2010 M L D 1731
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
NOOR MUHAMMAD and 2 othe rs-Petitioners
Versus
NOORUDDIN and 3 others ---Respondents
Civil Revision No. 268 of 2006, decided on 25th February, 2010.
Specific Relief Act (I of 1877) ---
---Ss. 42 & 54 ---Civil Procedure Code (V o f 1908), O. VII, R.11 ---Suit for declaration,
permanent injunction and easement ---Plaintiffs claimed their right o f easement in respect o f use
o f water for irrigating their lands through same water -course and right o f w ay through a passage
allegedly situated on lands owned by the defendants for a per iod o f more than 100 years ---
Plaintiffs though had asserted existence o f their right, but admitted non -entering o f both these
amenities in record o f rights, despite the fact that as per their own showing settlement was
carried out in the area in year, 1958 ---Burden was upon the plaintiffs to firstly prove
existence o f disputed watercourse and passage and thereafter their right to use the same,
without any obstruction from side o f defendants, but they had failed to discharge the same ---
Trial Court had failed to assess the material present on record, in its true perspective and
came to the conclusion which was not in accordance with facts brought on record ---Plaintiffs
though titled their suit for declaration, permanent injunction and easement, but in the cont ents
o f the plaint they did not seek declaration in respect o f their right, rather only prayed for
injunction ---Trial Court had failed to frame any issue in respect o f legal objections raised by
the defendants in their written statement to the extent o f non joinder o f parties, non -payment of
proper court fee, improper description of property in question, thereby suit was liable to be
dismissed under O. VII, R.11, C. P. C. ---Appellate Court despite pointing out the defects of
pleadings o f the plaintiffs and misappreciation o f real matter in dispute by the Trial Court,
relied on findings and decision taken by the Trial Court ---Appellate Court, neither considered
the grounds raised by the defendants in memo o f appeal, nor discussed the evidence recorded
by the Trial Court and decision arrived thereby and came to the conclusion without assigning
reasons ---Both Appellate Court and the Trial Court had failed to decide the issues on material
present on record, thereby had come to the conclusion not based on facts a nd evidence ---
Impugned judgments were set aside ---Suit filed by the plaintiffs was dismissed being without
merits.
Khushnood for Petitioners.
Syed Ayaz Zahoor for Respondents.
Date of hearing: 21st October, 2009.
JUDGMENT
MRS. SYEDA TAHIRA SA FDAR, J .---The petitioners being aggrieved of judgment
made on 21 -11-2005 by Qazi Bori Sinjavi, whereby suit filed by the respondents was
decreed in their favour, and of judgment made on 21 -7-2006, made by Majlis -e-Shoora
Loralai, whereby their appeal was dismissed, preferred present petition with prayer for
setting aside of impugned orders, thereby dismissal of the suit filed by the respondents. It is
their contention that the trial and appellate courts failed to appreciate the evidence
properly. Further, the appellate court also failed to decide all the grounds raised by them
in appeal, nor even considered them. Furthermore, the trial Court wrongly dismissed the
application for appointment of local commissioner, which was important to understand
the nature of the dispute.
As per record the respondents/plaintiffs filed a suit under title of declaration, permanent
injunction and easement, against the petitioners/defendants. It is their contention therein
that since, 1945 they are in cultivating possession o f property bearing Khasra
Nos.605/438, 603/438, 607/439, Khatooni No.50, Khewat No.51 situated at Mouza
Pasra Tehsil Sinjavi. It is further their contention that all the share holders of Mouza
Pasra Tehsil Sinjavi irrigate their lands from watercourses fro m Pasra Karez, which is
situated beside the Local Sinjavi Road from South to North. While from this Karez a
settled watercourse/Bandobasti Viala flow from north to south from which a
watercourse flow from the lands of co -sharers Dad Muhammad, Hazrat Sahib, Ahmed,
Sayad Muhammad and Moula Dad and reached to the lands of them (plaintiffs) at
eastern side for irrigation, purposes, which is in existence from last 100 years. While
the petitioner/defendants purchased land, in said area few years back from one Akh tar
Muhammad son of Sultan Muhammad without right of water. The respondents/plaintiffs
further asserted that few years back the petitioners/defendants tried to interrupt this
watercourse, but due to intervention of said Akhtar Muhammad they retracted from the
act. But recently they again tried to interrupt the watercourse in question, in case they
succeeded in their act; they (plaintiffs) will suffer irreparable loss, as there is no other
course of water for irrigation of their lands. It is also their conte ntion that a way which
also crossed through the lands of defendants and other persons and lead to their house is
the only way of communication to their lands and in their use from last 100 years. The
petitioners/defendants tried to obstruct this way by pla nting trees, digging ditches and
placing stones. The petitioners/defendants are interfering in their right of way and
water. They have prayed for injunction to the effect that the defendants be restrained
from making interference in customary way of water belonging to them (plaintiffs)
situated at one end of their (defendants) land end they also be restrained from
interfering in way situated at lower and of their lands. In their reply the
petitioners/defendants though did not deny the ownership of the respo ndents/plaintiffs
to the extent of lands, but they strongly denied existence of any such watercourse and
way as asserted by the respondents/plaintiffs. According to them the watercourse flow
from the lands of Abdul Rahim and Hazrat Sahib, which is used by the share holders
including the respondents/plaintiffs. Further, the settled road existed at western side of
their property. No watercourse or way passes from their (defendants) land. They have
further raised several legal objections on maintainability of the suit to the effect that
suit is bad for misjoinder of necessary parties, filed with mala fide intention, without
any cause of action, lack of description of watercourse and way in question, also liable
to be rejected under Order VII, Rule 11, C.P.C. Fu rther, proper court -fee has also not
been paid.
It is apparent from record that the issues were framed by the trial Court, while parties
were allowed to produce evidence. On completion of evidence both the sides the learned
trial Court decided the suit t hrough judgment made on 21 -11-2005, whereby the suit
was decreed to the effect that the defendants are restrained from making interference in
watercourse of the plaintiffs situated at end of their land, they are also restrained from
creating any hindrance in the way of the plaintiffs situated at lower end of the land.
Being aggrieved of the same the petitioners/defendants filed appeal before Majlis -e-
Shoora Loralai, who after hearing the parties rejected the appeal through order made on
21-7-2006. The petit ioners still feeling aggrieved of the orders preferred instant petition
for setting aside of both the orders of trial and appellate Courts, mainly contending that
"evidence is mis appreciated and contention raised by them are not considered by the
appellat e Court.
The perusal of impugned order dated 21 -7-2006 of appellate court revealed that while
deciding the appeal the appellate court comes to the conclusion that Issue No.3 is the basic
issue and the watercourse which is irrigating the lands of the plai ntiffs is the matter in
dispute between the parties, while further observed that the parties and their counsel and
also the learned Qazi if paid attention they would surely come to the conclusion that it
is the main issue. It is further apparent from recor d that the learned appellate court
while deciding this issue in affirmative observed that the real controversy is in this
issue, while the watercourse is not shown as matter in dispute, nor its boundaries are
described, therefore, the personal evidence is entertainable, thus this issue is decided in
affirmative. While deciding Issue No.4 it is held by the same Court that as from the
statements of witnesses of the defendants it is apparent that some watercourse passes from
there, therefore, they (Majlis -e-Shoora) relied on verdict taken by the trial court. While
deciding the appeal the appellate Court observed that it was incumbent upon the
plaintiffs to specify the boundaries of watercourse and show it to be disputed, but they
showed their land as matter in dispute, which is not denied by the defendants. Thus in
view of the same the appellate Court came to the conclusion that appeal is dismissed,
while order of lower court dated 21 -11-2005 is retained to be correct. The perusal of the
order showed the strange conduct of the appellate Court, despite pointing out the defects
of pleadings of the plaintiffs and misappreciation of real matter in dispute by the trial
Court, the appellate Court relied on findings and decision taken by the trial Court. The
appellate C ourt while deciding appeal neither considered the grounds raised by the
appellants/ petitioners in memo of appeal, nor discussed the evidence recorded by the
trial Court and decision arrived thereby. The appellate Court comes to the conclusion
without assi gning any reason. The appellate as well as trial court are bound to consider
each and every aspect of the case and on basis of material present on record required to
give findings on matter in issue that too with valid reasonings. But in present case the
appellate court has completely failed to discharge the duty assigned to it, though it has
been rightly observed that the pleadings of the plaintiffs are not specific and clear and
matter in issue has not been correctly constituted, despite the same the appe llate court
failed to apply its judicious mind to decide the real controversy between the parties. The
order of the appellate Court is devoid of merits.
Now coming to decision' of the trial court made on 21 -11-2005, whereby the suit filed
by the responde nts/plaintiffs was decreed in their favour thereby restraining the
petitioners/defendants from interfering in customary watercourse and passage of the
respondents/plaintiffs. It is to be noted that the trial court while deciding the suit
decreed it is term s of injunction thereby restraining the petitioners/defendants from
making interference in right of respondents/plaintiffs in respect of watercourse and way.
Though the respondents/plaintiffs titled their suit for declaration, permanent injunction
and ease ment, but in contents of the plaint they did not sought declaration in respect of
their right, rather only prayed for injunction. Even the trial Court while deciding the suit
did not consider this aspect of the case that before issuing an injunction the ex istence of
right claimed by the plaintiffs, is required to be established specially in case when there
is clear denial of right from the other side which is a clear error.
It is further observed that the trial court while framing issues out of pleadings of the
parties framed Issue No.1 as whether the suit is filed within time, while remaining
issues are based on factual grounds. It is to be noted that no objection in respect of suit
being field beyond provided period was raised by the petitioners/defendan ts in their
written statement filed before the trial Court; despite the same this issue was framed.
The trial court failed to frame any issue in respect of legal objections raised by the
petitioners/defendants in their written statement to the extent of no n joinder of parties,
non payment of proper court fee, improper description of property in question thereby
suit is liable to be dismissed under Order VII, Rule 11, C.P.C. The trial Court
completely failed to consider these legal objections, on which maint ainability of the suit
based to some extent.
The perusal of contents of the plaint reveals that the respondents/plaintiffs claimed
themselves to be owners with cultivating possession of property/land situated at Mouza
Pasra, Tehsil Sinjavi bearing Khasra Nos.605/438, 603/438 and 607/439, Khatooni
No.50, Khewat No.51, measurement is not described therein. Their ownership is not
denied by the petitioners/defendants, who also owned land in same area, which is also
an admitted fact. The respondents/plaintiffs apart from their ownership of said land and
watercourse also claimed right in respect of another watercourse reached to their lands
crossing the land of the petitioners/defendants. They further asserted right of way in
respect of a passage also crossing f rom lower Side of the land owned by the
petitioners/defendants thereby leading to their lands. It is further assertion of the
respondents/plaintiffs that they have been using the said water and way from last 100
years. The petitioners on other hand though admitted_ existence and ownership of
respondents/plaintiffs in -respect of land mentioned in the plaint, but denied existence of
any such watercourse or passage passing from upper side and lower side of their
(petitioners) land, which is in use of responde nts/plaintiffs. Thus in view of this specific
denial the matter in issue is the existence of alleged watercourse and the passage and
right of the respondents/plaintiffs for using the same. Issues Nos.1 and 2 are not related
to the matter in dispute, matter Nos. 3 and 4 are somehow related to real controversy
though not framed properly by the trial Court. Apart from the same, as there is denial of
existence of watercourse and passage in question from the other side, it is the
respondents/plaintiffs to establ ish on first instance the existence of water course and
passage in question and thereafter, require to establish their legal right to use the same.
The perusal of record reveals that though the respondents/plaintiffs have asserted
existence of watercourse and passage in question for last 100 years and thereby its use
by them as usage and custom, but they have failed to give complete description of the
same. They have failed to give exact boundaries of the watercourse and passage, rather
described it to be s ituated at upper and lower part of the land owned by the petitioners/
defendants. It is apparent from record that the lands situated in the area are settled
lands, while the watercourse existed there are also settled and entered in revenue record.
Despite the same the respondents/plaintiffs have failed to give exact detail of the
disputed Viala and the way, even failed to describe the Khasra numbers of the lands, on
which this way is situated and watercourse is crossing. The plaint is completely silent in
same respect. Even the witnesses appearing on their (plaintiffs/ respondents) behalf
failed to describe exact location of disputed watercourse and passage. P.W.5 produced
record of rights, which was exhibited by the trial court as Exh. P/1 -A. The petitioner s
have not filed copy of the same before this court, which he was required to do. During
cross -examination this witness admitted that in said record there is no entry in respect
of existence of watercourse or way. D.W.3 also produced mutation entry in resp ect of
Khata No.27, Khatooni No.29 Khasra No.447 entered in name of Akhtar Muhammad as
Exh. D/1. As these documents are not placed on record before this court, therefore, no
observations can be made in same respect. Rather it seems that they are in respect of
lands owned by both the parties, which otherwise is not a dispute fact. The learned trial
Court while deciding Issue No.2 discussed the evidence at length and decide it in
affirmative. This is a futile exercise, as this issue pertains to the fact which is not denied
from either sides i.e. the ownership and possession of the parties in respect of their
lands. But as far as Issue No.3 is concerned, which relates to the matter in dispute
between the parties is neither properly discussed by the trial Court, non-come to the
right conclusion. Though the witnesses appearing from side of the respondents/plaintiffs
deposed that there exists some watercourse which after crossing lands of several
persons including the petitioners/defendants reached to the land of
respondents/plaintiffs, which is obstructed by the petitioners/defendants. But it is
admitted by them that this disputed watercourse and passage is not recorded in Revenue
Record. These witnesses did not disclose the specific description of disputed
waterco urse and passage. Even the attorney appearing on behalf of
respondents/plaintiffs is not specific about the location and specification of disputed
watercourse and passage. A general and vague picture of disputed property i.e.
watercourse and passage is on record, on such a vague description, no decree can be
made in favour of the respondents/plaintiffs. In view of statements of witnesses
appearing on behalf of respondents/plaintiffs his fact is apparent that the alleged
watercourse reached to the land of th e respondent/plaintiffs after crossing the lands of
several other persons including the petitioners/defendants. In case there is creation of
hindrance in flow of the watercourse by the petitioners/defendants, this will naturally
affect the right of other s uch persons also, but there seems to be no other litigation
between the petitioners/defendants and other owners to some respect except the
respondents/plaintiffs.
From whole set of evidence and pleadings of the parties it is difficult to ascertain the
exact location of the property in question. The respondents/plaintiffs are claiming their
right of easement in respect of use of water for irrigating their lands through some
watercourse and right of way through a passage allegedly situated on lands owned by
the petitioners/defendants for a period of more then 100 years. Though the
respondents/plaintiffs have asserted existence of their right, but admitted non entering
of both these amenities in record of rights despite the fact that as per their own showing
settlement was carried out in the area in year, 1958. The burden was upon the
respondents/plaintiffs to firstly prove existence of disputed watercourse and passage and
thereafter, their right to use the same without any obstruction from side of the
petitio ners/defendants, but they have completely failed to discharge the same. The trial
Court failed to assess the material present on record in its true perspective, and come to
the conclusion, which is not in accordance with facts brought on record.
In view of above discussion both the appellate court and the trial court failed to decide the
issues on material present on record, thereby comes to the conclusion not based on facts
and evidence, thus liable to be set aside. The revision petition is hereby accept ed. The
impugned judgments, dated 21 -11-2005 and 21 -7-2006 made by Qazi Bori, Sinjavi and
Majlis -Shoora, Loralai are set aside. The suit filed by the respondent/plaintiffs is
dismissed being without merits.
No order to costs.
H.B.T./39/Q Petitio n accepted.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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