2019 P Cr (PLP)

ALI BAIG, J.

Through the instant civil revision petition the petitioners/plaintiffs have assailed the impugned judgment/decree dated 3.10.2017 passed by the learned District Judge Ghizer whereby the learned 1st appellate court has dismissed the civil 1st appeal of the present petitioners/plaintiffs by maintaining the judgment/decree dated 29.11.2014 passed by the learned trial court.

2. Succinctly facts leading to the filing of the instant civil revision petition are that the plaintiffs/petitioners brought a suit for declaration, permanent injunction and possession of suit land against the respondents in the trial court claiming that suit land measuring 12 kanals fully described in the head note of plaint is owned by the plaintiffs/petitioners and the respondent/defendant No 1 has illegally taken the suit land in his possession. He is reluctant to handover the possession of suit land to the plaintiffs/petitioners, whereas the plaintiffs/petitioners had sold only 3/4 kanals land adjacent to the suit land to the respondent/defendant No.1. Hence respondent No 1 may be directed to hand over possession of suit land to the plaintiffs/petitioners.

3. The defendants /respondents Nos. 1 to 10 contested the suit by way of filing of their joint written statement in the trial court wherein they have raised certain legal objections and have repudiated the averments of plaint by pleading that the suit has been sold by the plaintiffs in the year 1970 to the father of present respondent/defendant No. 1, in consideration of Rs. 1000/-and since then the suit land was in the possession of father of the respondent No. 1 and after his death the suit land was devolved to the present respondent No.1 From pleadings of the parties learned trial court framed following eleven issues:

1. Whether the suit is within limitation? OPP

2. Whether many years ago the plaintiff has irrevocably sold three kanals cultivated land with dwelling houses to the father of defendant No.1 for 1000/- and has transferred possession of the sold land which is situated adjacent to the suit land on the eastern side and is in possession of the defendant No. 1? OPP

3. Whether the plaintiff had left the suit land and his other lands in Pakora in Amanat with defendant No. 1 and the plaintiff had himself migrated to Gahkuch Khari for living with his family? OPP

4. Whether defendant No. 1 taking benefit of absence of the plaintiff has surreptitiously planted non-fruit bearing trees on half of the suit land towards its western mounted part and remaining half is consisted of khari and defendant No. 1 is bent upon taking possession of it therefore defendant No. 1 is liable to be dispossessed from the suit land and plaintiff is entitled to recover possession of the suit land? OPP

5. Whether half of the suit land is consisted of khari and River Ishkoman usually changes its course and has uprooted the trees of the plaintiff and the land is lying barren in possession of the plaintiff on which defendant No. 11 are care taker on behalf of plaintiff is taking benefit in shape of grazing, collecting firewood, sand and gravel? OPP

6. Whether the arbitration award date 26-05-2010 being self-made, ex-parte, unlawful and without consent of the plaintiff is ineffective on the rights of the plaintiff and is reliable to be cancelled? OPP

7. Whether the plaintiff has sold the suit land along with his other lands to father of defendant No. 1 forty two years back and since then the land is in use and possession of defendant No. 1? OPD

8. Whether the suit land is improved through land breaking, construction and plantation of trees by defendant No. 1 and her father? OPD

9. Whether the plaintiff has migrated to Gahkuch Khari permanently after selling his lands situated in Mouza Pakora? OPD

10. Whether the plaintiff had filed an application before village committee Pakora and Aga Khan Arbitration Panel and form both of the institution the same is dismissed for want of proof? OPD

11. Relief.

4. After framing of the aforesaid issues the parties produced their oral and documentary evidence in the learned trial court in support of their respective claims.

5. On conclusion of trial the learned trial court after hearing arguments on behalf of both the parties has dismissed the suit of the petitioners/plaintiffs vide judgment/decree dated 29.11.2014 which was challenged before the learned District Court Ghizer through civil 1st appeal. The learned 1st appellate court after hearing arguments on behalf of both the parties has dismissed the civil 1st appeal of the present petitioners/plaintiffs vide impugned judgment/decree 3.10.2017, hence, this revision petition.

6. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/decree passed by the learned 1st appellate court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the impugned judgment /decree passed by the learned 1st appellate court is a result of misreading and non-reading of evidence of the parties. The learned counsel for the petitioners further argued that the impugned judgment passed by the learned 1st appellate court is based on supposition and conjunctures as such the impugned judgment/decree passed by the learned 1st appellate court is not tenable.

7. On the other hand the learned counsel for the respondents Nos.1 to 10 supported the impugned judgment passed by the learned 1st appellate court by contending that the petitioners/plaintiffs have failed to prove their claim/case by adducing reliable evidence in the learned trial court, therefore the learned trial court as well as the 1st appellate court have rightly dismissed the suit and appeal of the present petitioners respectively. The learned counsel for the respondents Nos.1 to 10 further argued that the suit of the petitioners /plaintiffs was hopelessly time burred, therefore the learned trial court as well as the learned 1st appellate court have rightly dismissed the suit and appeal of the petitioners respectively.

8. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance.

9. Crux of suit/case of the petitioners/plaintiffs is that father of present petitioners/plaintiffs namely Sharif Khan had sold out a piece of land measuring about 3/4 kanals situated at Pakora Ishkomen adjacent to the suit land to the father of respondent/defendant No. 1 namely Masoom Khan and father of present respondent No. 1 has allegedly occupied the suit land owned by the father of present petitioners situated adjacent to land, which was sold to the father of respondent No. 1 by the father of the petitioners.

10. In order to substantiate their claim the present petitioners/ plaintiffs have produced only two oral witnesses namely Juma Gul son of Bakhti Mohmmad, Gulsamber Khan son of Ghulam, Khan besides recording of statement of their attorney namely Haider Khan. I have gone through the statements of above named PWS recorded before the learned trial court and found that both the PWS are hearsay witnesses and they have not supported the version/assertion of the petitioners. The PWs No.2 namely Gulsamber Khan in his cross-examination has admitted that he is real maternal uncle of the plaintiffs/petitioners, hence he is interested witness and his evidence is not reliable.

11. Moreover, the P.W 1 namely Juma Gul has admitted in his cross-examination that father of defendant No. 1 has passed away about 30 years ago, hence the suit of the petitioners/plaintiffs is time barred and the learned trial court has rightly dismissed the suit of the petitioners/plaintiffs, as it was asserted/pleaded in the plaint that the father of respondent/defendant No. 1 had occupied the suit land.

12. The plaintiffs/petitioners have also failed to produce any documentary evidence in the trial court to substantiate their claim, hence the petitioners/plaintiffs have miserably failed to prove their case.

13. It settled of principle of law the plaintiffs always had to succeed on the strength of their own case and not on the weakness of the defendants.

14. For what has been discussed above, I have come to conclusion that the concurrent findings of facts recorded by the learned courts below are unexceptionable and need not interference by this court through its revisional jurisdiction as the learned courts below have not committed any material irregularity and illegality. Consequently, this revision petition is dismissed and the impugned judgment/decree passed by the learned 1st appellate court is maintained. Parties are left to bear their own costs. File. SA/15/GB Petition dismissed.