2021 C L C 944
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
GHULAM SAMADANI and 3 others ----Petitioners
Versus
AKBAR KHAN and 3 others ----Respondents
Civil Revision No.235 of 2014, decided on 30th October, 2019.
Specific Relief Act (I of 1877) ---
----Ss.39, 42 & 54--- Constitution of Pakistan, Art.172(1) ---Suit for cancellation of document,
declaration and injunction --- Ownerless property ---Plaintiffs/petitioners claimed to be
owners in possession of suit property purchased by their predecessor -in-interest before
Independence from a hindu owner ---Suit was partially decreed in favour of
plaintiff/petitioner and appeal was dismissed by Lower Appellate Court ---Validity ---
Whereabouts of hindu owner were not known while neither plaintiff/petitioner nor
defendants/respondents were having any entitlement either to retain possession or to seek
declaration in any manner ---Share of hindu (evacuee) owner was proved to be ownerless thus
provision of Art.172 of the Constitution would come into play --- Neither of the parties was
having any right or entitlement in disputed property and no one else known to Court was having any right or entitlement therein, except its recorded owner ---Property in question
stood escheated to the Stat e under Art.172 of the Constitution--- High Court directed Deputy
Commissioner to initiate proceedings for taking steps for escheatment the hindu's property---Revision was dismissed, in circumstances.
Mujeeb Ahmed Hashmi for Petitioners.
Jahangir Khan Ri nd for Respondent No.4.
Saifullah Sanjrani, A.A.G. for the State.
Date of hearing: 19th August, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----This Civil Revision
Petition is directed against the Judgment and Decree dated 15th July 2013 passed by Senior
Civil Judge -II, Quetta ("trial Court"), whereby the suit tiled by the petitioners for
"Declaration, Cancellation and Permanent Injunction" was partly decreed, while the appeal filed against the judgment and decree of the trial court was dismissed vi de judgment and
decree dated 20th March 2014 passed by the Additional District, Judge -II, Quetta ("appellate
court").
2. Brief facts of the case are that petitioners approached the trial court by filing a civil
suit with the contention that the petitioners Nos.5 and 6 having ancestral property measuring
3-Rod and 30 Poles bearing Khasra No.1397 vide Mutation No.358, situated at Mohal Viala
Tareen Shehar, Mouza Kotwal, Tappa Durrani -I, Tehsil Quetta, whereas petitioners Nos.1 to
4 were owners and in possessi on of the property bearing Khewat No.4 Katooni No.19,
Khasra Nos.178, 255 and 256, 3- Qitas, measuring 11 -Rod and 31 -Poles, situated at Mohal
Viala Tareen Shahar, Mouza Kotwal, Tappa Durrani, Tehsil Saddar, District Quetta; that
before the partition of Indo- pak, due to a joint property, one Gordan Das son of Jani Mal,
Caste Hindu Arora, being shareholder in the same property, sold the same in favour of predecessor of petitioners Nos.1 to 4. In this behalf, in the year 1941 the Misl -e-Haqiat along
with Shijra Kishtwar and Jamabandi was prepared by the revenue staff, which clearly shows
that the recorded co -sharer namely Gordan Das seized to be owner due to selling of his share
in favour of predecessor of petitioners Nos.l to 4 and entry of the same had also be en carried
out, subsequently, recorded in Misl -e-Haqiat, Shijra Kishtwar and Jamabandi by the revenue
staff and possession of the property in dispute to the extent of share owned by the previous owner was handed over to the predecessor of petitioners Nos.3 to 6.
In the year, 1963, mutation of inheritance was carried out mutation bearing No.12 and
property was transferred in the name of predecessor of petitioners Nos.1 to 4 and in the year 1981, again the property was re -attested in the name of predecessor of the petitioners Nos.1
to 4 and all the three brothers of predecessor of the petitioners became co- sharers in
possession of the property to the extent of their share. The joint land is still in the name of
grandfather of petitioner No.5 and grandfather of petitioner No.6 namely Muhammad Shafa and his son Muhammad Khan, who is father of petitioner No.6. In the year, 1993 one of the co-sharers in the property in dispute namely Haji Muhammad Azam filed an application to
the Tehsildar Saddar, Quetta for corre ction of mutation entry on a strength that share of his
property, which was in his possession has wrongly been shown in Khasra No.255 (new Khasra No.1397) the said application was entertained by the settlement authorities and proceedings was initiated on f inalization of proceedings, decision was given by the
settlement officer, on basis whereof, mutation No.358 was carried out and a portion of the property transferred in favour of the predecessor of the petitioner. On carrying out the Mutation No.358 in vie w of decision of the Settlement Officer, the name of Gordan Das
reappeared in the mutation, as such, taking benefit of the same, respondent No.1 came up with the stance that the Gordan Das was survived by his son namely Sajan Lal, as such, the property als o devolved on him through mutation No. 1131, which was later on purchased by
respondent No.1 through mutation No. 1138. The plaint prayed: -
i. Declaring that plaintiffs are co -sharers in the property in dispute and defendants have
no legal and lawful enti tlement in the same and mutation entry more particularly
described above is illegal and subsequently be cancelled.
ii Defendant No.1 may kindly be restrained from interfering in the ancestral property of plaintiff and decision and decree may kindly be passed in favor of plaintiffs against the defendant. Moreover, the defendant got fake mutation which is not maintainable
and the same may kindly be declared as illegal and void in the large interest of justice.
iii. Declaring that the defendant No.1 not entitled to interfere in the peaceful possession
of the plaintiffs or in any manner interfere, the defendants be restrained by means of permanent injunction from interfering, alienating, transferring, mortgaging or in any other manner create third party interest in respect of property in dispute, till pending
disposal of suit, in the interest of justice.
3. On receipt of notice, the written statement was filed by respondent No.1, who
contested the suit by raising certain legal objections as well, while defendant No.4 admitted
the plea of petitioners.
4. Out of divergent stance taken by the parties, the trial court framed the fol lowing
issues: -
1. Whether suit of the plaintiffs is not maintainable in view of preliminary legal objections A&E raised by defendant No.1 in his written statement?
2. Whether the defendant No.1 has no right or title over the suit property therefore, is liable to be restrained from interference or possession over the suit property?
3. Whether the plaintiffs are entitled for relief claimed for?
4. Relief?
The issues were not framed properly, hence, amended issues under Order XIV, Rule
V, C.P.C. were framed as under:
a. Whether plaintiffs have no locus standi to file the instant suit?
b. Whether suit is hit by section 172 of the Land Revenue Act?
c. Whether plaintiffs are legal and lawful co -owners of the sit property, therefore,
defendant No.1 has no right or title to interfere or possess the same?
d. Whether suit of the plaintiffs is not maintainable as not been filed competently by the legal attorney, and due to concealment of facts?
e. Whether the property in dispute consist upon three equal shares?
f. Whether Mutation Nos.1131 and 1138 have not been carried out in accordance with law, therefore, same are liable to be cancelled?
g. Whether Mutation Nos.1131 and 1138 have not been carried out in accordance with law, therefore, same are liable to be cancelled ?
h. Whether the plaintiffs are entitled for the relief claimed for?
i. The relief?
5. The petitioners/plaintiffs in support of their respective claims, produced PW -1
Muhammad Amin, representative of Saddar Qanoongo, PW -2 Muhammad Iqbal son of Ali
Gul, PW -3 Muhammad Ishaq son of Muhammad Musa and finally the attorney for petitioners
Nos.1 to 4 and attorney for respondents Nos. 5 and 6 got recorded their statements on oath.
The respondents in order to disprove the petitioners' claim produced DW -I Jehangir
Khan, Patwari, DW- 2 Haji Dad Khan, representative of Tehsil Saddar, Quetta and lastly,
Respondent No.1 got recorded his own statement on oath.
The respondent No.4 produced one Rozi Khan, representative of NADRA as DW -1
and got recorded his own statement on oath.
6. The trial court on basis of pleadings of the parties and the evidence led by them
decreed the suit vide judgment and decree dated 15th July 2013.
7. Feeling aggrieved, the petitioners and respondent No.1 filed separate appeals before
the Additional District Judge -II, Quetta, while the learned appellate court by means of
judgment and decree dated 20th March 2014, while dismissing the Appeal Nos. 58 of 2013
and 69 of 2016, upheld the judgment of the trial court. Still feeling unsatisfied, the
petitioners preferred the instant revision petition; however, the respondent No.1 did not assail the judgment passed in his Civil Appeal No.58 of 2013.
8. The perusal of case file reveals that the petitioners approached the trial court with the
contention that initially the suit property was owned by three shareholders and the share of Gordan D as was purchased by the predecessor -in-interest of the petitioner Nos. 1 and 6, as
recorded in the revenue record in 1941. However, in 1993, when one of the co- sharer namely
Muhammad Azam approached the Settlement Officer Quetta Division for correction of
Khasra number and also correction of entry in the column of ownership, an inquiry proceedings were carried and on completion thereof, on direction of the Settlement Officer, Mutation No. 358 was carried out, wherein the name of Gordan Das reappeared. Meanw hile,
the respondent No.1 taking advantage of Mutation No.358, appeared with a plea that he has purchased the property from respondent No.4 through mutation No. 1138, who was shown to be the legal heir of Gordan Das and the share/legacy. of Gordan Das devolved upon him vide Mutation No. 1131.
9. The case in hand is of two folds, on one hand the petitioners Nos. 1 to 4 claimed to be
purchaser of the property from Gordan Das, way back in 1941, while the respondent No.1 claimed to have purchased the same prope rty from respondent No.1, the son of Gordan Das.
In support of their respective plea, the petitioners produced PWs, but none of the witness uttered a single word about the sale transaction between the predecessors -in-interest of the
petitioners Nos.1 to 4, rather they remained contended to the extent of possession of land
with the petitioners Nos. 1 to 4. The claim of Petitioner Nos. 1 to 4 in respect of purchasing the share of the said Gordan Das was neither supported by any documentary evidence, nor any o ther supporting evidence showing that either any such transaction had ever taken, or the
property was entered in their predecessor -in-interest's name legally and lawfully. Even
otherwise the plaint of the petitioner is silent to the extent, as it only narr ated about the fact
of entering the right of their predecessor in the Misl -e-Haqiat, Shijra Kishtwar and
Jamabandi. The record reveals that said Gordan Das was co -sharer in the property, however,
later in time, his name disappeared from the mutation entry, as such, when the predecessor of
petitioners Nos. 5 and 6 namely Muhammad Azam approached the Settlements
Officer/Collector through an application with the contention that he was the owner of the suit property vide Khasra No. 255, but in the revenue recor d Khasra number of the land was
wrongly recorded as 215, while in the record of rights, during settlement of 1941- 45 Khan
Bahadur Khuda Rahim Khan was wrongly recorded as owner of the land, because they were
owner of the land and had never sold out the sam e to anyone including Haji Khudae Rahim.
Learned Settlement Officer sought report as per record from the revenue/settlement
authorities through report EX -P/10, which verified that the land in the names of three
shareholders namely (1) Muhammad Azam, Abdul Aziz Khan, Abdul Haq son of Habibullah Khan, (2) Gordan Das son of Jani Mal and (3) Muhammad Shafi son of Muhammad Yard and Lal Muhammad son of Muhammad Khan were equally having one share each, however, in the settlement of 1941- 45 new khasra was mistakenl y recorded in the name of Khan
Bahhadur Khudae Rahim Khan. Thereafter, learned Collector/Settlement Officer Quetta Division through order dated 26th June 1993, held that Khan Bahadur Rahim Khan was not the co -owner of the suit property, hence, necessary corrections were ordered to be made in
the record of rights, whereupon mutation No. 358 was recorded in the record of rights and suit property total measuring 3 rod 30 poles Khasra No. 1397 was entered in the names of relevant shareholders. It is important t o mention here that the said order of the settlement
officer and the mutation carried on basis thereof, were never challenged by the petitioners or their predecessors at the relevant time, as such, after lapse of more then 26 years the same mutation cannot be challenged/questioned, which process initiated on the application of
Muhammad Azam, the predecessor in interest of the petitioners Nos. 5 and 6. The petitioners, though claimed to be in possession of the suit property, but they have failed to justify their possession to the extent of share of Gordan Das, who as per record was still the
owner.
10. The respondent/defendant No.1, came up with the stance that he had purchased the
share of Gordan Das from his legal heir i.e. respondent No.4. His stance was c ontested by the
petitioners that the said Gordan Das, had proceeded abroad prior to partition of Pakistan, while the respondent No.4 introduced was as son of the Gordan Das, who infact was a son of Gordan Mal, hence, was neither the legal heir of Gordan Da s nor the mutation No. 1131 was
legally carried out from the name of Gordan Das to the name of respondent No.4. During the trial, the respondent No.1 moved an application for appointment of a commission to record the statement of respondent No.4 at Jacobabad, which application was allowed by the trial court, however, subsequently, the respondent No.4 appeared before the trial court with the statement that his signatures and thumb impression were obtained by respondent No.1 through fraud and misrepresentation. Further stated that he or his forefathers never had any property at Quetta. While answering to a question in cross -examination he stated that they
are five siblings and his grandfather's name is Hardas Mal and he did not know Gordan Das son of Jani Mal. The stance of the respondent No.1 was based on the plea that he had
purchased the suit property from Sajan Lal through Mutation No. 1138, but the statement of said Sajan Lal son of Gordan Mal clarified that he neither owned any piece of land nor sold out the property to respondent No.1, he also denied his signatures over the Mutation
No.1138. Even he out -rightly denied to be a successor of Gordan Das, his father name is
Gordan Mal and grandfather's name is Hardas Mal, but the record shows that Gordan Das's
father name was Jani Mal, which altogether negated and shattered the respondent No.l's plea.
11. It is imperative to add here that the respondent No.1, though contested the suit before
the trial court and also assailed the judgment of the trial court thro ugh Civil Appeal No. 58 of
2013, but he chose not to assail the judgment of the appellate court, and even before this
court, he was proceeded against ex -parte on 25th March 2017, that the respondent No.1 tried
his level best to usurp the share of Gordan Da s, by means of presenting forged and fabricated
mutations and also introducing the respondent No.4 to be the son of Gordan Das, but the subsequent appearance and deposition of the respondent No.4 has completely brushed aside the respective claims of the co ntesting parties.
On basis of discussion in the light of the documents produced by the parties, the trial
court dismissed the suit vide judgment and decree impugned dated 15th July 2013, which was upheld by the appellate court through judgment and decree dated 20th March 2014. Both the courts below have rightly concluded and arrived at to correct decision. Thus, on basis of aforesaid facts and circumstances, both the Judgment and decree dated 15th July 2013 passed by the learned Senior Civil Judge -II, Quet ta and 20th March 2014 passed by the learned
Additional District Judge -II, Quetta being unexceptional do not warrant any interference by
this court.
12. Before parting with the judgment, it is worthwhile to add here that petitioners and
respondent No.1 have left no stone unturned to usurp the share of Gordan Das, whose whereabouts are not known, but since the order of Settlement Officer is in field and on basis thereof the Mutation No. 358 is intact, as such, the share of the Gordan Das is also intact and no one can be permitted to occupy the share of Gordan Das.
In view of peculiar facts of the instant case and the circumstances narrated herein
above, it has unequivocally been proved on record that whereabouts of Gordan Das are not known, while neither the petitioner nor the respondents were having any entitlement either to
retain possession or to seek declaration in any manner, thus the share of Gordan Das vide Mutation No.358, Khasra No.1397, situated at Mohal Viala Tareen Shehar, Mouza Kotwal, Tappa Durr ani-I, Tehsil Quetta has been proved to be ownerless. Thus the Article 172 of the
Constitution of Islamic Republic of Pakistan, 1973, comes into play, and it instructive to reproduce the same, which stipulates: -
Article 172(1) - Any property which has no rightful owner shall, if located in a
Province, vest in the Government of that Province, and in every other case, in the Federal Government.
13. In view of afore quoted provision, as it has already been held that neither of the
parties was having any right or entitlement in the disputed property and no one else, known
to court is having any right or entitlement therein, except it's recorded owner 'Gordan Das', thus the same stood as escheated to the State under Article 172 of the Constitution. Therefore, th e Deputy Commissioner, Quetta being designated Collector Revenue of the
Queua Division, is directed to initiate the proceedings for taking steps for escheatment the Gordan Das's property and proceedings in this behalf shall be completed within one month, while a compliance report be submitted through Registrar of this court, for perusal in
chamber.
Office to transmit copy of this judgment to the Deputy Commissioner/Collector,
Quetta Division, for information and compliance.
The petition being bereft of an y merit is dismissed accordingly, but with no order as
to costs.
MH/198/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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