1994 PLP 1119 (SCMR)

‑‑‑‑S. 42‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Plaintiff's ownership in land question was affirmed by all the Courts below‑‑‑Land in question, was recorded as in ownership of Mahazi Malikan viz. contiguous owners‑‑ Defendants being owners in a different estate owning land contiguous to land in question, could not be considered as owners in the estate in which they had no proprietary rights‑‑‑All the three Courts below had concurrently found that interpretation of Mahazi Malikan, could not be extended to contiguous owners of different estate‑‑‑Finding of lower Courts was perfectly reasonable and appealing to common sense‑‑‑No jurisdictional error or legal flaw in judgments of Courts below was found to warrant interference with those findings‑‑‑Leave to appeal was refused in circumstances. Saeed Baig, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record (absent) for Petitioners. Nemo for Respondents. Date of hearing: 27th June, 1993. WALI MUHAMMAD KHAN, J.‑‑‑Muhammad Azim Khan and others, petitioners herein, call in question the judgment dated 23‑5‑1992 passed by a learned Single Judge of the Peshawar High Court, Circuit Bench D.I.Khan, whereby their revision petition against the judgments of the trial Court dated 2‑7‑1989 decreeing the suit of the plaintiffs/respondents against them and that of the appellate Court dated 14‑7‑1990 dismissing their appeal, was dismissed. The facts of the case, briefly stated, are that the plaintiffs /respondents Faizullah Khan and others, plaintiffs/respondents 1 to 11, filed a suit for declaration to the effect that they alongwith respondents 4 to 53 were owners of the suit land and that defendants 1 to 3, petitioners herein, have no right or interest therein and that the order of the Ilaqa Magistrate dated 4‑7‑1979 attaching the suit property under section 146 Cr.P.C. is wrong, illegal, and ineffective on their rights; that if the plaintiffs/respondents are not held to be in possession then they are entitled to the relief of possession; and also for the issuance of ‑ permanent mandatory injunction directing the defendants/petitioners not to interfere in the suit land. According to the averments made in the plaint the suit land is situated in the estate of village Kakki, its kind "Ghair Mumkin Loora" in the possession of Irrigators and Mahazi Malikan i.e., contiguous owners and that the plaintiffs/respondents 1 to 11 being owners of the contiguous property in the estate in question towards south are in law deemed to be owners of the suit land, whereas the defendants/petitioners claiming to be owner by purchase in the estate of village Landidak through purchase have no right to claim the ownership rights therein, that the dispute arose between them over the suit land which led to the proceedings under section 145 Cr.P.C. and the learned Magistrate ultimately attached the suit land under section 146 Cr.P.C. directing the parties to approach the civil Court for the redressal of their grievances. Hence the necessity to file the suit arose. The defendants/petitioners contested the suit and in their written statement denied the claim of the plaintiffs and claimed ownership in the suit land on the basis of title as well as adverse possession for more than 12 years, besides raising certain technical objections. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide its judgment and decree dated 2‑7‑1989, decreed the suit and the appeal and revision filed by the defendants/petitioners were also dismissed vide judgments and decrees dated 14‑7‑1990 and 23‑5‑1992, respectively. Hence the instant petition for leave to appeal. We have heard Mr. Saeed Baig, Advocate for the petitioners, and have perused the record of the case. Admittedly, the suit land is part of the estate of Kakki village and the defendants/petitioners are not owners of any area in this estate. However, they are owners of the contiguous property to the suit land towards the other side (North) but their ownership land is part of a different estate, namely, Landidak Qasuria. The suit land is recorded as the ownership of Mahazi Malikan viz., contiguous owners. The question for determination before the lower Courts as well as in the instant petition is whether the owner of a different estate owning land contiguous to the suit property can be considered as owner in the estate in which they have no proprietary rights. All the lower three forums have concurrently held that the interpretation of the Mahazi Malikan could not be extended to the contiguous owners of different estate. The interpretation placed by the learned lower forums .is perfectly reasonable and appealing to commonsense. While preparing a record of rights the settlement officers are concerned only with the proprietary rights of the owners of the estate and not the persons having no rights in the estate in question. We do not find any jurisdictional error or legal flaw in the judgments of the lower three forums and decline leave to appeal. Resultantly. Finding n merit in the instant petition the same is dismissed. AA./M‑1883/S Petition dismissed.