2010 PLP 1557 (MLD)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioners through this petition prayed for setting aside of order made on 21-8-2009 by the District Judge Khuzdar, whereby their appeal was dismissed and judgment and decree dated 13-4-2009, whereby the suit filed by the respondent/plaintiff was decreed, further prayed for dismissal of suit filed by the respondent/plaintiff against them. It is their contention that the impugned orders are passed contrary to law, facts and equity. The trial Court failed to implead one Taj Muhammad, being allottee of the quarter in-question, as necessary party as such the suit was bad for non-joinder of necessary party. The judgments are based on misreading and non-reading of evidence. Furthermore, the claim of the respondent/ plaintiff was on mala fides and on political influence, these facts were not considered by the Courts below.

2. Counsel for the parties are heard while record is perused. The respondent/plaintiff filed a suit for declaration, injunction and possession wherein it was his contention that through Order No. 3623-33 dated 29-7-2008 the D.C.O Khuzdar allotted quarter No. G-A2 situated at Civil Colony, Khuzdar in his favour. On his application process was issued on 2-9-2008 to D.S.P Khuzdar for getting vacant possession of quarter in question. The petitioners/defendants initially assured the D.S.P for handing over the possession to but subsequently they refused the same whereupon he approached the petitioners/defendants through notables of the area but they refused. He prayed for possession of quarter in-question with declaration of his title as lawful allottee of the same and injunction to the extent of non-interference in his possession. The petitioners/defendants contested the suit by way of filing their written statement. It is their contention that quarter in-question was allotted in the name of defendant No.1 Petitioner No.1 (Eid Muhammad). Thereafter the said quarter was allotted to one Taj Muhammad, their brother, by D.C.O Khuzdar through order dated 20-12-2008, which is presently in possession of said Taj Muhammad. They prayed for dismissal of suit. The trial Court after framing of issues directed the parties to produce legal allotment order issued in their favour by the competent authority. In compliance of the same respondent/plaintiff produced four witnesses and two allotment orders while the petitioners/defendants also produced one order. The trial Court after assessing the material placed before it decreed the suit in favour of the respondent/plaintiff through judgment made on 13-4-2009. The petitioners/defendants 'being aggrieved of the judgment preferred appeal, which was dismissed by the 'appellate Court through order made on 21-8-2009. Hence present petition.

3. The material placed before this Court is perused while learned counsel for the parties are heard. The respondent/plaintiff claimed himself to be lawful allottee of quarter No. G A-2 situated at Civil Colony, Khuzdar through allotment Order No. 3623-33 dated 29-7.2008 made by D.C.O Khuzdar. While on the other hand the petitioners/defendants asserted that the quarter was initially allotted in the name of Eid Muhammad (petitioner No.1) while at present it has been allotted in favour of their brother namely Taj Muhammad through order dated 20-12-2008. The petitioners in present petition mainly contended that said Taj Muhammad being lawful allottee was necessary party but was not joined as such, while the evidence produced before the trial Court was not appreciated properly by both the Courts, malafide intention, use of political influence is also alleged against the respondent/plaintiff. The petitioners placed on record the allotment order made in favour of the respondent/plaintiff and also an order of allotment issued on 20-6-2008 in favour of Taj Muhammad, which bears signatures of D.C.O. Khuzdar with, dated 20-12-2008. The perusal of impugned judgment made on 13-4-2009 by the trial Court reveals that though the parties produced evidence in support of their plea, but the trial Court also called representative of concerned office with relevant record. The learned trial Court rightly considered the allotment order dated 29-7-2008, whereby the Authority allotted quarter in-question in favour of respondent/ plaintiff and order dated 22-12-2008 whereby the allotment made in favour of said Taj Muhammad had been cancelled, which is neither challenged nor questioned by the said Taj Muhammad or even by present petitioners. It is further apparent from judgment of trial Court that the defendants/petitioners only produced an allotment order dated 20-7-2008/20-12-2008, which has already been cancelled through order dated 22-12-2008, which is exhibited as Exh.4/P-C. No other title deed is produced by the petitioners/defendants despite having opportunity. They have failed to point out piece of evidence, which is not considered by the trial as well as by the appellate Courts nor pointed out the material, which is mis-appreciated.

4. Apart from the same during course of trial and even before this Court the petitioners only asserted that quarter is illegally allotted in favour of the respondent which was later on allotted in favour of their brother Taj Muhammad who is necessary party, but strangely said Taj Muhammad never appeared before any Court for establishment of his right by contesting the order made in favour of the respondent. In addition the petitioners have not asserted existence of any right in their favour for retaining possession of quarter in-question with them. The quarter may have allotted in favour of their brother, but due to this fact no right of possession created in their favour, even in existence of the fact that said order has already been withdrawn by the authority. As per their own showing they are occupying the quarter in-question without any lawful right.

5. In view of above discussion the petitioners have failed to point out any illegality in both the orders impugned in present petition. Both trial and appellate Courts properly appreciated the evidence produced before them and came to the right conclusion, wherein no interference is required. Instant revision petition is dismissed being without merits. The orders of trial Court, dated 13-4-2009 and of appellate Court, dated 21-8-2009 are up-held. No orders as to costs. H.B.T./53/Q Petition dismissed.