2010 M L D 1557
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
EID MUHAMMAD and another ---Petitioners
Versus
ABDUL WAHAB ---Respondent
Civil Revision No. 4 42 of 2009, decided on 15th January, 2010.
Specific Relief Act (I of 1877) ---
---Ss. 8, 42 & 54 ---Suit for possession, declaration and injunction ---Suit had concurrently
been decreed by the two courts below in favour of the plaintiff ---Plaintiff claime d himself to
be lawful allottee of house in question, while the defendants had asserted that the quarter in
question was initially allotted in the name of one of the defendants and at present, it had been
allotted in favour of their brother ---Trial Court c onsidered allotment order whereby the
authority had allotted the house in question in favour of the plaintiff; and also ordered
whereby the allotment made in favour of the brother of the defendant which had been
cancelled ---Order cancelling allotment made in favour of the brother of the defendants had
not been challenged or questioned by the brother of the defendants or even the defendants ---
Defendants had only produced said allotment order in favour of their brother which had
already been cancelled and no other title deed was produced by them despite having
opportunity ---Defendants had failed to point out any piece of evidence which was not
considered by the Trial Court as well as Appellate Court nor had pointed out the material
which was mis -appreciated ---Defendants had not asserted existence of any right in their
favour for retaining possession of the house in question with them ---House in dispute could
have been allotted in favour of their brother, but due to that fact, no right of possession would
be cre ated in favour of the defendants, especially when allotment order in favour of their
brother had already been withdrawn by the authority ---As per own showing of the defendants
they were occupying the quarter in question without any lawful right ---Defendant s had failed
to point out any illegality in the impugned orders ---Both the Trial Court and Appellate Court
had properly appreciated the evidence produced before them and came to the right
conclusion, wherein no interference was required.
Zahoor Ahmed B aloch for Petitioners. Abdul Sattar for Respondent.
Date of hearing: 21st October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---The petitioners through this petition prayed for
setting aside of order made on 21 -8-2009 by the District Judge Khuzda r, whereby their
appeal was dismissed and judgment and decree dated 13 -4-2009, whereby the suit filed by
the respondent/plaintiff was decreed, further prayed for dismissal of suit filed by the
respondent/plaintiff against them. It is their contention that the impugned orders are passed
contrary to law, facts and equity. The trial Court failed to implead one Taj Muhammad, being
allottee of the quarter in -question, as necessary party as such the suit was bad for non -joinder
of necessary party. The judgments a re based on misreading and non -reading of evidence.
Furthermore, the claim of the respondent/ plaintiff was on mala fides and on political
influence, these facts were not considered by the Courts below.
2. Counsel for the parties are heard while record i s perused. The respondent/plaintiff filed a
suit for declaration, injunction and possession wherein it was his contention that through
Order No. 3623 -33 dated 29 -7-2008 the D.C.O Khuzdar allotted quarter No. G -A2 situated at
Civil Colony, Khuzdar in his fa vour. On his application process was issued on 2 -9-2008 to
D.S.P Khuzdar for getting vacant possession of quarter in question. The
petitioners/defendants initially assured the D.S.P for handing over the possession to but
subsequently they refused the same whereupon he approached the petitioners/defendants
through notables of the area but they refused. He prayed for possession of quarter in -question
with declaration of his title as lawful allottee of the same and injunction to the extent of non -
interference in his possession. The petitioners/defendants contested the suit by way of filing
their written statement. It is their contention that quarter in -question was allotted in the name
of defendant No.1 Petitioner No.1 (Eid Muhammad). Thereafter the said quarte r was allotted
to one Taj Muhammad, their brother, by D.C.O Khuzdar through order dated 20 -12-2008,
which is presently in possession of said Taj Muhammad. They prayed for dismissal of suit.
The trial Court after framing of issues directed the parties to pr oduce legal allotment order
issued in their favour by the competent authority. In compliance of the same
respondent/plaintiff produced four witnesses and two allotment orders while the
petitioners/defendants also produced one order. The trial Court after a ssessing the material
placed before it decreed the suit in favour of the respondent/plaintiff through judgment made
on 13 -4-2009. The petitioners/defendants 'being aggrieved of the judgment preferred appeal,
which was dismissed by the 'appellate Court thro ugh order made on 21 -8-2009. Hence
present petition.
3. The material placed before this Court is perused while learned counsel for the parties are
heard. The respondent/plaintiff claimed himself to be lawful allottee of quarter No. G A -2
situated at Civi l Colony, Khuzdar through allotment Order No. 3623 -33 dated 29 -7.2008
made by D.C.O Khuzdar. While on the other hand the petitioners/defendants asserted that the
quarter was initially allotted in the name of Eid Muhammad (petitioner No.1) while at present
it has been allotted in favour of their brother namely Taj Muhammad through order dated 20 -
12-2008. The petitioners in present petition mainly contended that said Taj Muhammad being
lawful allottee was necessary party but was not joined as such, while the evidence produced
before the trial Court was not appreciated properly by both the Courts, malafide intention, use
of political influence is also alleged against the respondent/plaintiff. The petitioners placed on
record the allotment order made in favour o f the respondent/plaintiff and also an order of
allotment issued on 20 -6-2008 in favour of Taj Muhammad, which bears signatures of
D.C.O. Khuzdar with, dated 20 -12-2008. The perusal of impugned judgment made on 13 -4-
2009 by the trial Court reveals that tho ugh the parties produced evidence in support of their
plea, but the trial Court also called representative of concerned office with relevant record.
The learned trial Court rightly considered the allotment order dated 29 -7-2008, whereby the
Authority allot ted quarter in -question in favour of respondent/ plaintiff and order dated 22 -
12-2008 whereby the allotment made in favour of said Taj Muhammad had been cancelled,
which is neither challenged nor questioned by the said Taj Muhammad or even by present
petitioners. It is further apparent from judgment of trial Court that the defendants/petitioners
only produced an allotment order dated 20 -7-2008/20 -12-2008, which has already been
cancelled through order dated 22 -12-2008, which is exhibited as Exh.4/P -C. No ot her title
deed is produced by the petitioners/defendants despite having opportunity. They have failed
to point out piece of evidence, which is not considered by the trial as well as by the appellate
Courts nor pointed out the material, which is mis -appreci ated.
4. Apart from the same during course of trial and even before this Court the petitioners only
asserted that quarter is illegally allotted in favour of the respondent which was later on
allotted in favour of their brother Taj Muhammad who is necessa ry party, but strangely said
Taj Muhammad never appeared before any Court for establishment of his right by contesting
the order made in favour of the respondent. In addition the petitioners have not asserted
existence of any right in their favour for reta ining possession of quarter in -question with
them. The quarter may have allotted in favour of their brother, but due to this fact no right of
possession created in their favour, even in existence of the fact that said order has already
been withdrawn by th e authority. As per their own showing they are occupying the quarter in -
question without any lawful right.
5. In view of above discussion the petitioners have failed to point out any illegality in both
the orders impugned in present petition. Both tria l and appellate Courts properly appreciated
the evidence produced before them and came to the right conclusion, wherein no interference
is required. Instant revision petition is dismissed being without merits. The orders of trial
Court, dated 13 -4-2009 and of appellate Court, dated 21 -8-2009 are up -held.
No orders as to costs.
H.B.T./53/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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