2006 PLP 204 (CLC)

MUHAMMAD QAIM JAN KHAN, J.

This is a civil revision filed by the L.Rs. of Atta Muhammad against the judgment and decree of the trial Court dated 30-7-2002 vide which the suit of the petitioners/ A plaintiffs has been dismissed and also against the order of Appellate Court dated 30-10-2004 vide which the appeal of the petitioners/plaintiffs has been dismissed.

2. Short facts of the case are that petitioners/plaintiffs instituted a suit for declaration and possession against the respondents claiming the ownership of the disputed property measuring 57 Kanals, 14 Marlas bearing Khasras Nos.896, 897 in Mouza Dheri Tehsil and District Mardan on the basis of R.L.II dated 16-3-1960 and sale-deed dated 25-6-1990. The petitioners/plaintiffs also sought correction of the Revenue Record and cancellation of Mutations Nos.3365 attested on 15-10-1964 and 3366 attested on 25-12-1964.

3. The defendants/respondents 1 to 5 vehemently contested the suit by filing their written statement and on the divergent pleas of the respective parties, the trial Court framed almost twelve issues apart from relief. Evidence pro and contra was recorded and after hearing the respective parties and going through the record, the trial Judge vide his judgment and decree, dated 30-7-2002 dismissed the suit of the petitioners/plaintiffs with no order as to costs.

4. Dissatisfied with the said order, the L.Rs. of Atta Muhammad preferred appeal in the Court of Additional District Judge, Mardan who after hearing the respective parties and going through the record dismissed the appeal with no order as to costs vide his judgment and decree, dated 30-10-2004.

5. Aggrieved from these orders, the L.Rs. of Atta Muhammad deceased namely Mst. Musarrat etc. have preferred the instant civil revision on the grounds that the two Courts below have not appraised the evidence in its true perspective and their findings on issues Nos.3, 5 and 7 to 12 are illegal and based on misreading and non-reading of the evidence.

6. I have heard learned counsel for the petitioners, Mr. Jan Muhammad Khan, at length and also Mr. Muhammad Alam Khan, Advocate for the respondents who is present on pre-admission notice and with their help, have perused the record.

7. The petitioners claim their case and derive title from one Mst. Ghulam Fatima who sold the property to the petitioners on the strength of general power of attorney in favour of Syed Muqaddar Shah (Exh.P.W.2/1) and the sale-deed dated 20-6-1990 (Exh.P.W.2/2). It is very strange that the said Mst. Ghulam Fatima has not been produced in all these proceedings as the case is lingering on since 1990 till date. They also failed to produce the scribe and marginal witnesses of the general power of attorney Exh.P.W.2/1. Neither they have shown any reason that the executant is dead or incapable of giving evidence or her attendance cannot be procured. From the entire evidence on the record, it is nowhere proved that Mst. Ghulam Fatima had executed the alleged power of attorney Exh.P.W.2/1 in favour of Syed Muqaddar Shah instead the petitioners have produced other witness who even does not know the said Mst. Ghulam Fatima. One fact is very astonishing that according to Syed Muqaddar Shah, Mushtaq Hassan had purchased the said property from Ghulam Fatima but neither Mushtaq Hassan has been examined nor any sale consideration has been proved. It is very strange that at the last moment i.e. after fifteen years of the suit, now counsel for the petitioners wants to withdraw the suit with permission to file a fresh suit or to amend his plaint to include these persons who have not been made party for the last fifteen years. This is just to prolong the agonies of the respondents for no good ground as sufficient time has elapsed and to allow the petitioners/plaintiffs at this stage either for withdrawal of the suit or amendment of the plaint would be abuse of law and nothing but to prolong the agonies of the parties. The deed is nothing but an agreement to sell for which the plaintiffs can file suit for specific performance. The respondents are in possession of the suit property right from 1960 and their title is fully supported by the record and valid documents.

8. In this background of the case, as the revision petition has got no legal force, the same is hereby dismissed in limine. H.B.T./580/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.