Peer Bakhsh v. Rasool Bakhsh,

2011 Y L R 1954 [Quetta] Before Mrs. Syeda Tahira Safdar and Jamal Khan Mandokhail, JJ PEER BAKHSH and 9 others ---Petitioners Versus RASOOL BAKHSH and 13 others ---Respondents

Constitutional Petition No. 3 96 of 2009, decided on 4th March. 2011.

Specific Relief Act (I of 1877) --

----S. 42 ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Suit for declaration ---Trial Court dismissed the suit for being time -barred ---District Judge, accepted t he revision filed by plaintiffs and remanded the case to Trial Court for decision after recording evidence of the parties ---Validity ---Case involved issues of fact and law which could only be resolved after recording of evidence ---Trial Court while decidin g legal objections recorded findings merely on presumptions which were neither legal nor just---Revisional court rightly remanded the case for evidence of parties ---Impugned order did not warrant interference ---Constitutional petition was dismissed. Amanullah Kanrani for Petitioner. Abdul Ghani Mashwani for Respondents Nos.1 to 9. Abdul Aziz Khilji Additional Advocate General for the State. Date of hearing: 7th October, 2010.

JUDGMENT

MRS. SYEDA TAHIRA SAFDAR, J .---Instant petition has been pref erred by the petitioners being aggrieved of the judgment dated 22 -5-2009 of District Judge, Lasbella at Hub, whereby the revision petition filed by respondents Nos.1 to 9 was accepted, while the order of the trial court dated 8 -4-2009 was set aside, and ca se was remanded to the trial Court for deciding it on merits, after recording of evidence of both the parties. It is their contention, that the suit filed by the respondents Nos.1 to 9 was rightly dismissed by the trial Court being not maintainable, as bar red by limitation. The revisional court made an error while setting aside order of the trial Court, as under provisions of Land Lease Policy the trial Court was not empowered to allocate any piece of land to any person. Further, the suit was filed after la pse of 30 -years, thus rightly held to be time barred by the trial Court. It is further contended, that the order of the revisional court is made in mis-exercise of powers and excess of authority, while no ground of interference was made out by the petitio ners/respondents Nos.1 to 9, at said stage. The petitioners have prayed for setting aside of impugned order, and restoration of order of the trial court dated 8 -4-2009. Learned counsel for the parties are heard, while record is perused. It is apparent from record, that the respondents Nos.1 to 9 filed a suit seeking declaration of their title, being owners with possession of land in question, cancellation of lease issued in favour of defendants Nos.1 to 10/ present petitioners, and also prayed for issuance of permanent injunction, thereby restraining the defendants from occupying -the land in question, without adopting the due course of law. The defendants contested the suit by way of filing their written statements, whereby they denied, existence of any tit le, in favour of the plaintiffs/respondents Nos.1 to 9. They further raised several legal objections on maintainability of the suit. Out of pleadings of the parties, the trial Court framed issues. Thereafter, without calling evidence, on request counsel for the parties were heard, on issues pertaining to legal objections, thereby the trial Court arrived to the conclusion, that the plaintiffs are not entitled to claim the land in question, as they are neither lessees, nor owners. Further, held that the suit is barred by limitation as filed after expiry of 30 -years, thereby dismissed the suit being not maintainable, through order dated 8 -4-2009. The plaintiffs/respondents Nos.1 to 9 challenged the order by way of filing civil revision petiti on before District Judge, Lasbella at Hub, who after hearing the parties arrived to the conclusion that the trial Court has rejected the suit in a haphazard manner, further held that the issues cannot be decided without recording of evidence, as mixed ques tion of facts and law is involved, thus while accepting revision petition the case was remanded to the trial Court, for deciding it afresh on merits, after recording of evidence of both the parties. This order is presently impugned before this Court. The perusal of issues framed by the trial Court, reveals that Issues Nos.1 and 2 pertains to legal objections raised by the defendants in their written statements, filed separately before the trial Court. Though the trial Court is empowered to decide issues based on legal objections, but it is to be seen that whether the issue is purely of a legal nature and can be decided after hearing of both the parties, keeping in view the relevant provision of law or on basis of some admitted fact. In present case the is sue pertaining to limitation, and about accruing of cause of action, or suit being hit by section 42 of Specific Relief Act, are questions not only relating to law, but also related to the facts of the case. The plaintiffs/respondents Nos.1 to 9 claimed th emselves, to be in possession of land in question from time immemorial and claimed their right as such. While on the other hand, the defendants/respondents Nos.1 to 10 claimed their right, in respect of land in question on basis of some lease issued in the ir favour by the concerned authorities/ respondents Nos.10 to 12 since 1980. The matter in issue can only be resolved, after recording of evidence from both the sides. The documents placed on record by the plaintiffs and defendants can only be considered, when they are brought on record as per relevant provisions of law. The trial court while deciding legal objections recorded findings merely on presumptions, which are neither legal nor just. The revisional court has rightly come to the conclusion that when question of fact and law is involved, the parties must be given opportunity of leading evidence. The petitioners have failed to make out any case for interference in the impugned order, which is made in accordance with law, thus need no interfere nce by this Court. In view of above discussion the petition is dismissed being without merits. The impugned order dated 22 -5-2009 passed by District Judge, Lasbella at Hub, is hereby upheld. It is further to be noted, that as the matter in dispute pertai ns to a piece of land probably unsettled, therefore, the trial Court is directed to put on notice the Provincial Government/ concerned authorities and after obtaining their reply proceed with the matter, in accordance with law. No orders as to costs. A.R. K./22/Q Petition dismissed.