2024 Y L R 2314
[Balochistan]
Before Muhammad Aamir Nawaz Rana, J
Mst. AZIZA KHANUM alias Shah Pari and another ---Petitioners
Versus
Member- II, Board of Revenue, Government of Balochistan, Civil Secretariat,
Zargoon Road, Quetta and 5 others ---Respondent
Civil Revision No. 203 of 2015, decided on 16th May, 2023.
(a) Civil Procedure Code (V of 1908) ---
----O.VI, Rr. 1 & 2---Qanun- e-Shahadat (10 of 1984), Art.114--- Facts mentioned in
pleadings ---Estoppel ---Applicability ---Party cannot go beyond pleadings as facts
mentioned in pleadings would constitute estoppel within the meaning of Art. 114 Qanun-
e-Shahadat, 1984.
(b) Specific Relief Act (I of 1877)---
----Ss. 42 & 54--- Suit for declaration and injunction---Petitioners / plaintiffs claimed to be
owners in possession of suit property but both the Courts below concurrently dismissed their suit and appeal ---Validity ---No effort was made to produce second petitioner / plaintiff before
Trial Court to substantiate the plea that her husband purchased the property from the persons in whose favour Permanent Transfer Deeds (PTDs) existed --- Claim of petitioners / plaintiffs to
the extent of half piece of land under suit property was devoid of any merit and was rightly
discarded by the two Courts below --- Both the Courts below committed misreading and non-
reading of documentary evidence available on record and instead of decreeing the suit filed by
petitioners / plaintiffs to the extent of their property, dismissed the entire claim--- High Court
while setting aside the judgments and decrees passed by two Courts below to the extent of such portion of suit property declared the petitioners / plaintiffs owners in possession of the half of the property---High Court directed revenue authorities to transfer shares of petitioners / plaintiff in their record --- High Court further declared that if competent authority decided to
dispose of remaining portion of property through auction on lease basis or by transferring ownership rights, the petitioners / plaintiffs would have the right to refusal to the highest bid obtained in such regard as superstructure over such portion of property was constructed by petitioners/plaintiffs ---Revision was allowed accordingly.
Syed Ayaz Zahoor for Petitioners.
Shahid Baloch, Additional Advocate General assisted by Javed Iqbal, Legal Expert,
Muhammad Akram, Secretary (Judicial and Inquiry) and Husain Rasheed, Assistant Legal Officer, Board of Revenue for Respondents Nos. 1 and 2.
Respondents Nos. 3 to 6 proceeded against ex- parte on 10.8.2017.
Date of hearing: 17th March, 2023.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The petitioners are highly
aggrieved from the judgments and decrees passed by fora -below, whereby the suit filed by
the petitioners for "Declaration, Cancellation of Mutation Entries and Permanent Injunction" was dismissed and the appellate court maintained the judgment and decree of the trial court.
2. Tersely, the relevant facts arising out of the pleadings of the parties are; on 22nd
April, 2006 respondent No.1 had filed suit for "Declaration, Cancellation of Mutation
Entries and Permanent Injunction" against the Member -II Board of Revenue Balochistan
Quetta and Tehsildar Quetta with regard to property situated at Tola Ram Road Quetta
falling under Khasra No(s). 49, 50, 51, 57, 58, 59, 60, 46, 62, 63, , 64, 65 and 68 measuring 2328 sq;ft. and property falling under Khasra Nos.38, 52, 53, 54, 55, 56, 44, 45, 47, 66, 67 and 69, measuring 4291 sq.ft. as well as land falling under Khasra No.48,
measuring 1706 sq; ft total measuring 8325 sq.ft, situated at Mohal and Mouza Ward
No.21, Tappa Urban, Tehsil Quetta. It was stated by the petitioner No.1 that the said
properties had been purchased by her husband from various persons and the property under Khasra No. 48, measuring 1706 sq; ft Muhal and Mouza Ward No.21, Tappa Urban Tehsil Quetta still existed in the name of husband of petitioner No.1. It was also contended by petitioner No.1 that her husband (petitioner No.2) after approval of map from Municipal Corporation constructed a double story building comprising of basement, shops, flats and rooms and rented out the same to different persons. It was also maintained by petitioner No.1 that the property in question was gifted to her by her husband (petitioner No.2) vide gift deed dated 06th August 1986 and this fact was in the
knowledge of the tenants, therefore subsequently the tenants started paying the rent to the
petitioner No.1. Subsequently due to some differences between the petitioner No.1 and
petitioner No.2 the gift deed in favor of petitioner No.1 was challenged by her husband by filing the suit and on this pretext the tenants stopped paying the rent to petitioner No.1, therefore the petitioner No.1 had filed eviction applications against tenants which were
allowed by the Rent Controller but during pendency of the appeal in the High Court
compromise was effected between tenants and petitioner No.1, the tenants accepted
petitioner No.1 as landlady and agreed to pay her the rent amount.
3. The suit filed by petitioner No.2 against petitioner No.1 in which validity of gift in
favor of petitioner No.1 was challenged was decreed by the trial court but during
pendency of Civil Revision Petition No.146/2000 (before this court) the petitioner No.2
entered into compromise with petitioner No.1 on 18.06.2002 and all the properties were restored with superstructure in the name of respondent No.1/plaintiff.
It is the case of petitioner No.1 that subsequently she came to know that in the
revenue record the suit property falling under Khasra Nos.38, 52 to 56, 44, 45, 47, 66, 67 and 69 measuring 4281 sq; ft at Tola Ram Road, Quetta in Ward No.21 infect is recorded in the name of Hindus and further it transpires that these properties were transferred in the name of Islam -ud-Din son of Fazal -ud-Din (respondent No.3) and Basit Hussain son of
Arshad Hussain (respondent No.4), as a result of auction on the basis of order dated 24th July, 1961 passed by the than Administrator. The petitioner No.1/plaintiff stated that all these transactions have been manipulated as none of the parties came forward with any claim during the litigation and all the mentioned names are fictitious.
4. In such circumstances the petitioner No.1 filed a suit which carries the following
prayers:
A. Declaring that the plaintiff is lawful, legal owner in possession of the properties bearing Khasra Nos. 49, 50, 51, 57, 58, 59, 60, 46,61,62,63,64,65 and 68 measuring 2328 sq.ft. Tola Ram Quetta Mohal and Mouza Ward No. 21, Tappa Urban, Tehsil Quetta, on which building has been constructed, which consists of basements, shops, flats and rooms, which is now in possession of tenants.
B. Directing the defendant No. 2, to correct the mutation entries in the record of rights in respect of (1) Khasra No. 2616 old, new Nos. 38, measuring 1027 sq.ft. existing in the name of Utam Ram son of Naryan Das, (2) Khasra No. 2614 old, new No.52,53,54,55,56, total measuring 734 sq.ft. existing in the name of Champa Lal
son of Tulsi Ram (3) Khasra No. 2623 old, new No. 44,45,47,66,67,69, total measuring 2530 sq.ft. and be transferred/entered in the name of plaintiff.
C. Further directing the defendant No. 1 to cancel the revenue entries made in favour
of Utam Ram, thereafter transferred in the name of Basit Hussain son of Arshad
Hussain, Champa Lal and thereafter in the name of Islam -ud-Din son of Fazal -ud-
Din (in the record of Board of Revenue and not Tehsil's record) and enter the same in the name of plaintiff to the extent mentioned in the relief clause (B).
D. Permanently restraining the defendants from carrying out any change in respect of the properties mentioned in Para No.1 of the suit as well as in relief clause (A&B).
E. Any other relief as deem fit and proper may also be awarded to the plaintiffs with
cost of the suit.
5. Record transpires that in the first round of litigation the defendant No.2 was
proceeded against ex -parte on 25th May, 2006, whereas on behalf of the defendant No.1, one
Abdul Waheed Naib Tehsildar appeared and submitted in writing on behalf of defendant No.1 that State interest is not involved in this case and the replying defendant is not inclined to defend the case at government expense. On the next date i.e. 8th June 2006 none appeared on behalf of respondents Nos.1 and he was also proceeded against ex- parte and petitioner No.1
was directed to produce ex -parte evidence. Subsequently on the basis of ex- parte evidence the
trial court decreed the suit vide judgment dated 25th July, 2006.
6. On 8th December 2006, an application was submitted to the trial court by the
petitioner No.1 for modification/ rectification of the judgment/decree dated 25th July 2006 to the extent of incorporating Khasra No. 48 measuring 1706, Muhal and Mouza ward 21, Tappa Urban, Tehsil Quetta to be transferred in the name of petitioner No.1 which was still existing in the record of rights in the name of her husband in view of compromise effected between them before Hon'ble High Court of Balochistan; further it was prayed that in the concluding para of ex- parte judgment/decree Khasra No.48 has also not been
mentioned inadvertently and same be also inserted. No notice of this application for modification of the ex- parte judgment/decree was issued to respondent/defendant No.1
and 2 and without any notice to the defendants the application was allowed by the trial court on 13th December 2006, and directions were issued to the revenue authority to mutate Khasra No. 48, measuring 1706 sq.ft. in the name of petitioner No.1. Subsequent to the order dated 13th December 2006 passed by the trial court, modified judgment was written on 23rd December 2006 by the trial court.
7. The defendant No.1, defendant No.2 as well as Muhammad Akber, Usman Ghani,
Abdul Ali sons of Sultan Ali and Muhammad Azam, Abdul Sattar, Muhammad Saeed and
Abdul Musaweer filed four separate applications in October and December 2007 under
Section 12(2), C.P.C. for setting aside ex- parte judgment/decree dated 25th July 2006
claiming the same to have been obtained by fraud and misrepresentation.
The applications were contested by petitioner No.1/plaintiff by filing rejoinders.
The learned trial court after hearing the parties vide common order dated 25th September 2008, dismissed all the applications on the ground that the private parties have failed to establish their title and have not explained the nature of their possession over the property and that the E.D.O. through Member Board of Revenue had already submitted reply that they do not want to contest the suit as their interest is not involved.
8. The said orders of the trial court were assailed by the applicants who had filed
applications under Section 12(2), C.P.C. by filing Civil Revision Petition but the learned additional district judge -II, Quetta vide order dated 20th April 2002 dismissed the Civil
Revisions and upheld the impugned orders passed by the trial court.
9. Feeling aggrieved of the ex -parte judgment/decree passed by the trial court,
common order of dismissal of the applications under Section 12(2), C.P.C. as well as against common order of dismissal of the revision petitions by learned Additional District Judge -II, Quetta the defendant No.1 i.e. Member -II, Board of Revenue had filed C.P. 485
of 2009, the defendant No.2, i.e. Tehsildar City Quetta had preferred C.P. No. 343 of 2009 and the private parties had preferred C.Ps. No(s). 387 and 388 of 2009 before this court.
10. This court vide common judgment dated 29th December, 2011 allowed the
petitions filed by the Member Board of Revenue and Tehsildar City Quetta and the ex-parte judgment and decree dated 25th July, 2006, the order dated 13th December,2006, and the modified exparte judgment and decree dated 23rd December, 2006 passed by Senior Civil Judge -II, Quetta and the common order dated 25th September, 2008 of Senior
Civil Judge -II, Quetta dismissing the applications under Section 12(2), C.P.C. and the
common order dated 20th April, 2009 of Additional District Judge -II, Quetta dismissing
the revision petitions were declared null and void and of no legal effect and the matter was remanded to the trial court. For the facility of reference the operative portion of the said judgment is reproduced as under:
"18. For the above reasons, in the interest of justice and for decision of case on merits,
the Constitution Petitions Nos. 343 and 485 of 2009 preferred by Member Board of Revenue -II (Defendant No.1) and Tehsildar City Quetta (Defendant No.2) are accepted.
The ex -parte judgment/decree dated 25th July 2006, the order dated 13th December
2006, the modified ex- parte judgment/decree dated 23rd December 2006 passed by
Senior Civil Judge -II, Quetta and the common order dated 25th September 2008 of
Senior Civil Judge -II, Quetta dismissing the applications under Section 12(2) C.P.C.
and the common order dated 20th April 2009 of Additional District Judge -II, Quetta
dismissing the revision petitions are declared null and void and of no legal effect, consequently the case is remanded to the trial court i.e. Senior Civil Judge -II, Quetta to
proceed with the trial afresh after affording opportunity to defendants Nos.1 and 2 (Member -II, Board of Revenue Balochistan and Tehsildar City Quetta) to file written
statement and thereafter to decide the case on merits in accordance with law. The respondent No.1/ plaintiff is directed to join all the necessary parties to the suit, who shall be issued notices by the trial court.
The Constitution Petitions No(s).387 and 388 of 2009 preferred by the occupants/ tenants of the suit property are hereby dismissed, however, they are at liberty to move application to the trial court under Order I Rule 10, C.P.C for impleadent subject to their legal entitlement and locus standi and any such application, if filed, shall be decided by the trial court on its own merits strictly in accordance with law."
11. On remand the matter was contested by the respondents Nos.1 and 2 by way of
filing written statements, whereas the tenants also filed an application under Order I Rule
10, C.P.C., which was rejected by the trial court vide orders dated 17th June, 2012 and
11th March, 2013 respectively.
12. The applicants/interveners who were admittedly tenants in the property in question,
filed C.P. No.306 of 2013, which was dismissed by this court vide judgment dated
23.10.2013, the operative portion of the same is reproduced as under:
"12. Though the petitioners were allowed by this Court to file an application under
Order I Rule 10, C.P.C., but subject to their entitlement and locus standi. Considering the facts and circumstances of the case, the petitioners have no entitlement, nor have locus standi to be impleaded in the suit. The application has been filed with an ulterior motive, just to frustrate the rent proceedings initiated by the respondent No.1 against the petitioners. The present petition filed by the petitioners come within the ambit of frivolous ligation, therefore, they are responsible for the loss, caused to the respondent No.1, as such, the respondent No.1 is entitled for compensation.
Thus, in view of what has been stated and discussed hereinabove, the petition is accordingly dismissed. The petitioners should pay an amount of Rs.2000/ - (Rupees
Two Thousand only) each, to the respondent No.1 as compensatory cost for the frivolous litigation."
13. The learned trial court out of the pleadings of the parties had framed the following
issues:
1. Whether the plaintiff has not affixed adverolem court fees with the plaint?
2. Whether the plaintiff is legal and lawful owner in possession of the property bearing Khasra Nos. 48,49, 50, 51, 57, 58, 59, 66, 46, 62, 63, 64, 65 and 68 measuring 2328 sq;ft. and property falling under Khasra No.52, 53, 54, 55, 56, 44, 45, 47, 66, 67 and 60, measuring 4291 sq.ft. as well as land falling under Khasra No.48,
measuring 1706 sq;ft total measuring 8325 sq.ft, situated at Mohal and Mouza Ward No.1, Tappa Urban, Tehsil and District Quetta on which she has constructed a building and has rented out the same to tenants?
3. Whether the plaintiff is also owner of properties (1) Khasra No.38 (old Khasra No.2616 measuring 1027 sq- ft presently recorded on the name of defendant No.4, (2)
Khasra Nos.52 to 56 (old Khasra No.2614) total measuring 734 sq -ft presently
recorded on the name of defendant No.3, (3) Khasra Nos.44, 45, 47, 66, 67 and 69 (old Khasra No.2623) total measuring 2530 sq -ft and
(4) property at Khasra No. 48 measuring 1706 sq- ft all situated at Ward No.21 Tehsil
Quetta, therefore, she is liable for cancellation of its present entries from the names of
defendants Nos.3 to 7 and its transfer on the name of plaintiff?
4. Whether suit property still exists on the name of lits egal and lawful owners Sheikh Muhammad (i) Arif Rai Sahib Thaija Singh, (ii) Otma Ram and (iii) Champa Lal, therefore, any subsequent gift or transaction regarding suit property was illegal and unlawful?
5. Whether the plaintiff is entitled for the relief claimed for?
6. The relief?
Thereafter, the parties produced evidence in support of their respective contention.
Subsequently vide judgment and decree dated 14.03.2014 the trial court dismissed the suit filed by the petitioners and the appeal filed by the petitioners also remained unsuccessful as appellate court also dismissed the appeal vide judgment dated 18.05.2015. Hence this petition.
SUBMISSIONS
14. Learned counsel for the petitioner Syed Ayaz Advocate contended that the
possession of the petitioner as owner had not been questioned by any authority. The husband of petitioner No.1 had constructed the building over suit property after obtaining
necessary permissions from the competent authorities and subsequently tenants were
inducted in the premises in question. The learned counsel further submitted that the
petitioner No.2 had purchased the property in question which was not in the name of petitioner No.2 from private respondents and since no private respondent had contested
the claim of the petitioners, therefore the petitioner No.1 deserves to be declared as
exclusive owner in possession of the entire suit property. Learned counsel further pointed
out that in view of PTDs (Permanent Transfer Deeds) Ex- P/13, Ex- P/14 and Ex- P/15, the
property in question is not evacuee property rather same had been transferred in the name
of private respondents from whom the petitioner No.2 had purchased the same.
15. While controverting the contention of the learned counsel for the petitioner learned
AAG Mr. Tahir Iqbal Khattak submitted that petitioner No.1 is entitled to be declared owner of the property which is recorded either in her name or in the name of her husband (petitioner No.2) whereas petitioner has no right in the property which is in the name of private respondents. Learned AAG further contended that petitioners have completely failed to bring on record any conveyance deed or any other instrument which could prove that they had obtained the proprietary rights of remaining portion of the suit property which is in the name of private respondents. Learned AAG also pointed out that the petitioner No.1 had taken a different stance in the suit filed by her and had referred the PTDs in favour of private respondents illegal, fake and without having any lawful authority whereas subsequently petitioner No.1 while recording her statement took altogether a different plea by alleging that the property in dispute had been purchased by her husband from private respondents, so according to learned AAG in view of this contradictory stance the petitioners are not entitled for the relief claimed to the extent of property of private respondents. The learned AAG further claimed that since private respondents have not come forward and their whereabouts are not known, therefore in view of Article 172 of the Constitution of Islamic Republic of Pakistan 1973, the said property being ownerless property devolved upon the provincial government.
DETERMINATION
16. The total area of property in question is 8325 sq; ft upon which flats, shops and
godwons have been constructed by petitioner No.2, which were rented out. Presently out of total area of property in question 4034 sq;ft is recorded in the name of petitioners whereas remaining area i.e. 4291 sq;ft according to PTDs is recorded in the name of respondents Nos. 3 to 5. The area which is recorded in the name of petitioners falls in
Khasra Nos. 60, 59, 58, 57, 51,50,49,48. The area of Khasra No.48 is 1706 sq;ft which is
presently recorded in the name of petitioner No.2 Muhammad Shafee, whereas the
remaining property in above mentioned Khasra numbers i.e. 1096 sq; ft is recorded in the
name of petitioner No.1. In the same manner the area mentioned in Khasra Nos.68, 65, 64,
63, 62, 61, 46 is 1232 sq;ft and presently recorded in revenue record in the name of petitioner No.1. So currently petitioner No.1 is recorded owner of 2382 sq;ft, whereas her husband owns as mentioned above 1706 sq;ft in the property in question. Since petitioner No.2 had no objection for transfer of his share in favour of his wife, therefore the
petitioner No.1 exclusively owns 4034 sq;ft in the total area of the property in question,
whereas as mentioned above the remaining property is recorded in the name of
respondents Nos.3 to 5. So the actual controversy is with regard to remaining property i.e. 4291 sq;ft which petitioner No.1 is claiming by asserting that her husband purchased the same from private respondents. The officials respondents though during arguments mentioned the said property as evacuee property but in their written statement filed by Member -II Board of Revenue as well as by Tehsildar City Quetta (respondents Nos.1 and
2) they have admitted that Permanent Transfer Deeds are in favour of private respondents. The relevant excerpt of their written statement is reproduced:
"(G) That the P.T.D till this date exists in the name of Sheikh Muhammad Arif, Islam-ud-Din, Basit Hussain and Muhammad Ikram in the revenue record since 1967,
which for further transfer has never been applied for by any person nor the entries in the revenue record of rights has ever been ordered to be changed. Hence the version of the plaintiff that the properties have been purchased in absence of any conveyance deed or any application of transfer may not found to be lawful just."
17. Apart from that Superintendent Board of Revenue who appeared as PW -5 got
exhibited the PTDs as Ex- P/13, Ex- P/14 and Ex- P/15 of the disputed property. So in view
of these PTDs the said property cannot be considered as evacuee property.
18. The petitioner No.1 or her husband petitioner No.2 could not produce any evidence
to establish that they had purchased the remaining portion of the suit property i.e. 4281
sq;ft from the individuals in whose names the PTDs existed rather altogether divergent
plea on the part of petitioner No.1 has been noted as in her suit while referring the PTDs
the petitioner No.1 had stated as follow:
"9. That thereafter the plaintiff was enjoying the peaceful possession of the property in question and there was no dispute whatsoever in respect of the same, however she intended to sell building and at the relevant time when she obtained copy of record
of rights, she came to know that property at Khasra Nos.38, 52, to 56 and 44, 45, 47, 66, 67, and 69 measuring 4281 sq;ft situated at Tola Ram Road, Mohal and Mouza Ward No.21 Tappa Urban Tehsil Quetta have been entered in the name of hindues i.e. Utham Ram, Champa Lal and Rai Sahib Teja Singh, when admittedly the plaintiff was lawful owner of the same. Further it was surprising for the plaintiff to see that the properties to the hindues were transferred in the name of one Islam -ud-Din Son of Fazal -ud-Din and Basit Hussain son of Arshad
Hussain on the basis of some fictitious entries contained in the record of evacuee properties on the basis of some so- called auction and resulted in transfer of the said
property in their respective names on the basis of orders passed by the then Administrator on 24.07.1961."
("Emphasis provided")
Whereas when petitioner No.1 recorded her statement, she narrated entirely
different story. Her statement is reproduced as under:
("Emphasis provided")
19. It is trite law that party cannot go beyond the pleadings as the facts mentioned in
the pleadings would constitute estoppel within the meaning of Article 114 of the Qanun- e-
Shahadat Order, 1984, so in such scenario the subsequent statement of the petitioner No.1
before the trial court was not only contradictory but against the plea which she had taken in her suit. Apart from that no effort was made to produce petitioner No.2 before the trial court to substantiate the plea that her husband purchased the said property from those persons in whose favor PTDs existed. So in such view of the matter the claim of the petitioner to the extent of 4281 sq;ft land (which as per PTDs is recorded in the names of certain individuals) is devoid of any merit and hereby discarded.
The learned trial court as well as appellate court have also committed misreading
and non- reading of the documentary evidence available on record and instead of decreeing
the suit filed by petitioners to the extent of their property, the fora - below dismissed the
entire claim, so in such view of the matter the impugned judgments and decrees to the
extent of property of petitioners are set -aside. The petitioner No.1 is declared as owner in
possession to the extent of 4034 sq; ft and the revenue authorities are directed to transfer
the share of petitioner No.2 in Khasra No.48 measuring 1706 sq;ft in favor of petitioner
No.1. Since superstructure of property in question has been constructed by petitioner No.2, therefore it is further declared that the competent authority if decides to dispose of the remaining portion of the suit property i.e. 4291 sq;ft through auction on lease basis or by transferring ownership rights, the petitioner No.1 shall have the right of refusal to the highest bid obtained in this regard.
The petition is partly allowed and disposed of in the above terms. Office is directed
to prepare the decree- sheet.
MH/54/Bal. Order accordingly.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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