2018 C L C 45
[Balochistan]
Before Nazeer Ahmed Langove, J
PAKISTAN RAILWAYS EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD.
through General Secretary ----Petitioner
Versus
Haji GHULAM HAIDER and 3 others ----Respondents
Civil Revision No.334 of 2008, decided on 22nd June, 2017.
Civil Procedure Code (V of 1908) ---
----O.XXVI, R.1 ---Local Commission, report of ---Non -deciding of objections ---Trial Court
decided the suit on the basis of report filed by Local Commission---Judgment and decree passed
by Trial Court was maintained by Lower Appellate Court ---Plea raised by plaintiff was that Trial
Court did not frame issues and also not provided opportunity to adduce evidence ---Validity ---
Both the Courts below erred in law by relying upon report submitted by Loc al Commissioner,
objected to, by plaintiff timely but not considered ---Trial Court did not frame issues and decided
the matter once for all ---High Court observed that lower Appellate Court should have decided
the matter reasonably and justly by dilating up on the facts with reasons but it also maintained the
order of Trial Court without applying judicial mind---Courts below failed to exercise their
jurisdiction properly and strictly in accordance with the law which caused miscarriage of justice -
--High Court set aside judgments and decrees passed by two Courts below and remanded the
matter to Trial Court for proceedings and decision thereon purely in accordance with law, after providing opportunity of hearing and evidence to parties ---Revision was allowed in
circumstances.
Mujeeb Ahmed Hashmi and Muhammad Usman Tareen for Petitioner.
Iqbal Ahmed Kasi for Respondent No.1.
Farooq Sarwar, Assistant Advocate General ("AAG") for Official Respondent.
Date of hearing: 16th June, 2017.
ORDER
NAZEER AHMED LANGOVE, J.--- This order disposes of Civil Revision Petition
No.334 of 2008 filed by the petitioner (plaintiff) against the order and decree dated 09.06.2008
(hereinafter "the Order") passed by the Senior Civil Judge -I, Quetta, (hereinafter "the trial
Court") and order and decree dated 30.08.2008 (hereinafter "the impugned Order") passed by the
learned Additional District Judge -III, Quetta, (hereinafter "the appellate Court") whereby appeal
of the appellant (petitioner) was dismissed.
2. Facts of the case are that the petitioner (plaintiff) filed a civil suit for declaration and
permanent injunction against the respondents/ defendants with the averments that the petitioner
is a registered society who was leased out about 47.77 acres of Railway Land for a period of 99 years through Lease Deed dated 12.04.1990 comprising upon the Khasra Nos.738/116, 740/117, 118, 127, 128, 710/148, 150, 151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 714/160, 715/160, 716/160, 162, 163, 164, 165, 166, 168, 745/729/176, 742/ 177, 746/181 having
Khewat No.28, Khatoni No.39, situated at Mahal Khurkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil and District, Quetta, for residential purposes and better development housing colonies with basic amenities and to use further surplus Railw ay land for the welfare of Railway
employees; that after registration of lease deed, site plan was approved and the land was given to the members accordingly, whereupon members of the society raised construction and since then they are in legal and lawful occupation; that in the meantime, the respondents started interference in the aforesaid property by way of encroachment which too without any lawful authority and justification. Hence instant suit with the following prayer:-
"It is, therefore, respectfully prayed that a decree in favour of the plaintiff Society against
the defendants may kindly be passed to the following effect: -
(i) Declaring that the plaintiff society is the lawful lessee of the land in question
bearing Khewat No.28, Khatooni No.39, Khasr a Nos.738/116, 740/117, 118, 127, 128,
710/148, 150, 151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 714/160, 715/160, 716/160, 162, 163, 164, 165, 166, 168, 745/729/176, 742/177, 746/181 situated at Mahal Kharkhasa, Mouza Kirani, Tappa Shadinza i, Tehsil and District Quetta pursuant
to lease deed dated 12.04.1990 duly registered with Sub- Registrar, Quetta.
(ii) Declaring that the defendants Nos.1 to 3 have no lawful right or entitlement to
raise illegal and un -authorized construction over land be aring Khewat No.28, Khatooni
No.39, Khasra Nos. 738/116, 740/117, 118, 127, 128, 710/148, 150, 151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 71.1/160, 715/160, 716/160, 162, 163, 164, 165, 166, 168, 745/729/176, 742/177, 746/181 situated at Ma hal Kharkhasa, Mouza
Kirani, Tappa Shadinzai, Tehsil and District Quetta pursuant to lease deed dated 12.04.1990 duly registered with Sub- Registrar, Quetta.
(iii) By way of passing a decree, the defendants Nos.1 to 3, their agents, representative
and whom so ever may kindly be permanently restrained from interfering or raising construction over the aforesaid property.
(iv) Declaring that the defendant No.4 is legally bound to demarcate the property in
question in accordance with the lease deed dated 12.04.1990 and the measurement whereof be completed.
(v) Any other relief which this Hon'ble Court may deem fit and proper in the
circumstances of the case may also be awarded with cost of the suit, in the interest of
justice and equity."
3. In his written statement, the respondent/defendant No.2 raised certain legal objections, in
respect of maintainability of the suit, and contested the same on merits as well, mainly on the ground that the suit filed by the petitioner/plaintiff is not maintainable being hit by the principle of non- joinder of necessary parties because in the disputed land a project with the name of
CASVAB is being executed, was in possession of the Livestock and Dairy Development Department since the year 1960, on which later had been cultivating fodder to feed their livestock. In the month of April, 2005 Center for Advance Studies and Vaccine and
Biotechnology (CASVAB) University of Balochistan was established and a Memorandum of
Understanding was also signed. He lastly prayed that the suit being meritless and non-
maintainable may be dismissed. Similarly, the respondent/defendant No.1 also contested the claim of the petitioner/plaintiff on legal and factual grounds with the contention that in fact the petitioner/plaintiff encroached upon his landed property, which for the first time, in the year
2002 was came into his knowledge, in this context he approached the Federal Ombudsman (Wafaqi Mohtasib) for redressal of his grievance, it referred the matter to the revenue authorities but the petitioner/pl aintiff with mala fide intention and ulterior motives filed a suit having No.65
of 2004 and then withdrawn the same on 13.12.2005. The property in dispute is adjacent to the landed property of the respondent/defendant No.1, in garb thereof the petitioner/plaintiff wanted to usurp the property of the respondent/ defendant No.1 with one pretext or the other. He prayed for dismissal of the suit.
4. Before framing issues, a Local Commission was constituted with the consent of the
parties to ascertain facts and figures of the following point.
"that property of the defendants and plaintiff be demarcated according to the map and permission thereof granted by the Railway in the year 1989".
In this respect Miss. Sarwat Hina, Advocate was appointed as Local Commi ssioner with
the instructions to visit the site in the presence of parties to the lis and concerned revenue staff with the record. She visited the site and submitted her report, on the basis whereof the suit filed by the petitioner/plaintiff was decreed in the light of report, submitted (referred hereinabove) by
the Local Commissioner vide order/decree dated 09.06.2008 passed by the trial Court. The order/decree passed by the trial Court was assailed in appeal, in the Court of District Judge, Quetta, which was transmitted to the file of the Additional District Judge -III, Quetta, the
appellate Court vide order dated 30.08.2008 dismissed the appeal by maintaining order and decree dated 09.06.2008 passed by the trial Court. Hence this revision petition.
5. Learned counsel for the petitioner/plaintiff argued that the orders and decrees passed by
the trial as well as appellate Court are contrary to facts, law, equity and natural justice, as such,
the same are not sustainable under the law and are liable to be set aside; that the suit was decreed only on the basis of report of Local Commissioner and not on the basis of prayer in the plaint, besides the Courts below deviated from the prescribed procedure of law neither any issues were framed nor afforded any opportunity of leading evidence, even the objections filed by the petitioner/plaintiff upon the report of the local commissioner were not addressed, and passed the impugned order and decree in haste; that the report submitted by the local commissioner was
highly objectionable and defective for the reason that at the time of visit neither the Patwari
concerned along with the record was present on the spot nor disputed property and encroachments raised, were measured properly, but the trial as well as appellate Court failed to
attend the aforesaid important aspect of the case which ultimately caused miscarriage of justice.
6. Learned counsel for the respondent No.1 strongly opposed the petition by submitting that
the orders and decrees passed by the trial Court and maintained by the appellate Court are based on proper appreciation of record and report of the local commission, constituted with the consent of the parties, as such, deviation therefrom by the parties, either, was unwarranted under the law; that the learned counsel for the petitioner failed to point out any illegality or irregularity, or
biased conduct of the local commissioner, on the basis whereof the matter was decided by the trial Court and maintained by the appellate Court; he lastly prayed for dismissa l of the petition.
Learned AAG also adopted the arguments of the learned counsel for the respondent No.1.
7. I have heard the learned counsel for the parties and gone through the record with their
assistance, which reflects that the instant suit was filed by the petitioner/plaintiff with the prayer
mentioned hereinabove, in the opening paras of this order, contested on legal and factual grounds, in the meantime, with the consent of the parties a local commission was constituted, Miss. Sarwat Hina, Advocate /Local Commissioner visited the property in dispute and submitted
her report, wherein it has clearly been mentioned that at the time of visit of the disputed property, the concerned Patwari was not present, objected to, by the petitioner/ plaintiff on the spot, which is available in her report, apart from that, after submitting, report the petitioner/plaintiff filed his objections on the report of the local commissioner but without resolving the same or framing at least any legal issue, the trial Court pass ed the order and decree impugned in haste, without
adhering to, the mandatory provisions of C.P.C., unfortunately, maintained by the appellate Court also. By now it is a settled principle of law that in civil cases, since the valuable rights of the parties are involved, therefore, it is advisable that the same should be decided on merits and
in accordance with the law, after affording ample opportunity of evidence and hearing.
Both the Courts below erred in law, by relying upon the report submitted by the local
commissioner, objected to, by the petitioner/plaintiff timely but not considered, the trial Court did not bother to frame issues and decide the matter once for all. Similarly, the appellate Court should have decided the matter reasonably and justly b y dilating upon the facts with reasons but
it also maintained the order of the trial Court without applying judicial mind. The Courts below failed to exercise their jurisdiction properly and strictly in accordance with the law which caused miscarriage of j ustice, so, at this juncture, without going through the merits and de -merits of the
main case lest, it cause any prejudice to the parties, I would like to remand the matter to the trial Court for proceedings and decision thereon, purely in accordance with the law, after providing ample opportunity of hearing and evidence to the parties. The matter is pending since the year 2008, therefore, the same may preferably be decided within three (03) months. Decree sheet be drawn. The parties are left to bear their own cost.
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