2009 PLP 1269 (CLC)

MEHTA KAILASH NATH KOHLI, J.

This petition is directed against judgment and decree dated 11th October, 2006, passed by Majlis-e-Shoora Mekran at Turbat in Civil Appeal No.47 of 2006, whereby; appeal filed against judgment and decree dated 20th February, 2006, passed by learned Qazi Dasht at Turbat in Civil Suit No.111 of 2004 has been directed to be dismissed. Facts of the case, in brief, are that a civil suit for declaration, permanent injunction, correction of revenue entries was filed in the Court of Qazi, Turbat relating to property bearing Khewat/Khatoom No.93/97, Khasra No.293, Rest House Ward, Tehsil Turbat boundaries whereof have been provided in the suit. It has been contended that he is a permanent resident of Kech and is working in B&R Department having occupied an open plot about fifteen years ago was in possession of the same. He had placed his construction material- on the said plot when he was stopped to raise construction. He further stated that he had raised construction of wall and while the revenue entries were being recorded, he was out of Turbat and was unaware of the said record. Record reflects that said entries were recorded in the name of Government of Balochistan. Written statement was filed on behalf of Senior Member, Board of Revenue Balochistan and Executive District Officer (Revenue) Kech, wherein; allegations were denied and it was stated that the suit was barred by time. Objection with regard to non-making of Government, as party to the proceedings was also raised. It was also stated that proper court-fees has not been paid. On merits also, the case of plaintiff was contested and it was stated that entries were recorded in the year, 1997 and the suit filed on 14th December, 2004 i.e. after lapse of seven years is barred by limitation provided by law. On the basis of pleadings of parties, following issues were framed:

To substantiate the claim, plaintiff produced P.W. Asif Ali, P.W.2 Naseer Ahmed and statement of plaintiff Abdul Qayyum was recorded. From defendants' side, statements of D.W.1 Shabbir Ahmed and D.W.2 Ghulam Haider were recorded, and; representative of defendants namely Zareef Ahmed appeared and produced record relating to Khewat/Khatooni No.93/97 and Khasra No.293. Learned Qazi Dasht at Turbat vide judgment and decree dated 20th February, 2006, decreed the suit in favour of plaintiff. Against afore-mentioned judgment, appeal was filed in the Court of Majlis-e-Shoora Mekran at Turbat; learned Majlis-e-Shoora also dismissed the appeal vide judgment and decree dated 11th October, 2006. Against afore-mentioned both judgments and decrees, present petition has been filed before this Court. Mr. Amanullah Tareen, learned Assistant Advocate General has contended that (i) the learned courts below have seriously erred in not considering the fact that the respondent-plaintiff has got no locus standi, as well as, no legal right conferred upon him to file the present suit; (ii) plaintiff being trespasser, legally had no right to claim any title with regard to the plot-in-question. It was stated that suit was decided in absence of Government of Balochistan, who is necessary party to the proceedings. Mr. Kamran Murtaza, learned counsel for respondent-plaintiff firstly attacked upon the limitation of the present petition, It has been stated that the same is barred by limitation, as according to section 24 of Dastur-ul-Amal Diwani Kalat, period of sixty days is provided being special period, and thus; the petition is liable to be dismissed. On merits, it was contended that he being in possession was entitled to file the present suit. He further stated that when he came to know about the above said entries in revenue record, he had filed a suit. I have considered the arguments advanced by learned counsel for the parties and perused the record. From the perusal of record, it transpires that the appellate judgment was applied on 14th December, 2006 and copy was provided on 15th December, 2006, while petition has been filed on 9th January, 2007, after lapse of eighty seven days. The first legal question, as to whether limitation provided by section 24 of Dastur-ul-Amal Diwani Kalat will govern the proceedings or the period of limitation provided by Code of Civil Procedure, governing the provisions of law. By virtue of amendment Ordinance XXI of 1960 Central Laws (Statutory Provision Ordinance, 1960), the provisions of C.P.C. and Limitation Act and various other laws were extended. There was divergence of opinion between the Honourable Judges in different cases delivered in the year, 1962 and onward, as such; a Full Bench was constituted by the then Sindh/Balochistan High Court, and the Full Bench was pleased to hold that the provisions of Ordinance XXI of 1960 impliedly repeal to provisions of Dastur-ul-Amal Diwani Kalat to the extent of conflicting provisions. Provisions of section 24 of Dastur-ul-Amal Diwani Kalat have been interpreted by Full Bench of Sindh/Balochistan High Court in the case of Mir Said Muhammad and another v. Mir Chakar and 6 others PLD 1973 Quetta 43; relevant observations of their lordships are reproduced herein below:- "

10. My conclusion therefore, is that Dastur-ul-Amal Diwani to the extent that there are provisions on the same subject in the Code of Civil Procedure, 1908, though not identical stood repealed, and accordingly section 24 of Dastur-ul-Amal Diwani stood repealed by section 100 of the Code of Civil Procedure, 1908 being the provision contained in the C.P.C. on the same subject, notwithstanding the fact that while in the former Second Appeals would lie both on questions of fact and law in the latter they would be confined to law only." It would be not out of place to mention here that the same view was expressed by a Single Bench of this Court in the case of Province of Balochistan v. Ismail and others PLD 1983 Quetta 8, wherein; his Lordship was pleased to conclude that the provisions of section 115, C.P.C. shall have overriding effect. Coming to the question of limitation, section 115, C.P.C. was amended in the year, 1992, whereby; limitation was provided as being ninety days' in C.P.C. In view of the extension of provisions of C.P.C. in the areas where Dastur-ul-Amal Diwani Kalat applies and holding that the same stood implied the provisions of C.P.C. impliedly repealed. I am constrained to hold that the period for filing of revision is ninety days, the petition has been filed within limitation and the objection raised by counsel for respondent is repelled. Now coming to the merits of the case, it has been contended by learned Assistant Advocate-General that the respondent being trespasser is not entitled to grant of any relief. He has referred to the contents of plaint, which clearly reflect that respondent had attempted to occupy the said plot without there being any permission from any body about fifteen years back and also without any title. On the other hand, learned counsel for respondent stated that the settlement proceedings were held in the year, 1997 and occupancy of the land used did not belong to Government and thus; Government has no entitlement and title of the same. It is to note that even in the area where settlement has not been carried out, the provisions of Article 172 of the Constitution of Islamic Republic of Pakistan, 1973, the government is deemed to be the owner of the unsettled land. It is an admitted feature of the case that no permission or application was obtained from competent authority with regard" to taking over possession of the land, and thus; accordingly, respondent has no entitlement to any legal, right or character as envisaged by law. The admitted position of the fact is that, he had without the consent or permission of any authority occupied the land, was a trespasser and was not entitled to the land in question. Thus, while setting aside the impugned judgments and decrees, I hold that the learned courts below have wrongly applied the provisions of law, as well as, failed to consider the entitlement within the purview of Islamic laws, as well as, under the ordinary law. The impugned judgments and decrees passed by the courts below are directed to be set aside and the suit filed by the present respondent is also directed to be dismissed with no order as to costs. M.Y./13/Q Petition allowed.