2010 Y L R 2785
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
KHALIQ DAD ---Petitioner
Versus
NOOR BIBI and 6 others ---Respondents
Civil Revision No.29 of 2005 decided on 13th July, 2010.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Civil Procedure Code (V of 1908), S.115 ---Suit for declaration and
injunctio n---Suit was decreed by the Trial Court, but Appellate Court allowing appeal, set
aside judgment and decree passed by the Trial Court and dismissed the suit ----Plaintiff had
claimed that land in dispute was allotted to defendant and thereafter same was pur chased by
him from said allottee on consideration ---Land in dispute was property of Government which
was allotted in favour of defendant in the year 1983, but plaint was completely silent to that
effect ---Sale-deed had revealed that nothing about leasehold rights was mentioned therein nor
any reference was made to the allotment order/Patta issued in favour of defendant/vendor in
the year 1983 ---No explanation was available about the fact as to when alleged sale was
effected in year 1992 in favour of the pla intiff -Land in question was State -land and without
sanction of competent authority, no legal document could be passed to the third party ---
Plaintiff was claiming ownership of land of a description, which was not available at the site -
--Plaintiff in circums tances, had failed to establish that any valid title in respect of suit -land
was transferred in his favour, while he was required to prove the same ---In absence of any
valid title, plaintiff was not entitled for any relief claimed by him ---Appellate Court had
assessed the evidence properly and had come to the correct conclusion --Plaintiff having
completely failed to make out any case in his favour, no grounds were made out to make
interference in the impugned order passed by the Appellate Court below.
Riaz Ahmed for Petitioner.
Zahid Muqeem Ansari for Respondents.
Date of hearing: 23rd April, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The petitioner feeling aggrieved of judgment dated
22-12-2004 of Majlis -e-Shoora, Kharan, whereby the appeal filed by respondents Nos.1 to 5
was accepted, while the judgment dated 31 -8-2004 passed by Qazi Kharan was set aside and
the suit filed by him was dismissed, preferred present petition with prayer that the impugned
order be set aside, while judg ment and decree of trial Court be upheld. It is his contention that
impugned order is based on misreading and non -reading of evidence. The admitted facts are
not considered by the appellate court, thus comes to erroneous conclusion. The real point of
contr oversy has not been determined, while the findings are based on material which were
neither relied upon, not pleaded by respondents Nos.1 to 5.
The brief facts of the case are that the petitioner/plaintiff filed a suit seeking declaration of his
title being lawful owner of land in question measuring 200 x 180 feet being purchased by him
from respondent No.6/defendant No.2 Mandost 1 on 22 -8-1992 in consideration of Rs.5000,
while possession was also handed over to him and injunction to the effect thereby restraining
respondents Nos.1 to 5/legal heirs of defendant No.1 Qadir Bakhsh from making interference
in land in question. Predecessor of respondents Nos.1 to 5/defendant No.1 in his written
statement strongly denied the contention of the petitioner, whi le raised contention that land in
question is in their possession from last 8/10 years being owners and they are residing in the
same. The previous suit was decreed in their favour. Several legal objections were also raised
on maintainability of the suit.
Respondent No.6/defendant No.2 in his written statement admitted the contents of the plaint.
The official respondent i.e. No.7/defendant No.3 Chairman Town Committee, Kharan in
written statement has contended that allotment has been made in favour of r espondent No.6
(Mandost) who also paid the tax (Bhoom Bhara). It is further his contention that a separate
plot is allotted in name of predecessor of respondents Nos.1 to 5/defendant No.1 (Qadir
Bakhsh), where he had raised construction and residing therei n. While the plot allotted to
respondent No.6 is absolutely different. It is further his contention that the petitioner has got
allotment through respondent No.6. Both the plots allotted in favour of respondent No.6 and
respondents Nos.1 to 5 are entirely different and of different measurement. Both of them had
raised construction on their respective plots and are in possession of the same.
As per record on completion of trial the suit was decreed by the trial Court through judgment
dated 30 -10-2000. Th e appeal preferred by respondents Nos. 1 to 5 was accepted, while the
suit filed by the petitioner was dismissed through judgment dated 25 -1-2001 by the appellate
court. This order was assailed before this court, whereupon by consent of the parties the ord er
was set aside, while the appeal was remanded for deciding it afresh through order dated 25 -3-
2003. The appellate court through judgment dated 5 -11-2003 while accepting the appeal
thereby setting aside the judgment of the trial Court remanded the case to the trial Court to
allow the parties to produce relevant documents with further direction to the Presiding
Officer to inspect the site, thereafter, give decision. On remand of the case additional
evidence was called, while site was inspected by the learne d Qazi, whereafter, the suit was
decided through judgment made on 31 -8-2004, whereby the suit was decreed in favour of the
petitioner. Respondents Nos.1 to 5 still feeled aggrieved of the judgment preferred appeal,
which was accepted through order, dated 2 2-12-2004, whereby the suit was dismissed, which
is presently impugned before this court.
The petitioner claimed himself to be the legal owner of land in question. According to him he
has purchased a piece of residential plot measuring 200 x 180 feet o n 22-8-1992, from
respondent No.6 in consideration of Rs.5000. He described the plot within boundaries i.e. in
the East allotted lands, West Rain water drain, North road and South general road. Further
contended that he is in possession of the same, while also raised boundary wall on it. Further
asserted that when he tried to raise construction predecessor in interest of respondents Nos. 1
to 5/defendant No.1 interfered in the same on occasion that the land has been allotted in his
favour by defendant No.3/ respondent No.7. Respondent No.6 is the person, who allegedly
sold land in question to the petitioner. While respondent No.7 is the Authority who is
empowered to make allotment of the land owned by the State in respective area. Respondents
Nos. 1 to 5 are the main contesting party, as they are claiming adverse title to that of the
petitioner. Keeping in view the pleadings of the parties the petitioner and respondents Nos.1
to 5 are claiming their title as owner in respect of land surely vests in State. Resp ondents
Nos.1 to 5 claimed issuance of allotment order/Patta in their favour by respondent No.7,
while on the other hand the petitioner claimed his title derived from respondent No.6 being
allottee of land in question. Both the parties are claiming ownersh ip of same land asserted to
be in their possession and occupation. But contrary to their plea the concerned Authority i.e.
respondent No.7 in his written statement contended that separate lands are allotted in favour
of respondents Nos.1 to 5 and responden t No.6 and both of them are in possession of their
respective allotted area, further, petitioner derived his title from respondent No.6, which is
deemed to be correct. Now on the first instance it has to be ascertained that what is the land,
which is matte r in dispute between the parties and secondly whether any legal title vested in
the petitioner.
During course of arguments the learned counsel for the petitioner mainly contended that
respondents Nos.1 to 5 have no grievance against him, as they have n o title or interest in
property in question. He mostly relied on the map prepared by learned Qazi Kharan after
inspection of the site during course of trial. While on the other hand learned counsel for
respondents Nos. 1 to 5 strongly contested the plea ta ken by the petitioner. According to him
though the petitioner claimed ownership of land in question, but he never purchased the
property from the licensee in whose favour Patta was issued. Further, the petitioner has failed
to produce any receipt for payme nt of Bhoom Bhara except one receipt. Further, there is
difference in measurement of area allotted, as in patta it is mentioned as 150 x 150=2250, but
in plaint it is mentioned as 200 x 180 feet. Further, neither the area, nor the patta number is
mentioned in the Sale -deed. Furthermore, the property was first cancelled from the name of
Mandost (respondent No.6), but afterwards restored without assigning any reason. Though
alleged sale has been effected in year 1992, but the patta was never transferred in na me of the
petitioner.
It is also contended that as the ownership of land belongs to Government, therefore, relief of
ownership cannot be granted, as such the relief claimed is defective. In reply to the same it
was contention of the counsel for petitio ner that he has leasehold rights in his favour in
respect of property in question.
The perusal of judgments of trial Court as well as appellate court reveals that both the courts
discussed the evidence in detail. Keeping in view the findings arrived by the courts below and
the material present on record it is somehow difficult to ascertain that what piece of land is
matter in dispute between the parties. Though the petitioner claimed to be in possession of
land allotted in favour of respondent No.6, the reafter, purchased by him being the disputed
land as respondents Nos.1 to 5 are interfering in his possession and not allowing him to raise
construction thereon. While on the other hand respondents Nos. 1 to 5 claiming to be owners
of the land with possess ion of the same. It is the petitioner, who has to make it clear that
which piece of land is matter in dispute and to which extent he is claiming the relief.
Respondent No.7 though admitted the sale -deed and transfer of title in favour of the
petitioner, bu t this fact need some more probe. The said sale -deed is produced and exhibited
as Exh.P/1, perusal of the same reveals that the boundaries mentioned therein are the same as
described in the plaint, but both these described boundaries are entirely different from the
boundaries as mentioned in the patta, the initial document issued in favour of respondent
No.6. The measurement of the area is also different as mentioned in patta and as described in
the plaint. The appellate court rightly observed the same. The petitioner failed to give any
explanation to said extent. Even the learned Qazi Kharan after inspection of site prepared the
map, which is present on record, while in the judgment observed by him that different plots
were allotted to both respondent No.6 and predecessor of respondents Nos. 1 to 5, while both
of them are in possession of these respective plots and raised construction thereon. As per
map of site inspection, the plot claimed to be allotted to the petitioner is measuring 150 x 150
square feet situated at some distance from the plot which was originally allotted in favour of
the predecessor of respondents Nos.1 to 5. It is further disclosed from the map that three other
pieces of land are encroached by the predecessor of respondents Nos.1 to 5 ( Qadir Bakhsh)
which are adjacent to the plot in question allotted to the petitioner. It is further mentioned in
the details attached to the site inspection map that the possession of allotted areas in favour of
the petitioner and predecessor of respondents Nos.1 to 5 were handed over to them after
making the measurement. The remaining area is encroachment made on State -land. This
inspection also of less help in deciding the issue in hand i.e. specification of land in question.
As in said report or map there is nothing that which piece of land was pointed out by both the
parties, whereon they are claiming their right. Allotment may have been made in their favour
of different plots, but on which piece of land the dispute arose, it must have been specified.
Though the appellate court has referred to some previous litigation, as these decisions and
other relevant papers are not before this court, there -fore, no observation can be made to said
extent.
Now the question remains that whether any legal title vests in the petitioner or otherwise. The
petitioner claimed right of ownership in respect of land measuring 200 x 180 square feet,
which according to him, was purchased by him from respondent No.6 on 22 -8-1992 in
consideration of Rs.5000. Though through eviden ce and written statements of respondents
this fact appears that land allegedly purchased by the petitioner is property of Government,
which was allotted in favour of respondent No.6 in year 1983. The plaint is completely silent
to this effect. Though it ha s been asserted that the sale transaction was effected in year 1992
between petitioner and respondent No.6 and a sale -deed was also executed on 22 -8-1992,
which is produced and exhibited as Exh. P/1. The perusal of this deed also reveals that
nothing about leasehold rights is mentioned therein, nor any reference is made to the
allotment order/patta issued in favour of respondent No.6 in year 1983. Further, there is also
no explanation about the fact that when sale was effected in year 1992, then up till fil ing of
the suit i.e. 2000 why the patta has not been transferred in name of the petitioner. As the land
in question is admittedly the State -land, therefore, without sanction of competent authority no
legal title can be passed to the third party. In written statement though respondent
No.7/Chairman Town Committee, Kharan admitted that the petitioner got allotment through
respondent No.6, which is admitted to be correct and legal. But it may be observed that in
first round of litigation the pattas issued in f avour of respondent No.6 and predecessor of
respondents Nos. 1 to 5 were not brought on record, rather on remand both these documents
were placed on record. The perusal of Exh.P/2 -A and Exh.P/2 -D patta and relevant order
reveals that it is written thereon that the same has been transferred from the name of Mandost
to Abdul Ghias son of Fateh Muhammad, while on the lower part of the same it is written
that:--
Though this entry present on all the three documents with signature and stamp of Tehsil
Nazim, K haran. But this entry does not bear any date, nor disclose the fact that why the same
was at first instance entered in name of Abdul Ghias, thereafter, in name of Mandost and to
Khaliq Dad: These facts are not disclosed neither by the petitioner, nor by re spondent No.6,
even not by respondent No.7, the concerned authority, who is completely silent to this effect
in his parawise comments. These facts showed mala fide on the part of the petitioner,
respondents Nos.6 and 7. They have not come to the court with clean hands. In case the land
was allotted in favour of the petitioner, no relevant document is filed by him to establish the
same. Even the dues are never paid by the petitioner. He only produced a receipt of payment
of dues (Bhoom Bhara) bearing name of Mandost, pertaining to period of 1983 to 1984
bearing date 28 -12-1992. No other receipt of relevant period i.e. after 1992 has been
produced. It is also to be noted that the petitioner is claiming ownership of land of a
description which is not available at site. As the boundaries mentioned in the sale deed,
whereby the title devolved on the petitioner, are entirely different from the boundaries
mentioned in the patta order and map of site attached thereto, the initial documents of
ownership in favour of p revious owner/respondent No.6. Furthermore, the map of allotted
land annexed with patta is also different from the map prepared by the learned Qazi on
inspection of the site. Keeping in view the above mentioned facts the petitioner has failed to
establish that any valid title is transferred in his favour. He was required to prove the same. In
absence of any valid title he is not entitled for any of the relief claimed by him. The appellate
court has assessed the evidence properly and comes to the correct con clusion except
observation made in respect of date of notice for demolishing of unauthorized construction
made by the petitioner. It bears date 31 -5-1993 not 1973.
It has been observed that the land surely belongs to the State, while Town Committee bei ng
custodian of the same is required to safeguard the interest of the State. But in present case the
Chairman, Town Committee, Kharan is not performing its duties properly, rather adversely
affecting the rights of the State, which is not only unfortunate, rather objectionable. Keeping
in view the circumstances of instant case it seems that the parties are trying to grab the State -
land without any legal entitlement, which is required to be stopped. The concerned
Authorities must take appropriate steps for sa feguarding the interest of the State and also take
action against the officers and officials and private persons affecting the right of the State in
respect of land situated in the area.
In view of above discussion the petitioner has completely failed to make out any case in his
favour. No grounds are made out to make interference in the impugned order. The revision is
hereby dismissed being devoid of merits, while the impugned judgment dated 22 -12-2004 of
Majlis -e-Shoora, Kharan is upheld.
No order s as to costs.
H.B.T./83/Q 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,
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