2001 PLP 486 (YLR)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑As common law points are involved in the above titled appeals and the property is the same, we propose to dispose of the same by this single judgment.

2. The brief facts giving rise to Appeal No. 121 of 2000 are that Walayat Khan, deceased, the predecessor‑in‑interest of the present appellants, filed a declaratory suit with mandatory injunction in the Court of Additional Sub‑Judge, Mirpur, on 19‑11‑1997 alleging that land, measuring 3 Kanals, 9 Marlas, comprising old Survey No.1725, (new Survey No.2441, measuring 10 Marlas and 2442 measuring 3 Kanals, 1 Marla) was purchased by him through a sale -deed dated 26‑3‑1984. He left a space measuring 1‑1/2 to 2 Marlas for dumping the rubbish etc. of his house thereon. It was alleged that Muhammad Naib respondent No. 1, allegedly constructed a wall in his land and intended to forcibly occupy the said open space. It was further alleged that the water drainage was also demolished by respondent No. 1 with a motive to forcibly occupy the said open space. Consequently, he sought the perpetual injunction against the defendants respondents in terms that they should be restrained from occupying the aforesaid open space forcibly and the use of the gate which was constructed by them.

3. The facts giving rise to Appeal No.122 of 2000 entitled above are that Walayat Khan, the predecessor‑in‑interest of the appellants, herein, brought a suit for declaration‑cum‑possession etc. before the Court of Additional Sub‑Judge, Mirpur, on 19‑11‑1997 alleging that he had purchased the land measuring 3 Kanals, 9 Marlas comprising old Survey No. 1725 (new Survey No.2442) situate in village Bannie, Tehsil Mirpur, through sale‑deed, dated 26‑3‑1984 and also obtained the possession of the same. It was further alleged that old Survey number was bifurcated in new Survey No.2441, measuring 10 Marlas and Survey No.2442, measuring 3 Kanals, 1 Marla but the respondents, with the connivance of the Revenue Department, managed false entries of possession of the land measuring 10 Marlas comprising Survey No.2441 in their favour. Thus, it was prayed that the entry of possession regarding the land measuring 10 Marlas comprising Survey No.2441 recorded in favour of defendants‑respondents Nos. 1 to 4 might be declared inoperative against his interest.

4. The aforesaid suits were pending in the trial Court, when Mr. Riaz Tabassum, the counsel for Walayat Khan, plaintiff‑deceased, made an application and statements in the Court that if the Presiding Officer of the Court got the area of the aforesaid land measured by the Revenue Authorities under his supervision and it was found that the plaintiff was in possession of the land which was purchased by him, his suits might be dismissed. The learned Additional Sub‑Judge recorded the statements of the counsel for the parties and after visiting the spot, got the disputed land measured by the Patwari who found that in fact Walayat Khan, the predecessor‑in‑'interest of the appellants was in possession of the land measuring 3 Kanals, 10 Marlas, 'one Marla in excess of his entitlement. However, the Additional Sub‑Judge found in Appeal No.121, entitle above, that the land measuring 10 Marlas comprising Survey No.2241 was in the possession of Walayat Khan but the same was incorrectly entered in the possession of Allah Ditta and others, respondents. Consequently, the learned Additional Sub‑Judge passed a decree for the correction of entry of possession so, far Survey. No.2441 was concerned but dismissed the suits regarding the rest of the reliefs in view of the statements made by the counsel for the plaintiff.

5. Walayat Khan, the predecessor‑in -interest of the appellants, first preferred appeals to the District Judge and thereafter to the High Court but the same were dismissed. It is against the aforesaid judgments and decrees of the dismissal of the suits filed by the predecessor‑in‑interest of the appellants, herein, that the present appeals have been preferred.

6. Mr. Muhammad Sharif Tariq, Advocate, the learned counsel for the appellants, has argued that the counsel for the plaintiff was not competent to make a statement on the basis of which one of the suits was dismissed in toto while the other was dismissed partly. He has further argued that at the time of spot inspection when the measurements were made, Walayat Khan, plaintiff, was not present and only Muhammad Maqsood, his son, was present at the spot who cannot be regarded to represent his father in absence of any power of attorney. The learned counsel has contended that the learned Additional Sub‑Judge has trot carried out the spot inspection as required by Rule 18 of Order XVIII of the C.P.C. He has contended that it was necessary for the learned Additional Sub‑Judge to have invited objections to the said measurements by the parties. The learned counsel has taken pains to persuade us that Patwari did not measure the area of the survey No.2441 measuring 10 Marlas and, thus, prejudice was caused to the appellants. He has further submitted that in fact the Patwari has prepared an incorrect report showing that Walayat Khan, plaintiff, was in possession of the land measuring 3 Kanals 10, Marlas, i.e., one Marla in excess of his entitlement. The learned counsel has argued that the suit filed by the predecessor- in‑interest of the appellants could not be dismissed on the statements of the counsel for the plaintiff without trying the same. He has cited following authorities in support of his contentions:‑‑ In a case reported as Muhammad Juman v. Mst. Aqlan PLD 1980 Kar. 108, it has been held that local inspection under Rule 18 of Order XVIII of C.P.C. is not a substitute for recording evidence. It was held that if the parties do not agree to be bound by the result of the spot inspection, and such an inquiry is also contrary to law, the same is not sustainable. Consequently, the revision petition was dismissed and the order of temporary injunction was maintained. In a case reported as Nur Muhammad v. Khushi Muhammad PLD 1975 Lah. 515, it has been observed that failure to sign the inspection notes by the pleaders of the parties does not add to the evidentiary value of the inspection note or its alleged conclusive nature. In a case reported as Azad Jammu and Kashmir Government v. Sardar Muhammad Azad Khan 2000 YLR 2662, it has been observed that as the power to make a statement was not expressly given to the attorney, he could not enter into compromise or make any statement against the interest of the Government. In a case reported as Khan Muhammad v. Abdul Aziz 1992 SCR 54, it was held that as the power to withdraw the appeal was not expressly given to the counsel, the withdrawal or the compromise by the counsel was ineffective and illegal. In a case reported as Ghazanfar Hussain v. Rehmat Bibi 1989 CLC 310, it has been observed that the power to withdraw a suit should not be inferred from general power given to the attorney and as no such power was given to the attorney, the act of withdrawal was without any legal authority.

7. In reply, Mr. Abdul Ghafoor Qureshi, Advocate, the learned counsel for the respondents, has controverted the arguments advanced by the learned counsel for the appellants on all scores. He has referred to the contents of the power of attorney filed by the counsel for the respondents in the trial Court in support of his contention that all the powers, including the power to compromise, were available to the counsel for the plaintiff. He has submitted that Walayat Khan, the predecessor‑in‑interest of the appellants, was alive when the appeals were filed to the District Judge and the High Court by him but he did not raise any objection to the effect that the statements made by his counsel were without his consent or competence and he was not bound by the same. Similarly, he has argued that it has never been his case that as he was not present at the time of spot inspection and only his son who was present did not represent him and, thus, he was not bound by the proceedings taken at the spot inspection which were carried out under the supervision of the Presiding Officer. The learned counsel has argued that there is nothing on the record to substantiate the contention of the learned counsel for the appellants that the proceedings of spot inspection were taken by the Patwari against the facts or he was in league with the respondents. He has argued that in view of the statement of the counsel for the predecessor‑in‑interest of the appellants, the Court got measured the land and found that the plaintiff was in possession of excess of the land to which he was entitled. The learned counsel has submitted that a party cannot be permitted to turn round and assail the result of an act merely because it is against its interests.

8. We have given due consideration to the arguments raised at the Bar. It may be stated at the very outset that it has never been the case of Walayat Khan that the statement by Mr. Riaz Tabassum, Advocate, was made without his consent. This point has been raised for the first time in this Court. The question as to whether Walyat Khan. deceased, consented to the statement made by his counsel is a question of fact which cannot be raised for the first time in this Court. Even otherwise, the perusal of the contents of the power of attorney executed in favour of Mr. Riaz Tabassum shows that he had all the powers, including that of compromise and making statement on behalf of his client. Thus, the contention of the learned counsel for the appellants that the statement made by Mr. Riaz Tabbasum was without authority or the same was made without his consent, has no substance.

9. Similarly, Walayat Khan, in his life time, did not put forth any grievance that the spot inspection was made in his absence. No condition was stated in the statement made by the counsel for Walayat Khan that the presence of his client at the time of spot inspection would be necessary for validation of the proceedings. It is on the record that Muhammad Maqsood, his son, one of the appellants herein, was present at the time of said measurement made by the Patwari under the supervision of the Additional Sub‑Judge.

10. So far as the objection of the learned counsel for the appellants that spot inspection notes are not conclusive proof of the fact is concerned, that is misplaced because in the instant case, the parties consented to abide by the result of the spot inspection notes; even according to one of the authorities submitted by the learned counsel for the appellants, referred to above, if the parties consented to the result of the spot inspection, they cannot subsequently turn round and reject the same. It may also be observed here that there is no quarrel with the proposition that the notes taken at the time of spot inspection are not a substitute for the evidence. However, that principle is attracted only where a suit is disposed of on merits after recording evidence and not in a suit in which the parties consented to disposal of a suit in view of the result of such spot inspection. In the instant case, the parties have consented that if the land which was purchased by Walayat Khan was found in his possession, his suits might be dismissed. Consequently, as the land in his possession was found, in excess of his entitlement, the suits were rightly disposed of as indicated above. The objection that measurements by the Patwari are incorrect or same were not made in a particular manner are not only without any proof but also irrelevant in view of the statements made by the counsel for Walayat Khan; there was no condition to make measurements in a certain manner. In the light of what has been stated above, finding no force in the above entitled appeals, the same are hereby dismissed with costs. H.B.T./179/SC(AJ&K) Appeals dismissed.