2012 C L C 669
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
Haji TOR KHAN and others ----Petitioners
versus
GOVERNMENT OF BALOCHISTAN through
Secretary Irrigation and Power Department, Quetta ----Respondent
Civil Revision No.315 of 2005, decided on 14th December, 2011.
Specific Relief Act (I of 1877) ---
----Ss. 8, 42 & 54 ---Suit for possession, declaration and injunction ---Plaintiff who claimed
ownership of land in question had contended that possession of the defendan ts over the said
land was unauthorized and illegal ---Existence of entry in Revenue Record in favour of the
plaintiff, was not denied by either of the parties ---Suit-land existing in the name of plaintiff,
which initially had proved case of the plaintiff, a nd burden, therefore, shifted on the
defendants to establish existence of a legal title in respect of land in question in their favour --
-Defendants claimed their right in respect of land in question adverse to the plaintiff, with the
plea that they had pur chased said land from the owners thereof and were occupying the same
in their own right ---Defendants, on the first instance had to establish a legal transaction
effected between them and previous owners from whom the defendants had allegedly
purchased the suit-land---To establish themselves to be bona fide purchasers of the land in
question, the defendants had not placed on record any title deed in favour of said vendors ---
Defendants had pleaded that said vendors were recorded owners in Revenue Record, but the
defendants had failed to produce any entry made in favour of the vendors ---Agreements
which were produced by the defendants, were of less help to them ---No other title deed was
produced by the defendants, which could establish that they had any title i n respect of suit -
land, which could legally pass on to them on the basis of sale transaction as asserted by the
defendants ---Mere possession of defendants over suit -land, would not prove the existence of
a legal title in favour of them ---Relevant entry in Revenue Record existed in favour of the
plaintiff coupled with the fact that there was no denial of title of the plaintiff on the part of
the defendants, which established that the defendants were in full knowledge and had
recognized the title of the plain tiff over the suit -land---Defendants could not be allowed to
take a contrary stand ---Defendants had failed to establish their contention ---No instances of
misappreciation and non -appreciation of evidence and material by the courts below were
established, w hich needed interference by High Court in revision petition ---Petition was
dismissed.
Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Zarshad through legal heirs v. Shah
Gul PLD 2003 SC 650; Sher Baz Khan v. Mst Malkani Sahibzadi Tiwana PLD 2003 SC
849; Messrs Basf Pakistan (Pvt.) Ltd. v. Messrs Tanocraft Limited PLD 2003 Kar. 598;
Habib Khan v. Mst. Bakhtmina 2004 SCMR 1668; Chief Engineer, Irrigation Department N. -
W.F.F. Peshawar v. Mazhar Hussain PLD 2004 SC 682; Ansar Mehmood v. Allah Bakhsh
2005 YLR 34; Pakistan Industrial and Commercial Leasing Ltd. v. Haq Knitwear (Pvt.) Ltd.
PLD 2009 Lah. 52; Mst. Rasheeda Begum v. Mst Saeeda 1993 CLC 1236 and 2003 CLC 660
distinguished.
Ch. Muhammad Arshad, Syed Iqbal Shah for Petitioners.
Nasrullah Acha kzai, Addl. A. -G. for Respondent.
Date of hearing: 1st June, 2011.
ORDER
MRS. SYEDA TAHIRA SAFDAR, J. --- The petitioners, through instant petition, assailed
judgment dated 6th October, 2004 of Senior Civil Judge -I, Quetta, whereby the suit filed by
the respondent was decreed, and judgment dated 27th July, 2005 of Additional District
Judge -III, Quetta, whereby the appeal preferred by the petitioners was also dismissed. The
petitioners while challenging the decisions contended that both the courts below failed to
appreciate the evidence, produced by them (petitioners), in its true perspective, while undue
weight was given to the version taken by the respondent, only being Government of
Balochistan„ which resulted into miscarriage of justice, thus not sus tainable. It is further
contended that the total area of the land in question is 14 -rods, while the petitioners are only
in possession of a small portion of the land, which has not been properly described in the
plaint; therefore, there was clear viol ation of provisions of Order -VII, Rule -3 Civil
Procedure Code (C.P.C.). Further, the remaining area of the property is in possession of
numerous persons, who were not made party to the suit; therefore, the suit was bad for non -
joinder of necessary pa rties, thus not maintainable. But, the courts below failed to consider
these legal aspects of the case, and arrived to the conclusion, which is contrary to law. It is
also contended that the objection relating to limitation of the suit, which was in fact f iled
beyond provided period, but was ignored by the courts below. It is further contended by the
petitioners that they are in possession of the land in question since the time of their
forefathers. While petitioner No.1, and father of petitioners Nos.9 to 14 bonafidely purchased
the land in question from one Haji Habibullah Khan Bazai, and petitioners Nos.9 to 14
purchased the land in dispute from one Muhammad Khan, whereafter, they raised pucca
construction of shops, houses and also installed tube wells. F urther, the respondents never
raised any objection on the sale transaction, or on raising construction thereon, therefore, this
silence amounted to admission of their right on the part of the respondent. Rather, the present
suit had been filed with mala fi de intention, therefore, liable to be dismissed. But the courts
below failed to consider these factual aspects of the case. It is further contended that due to
their long -standing possession of the land in question, that too, without any interference, it
was rightly considered by them (petitioners) to be owners of land in question, being the bona
fide purchasers. But these facts were ignored by the courts below, whereby recorded findings,
which are not only contrary to the facts, but also in contravention o f law. It has been prayed
that the impugned judgments be set aside, and the suit filed by the respondent be dismissed
being without merits.
2. The learned counsel for the parties were heard at length, and record was perused. The
learned counsel for the p etitioners while arguing the matter contended that the property in
question is admittedly in possession of the petitioners, while the respondent is claiming
possession with declaration of the title, as such the period provided for filing of a suit will be
12 years according to Article 142 of the Limitation Act. And the period for seeking
declaration is six (6) years as provided by Article -120 of the Limitation Act. While relying on
these Articles, the learned counsel contended that as the petitioners are in possession of the
property in question since three decades, coupled with the fact that no date of dispossession
has been mentioned in the plaint, established the contention that the suit was filed beyond the
provided period, therefore, not maintainable, t hus liable to be dismissed. But, despite framing
of a specific issue the courts below failed to record any finding on it, which is an illegality.
Furthermore, the plaint failed to specify the cause of action, nor even the date when the cause
of action in a ctual accrued, but this aspect also remained unattended. It was further his
argument that since 1996 to 2002 there was correspondence between the parties for
settlement of the issue, but this fact was concealed by the respondent in the suit, this
concealme nt is deliberate. Therefore, there was mala fide on the part of the respondent, as
actual facts were not disclosed, and adverse inference was to be drawn. It was further
contended that the suit filed by the petitioners was withdrawn with consent of the res pondent,
on occasion of settlement of the dispute between the parties outside the court, but this fact
cannot adversely affect their right. But, this aspect of the case remained unattended.
Therefore, in the given circumstances, the suit filed by the respo ndent was hit by the
provisions of section 12, C.P.C., therefore, not maintainable and was liable to be dismissed. It
was argument of the learned counsel for the petitioners that during all these years neither any
objection was made on raising of the const ruction over the property in question, nor any
notice was issued by the respondent, therefore, in view of the conduct of the respondent the
right, if any, existed in favour of the respondent no more remain in the field. Because the
person who slumber over his right loses the same. The learned counsel urged that mere
existence of mutation entry in the name of the Government, is not sufficient to establish a
legal title, rather some more evidence was required for the purpose. But, no document was
produced to establish the title of the Irrigation and Power Department. Rather, to the contrary
it had been established that the petitioners purchased the property in question from one
Muhammad Khan, and Sangeen Khan, several years back, and this fact was not refuted by the
respondent. In addition it is emphasized by the learned counsel that the entries made in the
Revenue Record are not title document, therefore, if there is denial of title based on mere
Revenue Record, the title is to be established apart from the sa me. But in present case though
the respondent failed to produce any other document to establish his legal title in respect of
the property in question, which was mandatory, but the courts below ignored this legal aspect
of the case, and recorded findings i n its favour without any material. Even otherwise, the title
of the respondent has not been decided by the courts below. It was further argument of the
learned counsel that the suit was required to be filed by the owners, and not by the tenant, but
the pre sent case has been filed by Irrigation and Power Department, who is only an allottee,
as the land is asserted to be owned by the Government. Therefore, the suit was not filed by
proper person, thus not maintainable. Furthermore, the admission made by the
plaintiff's/respondent's witnesses were not considered by the courts below, which adversely
affected their (petitioners') rights. The learned counsel concluded that as there is
misappreciation; misreading and non -reading of the evidence, and the relevant pr ovisions of
law, therefore, reappraisal of the matter is required by this court. The learned counsel placed
reliance on:
Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430,
Zarshad through legal heirs v. Shah Gul PLD 2003 SC 650
Sher Baz Khan v. Mst Ma lkani Sahibzadi Tiwana PLD 2003 SC 849.
Messrs Basf Pakistan (Pvt.) Ltd. v. Messrs Tanocraft Limited PLD 2003 Karachi 598
Habib Khan v. Mst. Bakhtmina 2004 SCMR 1668
Chief Engineer, Irrigation Department N. -W.F.F. Peshawar v. Mazhar Hussain PLD 2004
Supreme Court 682
Ansar Mehmood v. Allah Bakhsh 2005 YLR 34 (Lahore)
Pakistan Industrial and Commercial Leasing Ltd. v. Haq Knitwear (Pvt.) Ltd. PLD 2009
Lahore 52
3. In reply of the arguments the learned Additional Advocate -General (A.A. -G.) contend ed
that within the meaning of section 79, C.P.C. Government of Balochistan means the
concerned Secretary. Further, unsettled land vests with the Government through Board of
Revenue; therefore, the suit was filed by the proper person, therefore, very much
maintainable, and the objection is baseless. It was further his argument that the petitioners
had taken a contradictory plea, which ruins their case. Because on one hand they (petitioners)
denied title of the respondent in respect of the land in question, b ut on other hand they
continuously approached the concerned Authority for allotment of the land in question. While
in reply to the objection pertaining to limitation, it was argument of learned A.A. -G. that as
section 28 and Article 144 of the Limitation A ct are declared null and void, therefore, they
are neither applicable in the matter, nor any benefit can be obtained by the petitioners from
them. It was further his argument, that as private negotiations were made, and matter
remained under consideration, therefore, there was no question of delay in filing of the suit.
The learned A.A. -G. placed reliance on:
Mst. Rasheeda Begum v. Mst Saeeda 1993 CLC 1236
CLC 2003 page 660
The learned Additional Advocate -General strongly asserted that the petiti oners being
illegal occupants have no legal right or entitlement in respect of the land in question;
therefore, present petition is liable to be dismissed. He concluded with the argument that the
plea, which has not been taken before the court below cannot be raised at this stage, thus the
contentions so raised by the petitioners are out of consideration.
4. The brief facts of the case are that a suit for possession, declaration, and injunction was
filed by the Government of Balochistan through Secretary Irrigation and Power Department,
against 14 persons/present petitioners, whereby the respondent being the plaintiff claimed
ownership of land bearing Khasra No.1102, Khatooni No.193, measuring 14 -rods, situated in
Mohal Karez Sher Dil, Mouza Killi Gul Muha mmad, Tappa Durrani, Tehsil and District
Quetta, with contention that the possession of the defendants/ petitioners is unauthorized, and
illegal. It has been prayed that: ---
(i) To declare that the defendants have no right or title to retain the possessi on of land in
question, while they are not the owner of the same.
(ii) To declare that the plaintiff is entitled to get the possession of land in question from the
illegal occupants (defendants).
(iii) To declare the defendants as encroacher and to dir ect them to hand over the possession of
property in question to plaintiff.
(iv.) To restrain the defendants not to alienate, transfer, sell and change the nature of the land
in question."
5. In their joint reply the petitioners Nos.1 to 8/defendants No s.1 to 8 apart from raising
several legal objections claimed that the property in question was purchased by petitioner
No.1 Haji Tor Khan from one Haji Habibullah Khan Bazai, whereupon he (petitioner No.1)
constructed a house and ten shops, while some port ion of the land was sold to petitioners
Nos.2 and 4/defendants Nos.2 and 4, who also constructed houses thereon. Further,
defendants Nos.5 to 8/petitioners Nos.5 to 8 are tenants of defendant No.1/petitioner No.1 in
the shops constructed thereon. While in their separate reply defendants Nos.9 to
14/petitioners Nos.9 to 14 in addition to the same legal objections raised plea that they are in
occupation of the land in question from the last thirty years, as they have purchased the land
from Haji Habibullah Kh an Bazai, and raised construction thereon after spending huge
amount, which was never objected by the plaintiff/ respondent. Out of pleadings of the parties
issues were framed on 5th March, 2003. The plaintiff/respondent produced two witnesses,
and recorde d statement through representative. While defendants Nos.1 to 8/petitioners Nos.1
to 8 produced two witnesses, and defendant No.1/petitioner No.1 recorded his statement for
himself, and also on behalf of defendants Nos.2 to 8/petitioners Nos.2 to 8. While the
remaining petitioners/defendants produced four witnesses, and defendant No.13/petitioner
No.13 recorded his statement for himself and also as attorney of defendants Nos.9 to 12 and
14/petitioners Nos.9 to 12 and 14. On completion of the evidence, the t rial court through
judgment dated 6th October, 2004 allowed the suit filed by the respondent/plaintiff. Feeling
aggrieved of the judgment the petitioners approached appellate court by way of filing appeal,
which was rejected by the appellate court through judgment dated 27th July, 2005, whereby
findings of the trial court were upheld. Still feeling aggrieved the petitioners preferred instant
petition, thereby challenged both the judgments on grounds as mentioned hereinabove.
6. From the pleadings, and the evidence of the parties, certain facts appear to be admitted.
The existence of entry in Revenue Record in favour of the respondent/Government of
Balochistan is not denied by either of the parties. Further, the fact that the property in
question is in poss ession of the petitioners, whereon some construction had been raised, is
also an admitted fact. Furthermore, the fact of filing of a suit by petitioners Nos.9 to 14, and
its dismissal being withdrawn through order dated 27th July, 1998 is also not denied b y either
of the parties. It is also an admitted position that thereafter, negotiations were made between
the parties for settlement of the issue, but till filing of the suit no settlement was arrived
between the parties. In view of these facts, the denial of title of the respondent at present
stage by the petitioners is mere a contradiction to their own version taken before the trial
court. In addition their own conduct amounts to an admission, as they continuously
approached the concerned Authorities durin g all these years, thereby tried to get an order of
allotment in their favour, but remained unsuccessful. Therefore, the plea taken by the learned
counsel for the petitioners that their title has become adverse towards the respondent due to
lapse of time, and also due to long -standing possession do not have the force.
7. Even otherwise, the petitioners while denying title of the respondent claimed to be the
owners of the land in question. According to them petitioner No.1, and petitioners Nos.9 to
14 purc hased land in question from one Haji Habibullah Khan Bazai. But, it has not been
made clear that from whom petitioners Nos.2 and 4 purchased the land, and derived their title
of owners. While the status of petitioners Nos.5 to 8 was described as tenants of the petitioner
No.1, therefore, they are out of consideration. In present case, the land in question, admittedly
existed in the name of the Provincial Government/respondent in Revenue Record, which
initially prove case of the respondent. Therefore, the bu rden shifted on petitioners Nos.1, 2, 4
and 9 to 14 to establish existence of a legal title in respect of land in question in their favour.
In their written statements the petitioner No.1, and petitioners Nos.9 to 14 claimed to have
purchased the land from one Haji Habibullah Khan, whereupon they raised construction in
capacity of owners. But the two witnesses, who appeared on behalf of petitioners Nos.9 to 14
Amir Muhammad (DW -3) and Abdul Muhammad (DW -4) while recording their statements,
stated that the p roperty in question is owned by Haji Sangeen Khan. But the statement of
petitioner No.13 Sadiq -ud-Din, who also appeared on behalf of petitioners Nos.9 to 12 and
14, is contrary to the witnesses, who stated that their father purchased this land from Haji
Mirza Khan, Moeen -ud-Din Shah and Muhammad Khan. Furthermore, DW -3 in addition
stated that this land was purchased from Muhammad Khan, while an agreement was also
executed, which was produced as Exh.D/3 during the course. The contents of the agreement
discl osed that the agreement was executed between Muhammad Khan and Sangeen Khan and
nobody else was party to the transaction. It is also to be noted that neither this Muhammad
Khan, nor Haji Habibullah Khan Bazai ever appeared before the trial court, nor any e ffort
was made by the petitioners to produce them in support of their claim. Though it has been
urged by the learned counsel that the petitioners are bona fide purchasers, as they had
purchased the land in question from mentioned two persons, who were owne rs of the land.
The learned counsel though raised plea of purchase made under bona fide impression, thus
tried to cover up the case within the purview of proviso of section 53 -A. Transfer of Property
Act, 1882 ,but failed. Because, it has neither been expl ained, nor established through
evidence by the petitioners that before entering into sale transaction the mentioned
petitioners, or their fathers took any step to get it confirmed that whether a valid title existed
in favour of Habibullah Khan Bazai, or Mu hammad Khan. There is nothing on record from
which it can be ascertained that any legal title vested in favour of these two persons, or
anyone else, on basis of which they can make further sale transaction. The plea of bona fide
purchaser stand no where, a s the petitioners in view of their own stand had not adopted/taken
any measure or step to get it confirmed that the persons from whom they were purchasing the
land, had any vested right in land in question. Therefore, in absence of any legal title in
favou r of said Habibullah and Khan Muhammad, no valid title passed on to the petitioners.
8. As far as objection relating to the limitation is concerned, it needs consideration. The
petitioners Nos.l to 8 claimed themselves to be in possession of land in ques tion, without
disclosing the time since then they are in occupation. While according to the petitioners
Nos.9 to 14, they are in occupation of the property in question for the last 30/40 years. But, as
the suit was filed by the respondent for declaration, injunction, and possession, therefore, the
date when cause of action had accrued was required to be specified in the plaint, as it is
incumbent on the plaintiff to disclose it in the pleadings. But in present case, it has only been
mentioned that few years ago the defendants occupied the land, and raised construction
thereon. The paragraph of the plaint pertaining to accrual of cause of action also failed to
disclose the time or date of the act. The plaint has not been properly prepared/drafted, which
is no t good in eyes of law. But from the material on record it is apparent that the land in
question got entered in the name of the respondent during settlement carried out in year 1991 -
92 on basis of some old entry made in 1948, which has not been brought on r ecord. The date
of allotment in name of Irrigation and Power Department is nowhere mentioned. But, the
instant suit was filed in the year 2002 with the plea that illegal encroachment had been made,
and the respondent had been dispossessed by the act, from the land in question. The instant
suit is for possession, which is to be governed by Article 142 of the Limitation Act 1908,
whereby the provided period is 12 years from the date of dispossession, or discontinuance.
The second relief is in respect of decl aration, which is to he governed by Article 120 of the
Limitation Act, 1908. Though the petitioners' learned counsel raised plea of adverse
possession, and made an effort to take advantage of provisions of Limitation Act. But as
section 28 of the Limitatio n Act 1908, and Article 144 of the Act, which were relevant in the
matter, had already been omitted by Act No.II of 1995. Therefore, in view of the fact the
argument of the learned counsel do not have the force. From the material on record it is
apparent t hat the property in question entered in the name of the respondent lastly in year
1991 -1992, while the date of dispossession or discontinuance has not been specifically
described. But from the evidence of the parties, it is evident that some notice for vac ation was
given to the petitioners in year 1996, in reply thereof a suit was filed by the petitioners Nos.9
to 14, which was later on dismissed being withdrawn in year 1998. It is also apparent from
the pleadings and evidence of the parties that matter rem ained pending before the concerned
Authorities without any final decision during all these years, while instant suit was filed in
year 2002. The cause of action, in the circumstances subsists in all these years, therefore, the
suit was within time. Even ot herwise, it is painfully noted that a large area of land vested with
the State was unauthorizedly occupied, and utilized by the persons having no legal right or
title, and the concerned Authorities closed their eyes and retracted from their duties, thus
cause heavy loss, for which they must be accounted for. A strict action is required to be
taken.
9. As far as argument of the learned counsel to the extent that the present suit is liable to be
dismissed being barred under the provisions of section 12, C.P .C. is concerned, is also
without weight. Because, the suit was filed by some of the petitioners, which was later on
withdrawn by them. Admittedly, no suit was previously filed, nor withdrawn by the
respondent in respect of the property in question. Theref ore, in view of the facts, section 12,
C.P.C. is not attracted in the matter.
10. Keeping in view the above discussion the suit was rightly filed by the respondent i.e.
Government of Balochistan, through Secretary Irrigation and Power Department as per
requirement of section 79, C.P.C.
11. In instant case, the petitioners are claiming their right in respect of land in question
adverse to the respondent with the plea that they have purchased the land, thus occupied it in
their own right, therefore, they (petitioners) on the first instance have to establish a legal
transaction effected between them and the previous owners, as described by them. There
after, to establish themselves to be bona fide purchasers of the land in question. But, they
have not place d on record any title deed existed in favour of said persons i.e. Haji Habibullah
Khan Bazai, Mirza Khan, Moeen -ud-Din Shah, Muhammad Khan or Sangeen Khan. Despite
their own plea that the said persons are recorded owners in Revenue Record, but no such
entry made in their favour had been produced. The agreements which were produced in
evidence as Exh.D/2 and Exh.D/3 are of less help, because Exh.D/2 was executed in year
1985 between Habibullah Khan Bazai with Haji Tor Khan (petitioner No.1) which only state
the area as 8000 square feet with certain boundaries, but with no specific khasra number or
Khatooni number. It is to be noted that it is mentioned therein that the land existed in the
name of Habibullah in Revenue Record. Same is the case in Exh.D/3, whic h is executed
between Muhammad Khan and Sangeen Khan. No other title deed was produced by the
petitioners, which can establish that the said persons had any title in respect of land in
question, which can legally passed on to them (petitioners) on basis of the sale transactions,
as asserted. Therefore, mere possession does not prove existence of a legal title in favour of
either of them. In the circumstances, in view of the facts that relevant entry in Revenue
Record existed in favour of the respondent, cou pled with the fact that there is no denial of
title of the respondent on the part of the petitioners, with further no denial of the fact that
there was constant efforts of the petitioners by approaching the concerned Authorities for the
purpose of allotmen t and purchase of the property in question. All these facts established that
the petitioners were in full knowledge and they also recognized the title of the respondent,
therefore, they cannot be allowed to take a contrary stand. Further, the judgments rel ied upon
by the learned counsel for the petitioners, and also by the learned Additional Advocate -
General are not relevant in the instant case, thus are of no help.
12. In view of above discussion both the courts below properly assessed the material on
record, and arrived to the conclusion which is very much legal in the circumstances. The
petitioners have failed to establish their contention. No instances of misappreciation and non -
appreciation of evidence, and material by the courts below are established , which needs
interference of this court. The petitioners have failed to make out a case in their favour.
Therefore, the petition is dismissed having without merits.
No orders as to costs.
H.B.T./171/Q Petition dismissed.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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