2012 PLP 1898 (MLD)

MUHAMMAD NOOR MESKANZAI, J.

Instant revision petition is directed against the judgment and decree dated 16th November, 2008 passed by Majlis-e-Shoora Kalat Division at Mastung, whereby appeal filed by respondents was accepted and the suit filed by petitioners was dismissed.

2. Facts relevant for disposal of instant petition are that the petitioners instituted a suit against the respondents for Declaration, Permanent Injunction and Correction of Revenue Record. It was alleged in the suit that land bearing Khasra No.437, Khewat No. 21, Khatooni No.157, measuring 0 rod 16 poles, situated in Mouza Soorab is their ancestral property. The same is in their possession since 70/80 years. It was further averred that basically the land in question belonged to Rekizai tribe which was subsequently acquired by their forefather who also made some construction thereon. According to plaint plaintiffs' forefather was employed in B&R Department, who for his betterment made construction and spent his life therein. Thereafter, plaintiffs along with their father are owners in possession without any interruption from any corner. During settlement measurement of the house was recorded on plaintiffs name but ignorantly they could not get Khatoni. Recently plaintiffs wanted to make changes in the construction but the defendants through their workers created hurdles for plaintiffs. The plaintiffs consulted revenue record and came to know the house in question was recorded in the name of defendants. Hence the suit.

3. The suit was contested by the respondents by way of filing written statement, whereby the claim of the petitioners was denied and disputed on legal as well as factual grounds. It was the case of defendants that the land in question vests in Central government and is in possession of same as well as recorded owner.

4. The learned trial court out of the pleadings of parties framed following issues:-- Thereafter the parties were directed to adduce their respective evidence. Whereupon, the petitioners produced six P.Ws. and attorney of the petitioners got recorded his statement. In rebuttal, the respondents examined three D.Ws., besides recording the statement of its representative.

5. The learned trial Court after hearing the parties and evaluating the evidence produced by both the parties decreed the suit vide judgment and decree dated 27th September, 2008. The respondents feeling dissatisfied with the judgment and decree passed by Qazi, Soorab preferred an appeal before the learned Majlis-e-Shoora, Kalat Division at Mastung. The learned appellate Court vide judgment and decree dated 26th November, 2008 accepted the appeal and set aside the judgment and decree dated 27th September, 2008 passed by learned Qazi, Soorab, hence this revision petition.

6. I have heard Mr. Najam-ud-Din Mengal, Advocate for petitioners, whereas Mr. Amanullah Tareen, Additional Advocate General appeared on behalf of respondents. The learned counsel for the petitioners submitted that petitioners produced overwhelming evidence in support of their case and the learned trial Court after proper appraisal thereof rightly decreed the suit. He next argued that the petitioners are in continuous and uninterrupted possession of the property in question since decades. The learned appellate Court without adverting to continuous possession of petitioners, illegally reversed the judgment and decree passed by the trial Court. Learned counsel emphasized that the evidence produced by petitioners was misread by the appellate Court, therefore, the impugned judgment and decree are liable to be set aside. On the other hand, the learned Additional A.G strenuously opposed the revision petition and submitted with great vehemence that the trial Court in fact committed gross illegality by way of passing a decree in favour of petitioners. The property in question belongs to Government of Balochistan and the same has rightly been recorded in its name. Petitioners' father was an employee of C&W Department and thus was residing as Chokidar in the quarter constructed by the Government with permission of Department. The petitioners taking benefit of permissive possession/occupation of the quarter tried to construct shops which were prohibited/restrained by the respondents being the owners of the property. The appellate Court, after proper appraisal of material available on record has rightly reversed the decree and dismissed the suit filed by the plaintiffs.

7. I have consideration the contentions put forth by the parties' learned counsel and have gone through the record of the case. The perusal of record reflects that the plaintiff in order to prove his case produced following P.Ws., besides examining himself: P.W.1 Haji Rasool Bakhsh P.W.2 Fateh Muhammad P.W.3 Abdul Khaliq P.W.4 Abdul Manan P.W.5 Hassan Bakhsh P.W.6 Muhammad Ramzan As far as the statement of P.W. Abdul Khaliq is concerned, he has not stated the boundaries of the disputed property nor for that matter he has mentioned the Khasra numbers. Further went on to state that Rest House is the property of Rekizai Tribe. For ready reference, in reply to question No.16, he stated as under: زئی کی ملکیت اراضی طور پر ریکی یہ غلط ہے کہ متدعو ی نہ ہے از خود کہ بنیادی طوپر پر ریسٹ ہاؤس بھی ریکی زئی کی ملکیت ہے As far as statement of P.W.4 is concerned, this P.W. has wrongly stated the boundaries/description of the property and does not state the Khasra numbers of the property. Whereas the statement of P.W.3 is based on hearsay, besides he failed to mention the description of the property in dispute. P.W. Muhammad Ramzan has also misstated the boundaries. Petitioner, tendered in evidence a document as Exh.P/1, but this document is also of no avail to the petitioners for a couple of reasons. Firstly, because this document was not referred to in the pleadings nor relied upon, therefore, being beyond pleadings is inadmissible in evidence. Secondly this was produced contrary to provisions of Order VII Rule IX sub-rule (i), Order XIII Rules 1 and 2, C.P.C. Thirdly plaintiff did not mention this document in the first list of witnesses which was filed on 24th October, 2007. For the first time the document was mentioned in the list of witnesses filed on 19th May, 2008 entertained in violation of the provisions of Order XIII and 16, C.P.C. Fourthly, the document was not proved as no marginal witness or author of document was produced. Fifthly, the document could not have been exhibited. Sixthly, the boundaries mentioned in the said document do not tally with the description given in the plaint. As far as the statement of P.W. Rasool Bakhsh is concerned, he has not stated the correct boundaries. Moreover, he states that he is aged about 70 years and since then he has seen the grandfather of the plaintiffs residing in the disputed property and after the death of Karim Bakhsh Mali (grandfather of plaintiff) his descendents are residing. He further states that Karim Bakhsh has constructed the property, whereas P.W.2 though does not know the boundaries, yet states that since 75 years, Karim Bakhsh is residing in the property in dispute, however, he does not know about the construction, as the property in question was already constructed. A comparison of the statements of P.Ws. 2 and 3 reflects that if P.W.1 is believed that belies P.W.2 and vice versa. It is important to note that P.Ws. 1 and 2 while examined at a stage when the respondents/ defendants were proceeded against ex parte, but the trial court after setting aside the ex parte proceedings did not take pain to recall the witnesses in order to provide an opportunity to cross-examine the said witnesses. Similarly, the statement of P.W. Hassan is valueless as it is based on hearsay. Whereas, in rebuttal, the respondents/defendants produced as many as four D.Ws. The defendants/respondents have succeeded to prove the factum of construction of house in question by Government and the statement of P.Ws. could not be shaken despite lengthy cross-examination. Therefore, in this wake of circumstances, the learned appellate Court after proper appreciation of the facts and evaluating the evidence has rightly drawn the conclusions. The appellate Court by invoking the provisions of Order XLI Rule 31, C.P.C. dealt with each and every issue with reference to the evidence available on record by forwarding cogent and plausible reasons for the conclusions so arrived at, which are not open to legal exception. Admittedly, Karim Bakhsh Mali and father of petitioner were employees in C&W Department, particularly Karim Bakhsh was Chowkidar and in that analogy, he was residing in the premises constructed by the Government (C&W Department) and such permissive and temporary occupation does not bestow plaintiff/petitioner with any right. This aspect of the matter was quite competently dealt with by the appellate forum. It is painfully noted that in written statement specific objection regarding limitation was pleaded but the trial Court did not frame any issue. Admittedly the entries have been carried out in the year 1972 and the possession of respondent/defendant has been established as owner. Under such circumstances unhesitantly the suit appears to be barred by time. Thus, for the foregoing reasons, petition fails, as such is dismissed with no order as to costs. SAK/80/Q Revision dismissed.