2006 PLP 1698 (MLD)

MUHAMMAD MUZAMMAL KHAN, J.

This judgment proposes to decide two Civil Revisions Nos. 690 of 2003 and 691 of 2003 arising out of two suits, one filed by the petitioners and the other by the respondents, assailing the judgments and decrees, dated 7-1-1998 and 22-3-2003 passed by the learned Civil Judge and the learned Additional District Judge, Pasrur District Sialkot, respectively, deciding lis against the petitioners which involve similar question of law and facts arising out of the two consolidated suits, between the same parties.

2. Precisely, the relevant facts are that the petitioners filed a suit for declaration with permanent injunction as consequential relief with regard to a "havaili", detailed in the plaint, situated within the Abadi of the village Kambla Bhagh, Tehsil Pasrur District Sialkot. They pleaded that the "Havaili" in question was constructed by them about 20 years back and they are in possession/use of it as owners but respondents are trying to illegally interfere in their possession by show of force. They further averred that the respondents diverted water of their houses towards their "havaili" and for this purposes they have dug a big pit, along with their rooms and the water so collected in the pit, is damaging their Havaily/property. With these assertions they prayed that they may be declared owners, in possession of the "Havaili" in question and the respondents may be restrained from pouring their water along with the eastern wall of their "Havaili".

3. The respondents being defendants in this suit, denied the assertions in the plaint and besides raising certain preliminary objections with regard to locus standi of the petitioners, maintainability of the suit, valuation of the suit for the purposes of the court-fee and jurisdiction, mis-joinder of the parties and approaching the Court with unclean hands, pleaded that the land beneath the havaili of the petitioners is a part of the "Shamlat Deh" left out for pond (Chhappar) which cannot be used by the petitioners for their personal use, to the exclusion of other owners of the village, sharing the "Shamlat" of the village, by filing their written statement. Controversial pleadings of the parties necessitated framing of issues and recording of evidence.

4. The respondents also filed a suit for permanent and mandatory injunctions asserting that the "Shamlat" land left out for pond (Chhappar) for common use of the owners of the village which was being used for this purpose since long, and the same has been forcibly occupied by the petitioners and by filling a part of it, they have raised two ordinary rooms to the exclusion of other owners in spite of the fact that they have no such right, title or interest and consequently constructions raised by them may be ordered to be removed by issuance of mandatory injunction and further that they may be restrained from further filling the earth in the land and from raising any more construction thereover.

5. The petitioners being defendants in this suit, denied the assertions of the respondents by filing their written statement wherein, they raised certain preliminary objections like those raised by the petitioners, in their written statement, in the suit above referred. On merits they claimed that their "Havaili" is not on "Shamlat Deh", but is situated within the Abadi Area and being in their exclusive possession, they are owners of it. In this suit, as well, on account of controversial pleadings of the parties issues were framed and evidence was recorded. It appears that during the course of recording of evidence, both these suits were consolidated vide order, dated 17-5-1994 and proceeding in the suit of the petitioners were taken. The learned trial Judge who was seized of the matter, after recording of evidence, dismissed the suit of the petitioners and decreed that of the respondents through a consolidated judgment and decrees, dated 7-1-1998.

6. The petitioners aggrieved of the decision of the trial Court, dated 7-1-1998 filed two separate appeals before the learned Additional District Judge, where one of the appellants namely Muhammad Sharif predecessor of the petitioners Nos. 2 to 9 was impleaded as appellant. The appellate Court vide judgment and decree, dated 22-3-2003 dismissed both these appeals whereafter the petitioners filed two separate revisions, as noted above, for setting aside the concurrent judgment and decrees delivered by the two Courts below. This petition was admitted to regular hearing and has now been laid for final determination. The parties are represented through their counsel.

7. The learned counsel for the petitioners submits that the trial Court vide order, dated 20-1-1992 had refused to admit report of the Assistant Commissioner, dated 9-4-1990 in evidence but in spite of it, both the Courts below have heavily relied on this report in their judgment which was neither part of the evidence nor could not have been read. He further submits that the land in the possession of the petitioners is within the "Abadi Deh", wherein, they are co-sharers but they are being deprived of it on the basis of a false claim that it is located within the shamlat land, left out of pond (chhappar). According to his submission there is absolutely no evidence showing that "Havaili" of the petitioners is located on the land farming part of shalmat deh left out for this purpose. The learned counsel for the petitioners further submits that the witnesses of the respondents P.W. Nazir son of Ramzan and P.W.2 Basher Ahmad son of Abdullah admitted that the petitioners are in possession of the "Havaili" in question for the last 25/26 years and is located within the "Abadi Deh" but in spite of it they have incorrectly been non-suited. It has also been contended on behalf of the petitioners that both the Courts below did not properly comprehend the dispute between the parties and being oblivious of their jurisdiction to have demarcation of the land passed the judgment contrary to facts.

8. The learned counsel for the respondents denied the assertions of the petitioners supported the judgments and decrees of the two Courts below and urged that the land beneath the "Havaili" of the petitioners is "Shamlat Deh", left out for pond purposes but it has incorrectly been constructed by the petitioners for their personal use but under law they could not do it. In this behalf reliance is made to para 243 of the Customary Law in the Punjab by Om Parkash Agarwal. It has also been contended on behalf of the respondents that the evidence on the file proved that the petitioners forcibly constructed their "Havaili" on a part of the pond obstructing water flowing from the village. He further referred to the evidence of the petitioners to show that there is cemented drainage system in the village for the flow of filthy water from the houses of inhabitants of the village and this water has been blocked by the construction of the petitioners.

9. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. Both the parties do no deny the nature of the land that it is a "Shamlat Deh". Claim of the petitioners is that it is within the "Abadi" and is in their possession for the last more than 20 years, whereas the respondents assert that the land in possession of the petitioners is part of "Shamlat" and was left out for pond and by forcible constructions by the petitioners, water of the village has been blocked. Assertions of the respondents get support from the plaint .of the petitioners, itself. In para 3 of the plaint the petitioners have asserted that the respondents forcibly intend to pass their drainage system from the "Havaily" in question and for this purpose they have already dug a pit along with the eastern wall of their house, this averment shows that the waste water of the village goes towards the constructions of the petitioners and it has been blocked by them, thus is bound to stay with their eastern wall. It is in common knowledge that the entire land located within the "Lal Lakeer" of abadi deh is "Shamlat Deh" wherein the proprietors of the village have according to their ownership of agricultural land. Similarly certain land which is left out from common use by the owners of the village, for reserved purposes like pasture, assembling of people, for grazing of cattle, for graveyard, for mosque and for ponds etc. Such land left out for specified purposes cannot be used by any of the owners of the village to his exclusive use or to the disadvantage of the other owners. My this view gets support from Para 243 of the Customary Law by Om Parkash Agrawal, relied by the learned counsel for the respondents. The petitioners have not tendered in evidence any documentary proof that the land in their possession was left out for residential purposes and is not a part of the pond. The petitioners, in absence of any proof in form of Revenue Record, could have proved it, by having appointment of some local commission for demarcation of the land or through some other available evidence but this course was not adopted by them. No doubt the Assistant Commissioner prepared a report, dated 9-4-1990, after site inspection and by consulting the Revenue Record and elders of the village. Site inspection by the Assistant Commissioner is admitted by all the witnesses of the petitioners. This report was not tendered in evidence and was excluded; by the trial Court vide his interim order, dated 23-1-1992 but remained a part of the record. This report cannot be solely based for judgment but it does have a persuasive value and judgments of the two Courts below persuaded by findings in this respect, have committed no illegality in non-suiting the petitioners because as observed above, stances of the respondents get support from the evidence on the file, as well as, averments in the plaint of the petitioners, itself.

10. The petitioners have not detailed the measurements or the area over which they are in possession and their witnesses have given divergent area of the land in their occupation. Both the witnesses Muhammad Hussain and Muhammad Yousaf produced the petitioners, admitted that wastewater of the village through cemented drainage system, falls in a pit on the eastern side of the house of the petitioners. It proves that the petitioners have blocked the way of the village waste water and findings of the two Courts below are not misplaced. Suit of the petitioners could not be decreed to perpetuate an illegal act of raising constructions over the land of "Shamlat" let out for pond.

11. For what has been discussed above, I am of the considered view that both the Courts below have rightly decided the respective stances of the parties, in accordance with the evidence on the file. Neither any evidence on the file has been misread or non-read nor they have committed any illegality or irregularity, in absence of which no interference in concurrent findings of facts, is permissible in revisional jurisdiction of this Court, under law. This Court cannot substitute its own viewpoint to the one taken by the Courts below which is also not shown to be arbitrary or fanciful. Both the revision petitions have no merits and are accordingly dismissed, with no order as to costs. M.I./M-159/L ???????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.