2021 M L D 215
[Balochistan]
Before Rozi Khan Barrech, J
YAR MUHAMMAD and 4 others ---Petitioners
Versus
MUHAMMAD ALI and 4 others ---Respondents
Civil Revision No. 37 of 2014, decided on 27th December, 2019.
Civil Procedure Code (V of 1908) ---
----S. 79--- Constitution of Pakistan, Art. 174 ---Suits by or against Government ---Suit
involving Government land---Necessary party ---Scope ---Petitioners claimed ownership of
2500 to 3000 acres unsettled land ---Validity ---Suit property was unsettled land and was i n
the ownership of the Government ---Neither the petitioners nor the respondents had produced
any evidence to prove that they were actual owners of the disputed properties ---Petitioners
had arrayed the Member Board of Revenue and Tehsildar as defendants in their plaint but
had not arrayed the Provincial Government through its Secretary as necessary party in the plaint ---Suit in respect of the unsettled land in the absence of Government as the Provincial
or Federal was not maintainable as contemplated under A rt. 174 of the Constitution and S.79
of C.P.C. ---Courts below had rightly dismissed the suit filed by petitioners ---Revision
petition was dismissed, in circumstances.
Mumtaz Hussain Baqiri for Petitioners.
Shahid Baloch, A.A.G. for the State.
JUDGMENT
ROZI KHAN BARRECH, J. ---This Civil Revision Petition in terms of section 115
of The Code of Civil Procedure (V 1908) (hereinafter referred as (C.P.C.) arises out of judgment dated 13.11.2013 (hereinafter "impugned judgment") passed by Additional District Judge -VI, Quetta (hereinafter "the appellate court"), whereby while accepting the appeal
filed by the respondents, the judgment and decree dated 24.12.2019 passed by the learned Senior Civil Judge -III, Quetta ("trial court") in Civil Suit No. 178 of 2009 wa s set aside.
2. Epitomized facts necessary for adjudication of instant petition are that the petitioners
filed a suit for declaration and permanent injunction before the trial court against the respondents with the averment that they are Zamindars by profe ssion having certain
properties situated at Mohal Khushkaba Janoobi, Mouza Hanna Tappa Durrani Tehsil and District Quetta, bearing Khasra Nos. 316, 328, 329, 3443, 3444, 2445 and Khewat No.
34/217, wherein they are cultivating crops and also having orchards along with
aforementioned land the petitioners/plaintiffs also own 2500 to 3000 Acres unsettled lands which are also in possession of shareholders including the petitioners. The description of the properties is as under:
"East. Dam.
West. Godown of B&R.
North. Garden.
South. Kohi Murdar."
3. It is further averted in the plaint that the respondents Nos. 1 and 2 purchased some
settled land in the area but they have no concern with unsettled property referred above which exclusively belong to the peti tioners tribe i.e. Yasinzai Sulemanzai, but the
respondents Nos. 1 and 2 started illegal interference in it, which is in peaceful possession of the petitioners. The petitioners lastly prayed in their plaint as under:
"a. Declare that the defendants Nos.1 and 2 have no right to encroach over the unsettled properties belonging to the plaintiffs, described in para No.1 of the plaint.
b. To restrain the defendants from interfering or selling the property in question to the other persons.
c. The defendants Nos. 1 and 2 further be restrained not to interfere in the peaceful possession of the plaintiffs.
d. Any other relief as may be deemed fit and appropriate in the circumstances of the case, with costs of proceedings may also be awarded in favour of the plaintiff in the
interest of justice."
The respondents resisted the suit being defendants. While submitting their written
statement they controverted the assertions contained in the plaint. From the divergent pleadings of the contesting parties following issues we re framed.
"1. Whether suit of plaintiff is not maintainable in view of legal objection "E" & "K" of written statement of defendant No.2?
2. Whether the plaintiffs are owner in possession bearing No.2500- 3000 Acres of unsettled
lands adjacent to properties bearing Khasra No. 316, 328, 325, 3444, 3445, Khewat
No.34/217, situated at Mohal Khushkaba Janoobi, Mouza Hanna Tappa Durrani?
3. Whether the suit land owned by Government of Balochistan?
4. Whether the plaintiffs are entitled for the relief claimed for?"
After framing issues, parties to the suit produced their respective evidence and on
completion of the same the suit of petitioners/plaintiffs was Decreed vide judgment dated 24.12.2009 by the trial court. Being aggrieved from the judgment the respondents filed appeal before Additional District Judge -VI Quetta, and the same was accepted vide judgment
dated 13.11.2013, hence this petition.
4. I have heard the learned counsel for the parties and perused the available record with
their assistance .
5. The description provided by the petitioner is not only infinite but also spread towards
east, west, north and south, which include unsettled properties. The total property claimed by
the petitioners is 2500 to 3000 Acre, which was admitted by the peti tioners that the
properties are unsettled and are in the name of Government of Balochistan. Neither the petitioners nor respondents produced any documentary evidence to prove that they are factual owners of the disputed properties. After perusal of the cas e title it transpires that the
petitioners arrayed the Member Board of Revenue and Tehsildar Sadar Quetta as defendants in their plaint. Both the courts below did not discuss the contentions of the official respondents. It is established from the record that in fact the unsettled property belonged to the Government of Balochistan. The petitioner did not array the Provincial Government through its Secretary as necessary party in the plaint. In absence of the Government either Provincial or Federal as the cas e may be, suit in respect of unsettled property was not
maintainable, as contemplated under Article 174 of the Constitution of Islamic Republic of Pakistan 1973 and section 79 of the C.P.C. Reference in this respect is to be made to the case titled Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Khan Magsi and others 2010 SCMR 115, wherein, the Hon'ble Supreme Court of Pakistan has held as under:
"A bare perusal of the leave granting order, as reproduced hereinabove, would re veal
that it was mainly granted to consider as to whether the suit was instituted properly
pursuant to the provisions as enumerated in Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) and s ection
79, C.P.C. as admittedly the Government of Balochistan was not impleaded as party through the Secretary concerned. The question which needs determination would be as to whether without impleading the Provincial Government of Balochistan, the suit instituted by the respondents can be considered a validly instituted suit in view of the
provisions as enumerated in section 79, C.P.C."
At Para 7 of the said judgment the Hon'ble Supreme Court further observed as under:
"Due to non-compliance of the mandatory provisions as enumerated in section 79,
C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan, a suit against the functionary only is not maintainable as has been done in this case. In view of what has been discussed hereinabove, the appeal preferred on behalf of Government of Balochistan is hereby allowed and the judgment dated 21.9.2005 passed by learned Single Judge of the High Court of Balochistan in Chambers is set aside and the suit filed by the res pondents being non- maintainable is also dismissed."
6. In the instant case the petitioners and respondents claimed ownership of the unsettled
properties which are in the name of Government of Balochistan, but both the sides led no evidence to prove that they are the owners or entitled for the suit properties.
In view of the above discussion, I am of the considered opinion that the appellate
court has rightly dismissed the suit filed by the petitioners, therefore the petition being
devoid of merits is hereby dismissed.
SA/166/Bal. Petition 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,
let us know.