2019 M L D 69
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
ALLAH DAD ---Petitioner
Versus
MUHAMMAD NAWAZ and 3 others ---Respondents
Civil Revision Petition No.(s) 01 of 2016, decided on 27th January, 2018.
Civil Procedure Code (V of 1908) ---
----O. XXIII, Rr. 1 & 2---Fresh suit after withdrawal of earlier one--- Fresh cause of
action ---Effect ---Contention of plaintiff was that he purchased suit land from the
defendants against sale consideration ---Trial Court decreed the suit but Appellate Cour t
dismissed the same ---Validity ---Plaintiff produced five witnesses and also recorded his
own statement but no marginal witness of sale consideration was got examined---Land
measuring 3000 square feet was transferred in the name of plaintiff through mutati on---
Defendant who was owner of land measuring 3000 square feet had admitted said sale and mutation in the name of plaintiff ---Plaintiff after withdrawal of earlier suit had filed the
present suit ---Both the parties remained satisfied after withdrawal of e arlier suit and did
not raise any hurdle to each other ---Defendant again started interference in the suit land
while interrupting the plaintiff for construction of land in question---Fresh cause of action was accrued to the plaintiff ---Bar of limitation wo uld not come in the way of plaintiff for
filing a fresh suit ---Impugned judgment passed by the Appellate Court was perverse and
result of mis -reading and non- reading of evidence--- Judgment passed by the Appellate
Court was set aside and that of Trial Court was restored ---Suit filed by the plaintiff was
decreed to the extent of 3,000 square feet ---Revision was allowed in circumstances.
Jamal -ud-Din for Petitioner.
Abdul Ghani Mithal for Respondents.
Attaullah Marri, State Counsel for the State.
Date of hearing: 28th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Civil Revision Petition
No.(s) 01 of 2016 filed by Allah Dad son of Ghoshal Khan, against the order and decree dated 29th December, 2015 (hereinafter referred as, "impugned order") passed by the District Judge, Jaffarabad at Dera Allah Yar (hereinafter referred as "the appellate Court"), whereby the appeal of the respondents was accepted and the judgment and decree dated 22nd October 2015 passed by the learned Senior Civ il Judge, Jaffarabad at
Dera Allay Yar (hereinafter referred as "the trial Court") was set aside and suit of
appellant was dismissed.
2. Facts of the case are that the petitioner filed a suit for declaration and permanent
injunction in the Court of Senior Civil Judge, Jaffarabad at Dera Allah Yar with the
averments that he had purchased a piece of land measuring 3000 sq. ft from defendant/respondent No.3 under Mohal and Mouza Barro, Khatooni No.28, Tappa Saddar, Tehsil Jhatpat, District Jaffarabad against t he sale consideration of Rs.200,0000/ -
and the same was transferred in the name of petitioner vide mutation No. 2450 Khasra No.69/2 and 74/2, 2 Qitas boundary whereof given in the plaint.
3. It is further submitted by the petitioner that another piece of l and was also
purchased from defendant/respondent No.3 measuring 8000 sq. ft. in 2005 wherein the petitioner constructed a house by dividing into two portion, a portion of said was sold out to another person, while the remaining portion withheld by the peti tioner, where the
petitioner is residing. The disputed property is situated in the front of the house of
petitioner/plaintiff; that initially the defendants Nos.1 and 2 along with other persons tried
to interfere in the possession of plaintiff over the dis puted property and claiming that the
disputed property has been purchased by the defendant/respondents Nos.1 and 2 along with other persons from defendant/respondent No.3 and in order to bring the disputed property in their ownership the defendant No.1 fra udulently manipulated the mutation
entry of the property by showing that he had purchased the same from the defendant/respondent No.3 measuring 23000 sq.ft, but the measurement of the same was tampered by the respondent No.1 as 33000 sq.ft in the revenue r ecord instead of 23000
sq.ft. in this regard, the petitioner/plaintiff filed a suit on 1st February, 2008 against the respondents, which was also contested by the respondents, but however, thereafter the
same was withdrawn by the petitioner with permission to file a fresh suit vide order dated
30th May, 2008 and subsequently the defendants Nos.1 and 2 stopped the interference in the disputed property, but now the petitioner intended to construct the disputed property, the respondents Nos.1 and 2 started int erference and did not allow the petitioner to
construct his land. Despite of the fact the petitioner is owner and in peaceful possession of the disputed land.
4. The suit of the petitioner/ plaintiff was contested by the respondents/defendants by
means of filing written statements, wherein vehemently denied the claim of petitioner/plaintiff.
5. Out of the pleadings of the parties the learned trial Court framed the following
issues:
"1. Whether the suit of plaintiff is not maintainable as per following legal objections which were raised by the defendants Nos.1 to 3 in their written statement?
(i) Suit is time barred.
(ii) Suit is hit stopped by law.
(iii) Suit is undervalued and insufficient stamps.
2. Whether the plaintiff is lawful recorded owner with possession of plot in dispute but defendants Nos.1 and 2 are interfering in the same?
3. Whether plaintiff is entitled to decree as prayed for?
4. Relief?
6. After recording evidence and hearing the parties, the suit of petitioner/plaintiff
was decreed in his favour by the trial Court.
8(sic). Being aggrieved, the respondents/defendants have assailed the same by filing
appeal before the learned appellate Court and after hearing the parties, the learned
appellate Court accepted the appeal of the respondents and set aside the impugned
judgment and decree passed by the learned trial Court and dismissed the suit of the
petitioner as mentioned in Para No.1.
9. The learned counsel for the petitioner contended that the impugned judgment and
decree p assed by the appellate Court suffers from misreading, non- reading and
misappreciation of evidence; that with regard to the ownership the petitioner produced
confidence inspiring oral as well as documentary evidence; that the petitioner is recorded owner of the disputed land; that the respondents and the DWs produced by the
respondents have also admitted the purchasing of disputed land by the petitioner from the respondent No.3 measuring 3000 sq.ft: that the revenue record was also produced through represent ative of the revenue authorities, which correctly showing the ownership of the
petitioner; that the learned trial Court after proper appreciation of evidence had rightly decreed the suit of the petitioner while the appellate Court without adverting to the evidence brought on record to its true perspective had wrongly reversed the impugned judgment and decree passed by the learned trial Court, which resulted grave miscarriage of justice to the petitioner, as such, the judgment and decree passed by the appell ate Court
is not maintainable and liable to be set aside.
10. On the other hand, the learned counsel for the private as well as official
respondents vehemently opposed the arguments so advanced by the learned counsel for the petitioner and contended that t he petitioner has failed to prove its case through
confidence inspiring evidence; that the respondent No.1 had purchased 33000 sq.ft land from respondent No. 3 and the representative of the respondent No.3 appeared in the Court also confirmed the sale cons ideration; that earlier to the instant suit the petitioner
filed a suit against the respondents, which was later on withdrawn by the petitioner and after lapse of considerable time the petitioner filed the instant suit, which is time barred and not maintai nable; that the petitioner has failed to produce he previous owner of the
land in question in support of his contention; that the learned trial Court without proper appreciation of evidence has decreed the suit of the petitioner while the learned appellate Court has rightly set aside the impugned judgment of the learned trial Court and dismissed the suit of the petitioner, as such the impugned order passed by the learned appellate Court is not open for interference by this Court.
11. Heard the learned couns el for the parties and perused the record minutely, which
reveals that the petitioner claimed to be owner of the suit land bearing mutation No.2450, Khasra No.69/2 and 74/2, 2 Qitta measuring 3000 sq.ft. purchased the same from respondent No.3 on sale cons ideration of Rs.200,000/ - while on the other hand the
respondent No.1 also claimed to be owner of the suit land including 33000 sq.ft purchased from the respondent No.3, both the parties in order to prove their claims produced oral as well as documentary e vidence, but however, both the parties have failed
to produce any marginal witnesses of the sale considerations. The petitioner produced as many as five witnesses and also recorded his own statement, but none of them are
marginal witnesses of the sale cons ideration, however, the petitioner to the extent of
ownership produced PW -3 Naik Muhammad Patwari, who exhibited the revenue record
of intiqal No.2450 perusal whereof confirmed that under the such intiqal 3000 sq.ft land
was transferred from the name of re spondent No.3 Abdul Karim in the name of petitioner
Allah Dad on 3rd July, 2007 and it was not disputed by the representative of respondent No.3 despite lengthy cross -examination his statement was not shaken and remains firmed.
12. In support of his claim the petitioner produced PW -5 Muhammad Khan
representative of Deputy Commissioner Jaffarabad, who exhibited the letters of inquiry with regard to tampering the revenue record, which is showing that the respondent No.1 had purchased infact 23000 sq. ft from the respondent No.3 while the revenue record was tampered as 33000 sq ft by the respondent No.1 with connivance of the revenue officials, so PW -5 Muhammad Khan Mohasib/ representative of Deputy Commissioner Jaffarabad,
who recorded his statement and exhibi ted the letters, which were submitted by the EDO
revenue Jaffarabad to the trial Court bearing No.1753/SR dated 24th April, 2015 and copy
of earlier letter dated 5th May, 2008. The perusal of above letters reflects that the revenue
record was tampered, rel evant portion of the letter dated 05th May, 2008 is reproduced as
under: --
"In the instant case, I checked the mutation No.1009, and Periodical Record (JAMA BANDI) of Deh Baro for the years 1993, 1997, and 2001. I found that the record available with the patwari has neat and clean entries in which the sold area of the said mutation is 23000 sq. ft while entries in the revenue record in the possession of Saddar Qanungo clearly show that the 23000 sq.ft. sold area have been altered overwritten as 33000 sq.ft . most probably with the mala fide
intentions. The higher authorities are being requested to order an inquiry for fixing
the responsibility of this criminal act of forgery.
The Honorable Court is requested to consider the revenue record of Patwari Tappa Saddar as reliable which shows the sole area as 23000 sq.ft.
The report is submitted for your kind perusal please.
Sd. (Abdul Hameed)
Executive District Officer
Revenue Jaffarabad."
13. Since the respondent No.1 claimed to have purchased 33000 sq. ft. from
respondent No.3 under mutation No.1009 and in view of the above quoted letter, it is clearly appeared that the land so purchased and mutated/transferred under mutation No.1009 was infact consisting area of 23000 sq. ft. as per revenue record and subsequently the same has been altered/over written as 33000 sq.ft. most probably by mala fide intention and the learned trial Court was reques ted by the EDO revenue
Jaffarabad that the revenue record of Patwari Tappa Saddar is reliable one which is showing the sold area as 23000 sq. ft.
14 Though the representative of respondent No.3 appeared as attorney of the
respondent No.3 and supported the version of the respondent No.1 that he had purchased
33000 sq.ft. from the respondent No.3 in the year 1988 and also stated that including the
disputed plot, but in cross -examination he admitted that:
13. It is pertinent to mention here that on one hand the representative of respondent
No.3 have categorically admitted that the respondent No.3 sold out 3000 sq. ft. to the
petitioner and the same was also mutated in his name on 3rd July, 2007 while on the other hand, he has stated that the petitioner has cons tructed a house in said plot and also
occupied another 9000 sq. ft. but it is very surprising that if the petitioner had occupied such 9000 sq.ft. of the respondent No.3 and to how the respondent No.3 was kept mum and silent and no action has so far been t aken against the petitioner. as such, the
representative of respondent No.3 was simultaneously approbated and reprobated on same cause on same breath. Besides, the respondent No. 1 while recorded his statement deposed that he had purchased 33000 sq.ft. fro m the respondent No.3 in the year 1988,
but failed to produce any revenue record or documentary sale consideration in support of his claim while simply stated that the record was damaged in the year 2010 by flood but
despite of the fact failed to produce t he copy whereof record, which prima facie reflects
that if the same could have been produced, would not be helpful to the respondent No.1
rather the manipulation, alteration and tampering so made on it would be arises on surface. In cross -examination he de posed that:
He further deposed in cross -examination that:
16. From bare perusal of revenue record and statements of the parties, it is appeared
that purchase of 3000 sq.ft. land under Intiqal No.2450 bearing Khasra No.69/2 and 74/2, 2 Qitta of petitioner is established and also admitted by the witnesses of the parties as
well as the representative of respondent No.3 Abdul Karim, who was the actual owner
and sold out the same to the petitioner and got mutated the same in his name on 3rd July, 2007. It was c ategorically admitted by the respondent No.1 in reply of cross -examination
No.7
While the representative of respondent No.3 has categorically admitted that:
But failed to produce any other Khatta etc.
17. In view of the above, the issue No.2 has been proved by the petitioner/plaintiff and
the same was rightly resolved in his favour by the learned trial Court.
18. As far as the contention of the learned counsel for the respondent with regard to
the limitation is concerned. The same issue was properly de alt by the learned trial Court
and it appears that after withdrawal of the earlier suit under Order XXIII, Rules 1 and 2, C.P.C. with permission of the Court for filing of suit a fresh the period so spent the parties admittedly settled the issue through Mi r Zahoor Hussain Khosa and thereafter the
parties remained satisfied and did not raise any hurdle to each other, but surprisingly the respondent No.1 has again started interference in the disputed land while interrupting the petitioner for construction of disputed land hence fresh cause of action was accrued to the petitioner, as such, the bar of limitation would come in the way petitioner for filing a fresh suit. The objection of the learned counsel having no force and without substance and the impugned ju dgment passed by the learned appellate Court is perverse, ridicules
suffers from misreading and non -reading of evidence and also suffers from material
illegalities and irregularities being not sustainable.
For the reasons discussed hereinabove the petitio n is accepted the impugned
judgment dated 29th December, 2015 passed by the learned District Judge, Jaffarabad at
Dera Allah Yar is set aside and the judgment and decree dated 22nd October, 2015 passed by the learned Senior Civil Judge, Jaffarabad at Dera Allah Yar is restored/upheld,
whereby the suit of petitioner was decreed to the extent of three thousand (3000) sq. ft. Decree sheet by drawn. Parties are directed to bear their own costs.
ZC/16/Bal. Revision allowed.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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