PLJ 2018 Quetta 122
Present : NAZEER AHMED LANGOVE , J.
PAKISTAN RAILWAYS EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. through
General Secretary, Quetta--Petitioner
versus
Haji GHULAM HAIDER and 3 others --Respondents
C.R. No. 334 of 2008, decided on 22.6.2017.
Specific Relief Act, 1877 --
----S. 42--Civil Procedure Code, (V of 1908), O.XXXIX R. 182--Petitioner was registered
Society and leased out Railway Land through registered lease deed to members --Interference in
property --Property Encroachment by member --Suit for declaration and permanent injunction--
Dismissed --Appeal --Dismissed --Challenge to --Suit was filed by petitioner/plaintiff with prayer
mentioned hereinabove, in opening paras of this order, contested on legal and factual grounds, in
meantime , with consent of parties s local commission was constituted, Miss Sarwat Hina,
Advocate/local commissioner visited property in dispute and submitted her report, wherein it has
clearly been mentioned that at time of visit of disputed property, concerned Pa twari was not
present, objected to, by petitioner/plaintiff on spot which is available in her report, apart from
that, after submitting, report petitioner/plaintiff filed his objections on report of local
commissioner but without resolving same or framing at least any legal issue, trial Court passed
order and decree impugned in haste, without adhering to, mandatory provisions of CPC,
unfortunately, maintained by appellate Court also --By now it is a settled principle of law that in
civil cases, since valuabl e rights of parties are involved, therefore, it is advisable that same
should be decided on merits and in accordance with law, after affording ample opportunity of
evidence and hearing --Both Courts below erred in law, by relying upon report submitted by local
commissioner, objected to, by petitioner/plaintiff timely but not considered, trial Court did not
bother to frame issues and decide matter once for all --Similarly, appellate Court should have
decided matter reasonably and justly by dilating upon facts with reasons but it also maintained
order of trial Court without applying judicial mind--Courts below failed to exercise their
jurisdiction properly and strictly in accordance with law which caused miscarriage of justice, so, at this juncture, without goin g through merits and de -merits of main case lest, it cause any
prejudice to parties, I would like to remand matter to trial Court for proceedings and decision thereon, purely in accordance with law, after providing ample opportunity of hearing and
evidence to parties --Petition was allowed.
[P. 127] A & B
M/s. Mujeeb Ahmed Hashmi and Muhammad Usman Tareen, Advocate for Petitioner.
Mr. Iqbal Ahmed Kasi, Advocate for Respondent No. 1.
Mr. Farooq Sarwar, Assistant, Advocate General for Respondents.
Date of hearing: 16.6.2017.
ORDER
Nazeer Ahmed Langove, J.--This order disposes of Civil Revision Petition No. 334 of 2008
filed by the petitioner (plaintiff) against the order and decree dated 09.06.2008 (hereinafter “the
Order” ) passed by the Senior Civil Judge -I, Quetta, (hereinafter “the trial Court” ) and order
and decree dated 30.08.2008 (hereinafter “the impugned Order” ) passed by the learned
Additional District Judge -III, Quetta, (hereinafter “the appellate Court” ) whereby appeal of the
appellant (petitione r) was dismissed.
2. Facts of the case are that the petitioner (plaintiff) filed a civil suit for declaration and
permanent injunction against the respondents/defendants with the averments that the petitioner is
a registered society who was leased out abo ut 47.77 acres of Railway Land for a period of 99
years through Lease Deed dated 12.04.1990 comprising upon the Khasra Nos.738/116, 740/117,
118, 127, 128, 710/148, 150, 151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 714/160, 715/160, 716/160, 162, 163, 164, 165, 166, 168, 745/729/176, 742/177, 746/181 having
Khewat No. 28, Khatoni No. 39, situated at Mahal Khrkhasa, Mouza Kirani, Tappa Shadinzai,
Tehsil and District, Quetta, for residential purposes and better development housing colonies
with basic amenities and to use further surplus Railway land for the welfare of Railway
employees; that after registration of lease deed, site plan was approved and the land was given to
the members accordingly, whereupon members of the society raised construct ion and since then
they are in legal and lawful occupation; that in the meantime, the respondents started interference
in the aforesaid property by way of encroachment which too without any lawful authority and justification. Hence instant suit with the fo llowing prayer:
“It is, therefore, respectfully prayed that a decree in favour of the plaintiff Society
against the defendants may kindly be passed to the following effect: --
(i) Declaring that the plaintiff society is the lawful lessee of the land in ques tion bearing
Khewat No. 28, Khatooni No. 39, Khasra Nos. 738/116, 740/117, 118, 127, 128, 710/148, 150,
151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 714/160, 715/160, 716/160, 162,
163, 164, 165, 166, 168, 745/729/176, 742/177, 746/181 situat ed at Mahal Kharkhasa, Mouza
Kirani, Tappa Shadinzai, Tehsil and District Quetta pursuant to lease deed dated 12.04.1990
duly registered with Sub- Registrar, Quetta.
(ii) Declaring that the Defendants No. 1 to 3 have no lawful right or entitlement to raise
illegal and un- authorized construction over land bearing Khewat No. 28, Khatooni No. 39,
Khasra Nos. 738/116, 740/117, 118, 127, 128, 710/148, 150, 151, 720/158, 726/153, 724/154, 722/155, 712/160, 713/160, 714/160, 715/160, 716/160, 162, 163, 164, 165, 166, 168,
745/729/176, 742/177, 746/181 situated at Mahal Kharkhasa, Mouza Kirani, Tappa Shadinzai,
Tehsil and District Quetta pursuant to lease deed dated 12.04.1990 duly registered with Sub-
Regisirar, Quetta.
(iii) By way of passing a decree, the Defendants No. 1 to 3, their agents, representative and
whom so ever may kindly be permanently restrained from interfering or raising construction
over the aforesaid property.
(iv) Declaring that the Defendant No. 4 is legally bound to demarcate the property in
question in accordance with the lease deed dated 12.04.1990 and the measurement whereof be
completed.
(v) Any other relief which this Hon’ble Court may deem fit and proper i n the circumstances
of the case may also be awarded with cost of the suit, in the interest of justice and equity.”
3. In his written statement, the Respondent/Defendant No. 2 raised certain legal objections, in respect of maintainability of the suit, and contested the same on merits as well, mainly on the
ground that the suit filed by the petitioner/plaintiff is not maintainable being hit by the principle
of non- joinder of necessary parties because in the disputed land a project with the name of
CASVAB is being executed, was in possession of the Livestock and Dairy Development
Department since the year 1960, on which later had been cultivating fodder to feed their livestock, in the month of April, 2005 Center for Advance Studies and Vaccine and Biotechnolog y (CASVAB) University of Balochistan was established and a Memorandum of
Understanding was also signed. He lastly prayed that the suit being meritless and non-maintainable may be dismissed. Similarly, the Respondent/Defendant No. 1 also contested the claim of the petitioner/plaintiff on legal and factual grounds with the contention that in fact the
petitioner/plaintiff encroached upon his landed property, which for the first time, in the year 2002 was came into his knowledge, in this context he approached t he Federal Ombudsman
(Wafaqi Mohtasib) for redressal of his grievance, it referred the matter to the revenue authorities
but the petitioner/plaintiff with malafide intention and ulterior motives filed a suit having No. 65
of 2004 and then withdrawn the sam e on 13.12.2005. The property in dispute is adjacent to the
landed property of the Respondent/Defendant No. 1, in garb thereof the petitioner/ plaintiff wanted to usurp the property of the Respondent/Defendant No. 1 with one pretext or the other. He prayed for dismissal of the suit.
4. Before framing issues, a Local Commission was constituted with the consent of the parties to ascertain facts and figures of the following point.
“that property of the defendants and plaintiff be demarcated according to the m ap and
permission thereof granted by the Railway in the year 1989”.
In this respect Miss. Sarwat Hina, Advocate was appointed as Local Commissioner with the instructions to visit the site in the presence of parties to the lis and concerned revenue staff wi th
the record. She visited the site and submitted her report, on the basis whereof the suit filed by the petitioner/plaintiff was decreed in the light of report, submitted (referred hereinabove) by the Local Commissioner vide order/decree dated 09.06.2008 passed by the trial Court. The
order/decree passed by the trial Court was assailed in appeal, in the Court of District Judge, Quetta, which was transmitted to the file of the Additional District Judge -III, Quetta, the
appellate Court vide order dated 30.08.2008 dismissed the appeal by maintaining order and
decree dated 09.06.2008 passed by the trial Court. Hence this revision petition.
5. Learned counsel for the petitioner/plaintiff argued that the orders and decrees passed by the
trial as well as appellat e Court are contrary to facts, law, equity and natural justice, as such, the
same are not sustainable under the law and are liable to be set aside; that the suit was decreed only on the basis of report of Local Commissioner and not on the basis of prayer i n the plaint,
besides the Courts below deviated from the prescribed procedure of law, neither any issues were
framed nor afforded any opportunity of leading evidence, even the objections filed by the
petitioner/plaintiff upon the report of the local commis sioner were not addressed, and passed the
impugned order and decree in haste; that the report submitted by the local commissioner was
highly objectionable and defective for the reason that at the time of visit neither the Patwari concerned alongwith the record was present on the spot nor disputed property and encroachments raised, were measured properly, but the trial as well as appellate Court failed to attend the aforesaid important aspect of the case which ultimately caused miscarriage of justice.
6. Le arned counsel for the Respondent No. 1 strongly opposed the petition by submitting that
the orders and decrees passed by the trial Court and maintained by the appellate Court are based on proper appreciation of record and report of the local commission, constituted with the consent of the parties, as such, deviation therefrom by the parties, either, was unwarranted under the law; that the learned counsel for the petitioner failed to point out any illegality or irregularity, or
biased conduct of the local commissioner, on the basis whereof the matter was decided by the
trial Court and maintained by the appellate Court; he lastly prayed for dismissal of the petition.
Learned AAG also adopted the arguments of the learned counsel for the Respondent No. 1.
7. I have heard the learned counsel for the parties and gone through the record with their
assistance, which reflects that the instant suit was filed by the petitioner/plaintiff with the prayer
mentioned hereinabove, in the opening paras of this order, conteste d on legal and factual
grounds, in the meantime, with the consent of the parties a local commission was constituted, Miss Sarwat Hina, Advocate/local commissioner visited the property in dispute and submitted her report, wherein it has clearly been mention ed that at the time of visit of the disputed property,
the concerned Patwari was not present, objected to, by the petitioner/plaintiff on the spot which is available in her report, apart from that, after submitting, report the petitioner/plaintiff filed his objections on the report of the local commissioner but without resolving the same or framing at least any legal issue, the trial Court passed the order and decree impugned in haste, without adhering to, the mandatory provisions of CPC, unfortunately, mai ntained by the appellate Court
also. By now it is a settled principle of law that in civil cases, since the valuable rights of the parties are involved, therefore, it is advisable that the same should be decided on merits and in accordance with the law, af ter affording ample opportunity of evidence and hearing.
Both the Courts below erred in law, by relying upon the report submitted by the local commissioner, objected to, by the petitioner/plaintiff timely but not considered, the trial Court did not bother to frame issues and decide the matter once for all. Similarly, the appellate Court should have decided the matter reasonably and justly by dilating upon the facts with reasons but it also maintained the order of the trial Court without applying judicial mind. The Courts below failed to exercise their jurisdiction properly and strictly in accordance with the law which caused miscarriage of justice, so, at this juncture, without going through the merits and de -merits of the
main case lest, it cause any prejud ice to the parties, I would like to remand the matter to the trial
Court for proceedings and decision thereon, purely in accordance with the law, after providing
ample opportunity
of hearing and evidence to the parties. The matter is pending since the year 2008, therefore, the
same may preferably be decided within three (03) months. Decree sheet be drawn. The parties are left to bear their own cost.
(M.M.R.) Petition allowedThis 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.