputed property. In reply to a
question No.16, he stated that he himself has got no personal kn owledge regarding
ownership of property -in-dispute, whereas; in reply to question No.15, he stated that it
is correct that he has heard regarding ownership of petitioner from other persons. He
also admitted that mother of petitioner and witness are real si ster and sister of
petitioner is legally wedded wife of deponent i.e. Haji Muhammad Yasin. This P.W.
has got recorded his statement in all the four cases. He stated that he has seen the
disputed property i.e. Zeh, is the property of Kashani tribe and Kasha ni tribe are in
possession of the whole Zeh, which belongs to Kashani and they are the owners
thereof and respondents have no right whatsoever. Prior to the proceedings, there was
no dispute nor any internal decision has taken place. Respondents had never any
dispute with any one of the inhabitants of the area, however; 18 -19 years earlier, there
was a dispute among Kashanies, which was settled through arbitration proceedings
headed by Moulvi Abdul Ghaffar as Arbitrator. In cross -examination, he admitted th at
respondents are residents of Killi Zeh. He also admitted that 5 -6 years earlier, there
was dispute between the parties and the Sharai decision was rendered among the
parties by Qazi Muhammad Haroon and Moulvi Abdul Ghafoor. Qazi Muhammad
Haroon decided the matter in favour of Kashanies, whereas; Moulvi Abdul Ghaffar
decided the matter in favour of respondents.
P.W.4 Karim Khan stated that he has seen the disputed property and the date trees are
standing at Washuk. Laboi Tagozai is situated at Washum. T he whole area is termed
as Zeh. The disputed property and the date trees belong to following persons of Laboi
to Malik Zahir, Washuk to Hafiz Gohar Khan, Tagozai to Jamal -ud-Din and Killi
Washuk also belongs to Jamal -ud-Din. Respondents have got no right i n the property -
in-dispute. Moulvi Abdul Ghaffar decided the matter between Muhammad Usman
and respondents were not party to those proceedings. Respondents produced a fake
document.
P.W.5 Haji Karim Bakhsh, Record Keeper produced Exh.P/1 -A, demarcation r eport
regarding unsettled lands and the sketch Exh.P/1 -A, which was prepared by him. In cross -
examination, he admitted that map Exh.P/1 -B is Khasra No.3. He also admitted that Khasra
No.3 is the property of Government. He expressed his ignorance regarding any concern of
map prepared by him with regard to disputed property.
P.W.6 Ghulam Sarwar stated that there is a dispute between the parties and four lands
situated at Zeh. Zeh belong to them, as it is his ancestral property. Zeh area is settled,
however; some areas have been left unsettled. In Revenue Record, entries have been
made in the name of Sardar Muhammad Akbar Khan, who is his grandfather and in
the record of rights in column of tenancy Muhammad Usman, Jamal -ud-Din, Hafiz
Gohar Khan etc. have been entered as tenant and at present they have got no concern
with the four lands -in-dispute. These lands have been irrigated by petitioner,
thereafter they came to his father and told him; that they have made the lands
cultivable, as such; his father gave th ese lands to petitioners. He admitted that he does
not know the boundaries of the lands neither separately nor collectively. He stated that
those four lands given to petitioners by his father, he has not seen the lands with his
own eyes; voluntarily stated that these four lands, which are under dispute. He
admitted that he had not seen those four lands under dispute with his own eyes and the
statement of attorney for petitioners, who while recording his statement gave the
boundaries of four lands under disp ute/subject -matter of Civil Revision Petitions
Nos.66, 67, 68 and 69 of 2007. He stated that Laboi belongs to Malik Zahir Khan and
his date trees are installed over there. Tagozai belongs to Jamal -ud-Din, who is
occupied owner and his date trees are also i nstalled over there. Washuk is in the
ownership of Jamal -ud-Din and his date trees are existing over there. Washuk belongs
to Hafiz Gohar Khan and his date trees are existing there. Respondents have no
concern with these properties. Zeh area is occupied by Kishanies. In cross -
examination, he denied that boundaries stated by him are incorrect. He denied that
Laboi does not belong to Malik Zahir Khan. He admitted that Qazi Muhammad
Haroon and Moulvi Abdul Ghaffar have settled the dispute separately. He admitt ed
that Moulvi Abdul Ghaffar decided the matter in favour of respondents. In reply to a
question, he stated that they challenged that decision in the Court of Qazi, Dalbandin.
He admitted that lands, in the name of petitioners, they have been entered as Ba zgars.
He denied that all the four lands were barren lands, but were made cultivable by
respondents 40 years ago. Respondents did not produce any evidence in this round of
litigation. Respondents while recording their statements stated that they have alrea dy
made a statement on oath, which has been exhibited in 12 cases for damages filed by
petitioners and their relatives, which was dismissed. They also lodged criminal cases,
but the Court acquitted them honourably. Petitioners beat relatives of deponent, w ho
were sentenced.
Earlier there was a dispute between the parties, which was resolved in favour of respondents
by Moulvi Abdul Ghaffar. Copies have been filed and exhibited. Thereafter; they again
started interference, they appointed Moulvi Abdul Ghaffa r and Qazi Muhammad Haroon as
arbitrators through a written deed, who rendered their separate judgments and their rights
were established and these documents have also been exhibited. In cross -examination, he
disputed that petitioners have withdrawn from t heir suit from High Court with permission to
file fresh and this is outcome of those proceedings. He disputed that Moulvi Abdul Ghaffar in
his letter made it clear that the documents produced and attributed to him, are fake
documents. The evidence produced by petitioners is not sufficient to justify the decrees
passed by trial Court. A perusal of statement shows that out of six P.Ws, there are only two
P.Ws., who have stated the boundaries in their statements, whereas; rest of P.Ws. have not
mentioned the b oundaries of disputed property. In the plaint, claim of petitioners is that the
properties -in-dispute are their ancestral and are in possession thereof since their forefathers.
P.W. 1 in his statement states that
He neither declared the property as ances tral property of petitioners nor declares possession
of petitioners from the time of forefathers. In such circumstances, the appellate Court rightly
disbelieved statement of P.W. as the statement of P.W. runs contrary to the version of
petitioner mentioned in the plaint. As far as statement of P.W.2 is concerned, he also states
that the disputed property belongs to petitioners and possession of dates trees etc. also belong
to them. He expressed his ignorance regarding mesne profit of disputed property perta ining to
the year, 2005 and the admission of witness that lastly he had seen the disputed property 7 -8
years ago, so if a P.W. has not seen and visited the disputed property for the last 7 -8 years
back, then his statement to the extent of possession carrie s no legal weight and the categoric
admission of P.W. In reply to question No.16 stated that he had no personal knowledge
regarding ownership of disputed property renders the statement incapable to create right for
the party. As far as statements of rest o f P.Ws are concerned, since none of them has stated
the boundaries of the disputed property, therefore; their statements cannot lend any support to
the case of petitioners. According to law, the entries either must state the boundaries of
disputed property or the Revenue entries, since in this case the property in dispute is
unsettled, therefore; in my opinion this was inevitable, incumbent and essential for the P.Ws
to have stated the boundaries of disputed properties, but by not mentioning the boundaries of
disputed properties, their statements carry no legal weight, irrespective of certain other
inherent defects. In view of above situation, the learned appellate Court rightly disbelieved
the petitioners' evidence, hence learned appellate Court, after prop er appreciation of material
properly drawn conclusions regarding issues Nos.1 and 2, as such; same are upheld. As far as
issue No.3 is concerned, this issue has been resolved against respondents and same was
upheld by appellate Court, but respondents neith er called -in-question findings of appellate
Court on this issue nor even expressed any grievance before this Court while addressing
arguments, so un -hesitantly findings on issue No.3 are upheld. Moreover; respondents did not
produce any evidence before the trial Court except exhibiting certain documents. The
statements of D.Ws already recorded in earlier round of litigation were placed on record and
appreciated by trial Court, this procedure cannot be approved. Issue No.4 was also resolved
rightly, because section 42 of the Specific Relief Act, presupposes infringement of vested
right or a legal character. The claim of the petitioners is that the property -in-dispute is
ancestral property, but none of the P. Ws. termed the property -in-dispute to be ancestral
property of petitioners, so even at all petitioners might have been in possession of property in
dispute, even then mere possession itself does not create a vested right nor clothes someone
with the legal character to maintain suit for declaration, so for a relief within the ambit of
Specific Relief Act, requires some ingredients, enabling someone for a decree in his favour,
are absolutely lacking and missing in these petitions. As far as Issue No.5 is concerned, onus
of proof was upon respondents, who have not produced any witness. As far as statements of
P.Ws., are concerned, since the witnesses have not stated any particular valuation and there is
no material available on record justifying the inference that the suit was beyond the
jurisdiction of trial C ourt at the strength of valuation, therefore; on this too technical ground,
the issue was rightly resolved. According to plaint, the present suit was filed with permission
of this Court, whereby; civil suit earlier filed by petitioner was withdrawn vide or der dated
16th December, 2004, the earlier suit was withdrawn with permission to file fresh one. Copy
of said application is appended with the petition, however; perusal of order passed by this
Court dated 16th December, 2004, transpires that the suit was withdrawn for want of proper
description and non -mentioning of Khasra numbers. There is no cavil with the legal
preposition that after withdrawal of first suit, limitation is to be reckoned from the date of
filing of earlier proceedings, as once limitation starts on same cause of action, then it does not
stop. A perusal of plaint shows that plaint itself was defective for various reasons and
particularly the same was offended to provisions of Order VII, rule 1, clause (e), C.P.C.
Legally it is bounden duty of petitioners to state categorically and in unequivocal terms as to
how and when the cause of action accrued to petitioners. The averments pertaining to cause
of action as given in para No.8 of the plaint are entirely vague. Reliance is placed on the
judgment reported in PLD 1985 Quetta page 69. As far as first contention raised by learned
counsel with regard to misreading and non -reading of evidence is concerned, appellate Court
after proper appreciation of facts of the case rightly appreciated the eviden ce on record after
due application of judicial mind by forwarding cogent reasons and thus arrived at proper
conclusion. A perusal and appreciation of evidence as mentioned hereinabove leaves no room
for doubt, neither there is misreading of any evidence no r non -reading of evidence; rather
appellate Court remaining within four corners of law considered the evidence in its true
perspective; while making that exercise no irregularity, impropriety or perversity is found.
The learned counsel for petitioners fail ed to point out any particular piece of evidence either
the same was not read or misread. It is observed that the law on the subject is quite clear that
the conclusions drawn by the appellate Court require to be given due weight, if same do not
suffer from any inherent defect, irregularity or perversity. As far as question of non -
impleadment of necessary party is concerned, this argument is liable to fail for various
reasons, firstly petitioners themselves opt to file a suit in the present forum, without
impleading Government of Balochistan as necessary party, though according to him,
Government was a necessary party, so a party cannot be allowed to take benefit of his own
fault nor for that matter a suit can merely be remanded just to allow a party to fill in gaps left
by him. Secondly, this is the second round of litigation when the case came before this Court
and at the previous round of litigation, petitioners were allowed to withdraw the suit with
permission to file fresh by having resort to Order VII, r ule 2, C.P.C., but at that juncture,
petitioners did not express any such grievance nor found the plaint defective on such ground.
This argument at this stage perhaps seems to be an attempt to have the case remanded back or
permission be granted to withdra w the suit and to file fresh. Request in both shapes is not
allowable and the ground so agitated might have been weighty, had the suit been decreed,
because in that ease Government might have been prejudiced by the decree if drawn, but here
since no decree has been drawn determining any right for any of the parties, hence the rights
of the Government have not been affected at all, so plea of non -impleadment of Government
as party is lacking legal force. The second legal hitch in this respect is that in case
Government is made party, then Court of Qazi and Majlis -e-Shoora both will lack
jurisdiction. Thirdly the judgment of appellate Court reveals that petitioners were
confronted by appellate Court to the situation that the suit filed by petitioners is
incomp etent, as the subject matter of the suit is unsettled property, therefore; Government
is a necessary party, but petitioners insisted for competency of suit and were not inclined
to make Government as party. So the authorities referred to and relied upon by the
learned counsel for petitioner are distinguishable, because as far as the judgment reported
in 2005 CLC 1821 (Lahore), since in these cases suit filed by plaintiff was dismissed on
account of non -impleadment of necessary parties, here suit has not bee n dismissed on this
ground, therefore; this authority cannot render any help to the petitioner. As far as second
citation i.e. 1999 CLC 252 (Quetta) is concerned, in this case a decree was passed against
the Provincial Government without making the Provinc ial Government as party, whereas;
the entries were in the name of Government of Balochistan, so this judgment also does
not help the petitioner, as the right of Provincial Government is entirely safe and
protective and no decree has been passed against Gov ernment. In this view of matter, this
argument is repelled and the documents produced by petitioners were neither sufficient to
prove title of petitioners nor ocular evidence produced was able to prove the factum of
ownership of petitioners. The evidence p roduced by petitioners are not inspiring
confidence nor the same could have been believed, so no decree could be drawn on the
basis of scanty and poor evidence. Failure of respondents to prove their possession will
not entitle petitioners for a decree in t heir favour, because legally petitioners have to
prove their case at the strength of their own evidence and they cannot take benefit of
weakness of respondents.
In the light of above discussion, the petitions being meritless are hereby dismissed
accordin gly with no order as to costs.
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