2014 M L D 19
[Balochistan]
Before Muhammad Noor Meskanzai, J
SAADULLAH and another ---Petitioner
Versus
SECRETARY, IRRIGATION DEPARTMENT ---Respondent
Civil Revision No.244 of 2008, decided on 26th July, 2013.
Specific Relief Act (I of 1877 )---
---S. 42 ---Civil Procedure Code (V of 1908), O. XIV, R. 2 ---Suit for declaration ---
Maintainability ---Contention of plaintiffs was that opportunity to lead evidence was not provided
to them ---Suit was dismissed concurrently after framing of prelimina ry issues ---Validity ---
Property in question vested in the Provincial Government as in the column of ownership the
name of Provincial Government had been incorporated as owner ---Neither any allotment had
been made in favour of plaintiffs nor they had been r ecorded as owners of the suit property ---
Plaintiffs had claimed some supposed rights which did not exist ---Incomplete suit must not
survive ---Trial Court framed preliminary legal issue and after hearing both the parties rightly
concluded that suit was not competent and maintainable ---Suit/proceedings if not competent
must be buried at its very inception ---Suit was rightly dismissed by the courts below ---Revision
was dismissed in circumstances.
S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan A li Khan (Moin) through
Legal heirs 2002 SCMR 338 rel.
Khushal Khan Kasi for Petitioner.
Naseer Ahmed Bangulzai, A.A. -G. for Respondent.
Date of hearing: 20th May, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant revision petition is directed against
the judgments and decrees dated 30th June, 2006 and 5th August, 2008 respectively passed by
the Civil Judge, Ziarat and Additional District Judge -IV, Quetta, whereby the suit as well as
appeal filed by the pe titioners were dismissed.
2. Facts relevant for the disposal of instant revision petition are that the petitioners instituted
a suit for Declaration and Permanent Injunction, against the respondent in the Court of Civil
Judge, Ziarat. It was averred in t he plaint that the plaintiffs/petitioners are owners and in
possession of the property situated in Mahal Shori, Mouza Sasnik Mana, Tappa Kawas, Tehsil
and District, Ziarat. The respondent/defendant intends to construct Delay Action Dam. Though,
under the l aw, the respondent is bound to acquire the land for the purpose of construction of
Dam, but without adopting due process of law, the respondent is depriving the petitioners and
their tribesmen from their legal and lawful property in question.
3. The suit was contested by the respondent by way of filing written statement, whereby
besides raising certain preliminary legal objections, the claim of petitioners was repudiated on
merits as well.
4. The learned trial Court, out of the pleadings of parties fram ed following issues: --
(i) Whether the suit of plaintiff is not maintainable under the preliminary legal objections,
raised by defendant in their written statements?
(ii) Whether the plaintiff is entitled for the relief claimed?
(iii) Relief?
5. Thereafter, the trial Court heard preliminary arguments of both the parties and eventually
vide order dated 30th June, 2008 dismissed the suit. The petitioner feeling aggrieved of the order,
referred to herein -above, preferred an appeal before the Additional District Judge -IV, Quetta,
which too was dismissed, hence instant revision petition.
6. Learned counsel for the petitioners argued that both the impugned judgments/decrees are
result of non -reading and mis -reading of the material available on record. Le arned counsel
stressed that the Courts below wrongly dismissed the suit as well as appeal on the ground of non -
joinder and mis -joinder of parties. Learned counsel maintained that the petitioners produced old
documents pertaining to revenue record, which pr ove that the petitioners are owners of the land
where the respondent intends to construct the Dam but both the Courts below failed to take into
consideration this important document. Learned counsel lastly argued that the trial Court
wrongly held that desc ription of the property has not been mentioned. According to learned
counsel, the approach of the learned trial Court was not correct, because documentary evidence
was produced and if the trial Court was of the view that description of the property was not
sufficiently disclosed in that case, under Order VII Rule 3, C.P.C., the trial Court was under legal
obligation to have directed the petitioners to provide further particulars.
On the other hand, the learned Additional Advocate General strenuously oppo sed the
petition and argued that there are concurrent findings arrived at by two Courts below, which
normally cannot be disturbed by this Court. Both the Courts below after taking into consideration
the entire material available on record and attending eac h and every aspect of the case rightly
dismissed the suit as well as appeal. In fact, the petitioners have got no landed property in the
area where the Dam is being constructed nor for that matter any house, dwelling or any other
thing belonging to petitio ner does exist there. No illegality or irregularity could be pointed out by
the learned counsel for the petitioners in the judgments/decrees impugned.
7. I have considered the arguments advanced by learned counsel for the parties and perused
record of th e case. Perusal of the record reflects that the plaintiffs/petitioners claim to have
landed property situated in Mohjal Shori, Mouza Sasnak Mana, Tappa Kawas, Tehsil and
District, Ziarat. It is interesting to note that the revenue record produced by the pe titioners make
it crystal clear that the property in question vests in Government of Balochistan, because in the
column of ownership, the name of Provincial Government has been incorporated as owner.
Similarly; certain other applications have been filed wi th Deputy Commissioner/Collector,
Ziarat, alleging therein that the property under dispute has been entered in the name of
petitioners/applicants. Nevertheless, so far, neither any allotment has been made in favour of the
petitioners nor the petitioners ha ve been recorded as owners of the property. Under such
circumstances, the Dam, which is the need of the day and intended to be constructed for the
masses of the area and is a matter relating to the larger interest of public, cannot be stopped,
merely becau se the petitioners claim to have some supposed right, which do not exist at all. As
far as the non -provision of opportunity to lead evidence is concerned, of course, opportunity was
not awarded, and rightly so because an incompetent suit must not survive. The trial Court being
conscious of this proposition framed a preliminary legal issue as contemplated by Order XIV
Rule 2, C.P.C., and after hearing both the parties, the trial Court rightly concluded that the suit in
question is not competent and maintaina ble. There is no cavil with the legal proposition that the
suit/proceedings, if not competent, must be buried at its very inception in order to save the
precious public time and relieve the parties from the agony of trial, besides to save them from
being s ubjected to heavy expenses of futile litigation. By holding the view, I am fortified by the
dictum laid down in the judgment of apex Court reported in 2002 SCMR Page -338 (S.M Shafi
Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Leg al Heirs
relevant at page 342), wherein it has been held as under: --
"Provisional transfer order does not ipso facto, confer absolute title over the property.
Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear t itle
the suit for possession could not be filed. The Government gave the land to the Society and the
latter surrendered it back to the former. The predecessor -in-interest of the petitioners had no
independent right. His right, if any, was through the Socie ty, and it ceased to exist before it
became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be
buried at its inception. It is in the interest of the litigating parties and the judicial institution itself.
The partie s are saved with their time and unnecessary expenses and the Courts get more time to
devote it for the genuine causes. The findings of learned Single Judge and of Division
Bench are based upon material available on record and no legal infirmity has been p ointed out.
Under the circumstances, the plaint was rightly rejected."
In the light of above discussion, I am confident to hold that the suit filed by the
petitioners was not competent and was rightly dismissed by both the lower forums. The petition
has no force, which is accordingly dismissed. The parties are left to bear their own costs.
AG/80/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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