2013 C L C 1865
[Balochistan]
Before Muhammad Noor Meskanzai, J
Malik MEHBOOB ----Petitioner
Versus
NAZAR MUHAMMAD and 3 others ----Respondents
Civil Revision No.205 of 2012, decided on 19th July, 2013.
Specific Relief Act (I of 1877) ---
----S. 54 ---West Pakistan Land Revenue Act (XVII of 1967), S.172 ---Suit for injunction ---Illegal
possession ---Revenue officers, performance of duties ---Concurrent findings of facts by the
Courts below ---Plaintiff claimed his possession over suit land and s ought injunction against
owners of land from entering into their land and against revenue authorities from performing
their lawful duties ---Both the Courts below concurrently dismissed suit and appeal filed by
plaintiff ---Validity ---Revenue officer could n ot be stopped from performing his legal obligation
and suit filed by plaintiff was hit by provisions of S.172 of West Pakistan Land Revenue Act,
1967 ---By abolition of Art.144 and S.28 of Limitation Act, 1908, encroacher or trespasser could
not have laid a claim on the basis of illegal possession and suit filed by plaintiff was not
competent and appeal was rightly dismissed by Lower Appellate Court ---Plaintiff could not seek
declaration against defendants as revenue record had confirmed the fact that they w ere in
possession and were joint owners, therefore, they had rightly requested competent Revenue
officer for demarcation ---Owner could not permanently be restrained from entering the premises,
ownership whereof vested in him ---No misreading or non -reading of evidence nor any defect in
judgments and decrees rendered by two Courts below were found on proper appraisal of material
on records ---High Court, therefore, declined to interfere as there was no impropriety, perversity,
irregularity or infirmity in judg ments and decrees passed by two Courts below ---Revision was
dismissed in circumstances.
Syed Ayaz Zahoor for Petitioner.
Muhammad Aslam Chishti for Respondents.
Date of hearing: 7th June, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against
the judgments/decrees dated 26th December, 2011 and 31st May, 2012 respectively passed by
the Civil Judge -I, Quetta and District Judge (Ad hoc), Quetta, whereby the suit as well as appeal
filed by the petitioner were d ismissed.
2. Facts relevant for the disposal of instant revision petition are that the petitioner/plaintiff
instituted a suit for Injunction against respondents/defendants in the Court of Civil Judge -I,
Quetta. It was averred in the plaint that the plain tiff is in possession of the property situated at
Mohal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil and District Quetta with its Khasra
No.799/754/800/759/756 -167/1051, measuring 8 acres and 21 poles, bearing Khewat and
Khatooni No.17/28, opposite BMC Complex, Brewery Road, Quetta. It was further averred in
the plaint that the said property was purchased in the name of his mother by the plaintiff as
"Benami transaction". According to the plaintiff adjacent to the property referred to hereinabove
a prope rty bearing Khasra No.4743/787 -760-786/167, measuring 67677 sq.ft, situated at Mohal
Kharkhasa, Mouza Kirani Tappa Shadinzai, Tehsil and District Quetta was lying vacant in the
year 1980, therefore, he occupied the adjacent property by constructing walls o n three sides. It is
further case of the plaintiff that thereafter the property in question was sold by its original owner
to one Haji Ghulam Haider, who later on transferred the same in the name of stepmother and
stepsister of the plaintiff. Recently the plaintiff came to know that the defendant No.4, intends to
take possession of the property by demarcating the area for the purpose of bifurcation. The
defendant No.4 was requested to refrain from doing an illegal act but he did not accede to such
request a nd was bent upon to take possession forcibly through defendant No.3, hence the suit.
3. The suit was contested by the respondents/defendants Nos.1 and 2, by way of filing
written statement, whereby, besides raising certain preliminary legal objections, t he claim of the
plaintiff/petitioner was repudiated on merits as well.
4. The trial Court, out of the pleadings of the parties framed following issues:
1. Whether the suit of plaintiff is not maintainable in view of legal objection "A to C" raised
by defendant No. 1 and 2 in their written statement?
10. Whether the plaintiff is entitled to the relief claimed for?
11. Relief?
5. Thereafter, the parties were directed to adduce evidence in support of their respective
claims. Whereupon, the plaintiff/ petitioner examined three P.Ws. and attorney of
plaintiff/petitioner also entered the witness box. In rebuttal, the respondents/defendants produced
one D.W. and their attorney also got recorded his statement. The learned trial Court after hearing
the argum ents and evaluating the evidence, vide judgment/decree dated 26th December, 2011,
dismissed the suit. The petitioner feeling aggrieved of the judgment/decree passed by the trial
Court preferred an appeal before the District Judge (Adhoc), Quetta, which too , was dismissed,
hence the instant revision petition.
6. I have heard the learned counsel for the petitioner, who contended that both the Courts
below illegally, unlawfully and without any justification dismissed the suit despite of the fact
that there w as ample evidence available on record, on the basis whereof a valid decree could
have been passed in favour of the petitioner, but both the Courts below failed to take into
consideration this aspect of the case. Learned counsel stressed that the petitioner proved their
case by producing trustworthy, confidence -inspiring and tangible evidence, but both the Courts
below without any justification did not take into consideration the material available on record
and without any rhyme or reason dismissed the suit as well as appeal filed by the petitioner.
Learned counsel emphasized that the Courts below wrongly held that the suit filed by the
petitioner is not maintainable and that the petitioner have no cause of action. Learned counsel
further argued that while p assing the judgments/ decrees impugned both the courts below failed
to take into consideration that the petitioner was in possession of the suit property and at the time
of occupying the property none including the previous owner raised any objection.
On the other hand, the learned counsel for the respondents strenuously opposed the
petition and argued there are concurrent findings of fact and law arrived at by two Courts below,
which cannot be normally disturbed by this Court, unless it is proved that t he same are result of
misreading and non -reading of evidence or the same is shocking, ridiculous and perverse. No
illegality or irregularity could be pointed out by the learned counsel for the petitioner in the
judgments/ decrees impugned. There is no misr eading or non -reading of evidence. On the
contrary, the plaintiff/petitioner failed to prove his claim by producing trustworthy and
confidence inspiring evidence, thus; the only legal course open to the Courts below was to
dismiss the suit as well as appea l.
7. I have considered the arguments advanced by the parties' learned counsel and have gone
through the record of the case but I have not been able to persuade myself to subscribe to the
view point expressed by the learned counsel for the petitioner for couple of reasons. Firstly;
because the petitioner admittedly is neither the owner nor ever has he occupied the premises in
question with permission of the owner. The petitioner is well aware that he does not reside in no
man's land nor is he above the la w, rather being citizen of Pakistan is bound by the Constitution
of Islamic Republic of Pakistan and subject to all prevalent laws governing the country. The
petitioner claims to have occupied the land in the year 1980 (even if believed), the plaintiff is
having no legal, ethical and moral justification rather as per his own admission he has been
committing a continuous offence of trespassing for which he was liable to have been prosecuted
under criminal law. Secondly; the petitioner filed suit for injuncti on but during the pendency of
the proceedings it surfaced that he is no more in possession of the property meaning thereby an
end has come to the illegal possession of the petitioner. Under such circumstances there was no
occasion for subordinate courts in cluding this court to authorize the petitioner to re -occupy the
land or to continue an illegal possession. Thirdly; the transaction of the disputed property
through legal and valid documents have been carried out at the first instance in the name of
Ghulam Haider. Thereafter, mutated in the name of Mst. Zainab and Kalsoom Bibi in the year,
1992 and thereafter in the year 2002 in the name of respondents. All the documentation so
carried out were/are in accordance with law and the petitioner being aware of sa id legal
documentation and conferment of title to respective owners but he kept quite and felt satisfied.
Moreover; the petitioner came to know about such entries at the relevant time but since he was
conscious of the fact that he has got no concern whatso ever with the ownership of the property,
therefore, he did not/and of course could not raise any objection. Even now the petitioner admits
and accepts the ownership of the respondents. Despite accepting and admitting the ownership of
the respondents, the f iling of the suit is beyond rational, logic and comprehension. The present
suit was filed by the petitioner on account of the fact that an application dated 6th May, 2010
was moved to Tehsildar who is Revenue Officer, for demarcation of the property betwee n the
respective owners. The perusal of application reflects that it is an application within the domain
of section 117 of Land Revenue Act, within the exclusive jurisdiction of revenue hierarchy. It is
not understandable that how such a suit could be foun d maintainable and competent before the
civil court whereby the respondent No.4, who being a Revenue Officer has been requested to
perform his legal obligation, how could be stopped from performing his legal obligation and the
suit was/is absolutely hit by the provisions of section 172 of the Land Revenue Act. Fourthly; by
abolition of Article 144 and section 28 of the Limitation Act, gone the days when an encroacher
or trespasser could have laid a claim on the basis of so called and illegal possession. I a m
confident to hold that the suit filed by the petitioner was not competent. Similarly the dismissal
of appeal by the appellate court is of course within the four corners of law. Besides, the prayer
clauses in the plaint are not only illegal, and unwarrant ed but contradictory and derogatory to
each other. For instance in prayer clause "a" the plaintiff/petitioner seeks declaration that the
respondents Nos.1 and 2, have got no right to get possession except through due course of law
but the petitioner forgot that the Revenue Record confirms the fact that the respondents were in
possession and are joint owners, therefore, they have rightly requested the competent Revenue
Officer for demarcation. Similarly, prayer clause "b" is contrary to law and logic how the owner
could permanently be restrained from entering the premises ownership whereof vests in
him/them. To my perception by filing the suit, appeal and present petition in fact the petitioner
has caused mental tension, torture and agony besides subjecting t he respondents to incur cost by
contesting the proceedings and defending their rights. The perusal of record reflects that the trial
as well as appellate Courts have properly dealt with the issues and the evidence available on
record have rightly been appr eciated. A meaningful analysis of the plaint reflects that the suit
filed by the petitioners/plaintiffs does not seem to be competent at all. Besides, there is no
misreading and non -reading of evidence nor for that matter any defect in the judgments/decree s
could be pointed out. Since concurrent findings of fact have been rendered by two Courts below
after proper appraisal of material available on record which are not open to any legal exception.
This Court does not interfere where there is no impropriety, perversity, irregularity or infirmity
in the judgments impugned, thus, finding no force in the petition, the same is dismissed with
exemplary cost of Rs.20,000 (Rupees twenty thousand only).
MH/74/Bal. Revision 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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