2012 M L D 1898
[Balochistan]
Before Muhammad Noor Meskanzai, J
ABDUL SAMAD and another ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN, through Secretary, C and W and another ---
Respondents
Civil Revision Petition No.418 of 2008, decided on 30th July, 2012.
(a) Possession ---
----Permissive and temporary possession/occupation of a property would not bestow its
occupant with any right ---Illustration.
(b) Civil Procedure Code (V of 1908) ---
----O.VII, R.14 ---Document tendered in evidence neither relied upon nor referred to in
pleadings by a party ---Validity ---Such document for being beyond pleadings would be
inadmissible in evidence.
(c) Civil Procedure Code (V of 1908) ---
----O.VII, R.9(1)(i); O.XIII, Rr.1 to 4 & XVI, R.1 ---Document tendered in evidence by
plaintiff against provisions of O.VII, R. 9(1)(i) and O.XIII, Rr.1, 2, C.P.C. ---Such document
not finding mention in first list of witnesses filed after framing of issues, but w as mentioned
in subsequent list of witnesses ---Validity ---Such document would be inadmissible in
evidence and could not be entertained in violation of provisions of O.XIII & O. XVI, C.P.C.
(d) Qanun -e-Shahadat (10 of 1984) ---
----Art.79 ---Document tend ering in evidence without examining its marginal witnesses ---
Effect ---Such document would not stand proved.
Najamuddin Mengal for Petitioners.
Amanulalh Tareen (A.A. -G.) for Respondents.
Date of hearing: 29th June, 2012.
JUDGMENT
MUHAMMAD NOOR M ESKANZAI, J. ---Instant revision petition is directed against the
judgment and decree dated 16th November, 2008 passed by Majlis -e-Shoora Kalat Division
at Mastung, whereby appeal filed by respondents was accepted and the suit filed by
petitioners was dismi ssed.
2. Facts relevant for disposal of instant petition are that the petitioners instituted a suit
against the respondents for Declaration, Permanent Injunction and Correction of Revenue
Record. It was alleged in the suit that land bearing Khasra No.437 , Khewat No. 21, Khatooni
No.157, measuring 0 rod 16 poles, situated in Mouza Soorab is their ancestral property. The
same is in their possession since 70/80 years. It was further averred that basically the land in
question belonged to Rekizai tribe which was subsequently acquired by their forefather who
also made some construction thereon. According to plaint plaintiffs' forefather was employed
in B&R Department, who for his betterment made construction and spent his life therein.
Thereafter, plaintiffs al ong with their father are owners in possession without any interruption
from any corner. During settlement measurement of the house was recorded on plaintiffs
name but ignorantly they could not get Khatoni. Recently plaintiffs wanted to make changes
in the construction but the defendants through their workers created hurdles for plaintiffs. The
plaintiffs consulted revenue record and came to know the house in question was recorded in
the name of defendants. Hence the suit.
3. The suit was contested by the respondents by way of filing written statement, whereby
the claim of the petitioners was denied and disputed on legal as well as factual grounds. It
was the case of defendants that the land in question vests in Central government and is in
possession of s ame as well as recorded owner.
4. The learned trial court out of the pleadings of parties framed following issues: --
Thereafter the parties were directed to adduce their respective evidence. Whereupon, the
petitioners produced six P.Ws. and a ttorney of the petitioners got recorded his statement. In
rebuttal, the respondents examined three D.Ws., besides recording the statement of its
representative.
5. The learned trial Court after hearing the parties and evaluating the evidence produced
by both the parties decreed the suit vide judgment and decree dated 27th September, 2008.
The respondents feeling dissatisfied with the judgment and decree passed by Qazi, Soorab
preferred an appeal before the learned Majlis -e-Shoora, Kalat Division at Mastun g. The
learned appellate Court vide judgment and decree dated 26th November, 2008 accepted the
appeal and set aside the judgment and decree dated 27th September, 2008 passed by learned
Qazi, Soorab, hence this revision petition.
6. I have heard Mr. Najam -ud-Din Mengal, Advocate for petitioners, whereas Mr.
Amanullah Tareen, Additional Advocate General appeared on behalf of respondents.
The learned counsel for the petitioners submitted that petitioners produced overwhelming
evidence in support of their c ase and the learned trial Court after proper appraisal thereof
rightly decreed the suit. He next argued that the petitioners are in continuous and
uninterrupted possession of the property in question since decades. The learned appellate
Court without adver ting to continuous possession of petitioners, illegally reversed the
judgment and decree passed by the trial Court. Learned counsel emphasized that the evidence
produced by petitioners was misread by the appellate Court, therefore, the impugned
judgment a nd decree are liable to be set aside.
On the other hand, the learned Additional A.G strenuously opposed the revision petition and
submitted with great vehemence that the trial Court in fact committed gross illegality by way
of passing a decree in favour of petitioners. The property in question belongs to Government
of Balochistan and the same has rightly been recorded in its name. Petitioners' father was an
employee of C&W Department and thus was residing as Chokidar in the quarter constructed
by the Gove rnment with permission of Department. The petitioners taking benefit of
permissive possession/occupation of the quarter tried to construct shops which were
prohibited/restrained by the respondents being the owners of the property. The appellate
Court, afte r proper appraisal of material available on record has rightly reversed the decree
and dismissed the suit filed by the plaintiffs.
7. I have consideration the contentions put forth by the parties' learned counsel and have
gone through the record of the c ase. The perusal of record reflects that the plaintiff in order to
prove his case produced following P.Ws., besides examining himself:
P.W.1 Haji Rasool Bakhsh
P.W.2 Fateh Muhammad
P.W.3 Abdul Khaliq
P.W.4 Abdul Manan
P.W.5 Hassan Bakhsh
P.W.6 Muhammad Ramzan
As far as the statement of P.W. Abdul Khaliq is concerned, he has not stated the boundaries
of the disputed property nor for that matter he has mentioned the Khasra numbers. Further
went on to state that Rest House is the property of Reki zai Tribe. For ready reference, in
reply to question No.16, he stated as under:
زئی کی ملکیت اراضی طور پر ریکی یہ غلط ہے کہ متدعو ی
نہ ہے از خود کہ بنیادی طوپر پر ریسٹ ہاؤس بھی ریکی زئی کی ملکیت ہے
As far as statement of P.W.4 is concerned, th is P.W. has wrongly stated the
boundaries/description of the property and does not state the Khasra numbers of the property.
Whereas the statement of P.W.3 is based on hearsay, besides he failed to mention the
description of the property in dispute.
P.W. Muhammad Ramzan has also misstated the boundaries. Petitioner, tendered in evidence
a document as Exh.P/1, but this document is also of no avail to the petitioners for a couple of
reasons. Firstly, because this document was not referred to in the pleading s nor relied upon,
therefore, being beyond pleadings is inadmissible in evidence. Secondly this was produced
contrary to provisions of Order VII Rule IX sub -rule (i), Order XIII Rules 1 and 2, C.P.C.
Thirdly plaintiff did not mention this document in the f irst list of witnesses which was filed
on 24th October, 2007. For the first time the document was mentioned in the list of witnesses
filed on 19th May, 2008 entertained in violation of the provisions of Order XIII and 16,
C.P.C. Fourthly, the document was not proved as no marginal witness or author of document
was produced. Fifthly, the document could not have been exhibited. Sixthly, the boundaries
mentioned in the said document do not tally with the description given in the plaint. As far as
the statement of P.W. Rasool Bakhsh is concerned, he has not stated the correct boundaries.
Moreover, he states that he is aged about 70 years and since then he has seen the grandfather
of the plaintiffs residing in the disputed property and after the death of Karim Ba khsh Mali
(grandfather of plaintiff) his descendents are residing. He further states that Karim Bakhsh
has constructed the property, whereas P.W.2 though does not know the boundaries, yet states
that since 75 years, Karim Bakhsh is residing in the property in dispute, however, he does not
know about the construction, as the property in question was already constructed. A
comparison of the statements of P.Ws. 2 and 3 reflects that if P.W.1 is believed that belies
P.W.2 and vice versa. It is important to note that P.Ws. 1 and 2 while examined at a stage
when the respondents/ defendants were proceeded against ex parte, but the trial court after
setting aside the ex parte proceedings did not take pain to recall the witnesses in order to
provide an opportunity to cross -examine the said witnesses. Similarly, the statement of P.W.
Hassan is valueless as it is based on hearsay.
Whereas, in rebuttal, the respondents/defendants produced as many as four D.Ws. The
defendants/respondents have succeeded to prove the fact um of construction of house in
question by Government and the statement of P.Ws. could not be shaken despite lengthy
cross -examination. Therefore, in this wake of circumstances, the learned appellate Court after
proper appreciation of the facts and evaluat ing the evidence has rightly drawn the
conclusions. The appellate Court by invoking the provisions of Order XLI Rule 31, C.P.C.
dealt with each and every issue with reference to the evidence available on record by
forwarding cogent and plausible reasons fo r the conclusions so arrived at, which are not open
to legal exception. Admittedly, Karim Bakhsh Mali and father of petitioner were employees
in C&W Department, particularly Karim Bakhsh was Chowkidar and in that analogy, he was
residing in the premises co nstructed by the Government (C&W Department) and such
permissive and temporary occupation does not bestow plaintiff/petitioner with any right. This
aspect of the matter was quite competently dealt with by the appellate forum.
It is painfully noted that i n written statement specific objection regarding limitation was
pleaded but the trial Court did not frame any issue. Admittedly the entries have been carried
out in the year 1972 and the possession of respondent/defendant has been established as
owner. Und er such circumstances unhesitantly the suit appears to be barred by time.
Thus, for the foregoing reasons, petition fails, as such is dismissed with no order as to costs.
SAK/80/Q 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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