2012 M L D 63
[Balochistan]
Before Muhammad Noor Maskanzai, J
MUHAMMAD and 7 others ---Petiti oners
Versus
MUHAMMAD ---Respondent
Civil Revision No.22 of 2006, decided on 19th August, 2011.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Declaration of title and permanent injunction ---Judgments at variance ---
Principles ---Plaintiffs claim ed to be owners in possession of suit land and alleged that
defendant was interfering into their lawful possession ---Trial Court decreed the suit in
favour of plaintiffs but Lower Appellate Court dismissed the same ---Validity ---Version of
plaintiffs was se lf-contradictory as according to plaint a piece of barren land was given to
defendant by a deceased brother of plaintiffs for cultivation with a condition that
Rs.10,000 was to be paid to plaintiffs and embankment was to be constructed at the
expenses of d efendant ---Till the life time of deceased brother, the defendant abode by the
terms but thereafter resiled ---Suit for declaration was not competent and plaintiffs were
required to have filed a suit for specific performance of agreement ---Lower Appellate
Court properly appreciated the material available on record and rightly drawn
conclusions, which were not open to exception and findings of Appellate Court deserved
due weight ---High Court declined to interfere in judgment and decree passed by Lower
Appellat e Court ---Revision was dismissed in circumstances.
Sahib Dad v. Inam and 4 others PLD 1985 Quetta Page 69; Abdul Nabi and 29
others v. Jan Muhammad and 26 others 1998 CLC 1998 1842 and Mst. Mumtaz Begum v.
Allauddin and 2 others PLD 1993 Quetta 37 rel.
Muhammad Ibrahim Lehri, for Petitioner.
Taj Muhammad Mengal for Respondents.
Date of hearing: 22nd July, 2011.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J: ---Instant civil revision petition is
directed against the judgment and decree dated 8 -9-2005 passed b y Majlis -e-Shoora
Khuzdar whereby appeal filed by the petitioners was dismissed.
2. Precise facts relevant for disposal of instant petition are that initially the petitioner
No.1 instituted a suit for declaration and permanent injunction against the respon dents in
the court of Qazi Awaran. It was the case of petitioner that on 12 Moharam 1353 Hijri a
piece of barren land was purchased by his late father from one Mir Karim Khan Mirwani
and was enjoying the peaceful possession but the respondents started inte rference in the
same.
The suit was contested by the respondents by way of filing written statement
whereby the claim of petitioner was controverted and rejected. It was contended that the
disputed land was purchased by the father of respondent and respond ent is in possession
of property in question.
3. After filing of written statement and observing codal formalities the suit was
decreed vide judgment and decree dated 5 -1-2005 passed by Qazi Awaran. Feeling
dissatisfied with the judgment and decree Civil A ppeal No.15 of 2005 was filed before
Majlis -e-Shoora Khuzdar which was accepted and the decree was reversed vide impugned
judgment and decree dated 8 -9-2005, hence this revision petition.
4. I have heard Mr. Muhammad Ibrahim Lehri, Advocate for the petitioners and
Mr. Taj Muhammad Mengal Advocate for the respondents. Learned counsel for the
petitioners submitted that suit was decreed by the trial court after due and proper
appraisal of material available on record. Petitioners have proved their case by production
of tangible evidence. There was no misreading and non -reading of evidence and material
available on record by the trial court, therefore, impugned judgment is not sustainable.
On the other learned counsel for the respondents vehemently oppo sed the
contentions so raised and maintained that trial court in sheer violation of principle of
Qanun -e-Shahadat Order appreciated the evidence. Petitioners failed to produce a single
tangible evidence showing any right whatsoever in the property in quest ion. Neither
petitioners nor their forefathers have ever enjoyed the possession over the property in
question; whereas the respondents are in continuous and uninterrupted possession of
property under dispute.
5. I have considered the contentions put forth by the parties learned counsel and gone
through the material available on record. Perusal of record reflects that it has got a
checkered history. Initially in the year 2002 Civil Suit No.83 was filed and after framing
the issues, both the parties were dire cted to adduce evidence in support of their respective
claims. The petitioner got Examined three P.Ws. Learned Qazi Awaran/trial court after
recording statements of P.Ws. vide judgment and decree dated 31 -10-2002 dismissed the
suit on the ground that petit ioner could not produce confidence inspiring evidence to
prove his version. Petitioner feeling aggrieved approached Majlis -e-Shoora Khuzdar by
way of filing of appeal, which was allowed and the case was remanded to the trial court
with the direction to fra me proper issues vide order dated 25 -11-2002. After remand
petitioner No.1 filed an application and sought amendment in the plaint, which was
allowed and amended plaint was filed. In response respondent filed amended written
statement wherein the claim of petitioner was denied. Pursuant to the above directions of
Majlis -e-Shoora learned trial court after recasting the issues decreed the suit vide
judgment and decreed dated 29 -1-2003. Respondent feeling aggrieved preferred an appeal
before Majlis -e-Shoora an d the case was remanded to the trial court vide judgment and
decree dated 7 -3-2003. After remand the suit was once again amended by the petitioners.
Learned trial court decreed the suit in favour of petitioners vide judgment and decree
dated 24 -9-2003. Aga in feeling dissatisfied respondent filed an appeal before the Majlis -
e-Shoora and suit was again remanded to the trial court vide judgment and decree dated
15-11-2003. Learned trial court after remand of the case decreed the suit in favour of
petitioner vi de judgment and decree dated 24 -1-2004. Respondent against the judgment
and decree dated 24 -1-2004 approached Majlis -e-Shoora and appellate court remanded
the case to the trial court vide order dated 25 -3-2004. After remand during the pendecy of
suit the p redecessor -in-interest of petitioners Nos.5 and 8 died; as such amended title was
filed by impleading petitioners Nos.5 to 8 being the legal heirs. The trial court after
hearing the parties decreed the suit vide judgment and decree dated 5 -1-2005. Responde nt
feeling dissatisfied preferred appeal before Majlis -e-Shoora which was accepted and the
suit of petitioner was dismissed vide judgment and decree dated 8 -9-2005. According to
impugned judgment and decree petitioners in order to prove the claim produced three
P.Ws. namely P.W. Ferooz, P.W. Sher Ahmed and P.W. Usman but the learned counsel
for petitioners did not file the statements of said witnesses. The statements of witnesses
appended with the petition were recorded during course of first suit.
6. On 24 -6-2011 when learned counsel for the petitioners was confronted with the
situation he stated that statements have been appended with the petition and he has to
only assign the page number marking to the petition. He sought some time to do the
needful and t he request was allowed. Learned counsel despite availing opportunity neither
did take pain to assign page number marking nor produced the statements recorded
subsequent to remand by appellate Court. Learned counsel while arguing the case referred
to the st atements recorded at the first round of litigation and appended with the petition.
The learned counsel confined his arguments to the available record. I have given my
anxious thought to the arguments so addressed in the light of available record, but have
not been able to persuade myself to subscribe the view point advanced by the learned
counsel for the petitioners for a variety of reasons. Firstly according to plaint, the land is
claimed to have been purchased from one Karim Khan Meerwani, but petitioner did not
produce the original document nor produced the primary or secondary evidence. The trial
court exhibited a Photostat copy, though no objection was raised at the time of exhibition
of the document, yet since the document itself was inadmissible in ev idence being a
Photostat copy, therefore, the mere mark of exhibition is of no avail. Secondly, the non -
production of primary or secondary evidence is quite fatal for a claim based on such
unregistered document. Thirdly, the plaint unequivocally declares t he land as barren one.
There is no evidence whatsoever in nature that the petitioner has ever remained in
possession of the property in question or had ever constructed embankments. Admittedly
petitioners have not cultivated the land in question. Fourthly, petitioners are out of
possession. The point of limitation also goes against petitioners as the plaint does not
disclose as to when the land in question was occupied by the defendant/respondent and
when the petitioner was ousted of the possession. The rel evant para of cause of action is
relevant to be reproduced as under: --
The perusal of cause of action column reveals that even the plaint is offended to
the provisions of Order VII Rule 1(e) read with provisions of Dastoor -ul-Amal Dewani
Kalat, 1952. In this regard reliance is placed on the case of ' Sahib Dad v. Inam and 4
others reported in PLD 1985 Quetta page 69, wherein it was held as under: --
"(2) ---------------------------------------
It is significant that the material particulars as to when the cause of action arose to
the plaintiff has not been mentioned nor it is stated when the suit land was
obtained by the defendants from the plaintiffs and when the flood had washed
away the lath. -------------------------------------------------------------- --------------------
-------------------------- .
(4) Before I discuss the ground taken by the learned counsel I would like to point out
that the so -called plaint offends the rule 1(e) of Order VII, P.P.C. The Civil
Procedure Code and the Limitation Act, 190 8 have been extended to and are
enforced in Kalat Division by virtue of the statutes Reforms Ordinance, 1960.
Order VII, Rule 1 of Civil Procedure reads: --
Order VII, Rule 1. ---The plaint shall contain the following particulars;
(e) the facts constituting the cause of action and when it arose;
The Dastural Amal Diwani, Kalat, 1952 also in section 3(d) provides: ---
This provision has been explained by the framers of the Dastur in Appendix 'B'
provided to Dastural Amal Diwani, Kalat. This appendix is to be taken as the
standard of the requisite brevity and as specimen of the pleadings required. The
provisions of Dastural Amal Diwani and that of Rule 1(e) of Order VII, C.P.C. are
in pari material and require that a statement should be made in the plaint th at the
cause of action arose on such and such date to enable the defendant and the Court
to ascertain from the plaint whether in fact or in law the cause of the action did
arise as alleged or not and is within time. Judging the so -called plaint filed by th e
plaintiff form this standard it is plain that there is no specific allegation (i) when
the land in suit was given for cultivation to the defendants, (ii) upto what period
the plaintiffs had received Haqa -i-Malkana from the defendants, (iii) when flood
had washed away the "lath" and thus when the cause of action arose to the
plaintiff. In view of these omissions the plaint was not entertainable. It is always
the obligation of the plaintiff to satisfy the Court that his suit is not barred by lapse
of time and to discharge that legal obligation it is on him to show when the cause
of action arose. In the instant case the plea of limitation contained in the written
statement of Haibatan defendant was sufficient to cast upon the plaintiff the duty
of showing t hat his suit is not in any way barred by statute of limitation. The
documentary evidence furnished by Haibatan (certified copies of the judgments)
did show that a suit was filed in the year 1953 by the present petitioner and was
dismissed….."
7. The versio n of petitioner is self contradictory as according to para No.4 of the
plaint, a piece of barren land was given to respondent by a brother of petitioners (now
deceased) for cultivation with condition that Rs.10,000 was to be paid to petitioners and
the em bankment be constructed at the expenses of defendant/respondents. Till the lifetime
of brother (now deceased) the defendant/respondent abode by the terms but thereafter
resiled. If this was the case, then the suit for declaration was hardly competent and
petitioners were required to have filed a suit for specific performance of
contract/agreement. The appellate court has properly appreciated the material available on
record and rightly drawn the conclusions, which are not open to exception. Even
otherwise t he law on the subject is settled that the findings of the appellate Court deserves
due weight. By holding the view I am fortified by the judgment reported in 1998 CLC
page 1842 (titled as Abdul Nabi and 29 others v. Jan Muhammad and 26 others) relevant
at page 1847), wherein it was held as under: -
"It is a settled proposition of law that in event of conflict of judgments between
the trial Court and the Appellate Court, ordinarily the findings of the Appellate
Court have been given weight unless the same i s not supported by legal evidence
or is based on surmises and conjectures."
Reliance can also be placed on the case of ' Mst. Mumtaz Begum v. Allauddin
and 2 others' reported in PLD 1993 Quetta 37 wherein it has been held: --
"Absolutely no explanation has been offered to justify this belated action.
Surprisingly trial Court has cursorily dealt with this aspect by observing that said
point was not pressed, which is factually contrary to record. The Hon'ble Supreme
Court in case Haji Muhammad Bhoota v. Habib Ahmad PLD 1985 SC 153 has
authoritatively observed that even if point of limitation is not taken it was
obligatory for the Court to ensure that question of limitation is scrutinized because
it deals with assumption of jurisdiction to grant relief apparent ly no provision of
law could justify institution of suit at such belated stage specially when there is no
specific explanation for delay. However, it may also be observed that petitioner
would at best claim share proportionate to her contribution to the sa le price. The
filing of suit claiming whole property was ex facie incompetent. The appellate
Court has appropriately considered all the factors and arrived at correct conclusion
on proper appreciation of whole record. After independent re -evaluation of
evidence I am inclined to confirm said conclusion. It is well settled that when
appellate Court has assessed the evidence and based conclusion on cogent reasons,
then finding of appellate forum must be given greater weight. In this view I am
supported by the observation in PLD 1982 SC 465 and PLD 1986 SC (AJ&K) 65.
"
In the light of above discussion, I am of the opinion that the petitioner has not
been able to make out a case for interference, as such petition is dismissed with no order
as to costs.
M.H./99/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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