2013 Y L R 2500
[Balochistan]
Before Muhammad Noor Meskanzai, J
NASIR ALI ---Petitioner
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue
and 2 others ---Respondents
Civil Revision No.179 of 2009, decided on 28th June, 2013.
Specific Relief Act (I of 1877) ---
----Ss. 42 & 54 ---Suit for declaration and injunction ---Illegal possession ---Trespasser, right of ---
Concurrent findings of fact by two Courts below ---Plaintiff filed suit on the basis of possession
over land owned by g overnment, whereupon he had raised construction of boundary wall ---Both
the Courts below concurrently dismissed suit and appeal filed by plaintiff --- Validity --- Neither
illegal possession conferred any title nor illegal construction created and bestowed o wnership to
a trespasser, much less against government ---Neither illegal occupation could be justified nor the
Courts were meant to perpetuate illegal acts ---Such act, called for punitive action against the
wrong doers and delinquent officials of Local Adm inistration of concerned area who blind
folded their eyes when such illegal and unauthorized constructions were carried out by plaintiff --
-Concurrent findings of facts by two Courts below which normally could not be disturbed unless
it was proved that the same were result of misreading and non -reading of evidence ---Both the
Courts below after proper appraisal of evidence and attending all aspects of the case passed
reasoned judgments and decrees and the same did not suffer from any illegality, irregularity,
perversity or impropriety, hence not open to any exception ---Revision was dismissed in
circumstances.
Muhammad Farooq Dosa's case 1990 MLD 2016; Khurshid Ai's case PLD 1990 Lah. 211
and Provincial Government through Collector, Kohat and another v. Shab bir Hussain PLD 2005
SC 337 ref.
S.A. M. Qadri for Petitioner.
Date of hearing: 12th June, 2013.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant revision petition is directed against the
judgments and decrees dated 28th November, 2008 and 28th February, 2009 respectively passed
by the Senior Civil Judge Gwadar and Additional District Judge, Gwadar whereby the suit as
well as appeal filed by the petitioner were dismissed.
2. Facts relevant for the disposal of instant revision petition are that the petitioner instituted
a suit for Declaration and Permanent Injunction Cancellation of Khatooni/Khewet No. 215/215/,
Khasra No. 105 in respect of land measuring 8001 sq.ft against respondents in the Court of
Senior Civil Judge, Gwadar. It was averred in the plaint that the plaintiff/petitioner is the owner
and in possession of the property in question. On the disputed property the petitioner has laid
foundation of a boundary wall and adjacent therewith he has constructed a medical store,
measuring 576 sq .ft about 15 years ago. During the settlement operation Khatooni No. 216/227
Khasra No. 103 has been entered in the name of petitioner but strangely the land measuring 8001
ft, which is the only approach to the medical store of the petitioner, has wrongly been recorded in
favour of Provincial Government. It was further averred in the plaint that on complaint of
petitioner the settlement officer assured that at the time of final verification the suit -land would
be entered in his name. In the month of June, 2 005 when petitioner started further construction
on disputed land, the respondent No.3 interfered and stopped the construction work on the plea
that the respondent No. 1 is the recorded owner of the land in dispute, hence the suit.
3. The suit was contes ted by the respondents Nos. 1 and 2 by way of filing written statement
whereby besides raising certain preliminary objections the claim of petitioner was repudiated on
merits as well.
4. The learned trial Court, out of the pleadings of parties framed fo llowing issues: -
(i) Whether the plaintiff is owner of the suit -land?
(ii) Whether the plaintiff is in possession of the suit -land for last 12 years?
(iii) Whether the claim of the petitioner is time -barred?
(iv) Whether the suit is not maintainabl e under section 42 of the Specific Relief Act?
(v) Whether the plaintiff is entitled for the relief claimed for?
(vi) Relief?
5. Thereafter, the parties were directed to adduce evidence in support of their respective
version. The plaintiff/ petitione r produced two witnesses and got recorded his attorney's
statement; whereas in rebuttal the respondents produced his representative. The learned trial
Court after hearing the parties and evaluating the evidence dismissed the suit. The petitioner
feeling ag grieved of the judgment/decree passed by the trial Court preferred an appeal before the
Additional District Judge, Gwadar which too was dismissed, hence instant revision petition.
6. Despite repeated calls none appeared for the respondents, as such; I ha ve no other option
but to hear the learned counsel for the petitioner and decide the case on its own merits. Learned
counsel for the petitioner argued that both the impugned judgments/decrees herein are the result
of non -reading and mis reading of evidence available on record. The petitioner proved his claim
by producing straight -forward, trust worthy and confidence inspiring evidence but both the
courts below illegally, unlawfully and without any justification discarded the evidence produced
by the petitio ner. Learned counsel stressed that both the courts below wrongly held that the
petitioner is not in possession of the land in question. In fact not only the petitioner is in
possession of the suit -land but he has also built a boundary wall and a medical st ore.
7. I have considered the arguments advanced by learned counsel for the petitioner and
perused record of the case. It may be observed that plaintiff/petitioner in order to prove his case
produced two witnesses and got recorded his own statement throu gh attorney. The perusal of
evidence produced by the plaintiff/ petitioner leaves no room for doubt that the petitioner utterly
failed to prove his case. The plaintiff has based his claim on so -called possession of land and
illegally has raised a boundary wall and thereby claims to be the owner. Such a claim, is not
acceptable much less against the Government. It is pertinent to mention that the mere raising of a
boundary wall or construction upon the State property without permission of competent authority
does create any title in favour of any person nor confers ownership to such a trespasser.
Sometime, this may be with collaboration of revenue staff or administrative officer, but
nevertheless the Courts cannot draw a decree in favour of a trespasser becau se the Courts are not
supposed to perpetuate illegalities. As such; on the basis of so called boundary wall or any illegal
and unauthorized construction, could be clothed with the right of ownership. P.W.1 who is 34
years old has not stated when the petiti oner occupied the land, however; in reply to question No.
2 he answered as under: --
8. Conversely P.W.2 stated that the plaintiff is in possession of property since 10/12 years.
Whereas attorney of the plaintiff, who is also father of the plaintiff/ petitioner does himself claim
to be the owner of the property nor states that this piece of l and was given to the plaintiff/
petitioner by him. Moreover; this is not the case of the petitioner that he has purchased the
property from its legal owner or the same has been gifted to him by a real owner; nor he claims
to be a legal and valid allottee o f the property. It is interested to note that the father of plaintiff
who as his attorney states that the property is in possession of the plaintiff for the last 12 years.
The evidence produced by the petitioner is not sufficient to prove the case of the p etitioner nor
for that matter, the petitioner/plaintiff could be allowed to occupy the State land on the basis of
mere so -called possession. There is no cavil to the legal proposition that the possession of a
trespasser cannot be justified nor the same ent itles a trespasser to get a decree in his favour. By
holding the view I am fortified by the judgment reported in 2000 (Ghulam Yasin Butt and 2
others v. Manzoor Hussain and 3 others relevant at pages 920 -921), wherein it has been observed
as under: --
"A trespasser has no vested right as the principle laid down by the Hon'ble Supreme
Court in PLD 1982 SC 308. It is admitted fact that all the respondents are in the foot print of
Muhammad Suleman who had executed agreement with the attorney of the original land-owner.
As mentioned above agree -ment, dated 24 -2-1962 does not reveal that Muhammad Suleman
has taken possession of the property in question. The principle of nominee or assignment does
not attract in the present case. I am fortified by the following judgments:
(1) 1990 MLD 2016 (Muhammad Farooq Dosa's case) and
(2) PLD 1990 Lah. 211 (Khurshid Ali's case)."
9. The perusal of record reflects that the trial as well as appellate court by proper application
of judicial mind resolved issue Nos. 1 and 2. There is no misreading and non -reading of the
evidence available on record nor for that matter the law has been misapplied.
10. As far as issue No. 3 is concerned, in my opinion the Courts below failed to take into
consideration that it was the bounde n duty of the plaintiff to have stated as to when the revenue
entries were carried out. In the plaint it has been claimed that plaintiff was unaware about the
entries but P.W.1 has stated that during the course of settlement plaintiff pointed out to the
revenue authorities that the property in question belongs to him meaning thereby he was aware
of the settlement operation. Moreover; a copy of Mutation bearing No.22 has been placed on
record which shows that it was mutated on 7th September, 2001 in favour o f petitioner meaning
thereby that he was very much in the knowledge of settlement operation on 7th September, 2001.
If, the time is reckoned from 9th September, 2001 the suit has been filed in the year 2008, even
then, the suit is barred by time. So it is held that the suit is barred by time. Resultantly, with
exception to issue No. 3, the findings qua rest of the issues are maintained and upheld.
11. The petitioner has based his claim on an alleged and unauthorized possession, and by
raising an illegal b oundary wall wishes the court of law to draw a decree in his favour. Neither
illegal possession confers any title nor illegal construction creates and bestows ownership to a
tresspasser, much less against the Government. Neither illegal occupation can be j ustified nor the
Courts are meant to perpetuate the illegal acts. Such an act, calls for punitive action against the
wrong doers and the delinquent officers of Local Administration of concerned area who blind
fold their eyes when such illegal and unauthori zed construction are carried out. This is not
unusual that some times the land grabbers with collaboration of revenue staff or local
administration raise construction over the State property and thereby lay a claim, but
nevertheless such an illegal act had never been found justified by the Courts of law. The Courts
of law being the custodian of public property are not supposed to shut their eyes. By holding the
view, I am supported by the dictum laid down in the judgment reported in PLD 2005 SC page
337 (Pr ovincial Government through Collector, Kohat and another v. Shabbir Hussain relevant at
page 343), wherein it was held as under: --
"Likewise, the learned Presiding Officers are also required to exercise caution when they
are dealing with matters relatin g to public property and public interest of which the Courts of law
are the final custodians. It is true that we have never leaned in favour of giving of preferential
treatment to the Government departments or agencies but then we are equally obliged, whil e
granting relief to ensure that public interest is not permitted to be jeopardized and public
property is not allowed to be squared through mere collusion of some representative of a
Government agency."
12. Needless to observe that there are concurrent findings of facts by two courts below which
normally cannot be disturbed unless it is proved that the same are result of misreading and non -
reading of evidence. Perusal of record reveals that both the courts below after proper appraisal of
evidence and att ending all aspects of the case passed well reasoned judgments/ decrees.
For the foregoing reasons, I am of the considered opinion that the impugned
judgments/decrees do not suffer from any illegality, irregularity, perversity or impropriety, hence
are n ot open to any exception. Consequently petition is dismissed. Before parting with the
judgment, I feel it inevitable to direct the Registrar of this Court to send the copy of this
judgment to Chief Secretary, Balochistan, who is directed to look into such sort of matters and
preserve the public property by taking immediate disciplinary action against delinquent officers.
The copy of this judgment be also sent to the Commissioner Mekran Division and Deputy
Commissioner, Gwadar.
MH/68/Bal Petitioner 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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