2013 C L C 1902
[Balochistan]
Before Muhammad Noor Meskanzai, J
MUHAMMAD SIDDIQUE and others through Attorney ----Petitioners
Versus
SECRETARY FOREST through Executive Officer, Lasbella at Uthal and others ----
Respondents
Civil Revisions Nos.150 of 2010 and 73 of 2012, decided on 19th July, 2013.
(a) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration and injunction ---Concurrent findings of fact by two Courts
below ---Forest department claimed to be owner in possession of suit land and alleged that cutting
of trees and raising of construction by defendants was illegal ---Trial Court as well as Lower
Appellate Court concurrently decided the suit and appeal in favour of Forest department ---
Validity ---No illegality or irregula rity were found in both the judgments passed by two Courts
below warranting interference by High Court by way of setting aside the same ---Defendants
failed to rebut claim of Forest department that land in dispute was not allotted to it or Provincial
Govern ment was not owner of the same ---Concurrent findings of facts arrived at by two Courts
below were on record which normally could not be disturbed by High Court unless it was proved
that the same were shocking, ridiculous or artificial ---Defendants failed t o specify any portion of
evidence which had been misread, non -read or misappreciated and only general type of grounds
had been raised by defendants ---Both the Courts below after proper appraisal of evidence and
material available on record passed well -reasoned and exhaustive judgments after attending each
and every aspect of the case ---High Court did not find any misreading or non -reading of
evidence and declined to interfere in concurrent judgments passed by two Courts below ---
Revision was dismissed in cir cumstances.
(b) Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil Procedure Code (V of 1908), S.11 ---Suit for declaration and injunction ---
Res judicata, principle of ---Applicability ---Suit filed by plaintiffs was dismissed on the principle
of res judicata as same having been filed by defendant -department had already been decreed
against plaintiffs ---Plea raised by plaintiffs was that since their suit was dismissed at the strength
of findings recorded by Trial Court in suit filed by defendant -department and the findings were
upheld by Lower Appellate Court, yet were sub judice before High Court, therefore, plaintiffs
were non -suited at a premature stage ---Validity ---Plea of plaintiffs though attractive yet
intrinsically lost significance, as the suit was filed by plaintiffs and defendant -department was
already having a decree in its favour application under S.11, C.P.C. was fully attracted ---
Plaintiffs failed to prove their claim and Courts below rightly passed judgments and decrees
which were not open to any exception ---High Court declined to interfere in judgments and
decrees passed by two Courts below ---Revision was dismissed in circumstances.
S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through
Legal Heirs rele vant at page 342), reported in 2002 SCMR 338 rel.
Khalid Ahmed Kubdani for Petitioners.
Naseer Ahmed Bangulzai, A.A. -G. for Respondents.
Date of hearing: 17th June, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- By this common judgment, I intend to
dispose of Civil Revision Petitions Nos.150 of 2010 and 73 of 2012, as common question of
facts and law are involved in both the petitions.
FACTS OF REVISION PETITION NO.150 OF 2010.
2. Facts relevant for the disp osal of instant petition are that the respondent No.1, instituted a
suit against petitioners and respondents Nos.2 to 5, in the Court of Qazi Lasbela, for declaration
and permanent injunction, illegal possession, ejectment from government land and trees. I t was
averred in the plaint that the land bearing Khasra Nos.118 to 128, measuring 223 acres, 2 Poles,
29 Rods, situated in Mouza Danbi North, Tehsil Uthal, District Lasbela, was allotted to Forest
Department by the Provincial Government, vide Notification issued by West Pakistan Governor,
in the year 1965, wherein 63360 acres land of Uthal was mentioned. Thereafter on 1st December,
1980 the MBR -II, Balochistan issued Notification No.4 -21/47/Rev -9326 -30, the land was
mutated from the name of Provincial Gove rnment to the name of Forest Department. In the
month of January the defendants started cutting the trees and illegal construction, hence the suit.
3. The suit was contested by the defendants/petitioners by way of filing written statement,
whereby, besid es raising certain preliminary legal objections regarding maintainability of the
suit, the claim of plaintiff was repudiated on merits as well.
4. The trial Court, out of the pleadings of parties framed following issues: ---
5. The plaintiff, in order t o prove his case besides examining representative also produced
one P.W. whereas; in rebuttal the petitioner/defendant produced 4 witnesses and got recorded
their statements through attorney. The trial Court after hearing the parties and evaluating the
evidence decreed the suit. The petitioners feeling aggrieved of the judgment passed by the trial
Court preferred an appeal before the Majlis -e-Shoora, Lasbela at Hub which too was dismissed
up-holding the judgment passed by the trial Court, hence instant revi sion petition.
6. The learned counsel for the petitioners while justifying his arguments on Civil Revision
Petition No.150 of 2010 submitted that the trial Court as well as appellate court omitted to take
into account the fact that the petitioners are in possession of 27 acres of the disputed land and
their claim was restricted to such extent. It was further stated that continues possession of the
petitioners cannot be disturbed on the basis of revenue entries. The petitioners are owners of the
property a nd the same is their ancestral property. The trial Court as well as the appellate Court
only by taking into consideration the revenue entries have passed the impugned judgment and
decree.
Learned Additional A. -G. vehemently opposed the submissions and s tated that the
property in question being the property of Government of Balochistan was allotted to Forest
Department and subsequent thereto mutated in the name of Forest Department. The settlement
has been carried out in the year 1965. The Government of B alochistan is admitted owner of the
property from the day one. The petitioners have never been in occupation and only started
interference; therefore, the respondents filed the suit at the right time. There is no misreading or
non-reading of evidence.
7. The perusal of the record reflects that there is no illegality or irregularity in both
judgments impugned warranting interference by this Court by way of setting aside the same. The
petitioners failed to rebut the claim of respondents/plaintiffs that the land in dispute was not
allotted to Forest Department or that the provincial Government was not the owner of the same.
Furthermore; there are concurrent findings of facts arrived at by two courts below which
normally cannot be disturbed by this court unles s it is proved that the same are shocking,
ridiculous or artificial. Learned counsel for the petitioners failed to specify any portion of
evidence which has been misread, non -read or misappreciated. On the contrary only general type
of grounds have been ra ised by the learned counsel for the petitioners. Perusal of record reveals
that both the courts below after proper appraisal of evidence and material available on record
passed well -reasoned and exhaustive judgments after attending each and every aspect of the case.
I have minutely analyzed the evidence but have not been able to find out any misreading or non -
reading of evidence; therefore, the Revision Petition No.150 of 2010 is hereby dismissed.
FACTS OF CIVIL REVISION PETITION NO.73 OF 2012.
8. Facts relevant for the disposal of instant petition are that the petitioners instituted a suit
for declaration, permanent injunction and correction of entries, against the
respondents/defendants, in the Court of Qazi Lasbela at Uthal. It was averred in the plaint that
the plaintiffs are owners in possession of land falling under Khasra Nos. 123, 122, 121, 120, 119,
118, 128, 127, 126, 125 and 124, situated at Mouza Retaira (wrongly recorded as situated in
Mouza Danbi), measuring 26 Acres, Tehsil Uthal Distr ict Lasbela. It was further contended in
the suit that the land in question was given to the petitioners' ancestors by Jam of Lasbela in the
year 1916, but the same was illegally, unlawfully and without any legal justification entered in
the name of respon dents/defendants, hence the suit.
9. The suit was contested by the respondents/defendants, by way of filing written statement,
whereby, besides raising certain preliminary legal objections regarding maintainability of the
suit, the claim of plaintiffs wa s repudiated on merits as well.
10. The trial Court after obtaining written statement found the suit barred under section 11,
C.P.C. and the suit being incompetent was consigned to record.
11. The petitioners feeling aggrieved of the judgment passed by the trial Court preferred an
appeal before the Majlis -e-Shoora, Lasbela at Hub, which too was dismissed upholding the
judgment passed by the trial Court, hence instant revision petition.
12. The learned counsel for the petitioners argued that the Courts below illegally, unlawfully
and without any justification disposed of the suit as well as appeal filed by the petitioners.
Learned counsel further argued that the judgments impugned herein are result of
misinterpretation of law. Learned counsel emphasized that the trial Court ought to have framed
issues and after recording evidence of both the parties should have decided the matter but in a
haphazard and slipshod manner suit filed by the petitioners was disposed of.
On the other hand, the learned Addl: A.-G. strenuously opposed the petition and argued
that there are concurrent findings arrived at by two courts below which normally cannot be
interfered with by this Court unless it is proved that the same are ridiculous, shocking and
perverse. There is no illegality or irregularity in the judgments impugned nor could the counsel
for petitioners point out any misreading or non -reading of material available on record or
misapplication of law. The suit was not hit by the principle of res judicata but the court s below
wrongly concluded that the suit filed by the petitioners is hit by the principle of res judicata.
13. I have considered the arguments advanced by the parties' learned counsel and have gone
through the record of the case. The perusal of both the p etitions reflects that admittedly the
parties are same and the disputed property is also the same. For the sake of convenience revenue
entries of both the suits are reproduced hereinbelow: ---
Revenue Entries mentioned in Civil Suit No.48 of 2009.
Reve nue Entries mentioned in Civil Suit No.5/2011.
14. The bare perusal of above revenue entries leaves no room for doubt that dispute amongst
the parties pertains to the same property and parties are also the same. A decree was drawn in
favour of responden ts and the appeal filed by the petitioners was also dismissed. The main
grievance of the petitioners appeared to be that since suit of petitioners was dismissed at the
strength of findings recorded by the trial Court in Civil Suit No.48 of 2009 and the sai d findings
though were upheld by the appellate Court yet were sub judice before this Court, therefore, the
petitioners were non -suited at a premature stage. The submissions apparently though attractive
yet intrinsically loose significance, as when the suit was filed by the petitioners the respondents
was already having a decree in their favour, so the application of section 11, C.P.C. fully
attracted in the case. The law is settled that an incompetent suit must be buried at its very
inception. By holding th e view I am fortified by the judgment titled as (S.M. Shafi Ahmad Zaidi
through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page
342), reported in 2002 SCMR Page -338, wherein it has been held as under: ---
"Provisional tra nsfer order does not, ipso facto, confer absolute title over the property.
Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title
the suit for possession could not be filed. The Government gave the land to the So ciety and the
latter surrendered it back to the former. The predecessor -in-interest of the petitioners had no
independent right. His right, if -any, was through the Society, and it ceased to exist before it
became perfect and enforceable in law. It is the r equirement of law that incompetent suit shall be
buried at its inception. It is in the interest of the litigating parties and the judicial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to
devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are
based upon material available on record and no legal infirmity has been pointed out. Under the
circumstances, the plaint was rightly rejected " The respondents s ucceeded to establish their case
and proved by production of un -rebutable documentary evidence. The evidence produced by the
petitioners was not confidence inspiring, trustworthy, believable and tangible, therefore, the trial
Court rightly decided the same . Moreover, the petitioners in fact do not dispute the entitlement of
respondents but confine their claim to the extent of 27 acres out of the allotted property to Forest
Department. The claim lacks credibility as the documentary evidence produced by the
respondents could not be rebutted by the petitioners. Now as the Revision Petition No.150 of
2010 filed by the petitioners has been dismissed, therefore, except maintaining and upholding the
findings of trial Court and appellate Court, there is no way out e xcept to dismiss this petition.
For the foregoing reasons, I am of the considered opinion that the petitioners failed to
prove their claim and the courts below rightly passed the judgments and decrees impugned which
are not open to any exception. No cas e for interference by this Court in the judgments and
decrees impugned has been made out. The petitions have no force, which are dismissed leaving
the parties to endure their own costs.
MH/75/Bal. Order accordingly.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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