2014 PLP 311 (CLC)

LAL JAN KHATTAK, J.

In this revision petition concurrent findings of the two courts below have been assailed by the petitioner/defendant whereby suit filed against him by the respondent for possession of land measuring about 3 marlas was decreed vide judgment and decree dated 28-7-2008 passed by the learned trial Court and confirmed by the learned appellate court vide its judgment and decree dated 2-9-2009.

2. Short facts of the case are that the respondent/plaintiff filed a suit against the petitioner to recover from his possession 3 marlas of land which was illegally occupied and possessed by him. The suit was primarily filed on the strength of demarcation report prepared by a revenue officer on 29-8-1998 whereby he pointed out in his report that the petitioner has illegally occupied 3 marlas land belonging to the respondent.

3. Defendants contested the suit by taking various pleas. One of his plea was that the Revenue Officer had no jurisdiction to entertain the demarcation application as nature of property was changed from agriculture to residential one.

4. Taking into account the case evidence brought by both the parties, the learned trial Court decreed the suit on 28-7-2008 followed by its confirmation by the learned appellate court on 2-9-2009.

5. Learned counsel for the petitioner contended that while passing the impugned judgments and decrees, both the courts below have lost sight of the fact that though the petitioner had no title to the suit-land but as he neither was a contiguous owner to the suit land nor his landed property was located adjacent to the land of the respondent. By arguing this, learned counsel for the petitioner tried to build up a case that though encroachment was found by the local commission during the demarcation proceedings carried out by revenue officer but that encroachment was not made by the petitioner in the capacity of his being an adjacent land owner rather his status may be of a trespasser to the land of the respondent for which proper procedure was to file a suit independently and not on the strength of a demarcation report. In support of his contentions, reliance was placed on 2005 MLD 814, 2006 CLC 1028 and PLD 2008 Karachi 1821.

6. While responding to this, learned counsel for the respondent defended the impugned judgments and decrees of the two courts below being based on proper appraisal of case evidence. He argued that the same are unexceptionable and the revision petition is liable to be dismissed.

7. I have heard learned counsel for the parties and have perused the relevant record of the case.

8. The revenue officer appearing in the court as P.W.-3 produced copy of the report of Commission whereby demarcation proceedings were conducted which shows that an encroachment of 3 marlas was made by the petitioner/defendant. The commission report and encroachment worked out have been exhibited as Exh.P.W.3/1 to Exh.P.W.3/2 which is Naqsha Tafawat. These exhibits indicate that the petitioner though is not an owner but is in possession of 3 marlas of land. These documents were appreciated by the two courts below and it was held that there is encroachment of 3 marlas by the petitioner on the land of respondent/ plaintiff.

9. Stance before this court, inter alia, of the petitioner was that even if any encroachment was made by him even then he cannot be dispossessed from the suit land as he is trespasser of the suit land and being so he is entitled to maintain his possession over the suit land till he is evicted therefrom in accordance with law.

10. The plea of the petitioner that being trespasser he has the protection of law is not tenable as law does not come to the rescue of a person who on the one hand, violates a law and seeks refuge behind an other for the protection of his unlawful interest. Reliance is placed on 1968 SCMR 1286 whereby leave was refused by the Supreme Court of Pakistan from a judgment of High Court in which the High Court had declined to interfere with the orders of settlement authorities on the view that a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act nor competent to move the High Court in the exercise of its constitutional jurisdiction. (Underlining supplied).

11. Similar view was expressed in another judgment by the Supreme Court of Pakistan reported in PLD 1982 Supreme Court page 308 wherein their Lordships have that "the appellant Anjuman, on other hand had no 'legitimate' right whatsoever on the land in dispute because its status, on its own admission was only that of a trespasser. It entered into the land in question without the permission of the relevant authorities and started using it for own purpose without any authorization. (Underlining supplied)

12. In view of the above cited judgments of the Hon'ble Supreme Court, this plea of counsel for the petitioner is repelled by holding that being a trespasser he is not entitled to any protection of law.

13. The case-law cited by the learned counsel for the petitioner was considered but found not relevant to the facts of the instant case.

14. Apart from the above, the petitioner has impugned concurrent findings of the two courts below in revisional jurisdiction of this court which findings cannot be reversed unless and until it is proved from record of the case that the same either are the result of non-reading or misreading of evidence which is not the case here. It was held by the honourable Supreme Court of Pakistan in PLD 1983 SC 53 that revisional powers under section 115, C.P.C. are primarily intended for correcting errors made by subordinate courts in the exercise of their jurisdiction. Also ordinarily erroneous decisions of fact are not revisable except in cases where the decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.

15. Regarding the last argument of the learned counsel for the petitioner that the land being located in city area cannot be demarcated by a revenue officer, it is held that a revenue officer is empowered to enter upon the question of demarcation even if the land is located in a city. Reliance is placed on 2011 YLR 872.

16. For the aforesaid reasons, this court is of the view that it is not a fit case where interference be made in the concurrent findings of the two courts below. Resultantly this civil revision is dismissed. JJK/571/P Petition dismissed.