2012 C L C 1645
[Balochistan]
Before Muhammad Noor Meskanzai, J
INSPECTOR -GENERAL OF POLICE, BALOCHISTAN, QUETTA and 4 others ----
Petitioners
Versus
GHULAM RASOOL ----Respondent
Civil Revision No.60 of 2007, decided on 19th June, 2012.
(a) Document ---
----Proof ---Unless document is tendered in evidence and exhibited, the same cannot be taken
into consideration.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 18, 70 & 72 ---Fact in issue, proof of ---Principle ---In order to prove case, st atement
of plaintiff must confirm and verify contents of plaint in its totality ---Any repugnancy,
inconsistency or conflict in statement and plaint is sufficient to damage the case and
claim.
(c) Specific Relief Act (I of 1877) ---
----Ss. 8 , 42 & 54 ---Civil Procedure Code (V of 1908), S.115 ---Suit for possession,
declaration and injunction ---Judgment at variance ---Plaintiff claimed to be lawful owner of
land in question and Provincial Government illegally, unlawfully and without any legal
justification encroached upon his land ---Suit was dismissed by Trial Court but Lower
Appellate Court decreed the same in favour of plaintiff ---Validity ---Findings of Lower
Appellate Court on the issue of possession were contrary to record and entries were in favour
of Provincial Government ---Continuous and uninterrupted possession of Provincial
Government over suit property was established, therefore, findings of Lower Appellate Court
on relevant issue were reversed and that of Trial Court were maintained ---Lower Appellate
Court committed material irregularity in reversing the decree, misread evidence and
misapplied law by considering a document which had not been tendered in evidence nor had
been proved ---High Court in exercise of revisional jurisdiction set aside judgment and decree
passed by Lower Appellate Court and restored that of Trial Court ---Revision was allowed in
circumstances.
Tariq Ali Tahir, Addl. A. -G. for Petitioners.
Jaffar Raza Khan for Respondent.
Date of hearing: 1st June, 2012.
JUD GMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against the
judgment and decree dated 21st December, 2006 passed by Majlis -e-Shoora, Kalat Division
at Mastung, whereby the appeal filed by respondent, was accepted and the judgme nt and
decree dated 31st July, 2006 passed by learned Qazi Kalat was set aside.
2. Facts relevant for the disposal of this revision petition are that respondent/plaintiff
instituted a suit for declaration, permanent injunction and possession against
petitioners/defendants. It was averred in the plaint that the plaintiff is the lawful owner and in
possession of property bearing Khasra No. 3904 measuring about 33000 Sq.Ft. situated at
Ward Rais Tock/area Chashma, Kalat. In the year 1996, the police departme nt, through
petitioner No.3 illegally, unlawfully and without any legal justification encroached upon the
landed property of respondent/ plaintiff.
3. The suit was contested by defendants/petitioners by way of filing written statement.
After receiving th e written statement, the learned Qazi was pleased to dismiss the plaint on
the ground of limitation, on filing of appeal, the learned Majlis -e-Shoora vide judgment dated
29th May, 2001 remanded the case to the trial Court.
4. The learned trial Court out of the pleadings of parties framed the following issues: ---
5. Thereafter, the parties were directed to adduce evidence in support of their respective
claims whereupon the plaintiff/respondent examined four P.Ws. In rebuttal, the
defendants/petitioners p roduced five D.Ws. and got recorded statement through attorney. The
learned trial Court after evaluating the evidence and hearing the parties decreed the suit vide
judgment/decree dated 3rd November, 2001. Appeal filed by defendants/petitioners before
Majl is-e-Shoora was also dismissed, however; a revision petition filed by
defendants/petitioners before this Court was accepted vide order dated 25th April, 2005 and
the case was remanded back to the trial Court with directions to provide opportunity to the
parties for leading evidence and thereafter to decide the case. For the sake of convenience,
the order dated 25th April, 2004 passed by this Court is reproduced as under: ---
"By consent of parties' counsel, impugned judgment and decrees dated 3rd November, 2001
and 26th November, 2002 passed by Qazi Kalat and Majlis -e-Shoora, Kalat at Mastung,
respectively, are set aside. The case is remanded to the trial Court i.e. Qazi Kalat for
recording statement of plaintiff and producing record/evidence, if any, and; providing
opportunity to the petitioner to lead evidence and produce record, if any and thereafter, matter
may be decided finally.
Consequently, the petition is disposed of in the terms that the impugned judgment and
decrees passed by the courts below ar e set aside, and the matter is remanded to the trial court
to decide the same, in accordance with law."
6. Thereafter, the petitioner No.5 produced two witnesses and representative of
petitioner No.5 also recorded his statement. On completion of proceedi ngs, the learned trial
Court dismissed the suit vide judgment/decree dated 31st July, 2006. Feeling dissatisfied with
the judgment/decree passed by learned Qazi Kalat, respondent preferred an appeal before
Majlis -e-Shoora Kalat at Mastung which was accepte d vide impugned judgment/decree dated
21st December, 2006, hence instant revision petition.
7. We have heard Mr. Tariq Ali Tahir, Addl: A. -G. for petitioners, whereas, the
respondent was represented by Mr. Jaffar Raza Advocate. Learned Counsel for petiti oner
argued with great vehemence that the learned Majlis -e-Shoora failed to appreciate the facts
and circumstances of the case. The plaintiff/respondent badly failed to prove his case by
producing cogent and tangible evidence but the learned appellate Cour t failed to consider this
important aspect of the case. He stressed that none of the witness produced by respondent
before the trial Court has uttered a single word about the ownership of the respondent, even
then, the learned Majlis -e-Shoora set aside the judgment/decree passed by Qazi Kalat.
Learned Counsel emphasized that the judgment passed by the appellate Court is not
sustainable in view of fact that petitioners are in possession of the land in question since time
of immemorial. The 'Sanad' produced b y plaintiff before the trial Court is not about the
property in dispute but this aspect too escaped notice of learned appellate Court. Learned trial
Court after proper appraisal of entire available material rightly concluded that the plaintiff
has failed t o prove his case. The findings so arrived at were not open to exception.
On the other hand, the learned Counsel for respondent strenuously opposed the revision
petition and argued that there is no misreading or non -reading of evidence by the learned
appe llate Court nor the petitioners could point out any illegality or irregularity in the
judgment/decree impugned. He further argued that the learned appellate Court after proper
appraisal of evidence and taking into consideration the entire documents has pas sed a well -
reasoned and an exhaustive judgment, dilating upon each and every aspect of the case, as
such; the judgment/decree are not called for interference. The respondent, in order to prove
his claim produced trust worthy, confidence -inspiring and tangi ble evidence but the learned
trial Court while dismissing the suit failed to take into consideration the same and the learned
appellate Court has rightly passed the judgment/decree because the respondent had proved his
case.
8. I have considered the cont entions put forth by the parties' learned counsel and gone
through the available record annexed with the petition. It may be observed that pursuant to
remand of case by this Court, the trial Court after allowing opportunity to parties dismissed
the suit. T he learned trial Court while deciding case resolved Issues Nos.1 and 2 in favour of
respondent/plaintiff. Since the petitioners did not challenge the findings of trial Court on
Issue Nos.1 and 2 by means of cross -objection, therefore, the findings of both the courts qua
Issues Nos.1 and 2 are maintained with exception that the findings of appellate Court are not
in consonance with the proved facts on the record qua the factum of possession. The findings
to the extent of the maintainability of suit and point of limitation are sustained. As far as Issue
No.3 is concerned, plaintiff has badly failed to prove this issue. To prove the issue, the
plaintiff has produced P.W. Hazoo Bakhsh who has not stated the boundaries correctly, same
is the position with the sta tements of P.W.2 and P.W -3. The appellate Court while resolving
Issue No.3 has relied upon the statement of P.Ws.1, 2 and 3. A meaningful perusal of the
statements reflects that the appellate Court has misread the evidence particularly the
witnesses have n ot given the correct boundaries, but the appellate Court did not adhere to this
aspect of the case. As far as the documentary evidence is concerned, the appellate Court has
relied upon 'Sanad' with reference to Articles 100 and 101 of Qanun -e-Shahadat Orde r but the
learned appellate Court failed to take into account that neither the said document was
tendered in evidence nor exhibited. There is no cavil to the established principle of law that
unless a document is tendered in evidence and exhibited, the sam e cannot be taken into
consideration. Besides, there is an inherent defect in the suit. According to para -1 of the
plaint, the property is claimed to have been purchased from one Imdad son of Hafiz Shahdin,
whereas, in his statement before the Court, plain tiff stated that the property was purchased
from Khan Sahib. For ready reference the relevant portion of the statement and cross -
examination thereto are reproduced:
In reply to questions, he stated as under: --
9. In order to prove the case, the stateme nt of plaintiff must conform and verify the
contents of plaint in its totality. Any repugnancy, inconsistency or conflict in the statement
and the plaint is sufficient to damage the case and the claim. On this sole ground, the findings
of the appellate Cou rt qua issue No. 3 are without any substance, untenable and
unsustainable, as such; the same are reversed and the findings recorded by trial Court are
maintained.
10. As far as Issue No.4 is concerned, the plaintiff has failed to prove his possession ove r
the property. All the P.Ws. produced by the respondent/plaintiff have not stated the
boundaries correctly, therefore, their statement qua the possession is of no avail.
11. As far as issue No. 5 is concerned, since the crucial issues i.e. Issues Nos.3 and 4 have
been resolved against the plaintiff/respondent, therefore, the findings of the appellate Court
on this issue are also contrary to record. The entries are in favour of Government of
Balochistan. Besides, the continuous and uninterrupted possessio n of Government of
Balochistan over the property in question has also been established, as such; the findings on
issue No. 5 are reversed and that of the trial Court are hereby maintained. It can safely be
concluded that the appellate Court has committed m aterial irregularity in reversing the
decree. The appellate Court has misread the evidence and misapplied the law by considering
a document which has not been tendered in evidence nor has been proved.
In view of what has been discussed herein above, the petition is accepted. Judgment and
decree dated 21st December, 2006 passed by Majlis -e-Shoora Kalat Division at Mastung is
set aside and judgment and decree dated 31st July, 2006 passed by Qazi Kalat is maintained.
Parties shall endure their own costs.
MH/49/Q Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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