2013 PLP 669 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

This judgment will dispose of two revision petitions bearing Civil Revision No.673 of 2003, filed by Mst. Sabarhi Taj and eighteen others and Civil Revision No.859 of 2003, preferred by Government of Khyber Pakhtunkhwa and three others, as both arise out of the same judgment. Petitioners of both the petitions are defendants in the main case. In Civil Revision No.673 of 2003, Mst. Sabarhi Taj etc., the petitioners by feeling themselves aggrieved of the judgment and decree of learned Zila Qazi, Dir at Timargara dated 30-5-2003, have filed instant revision petition whereby the appeal of plaintiff/respondent against the dismissal of his suit by A'ala Illaqa Qazi, Timargara, vide his judgment and decree dated 31-7-2002, was allowed. In connected Civil Revision No.859 of 2003, the Government has also questioned the above-said judgment and decree dated 30-5-2003 of the appellate Court. Initially, suit was filed in the year 1995, but was dismissed after a full-fledged trial by the Ilaqa Qazi, Samar Bagh on 2-5-2000, but the appeal of the plaintiff-respondent before Zilla Qazi, Dir at Timargara, was allowed vide judgment and decree dated 17-3-2001 and the case was remanded to the trial Court for decision afresh on merits and law by impleading all the necessary parties. Later on, after amendment, the suit of plaintiff was again dismissed, but he succeeded in getting the relief asked for, through his appeal before Zila Qazi, Dir at Timargara vide the impugned judgment and decree dated 30-5-2003. Hence, present revision petitions.

2. The main contention of the learned counsel for the defendant-petitioners was that legally, the plaintiff-respondent was bound to prove his case, as his purchase from Ex-Nawab of Jandool i.e. defendant No.12, remained in mystery and was not legally proved; that the petitioners through their categoric evidence have proved their status regarding the suit property, which is also supported by the official respondents who are petitioners in connected Civil Revision No.859 of 2003. He further argued that when title of plaintiff/ respondent was not proved on the record, then grant of decree in his favour was an unlawful exercise by the appellate Court; that the application of defendant No.12 before Land Dispute Commission was dismissed on the strength of compromise, so, present suit is barred by Principle of Res judicata. He lastly argued that the suit of plaintiff-petitioner was hopelessly time-barred. He then placed reliance on Kazim Imam Jan v. Muhammad Jawaid and 4 others (2003 CLC 200), Aziz-ur-Rehman and 10 others v. Ali Haider Shah and 4 others (1993 CLC 454) (e), Haji Khuda Bakhsh v. Muhammad Saleem Akbar Shah and others (1999 CLC 1608) (a), and Mst. Bushra Bibi and 2 others v. Muhammad Sharif and 23 others (2002 CLC 587). The learned D.A.-G. representing the petitioners of the connected Civil Revision No.859 of 2003, also argued in the same parlance and submitted that the property in possession of petitioners is not the notified property of Ex-Ruler of Dir, so the property rests in Government and with the permission of concerned authority, the petitioners herein, were permitted to occupy the land beneath their house and shop vide order dated 19-7-1975. As against that, the learned counsel for the plaintiff-respondent submitted that after settlement of dispute before the Land Commission, the properties owned by Khan of Jandool i.e. defendant No.12 and the Government were separately notified through two different notifications and the property in question is a notified property of defendant No.12, who sold the same to plaintiff/respondent and the sale in his favour has been admitted and established on the record. He while replying to the resolution of earlier dispute of Nawab Salahuddin, the defendant No.12, with petitioners before Land Dispute Commission, submitted that the same was with regard to a house and not with regard to the shop and the plaintiff did not press his claim with regard to house and his claim was only with regard to the shop, so the earlier resolution of dispute between defendant No.12 and the present petitioners have no legal effect against the rights of plaintiff/respondent. He then placed reliance on Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) (b), Military Estate Officer, Hazara Circle and another v. Ch. Manzoor Hussain and 3 others (2010 CLC 1866) (b) (c), Zameer Akram and 4 others v. Inayat (2007 CLC 1340), Mohib Ali (Mahboob Ali) v. Amanullah Khan and 3 others (1981 CLC 251) and Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PLD 1993 Peshawar 81).

3. The learned counsel for the parties and learned D.A.G. in his petition were heard and record of the case was perused.

4. Perusal of the record would reveal that the plaintiff-respondent has based his claim of title on the basis of a purchase from Khan of Jandool, the defendant No.12, whereas the claim of present petitioners is based on an executive order dated 19-7-1975 on the back of their even dated application which is nothing but merely a permissive possession by the official respondents on the application of petitioner that his original ancestral house was completely damaged and washed away in flood and the only adjacent property of the Government was available for which they were permitted to raise construction on the same vide executive order ibid. Besides, it relates to a permission for construction of house and does not refer to any kind of shop on its plot. No doubt, that defendant No.12 filed a suit/complaint against the present petitioners with regard to a house and the same was later on unconditionally withdrawn by him on account of compromise, but the present dispute is with regard to a shop which the plaintiff-respondent has claimed to have purchased from defendant No.12, so unconditional withdrawal of claim by defendant No.12 i.e. Nawab Salahuddin, would have no legal effect against the plaintiff-respondent and there would be no legal bar against him to file present suit with regard to a shop. The claim of plaintiff-respondent is supported by evidence and the title of his vendor i.e. defendant No.12 is also established through documentary and oral evidence. The copy of notification regarding the properties of Nawab Salahuddin is available as Exh.ADW 2/2, wherein at Serial No.56 "Bazaar Barrwa" in Samar Bagh is there, and the suit shop is also situated in "Bazaar Barrwa". Similarly, the site plan and the report commission of the properties in question are also available on the file as Exh.CW-1/3 and Exh.P.W.1/3 respectively. Besides the documentary evidence, the plaintiff also established his case through oral evidence and his witnesses were not cross-examined on material points. Reference in this regard can be made to Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) (b), Military Estate Officer, Hazara Circle and another v. Ch. Manzoor Hussain and 3 others (2010 CLC 1866) (b) (c), Zameer Akram and 4 others v. Inayat (2007 CLC 1340), (supra). The submission of petitioner that the suit of plaintiff-petitioner is hopelessly time-barred, would also have no force at all, as it was with regard to a shop which is a vacant plot and established title of which is with plaintiff-respondent, so under the law, he being a rightful owner would be presumed to be in possession of the vacant site as possession always goes with title of a rightful owner. Reliance in this regard can be placed on the cases of Mohib Ali (Mahboob Ali) v. Amanullah Khan and 3 others (1981 CLC 251) and Sardar Muhammad and 2 others v. Haider Zaman and 3 others (PLD 1993 Peshawar 81) (supra). As against that, the notification regarding the properties of the Government was also made, but neither the petitioners made any effort to bring the same on record, nor even the Government officials tried to bring the same on record. At present, there is nothing in favour of present petitioners except mere permissive possession, but the persons permitting the possession on behalf of Government have nothing in black and white to establish the title of Government, so the findings arrived at by the appellate Court call for no interference by this Court in exercise of its revisional jurisdiction. The case-law referred to by the learned counsel for petitioners cannot be relied upon in the circumstances. However, let it be clear that the suit is with regard to the shop and not with regard to house in possession of petitioners of Civil Revision No. 637 of 2003. So, the decision in favour of respondent No.1 is with regard to shop alone. In view of the above discussion, both the revision petitions, being meritless, are hereby dismissed as such. However, the parties are left to bear their own costs. MH/11/P Revision dismissed.