2006 PLP 1504 (CLC)

JAWWAD S. KHAWAJA, J.

The District Council (respondent No.3) has not appeared despite service. It is, therefore, proceeded against ex parte.

2. The petitioners/defendants impugn the concurrent decrees of the learned trial Court dated 13-11-1989 and of the learned appellate Court, dated 11-1-1996, whereby a suit filed by the plaintiff/respondent No.1 seeking permanent injunction has been decreed.

3. The case of the plaintiff was that he had become owner of the suit property under Settlement Scheme No.VIl. This fact was disputed by the petitioners, who asserted that they had, with the concurrence of the residents of the village, transferred the suit property along with other property to the Provincial Health Department through a sale-deed dated 2-9-1984. They also set up the defence that the respondent/plaintiff had no title in the land and had no locus standi to file the suit.

4. Issues Nos.l and 2, on which both sides confined their arguments, were framed by the learned trial Court in the following terms:-- "(1) Whether the plaintiff is owner in possession of the suit property as mentioned in para. No.3 of the plaint? OPP (2) Whether the sale of the suit property by defendants Nos.3 and 4 in favour of the defendants Nos.1 and 2 by way of registered sale-deed, dated 2-9-1984 is. against fact, law and as such the registered sale-deed is liable to be cancelled? OPP" 5." In the light of the evidence and the case set up in the plaint, it was for the respondent/plaintiff to show that he had become owner of the suit property under Settlement Scheme No.VII. He did not produce evidence to show that the property was evacuee property. Secondly, the respondent/plaintiff, namely, Muhammad Iqbal himself appeared as P.W.2 and deposed that the suit-land was comprised in an open plot on which the respondent had tethered his cattle. This also shows that Settlement Scheme No. VII had no application in this case because the said scheme relates to Katcha/Pacca Evacuee houses and not to open plots. It follows, therefore, that the respondent/plaintiff was unable to prove that the property in dispute was covered by Settlement Scheme No.VII.

6. In additional to the above, it may be noted that only one witness, namely Inayatullah (P.W.1) was produced by the respondent/plaintiff in support of his case. He deposed that the respondent/plaintiff was in occupation of the suit property since 1947. The testimony of P.W. was recorded on 17-3-1987. The learned Court made a note on file that the witness did not appear to be more than 30 years old. This would mean that the witness was born some time around t

957. Even if some margin for error is given as to the observation of the learned trial Court, it would be evident that P.W. 1 was not qualified to testify as to facts which took place in 1947. P.W.1 is, in any event, very closely related to the respondent/plaintiff. This is a further factor which undermines his. testimony, which is otherwise not worthy of credit for the reasons noted above.

7. Learned counsel for the respondent/plaintiff argued that he was entitled to assail the sale-deed dated 2-9-1984. This submission, however, is misconceived because, first of all, it was for the respondent to prove his title in the suit property in order to show that he had locus standi to challenge the sale-deed. For reasons discussed above, he has not, been able to do so.

8. The learned courts below have not taken note of the above circumstances and have proceeded on erroneous premises based on documents which have no probative value in proving the title to the suit-land asserted by the respondent/plaintiff. The impugned decrees, therefore, are not legally sustainable and are set aside. As a result, the suit of the respondent/plaintiff is dismissed with costs throughout. F.B./S-89/L???????????????????????????????????????????????????????????????????????????????????????? Petition allowed.