2015 Y L R 1692
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
Haji INAYATULLAH BAZAI ---Petitioner
versus
MUHAMMAD AYUB and 2 others ---Respondents
Civil Revision No.275 of 2012, decided on 30th April, 2014.
(a) Specific Relief Act (I of 1877) ---
----S. 42---Suit for declaration ---Plaintiff had been recorded as owner but he was neither in
possession nor his share could be determined because of joint nature of property ---Trial Court
had failed to understand the issue in dispute betwee n the parties and proposition involved in the
case and committed illegality while deciding the case ---Appellate Court had passed a well
speaking and well reasoned judgment ---Appellate Court had elaborated and differentiated the
suit property and property owned by the defendant in an expressive manner ---Property in
possession of plaintiff was entirely different from the one claimed by the defendant ---Plaintiff
was in possession of suit land from the day when he purchased the same ---Declaration of
ownership w as rightly sought and granted by means of impugned judgment passed by the
Appellate Court ---Pleading and evidence of defendant were at variance and his plea of
possession over the suit land had no legs to stand---Parties were bound by their pleadings and
they could not be allowed to take departure from the same and adduce evidence which did not
correspond the pleadings ---Appellate Court had properly appreciated the evidence ---Revision
was dismissed in circumstances.
Shafi Muhammad v. Khanzada Gul 2007 S CMR 368 rel.
(b) Pleadings ---
----Pleadings and evidence of defendant were at variance---Parties were bound by their pleadings
and they could not be allowed to take departure from the same and adduce evidence which did
not correspond the pleadings.
Shafi Muhammad v. Khanzada Gul 2007 SCMR 368 rel.
Khalil Ahmed Panezai for Petitioner.
Shahid Javed for Respondent.
Humayun Khan Tareen, Additional Advocate General for the State.
Date of hearing: 20th December, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This Civil Revision Petition
has been directed to assail the judgment and decree dated 10 -7-2012 passed by the learned
Additional District Judge -III, Quetta ("appellate court"), whereby the judgment and decree dated
14-12-2011 passed by the learned Civil Judge, I Quetta ("trial court") was set aside and the suit
filed by the respondent No.1/plaintiff was decreed.
2. The necessary facts for disposal of instant petition are that the respondent No.1/plaintiff
filed a suit for "Dec laration and Permanent Injunction" against the petitioner, the respondent
No.2 and the Tehsildar Quetta, whereby the declaration of an exclusive ownership over the
property was sought, on basis of his ownership recorded, vide mutation No.14, Khewat and
Khatooni No.3/3, bearing Khasra No.108 Qithats, measuring 10 Rod 6 Poles out of total
measuring 637 Rod 23 Poles, situated at Mohal Karez Bahauddin, Mouza Nauhsar, Tappa
Nauhsar, Tehsil and District Quetta (the "suit property/suit land") with prayer of perpet ual
injunction against the defendants from illegal encroachment/interference in a peaceful possession
of respondent No.1/plaintiff over the suit land.
3. Notices to the respondents were effectively served. The respondents Nos.2 and 3 did not
opt to conte st the suit and were proceeded against ex parte, while the petitioner/defendant No.2
filed his written statement by raising certain legal objections, the facts pleaded were seriously
controverted and denied, particularly, the possession of respondent No.1/ plaintiff over the suit
land.
4. On divergent pleadings of the parties the learned trial court framed the following issues: --
"(i) Whether the suit of plaintiff is not maintainable in view of preliminary legal objections A
& B raised by the defendant i n written statement?
(ii) Whether the property is joint property among the shareholders?
(iii) Whether the plaintiff is entitled for the relief claimed for?"
5. The respondent No.1/plaintiff produced four witnesses and got himself examined on oath.
In rebuttal, the petitioner/defendant No.2 produced four witnesses and the statement of the
attorney was recorded. Upon completion of evidence the learned trial court dismissed the suit
vide judgment and decree dated 10- 7-2011. The respondent No.1/plaintiff , being aggrieved,
assailed the judgment and decree before the District Judge Quetta, which was transmitted to the
file of the Additional District Judge -III Quetta whereby the learned appellate court after setting
aside the judgment and decree vide judgmen t dated 10- 7-2012 decreed the suit as prayed by the
respondent No.1/plaintiff.
6. Mr. Khalil Ahmed Panezai, learned counsel for the petitioner contended that the
impugned judgment is based upon misreading and non- reading of evidence. The documentary
evidence was brought on record through application filed by the respondent No.1 under Articles
88 and 112 of the Qanun- e-Shahadat Order, 1984 read with Section 151 of the Code of Civil
Procedure ("C.P.C."). The documents related to another case bearing Civil Suit No.136 of 2006
titled as 'Abdullah v. Muhammad Ayub' were produced. He further added that the suit property is
jointly owned by the parties and besides the petitioner, there are number of other joint
shareholders in joint land in which the suit land falls. He added that no partition by metes and
bounds had taken place and without joining each and every shareholder, the suit was not
maintainable. The learned counsel contended that the respondent No.1/plaintiff relied upon a
document, in which the pet itioner is also co -sharer in the suit property, therefore, without
partition between all the shareholders, the declaration could not be granted to the respondent No.
1/plaintiff. He finally urged for setting aside the impugned judgment of the learned appel late
court and to restore the judgment and decree passed by the learned trial court.
Mr. Humayun Tareeen, learned Additional Advocate General, contended that the
Tehsildar City, Quetta is impleaded as pro forma respondent, therefore, whatever the court
decides and direct the Tehsildar Quetta, shall be bound to obey and implement the orders of the
court in letter and spirit.
7. Mr. Shahid Javed, learned counsel for respondent No.1/plaintiff, contended that the
respondent No.1/plaintiff is a recorded owner of the suit property, where he was running bricks
kiln since the year 1992. The question of partition does not arise when every co- sharer is in
possession of his respective land. He referred to the report submitted by Naib Tehsildar Saddar
Quetta dated 10th July, 2006 in Civil Suit No.136 of 2006, whereby the partition by means of
demarcation took place between one Abdullah and the respondent No.1/ plaintiff. He further
added that the petitioner had already sold out his land, which is not adjacent to but is near to the
suit property being located in the same Mouza. He rebutted the petitioner's claim on the basis of
'Shamilat' land and stated that prior to partition of Shamilat land, the petitioner had already sold
out his settled land and at presently the petitioner does not own any land in the area, therefore,
question of his share in Shamilat land does not arise. He finally urged that the judgment passed
by the learned appellate court is in consonance with the principles of natural justice and does not
require interference by this Court.
8. I have heard the learned counsel for the parties and have perused the record. During the
careful consideration of petition it revealed that complete record of the trial court was not
appended with the memo of petition, therefore, I sent for records of both the courts below and
minutely perused the same. The main thrust of the contentions of respective parties revolves
around the controversy that, whether the respondent No.1/plaintiff purchased the suit -land in
Khewat No.3 Khatooni No. 3 Khasra No.108 Qitat admeasuring 10 Rod 6 Pols out of total 637
Rods 23 Pols situated in Mahal Karez Bahauddin vide mutation No.15 in the year 1991 from one
Saleh Muhammad and possession thereof was also handed over to him. The petitione r had also
purchased some property within the precincts of the same Mahal in 1992 from said Saleh
Muhammad. The petitioner denied the possession of the respondent No.1/plaintiff over the suit
property and stated that under the garb of mutation entries, the respondent No.1/plaintiff intends
to occupy the share of the petitioner/defendant No.2 falling within a Shamilat land.
9. The perusal of record reveals that the petitioner/defendant No.2 filed an application dated
13-5-2009 on 18- 5-2009 before the trial court, which also contains the signatures of respondent
No.1/plaintiff, same was captioned as, "application for demarcation of property of both the
parties on site along with Tehsildar City and concerned Patwari". Thereafter notice was issued to
the Tehsi ldar/respondent No.3, wherein directions were made for demarcation of the property.
The learned trial court after twenty consecutive hearings could succeed to procure the report on
20-10-2009. Thereafter on 23- 10-2009 the petitioner/defendant No.2 requeste d the court that the
concerned Revenue authorities may be directed for handing over the possession of the property
to him and on his failure to achieve the object, the objections on Tehsildar's report were filed on
27-10-2009. The arguments were heard on objection on 29- 10-2009. Whereafter the learned trial
court vide order dated 30- 10-2009 rejected the objections and decreed the suit in favour of the
respondent No. 1/plaintiff vide order and decree 30- 10-2009, to the following effect: --
"Called. Counsel for plaintiff present, while counsel for defendant not present. Case was
fixed for order as well as report of Tehsildar, report had already been submitted by concerned
Patwari. Arguments on report of Tehsildar heard, plaintiff counsel stated that he satis fied [sic]
with the report of Tehsildar and property in question has been demarcated according to
compromise effected in between the parties and prayed that the suit may be disposed of. While in
rebuttal defendant counsel filed objection on report of Tehsi ldar, wherein contended that he had
not been notices by [sic] Tehsildar and report submitted by Tehsildar with malafidely. [sic]
On the above discussion I perused the available record, which shows that the parties with
consent have filed an application for demarcation of property, which was allowed by my learned
predecessor, and Tehsildar was directed to demarcate the property in question in between the
parties as per compromise, while the concerned Tehsildar after notice of parties and as per
direction of this court submitted report and stated that the property in question was demarcated
and possession has also handed over to the plaintiff according to law.
In such circumstances it has come on record that the property in question has been
demarcated b y concerned patwari and possession of same has been handed over to plaintiff,
therefore there is no need to proceed the case further, thus the suit filed by plaintiff is disposed of
as per report of Tehsildar. Decree sheet be prepared as per report of Tehs ildar. File after
completion and compilation be consigned to record."
10. The petitioner being aggrieved from the order supra assailed the judgment and decree
dated 30- 10-2009 before the learned District Judge, Quetta which was subsequently transmitted
to the file of the Additional District Judge, IV Quetta being Civil Appeal No.70 of 2009,
whereby the order dated 30- 10-2009 was set aside and case was remanded to the trial court with
the following observations: --
"I have heard the learned parties' counsel at length and have gone through the record of
the trial Court. The record indicated that after the report of patwari concerned, who had
demarcated the suit property and thereafter, the learned trial court decreed the suit in favour of
private respondents. The learned counsel for appellant agitated that the trial Court passed order
without giving any proper opportunity, as appellant side filed objections, while no fair
opportunity has been awarded to the appellant to lead the evidence. Record further indicates that
the appellant has been kept destitute from leading evidence, therefore, the trial Court has not
dealt with the matter in hand. Thus, the appeal filed by appellant is accepted and case is
remanded to the trial Court with direction to give fair o pportunity to the appellant in the interest
of justice as he may be able to lead his evidence. Copy of this order be sent to trial Court along
with record, if any, be returned and file, after completion, be consigned to record."
11. In post remand procee dings, the parties were directed to lead their respective evidence
and during the course of trial the petitioner/defendant No.2 submitted an application under
Section 144 of the Code of Civil Procedure ("C.P.C.") with prayer that mutation entries carried
out in pursuance of order dated 18- 5-2009 may be cancelled and previous position i.e. prior to
the order dated 18- 5-2009 was sought to be restored. The learned trial court vide order dated 12-
4-2011 passed an order with the observation, "that since the decr ee of the court was set aside by
ADJ, IV Quetta on 8 -2-2010 and matter was remanded to this court for trial and to decide the
matter on its own merits after providing fair opportunity to the parties. Since the decree of the
court is not in field, which was passed by this court upon the report of the revenue officials,
therefore, no action will be taken against them because the application had been filed after
remanding the case as the impugned report is not in the field not that would be considered at
evide nce, at the time of announcement of final judgment if the application is proceeded as prayed
for that would amount futile exercise of law, thus, the application filed by defendant is rejected
hereby. Matter is adjourned on 16- 4-2011 for evidence 16- 4-2011. "
12. The manner and procedure adopted by the learned trial court is oblivious to the prevailing
law, which shows that the learned trial court has committed a gross illegality while finally
deciding the case. The order dated 8 -2-2010 passed by the Additi onal District Judge -IV, Quetta
did not set aside the report of Tehsildar but the matter was simply remanded to the trial court for
adjudication of lis purely on merits after providing a fair opportunity of leading evidence to the
parties, therefore, order of the trial court dated 12- 4-2011 was against the principles of
administration of justice and the trial court should have considered the report of Tehsildar, which
was procured after twenty consecutive hearings and that too, was initiated on application of the
petitioner/defendant No.2.
13. The perusal of judgment and decree dated 14 -12-2011 passed by the trial court reveals
that the whole case was decided in a few lines which are contained in para 8 of the judgment and
are reproduced here under: --
"The all P.Ws. have admitted that the property in question is joint property "( )"of the
local inhabitant, while the plaintiff has filed his plaint only to the extent of defendant. The
plaintiff has failed to justify this objection raised by the defendant. The plaintiff should have
been impleaded the co -sharer of the disputed landed property in his suit. So legal objection raised
by the defendant seems justified, therefore part of this issue is resolved against the plaintiff."
In view of the above discus sion it can safely be concluded that the parties were involved
in litigation since 23 -12-2005 and after six years the learned trial court, when finally decided the
case miserably failed to understand the issue in dispute between the parties and the proposi tion
involved in the case. The perusal of impugned judgment passed by the learned appellate court
reveals that the learned judge took a heavy pain and had gone through the evidence and on
reappraisal passed a well speaking and well reasoned judgment.
14. The controversy related to the issue in dispute is based upon the contention as pleaded by
the petitioner/defendant No.2, that though the respondent No.1/plaintiff is the recorded owner
but he is neither in possession nor his share can be determined, beca use of joint nature of the
property. The documentary evidence produced by the respondent No.1/plaintiff is more reliable
and elaborates a complete picture of the issue in dispute and the learned appellate court had
elaborated and differentiated the suit pr operty and property owned by the petitioner in an
expressive manner. Para 13 of the judgment being relevant is reproduced here under: --
"From the above adduced documentary evidence, respondent/ defendant No.2 purchased
the land 26 rods 23 poles from Kha sra No.54 Qitas of Khewat/ Khatooni No.2/2, 26 rods 18
poles from Khasra No.23 Qitas of Khewat/Khatooni No.4/4 and water rights of 17 hours and 8
minutes from Khewat Khatooni No.5/5, thus this property is also different from that of appellant/
plaintiff. T he property of appellant/plaintiff was of Shamilat of Khasra 108 Qitas of Khewat/
Khatooni No.2/2.
14. The averments of respondent/ defendant No.2 [sic] of having the disputed property in
his possession, as taken in written statement and through evidenc e was not proved at all. The
property in possession of respondent/defendant No.2 is different one. The disputed property
which appellant/ plaintiff has asserted to have purchased is from Shamilat land of Khasra 108
Qitas on the basis of his purchased right s of water from Saleh Muhammad, hence appellant/
plaintiff purchased the land from Shamilat. Though he has also purchased the right of water
comprising 17 hours and 8 minutes and on the basis of such right of water the respondent/
defendant No.2 is also en titled to have share in the Shamilat of Khasra 108 Qitas of Mohal as per
his share of water but at the same time it shows that respondent/ defendant No.2 is not in
possession of the disputed property which is Shamilat whereas he might have possession of hi s
own property purchased through Ex -D/2 as discussed above. Thus the assertions of the
respondent/ defendant No.2 prove mala fide and nugatory that he is enjoying the possession of
disputed property. According to respondent/ defendant No.2 's own version t he Shamilat
property has so far not been partitioned, so how it could be accepted that he himself has
possession the Shamilat land without partition."
15. The details discussed by the learned appellate court manifest that the property in
possession of re spondent No.1/plaintiff is entirely different from one claimed by the
petitioner/defendant No.2. The suit property was purchased from 'Shamilat' land inclusive of
water rights from one Saleh Muhammad. Though, the petitioner had also purchased the land
from the said Saleh Muhammad including its water rights but the same does not fall within the
category of 'Shamilat' land. The deposition of witnesses and documentary evidence altogether
reveal that the plaintiff/respondent No.1 was in possession of suit land from day one when he
purchased the same from Saleh Muhammad and was running his bricks kiln, and due to said
activity large pits were created by digging mud for preparing the bricks and thereafter on
imposition of ban by the District Administration, the br icks kiln business was stopped. However,
with the passage of time the outer suburbs of Quetta city have extended to the surrounding
mountains and the commercial value of suburb lands have also escalated, therefore, the
respondent No.1/plaintiff after filli ng up the pits, was enjoying his possession, when he was
intimidated for dispossession by means of encroachment, resulting into initiation of litigation and
leading to filing of the civil suit, out of which the instant petition arises.
16. The litigation between the parties was still sub judice, when a joint application was
moved by the petitioner/ defendant No.2 and respondent No.1/ plaintiff on 18th June, 2009
stating therein that:--
"the parties are entered into compromise provided that demarcation between them and
other co -sharers took place".
On direction of the learned trial court the Tehsildar Quetta (respondent No.3) submitted a report
on 12th October, 2009, in pursuance whereof the demarcation of the suit land was carried out
and a Tatima was chalked out in favour of the respondent No.1/plaintiff in respect of the land
which was already in his possession i.e. the suit land/property, therefore, the declaration of
ownership was rightly sought and accordingly granted by means of impugned judgment of the
appellate court.
17. At this juncture it is worthwhile to observe that in written statement filed by the
petitioner/defendant it was averted that the petitioner is enjoying the possession of the suit land
since the time of his forefathers and he being a legal and lawful owner is in possession of his
recorded land. While, the possession of respondent No.1/ plaintiff was not only denied but was
suggested in gruesome manner that the plaintiff/respondent No.1 instead of seeking declaration
ought to se ek partition of his Shamilat land. The stance taken by the petitioner/defendant No.2
was self -destructive, when his witnesses, as well as, his attorney, who is also his son and he
deposed that the suit property was purchased by his father/petitioner from one Saleh Muhammad,
therefore, he is in possession being a vendee of the suit land.
18. In such view of the fact when the pleading and the evidence of the petitioner/ defendant
No.2 were at variance but his plea of possession over the suit -land had also n o legs to stand. On
the other hand prior to demarcation of Shamilat land respondent No.1/plaintiff was in possession
of his recorded share and was enjoying the possession by means of running a bricks kiln. The
contention of respondent No.1/ plaintiff finds further support from these facts as observed herein
above and has already been recorded by the learned appellate court. The parties are bound by
their pleadings and in no way could be allowed to take departure from the pleadings and adduce
the evidence, w hich does not correspond the pleading and these reasons are held sufficient by the
Hon'ble Apex Court for non- suiting the offending party. For rendering this view I am fortified by
the dictum laid down by the Hon'ble Apex Court in Shafi Muhammad v Khanzada Gul 2007
SCMR 368.
Thus, I am of the considered view that the judgment passed by the learned appellate court
is according to the principles of appreciation of evidence, and the same does not warrant any
interference by this court, therefore, the petiti on is hereby dismissed, but with no order as to cost.
AG/44/Bal Revision 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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