P L D 2004 Lahore 115 (PLP)

7. Conversely the respondents also examined D.W.1 to D:W.3 and produced in evidence the documents Exh. D.1 to Exh. D, 28; the important of these are, the orders passed by this Court in Writ Petition No. 1621 of 1983; the order of the Director-General, LDA dated 4-5-1982 (Exh.D.17), passed in the proceedings under the Martial Law Order 821 and the report of the LDA Staff, Exh. D.26, dated 20-4-1983, envisaging the demolishing of the encroachment/structure, of the respondents, and their physical dispossession from the plots in question on 20-4-1983. It may also be mentioned that, the petitioners also brought on record the report of the S.H.O. concerned, to whom, the respondents reported about their illegal dispossession on 9/10 December, 1982, but on inquiry, the incident was not confirmed and the S.H.O. refused to register the case, that no cognizable offence was committed by the petitioners; besides, the orders of the learned A.D.J..(Exh.D. 19), finally dismissing the private complaint of the respondents about the same incident as being frivolous.

8. On the basis of mainly the documentary evidence of the petitioners and also by relying Upon the statement of P.W.2, the star witness of the respondents, the learned Civil Judge came to the conclusion that no incident of dispossession on 9/10 December, 1982 as alleged by the respondents, has been proved on the record, rather the respondents were dispossessed by the LDA Authorities, when their encroachments were removed and the possession was taken over from them on 20-4-1983, in the proceedings under Martial Law Regulation

821. Resultantly, the suit, as mentioned earlier; was disallowed. However, on revision, filed by the respondents, which was accepted, the learned Additional District Judge, has set aside the decision of the learned trial Court, by reaching to the conclusion, that the petitioners had dispossessed the respondents from the disputed site in between the night of 9/10-12-1982, because there is overwhelming evidence in this behalf and that the trial Court has mainly relied upon the decision in the criminal proceedings, which was not permissible. Anyhow, the findings of the trial Court on the critical issues were reversed and the suit was decreed.

9. Learned counsel for the petitioners has argued that, the revisional Court has grossly misread and ignored the important piece of evidence on the record; the findings of the Court are perverse and cannot be sustained. 9-A. On the other hand, the learned counsel for the respondents has argued that the impugned order of the revisional Court, even if being erroneous on facts or law, cannot be interfered in the Constitutional jurisdiction, as the writ against such order is incompetent. It is also submitted that, the learned revisional Court, on, the basis of proper reading, consideration and appreciation of the evidence, has passed a reasoned order; which should not be upset. 1n support of his contentions, the learned counsel for the respondents has relied upon the following case law:-- Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970), Noor Muhammad v. Sarwar Khan and 2 others (PLD 1985 SC 131), Muhammad Sami-Ullah Khan v. Additional District Judge and others P L D 2002 Lah:56.

11. I have heard the learned counsel for the parties, Ordinarily, in view of the judgments cited by the learned counsel for the respondents, the Constitutional jurisdiction should not be exercised to interfere in the revisional orders but this is not an absolute rule, and if, the order of the revisional Court is based upon gross misreading and non-reading of the A evidence, and the reasons given are absolutely perverse, not supported by the evidence on the record, such order cannot be simply termed as "erroneous" on facts or law rather such order shall be an order without lawful authority. Because the judicial forum in the dispensation of justice, has no authority to decide the rights of the parties according to its whims, caprice, institution or imagination. In performing the essential and primary B obligation of doing justice, the Courts of law are supposed and duty bound to read, consider and conceive the evidence of the case, available on the record accurately: Though the appraisal and appreciation of such evidence and the drawing of the conclusion and giving the findings on the basis thereof, is within the domain of the Court, therefore, even if, any error in this regard is committed by the Court, only for the reason that a different conclusion could be possible, the writ shall not be issued. However, if the facts duly established and proved on the record are totally misconceived, grossly misinterpreted, misread and altogether ignored, mentioned above, it shall not be a case of erroneous finding of facts, but a finding without jurisdiction and lawful authority. Thus, in the situation, where the revisional order suffers from the above vices, the writ shall be competent, because a litigant, who is the victim of such injustice, cannot be left remediless, on the ground of incompetency of the petition. In support of the above, reference can be made to Qamar-ud-Din v. Muhammad Din and others PLD 2001 SC

518. Therefore, the objection about the maintainability of the writ petition shall be decided after examining the record and evaluating, if the judgment is bad for the principles settled above.

12. Now, in order to determine, whether the decision of the learned revisional Court is based upon misreading and non-reading etc. of the evidence, the following important omission can be recorded:- (A) P.W.2, who is an ex-official of the LDA, and star witness of the respondents, according to him and the relevant record of the LDA (Exh.PA), he visited the site on 20-7-1982, and confirms the respondents possession over the .disputed property. But in his cross-examination, he has twice made vital and categorical admissions, when he concedes that:-- This statement, which was critical for the determination, whether the respondents were dispossessed by the petitioners as alleged by them on 9/10-12-1982 or by the LDA under the Martial Law Regulation, but has been glaringly overlooked by the learned Additional District Judge. (B) P.W.3 in his examination-in-chief has vaguely stated that the petitioners dispossessed the respondents in the year 1982. Time is stated to be about 1 or 2 A.M, but no specific date or even the month has been given. In his cross-examination, he does not recall the number of he plot and also stated that:-- (C) P.W.4, though in the examination-in-chief has stated that the respondents were in possession of the suit property and were dispossessed on 9/10 December, 1982, however, in the cross-examination, he stated that the respondents were in possession of 15/20 Marlas, which land was enclosed by a boundary. The latter part of the statement is factually incorrect and contradicts the plaint of the respondents as their own case is that, they were in possession of 3 Marlas, 165 sq. ft of Plot No.43-B and only 165 sq. ft of Plot No.44-B. Anyhow, this witness has conceded that, he did not know, if the respondents, were dispossessed under the Martial Law Regulation

821. He has also conceded that he did not know the petitioners and also the date of the occurrence. Therefore, his statement simpliciter without there being any corroboration of the nature required in the cases under, section 9 of the Specific Relief Act, has no worth. P.W.5 is one of the plaintiffs himself and his statement cannot be much relied upon. Yet, the Court below has concluded "the plaintiffs have led an overwhelming evidence regarding their dispossession". (D) The copy of the plaint,' Exh.D.7, in the suit for permanent injunction filed by the respondents against the LDA, challenging the notice dated 22-2-1982, issued to them under MLO 821, has been ignored. This proves that, these were the proceedings against the respondents under the Martial Law Order, which the respondents challenged in the Court, and as conceded by their counsel, they could not succeed in the matter. This document, when read with the documents Exh.D.17 and Exh.D.26, amply proves that, the respondents were not dispossessed by the petitioners as alleged. (E) The order of the Director-General, LDA (Exh.D.17), dated 4-5-1982, passed in pursuance of the,, proceedings ,against the respondents under the Martial Law Regulation No.821, though has been referred in the judgment, but has not been considered. The respondents before the D.G, were duly represented by a counsel in the matter and the Director-General came to the conclusion:-- "I have given my anxious consideration to the available facts of the case and found that unauthorized encroachers have no right to continue their possession on the State land. The respondents have failed to show sufficient cause for the withdrawal of the aforesaid notice dated 24-3-1982. The written statement is, destitute of documentary. proof of the occupancy of the land, and is devoid of cogent reasons. It is without legal' force and merit. Hence appeal dismissed. They have been allotted Plot No.125 of Tilak Nagar Scheme measuring 5 Marlas approximately @ Rs.30,000 per Kanal as an alternate accommodation in lieu of 165 sq.ft. room falling in Plot No.44-B of Shahalam Gate, Lahore, and a sum of Rs.5,531 as compensation of structure falling in front of Plot No.43-B of Shahalam Gate, Lahore in pursuance of Civil Court's orders. In the circumstances, I order Messrs Abdul Rehman and Abdul Hamid son of Pir Bakhsh, Ghulam Hussain son of Fazal Din under clause 7, MLO No.821 to remove the illegal possession of the said land within 15 days of the issue of this order." (F) Exh.D.26 is the report dated 20-4-1983 by the staff of the LDA, who after demolishing, the superstructure of the respondents, gave the possession to the petitioners on the said date. This action was in pursuance of the proceedings under the MLO 821, and after the injunctive relief earlier granted to the respondents was withdrawn by the learned Civil Judge. The report has also been filed in Writ Petition No. 1621 of 1983 filed by the respondents before this Court and was relied upon by the Court, while disposing of the petition. In the above report, the complete picture, how the possession was taken from- the respondents i.e. with the help of the police; about the removal/demolition of the structure of the respondents, has been elaborately mentioned. These two documents, when read with the statement of P.W.2, witness of the respondents themselves, are the clear proof of the fact that, the possession of the property was not taken by the petitioner in between the night of 9/10-12-1982, but on 20-4-1983 and that too by the LDA and not by the petitioners. Unfortunately, the learned Court below has not adverted to these aspects of the matter.

13. From the admitted facts of the case, it seems most probable, that the respondents, anticipating action against them under MLO 821 and failing to get relief from the Civil Court, with an object to circumvent the action propounded a false claim of their dispossession against the private persons, under the expectation to enter the possession in this manner, even if dislodged under MLO 821.

14. There is another important aspect of the matter that in Writ Petition No. 1621 of 1983, in which, the respondents had challenged the notice of the LDA dated 17-4-1983, which was issued to them after the decision of the Director-General, LDA. The Court was pleased to appoint the State Officer vide order dated 20-4-1983. The relevant portion of the order reads as follows:-- "The learned counsel, however, concedes that in' case any encroachment is found, they will have no objection to the handing over possession of the said portion to the respondent. In this view of the matter; I direct the respondent to depute some officer, well-versed with the process of demarcation of properties; to measure the site in question, at the spot, in the presence of the petitioners and decide at the spot if there is any encroachment at all. In case, any portion is found to have been encroached upon the petitioner shall either hand over possession of the same or the respondents may demolish the portion." For the report, the case was adjourned. to 10-5-1983 when the following order was passed:-- "The Estate Officer had carried out measurements, at the spot, in pursuance to the order dated 20th April, 1983 of this Court. He, states that the demolition of the encroachment carried on earlier, was precisely in accordance with the subsequent measurement. The learned counsel for the petitioner states that as his client was not present when the measurement was made, the same is of no consequence. The- case of the respondent is that the petitioner called upon the Estate Officer but he refused to accompany him, when he carried out the measurement at the spot. Be that as it may, as it is a question of valuable property,. the parties have agreed that a fresh measurement be carried out at the spot in their presence and in case any portion owned by the petitioner has been taken away during the demarcation, the same shall be restored to him." The matter came up for hearing on '-5-1983, when the Court passed the order as under:-- The petitioners had filed this petition praying that the impugned notice issued by the respondent under para. 9 of MLO 821/81 be set aside and status quo order be maintained: Before any relief could be given to the petitioners, the disputed construction, which was thought to be an encroachment on the land of the respondent, was demolished by it. The petition in that situation had become infructuous practically."

15. The report of the Estate Officer of LDA (Exh.D.26), available on the record, which was also tiled by the LDA in the aforementioned writ petition, clearly shows that the demolition was carried out by the LDA Authorities, in pursuance of the Martial Law Regulation, and the representative/servant of the respondents present at the spot, was directed to take away the articles lying in the premises, which were accordingly removed and the demolition was carried out thereafter. This proves that the petitioners were in possession of the property till 20-4-1984 and it is, in the proceedings under MLO 82.1 that they were dispossessed.

16. It may also be stated that if, the respondents had already been dispossessed by the petitioners in between the night of 9/10-12-1982 and their structure was then demolished, it is strange that they still were desperate in seeking the injunctive relief for the protection of their possession and the property. The fact that their structure was alleged dismantled by the petitioners earlier, can be spelt out from the replication, filed by the respondents in the present suit where, in paragraph No.9, it is stated that:-- "it is denied that the area of the suit-land is intact and is in possession of the plaintiffs. The hurried completion of shops shows flit high tanded ness of the defendants. The defendants have forcibly snatched the possession of the plaintiffs and have removed valuable tricycles and other material from the site belonging to the plaintiffs with the help of Ghoondas and the police."

17. From the consideration of the documentary evidence mentioned above, which has been ignored by the learned revisional Court, I have no doubt in my mind to hold that the respondents had failed to prove their dispossession on 9/10-i2-1982, rather they were dispossessed on 20-4-1983 under the proceedings of MLO

821. The view of the learned Court below, that the respondents have overwhelming evidence, is just at imagination and is not supported by the record. The other reason that, the trial Court had relied upon the order passed in the criminal proceedings, which should not have been so done, suffice it to say, that even ignoring these proceedings, there was ample evidence on the record in the shape of documents, which when read in their proper perspective, totally contradicted the vague and unsubstantiated oral evidence of the respondents. It is settled law that, the documentary evidence, particularly evidence those documents are not disputed, must be given preference/credence over the oral testimonies, which otherwise are vague, aid also shattered in the cross-examination. This principle is squarely applicable to the case in hand. Resultantly, I find that the present petition is competent because it satisfies the criteria of tile competency of the constitutional petition against the revisional order and, therefore, the objection of the learned counsel for the respondents, is hereby repelled. In the light of above, the impugned order of the learned revisional Court cannot be sustained, which is hereby set aside with the result that, by upholding the judgment of the learned trial Court, the suit under section 9 of the Specific Relief Act, filed by the respondents stands dismissed. This petition is accordingly allowed. No order as to costs. S.A.K./M-2373/L Petition allowed.