P L D 1995 Supreme Court 645 (PLP)

FAZAL ILAHI KHAN, J.--The case of the petitioners as set up in the plaint in brief was that they were the owners of "Duftari" land, described by boundaries, when in the year 1961 the then Ruler of Swat State took possession of it and constructed a tubewell on a part of it for Mingora Town Committee and also constructed some shops thereunder the water tank. It is alleged that in lieu of compensation the shops in question were handed over to the petitioners. That the petitioners leased out the same to various tenants on monthly rent basis. That on 26-1-1978 one of their tenants informed the petitioners of a notice for vacation, served on them by the Municipal Committee, which fact amounted to denial of the title of the petitioners in the suit shops. They, therefore, filed the suit for declaration that they were the sole owners in possession of these shops through their tenants. This suit was resisted by the respondents Municipal Committee and 2 others. After framing of issues and recording of evidence the learned trial Judge decreed the plaintiffs' suit on 14-12-1985 and appeal against the same filed by the respondents was dismissed by the learned District Judge, Swat on 7-7-1986. Dissatisfied with the judgments and decrees of the Courts below respondents challenged the same before the learned High Court in Civil Revision No.705 of 1986, which was accepted vide judgment dated 6-7-1994, setting aside the judgments and decrees of the Courts below, dismissed the petitioners/plaintiffs' suit.

2. It was contended by the learned counsel for the petitioners that the learned High Court acted illegally in setting aside the concurrent findings of the 2 Courts below in exercise of its limited ,jurisdiction available to it under section 115 of C.P.C. It was further contended that it stood established front the record that the suit property wits Dultari land which was acquire try the Ex-Ruler of Swat without payment of any consideration and that after the construction of the shops under the water-tank these shops were handed over to the petitioners who in turn leased out the same to various tenants. That it is also established from the record that till the notice of ejectment served on the tenants of shops, the respondents had never asserted their ownership over the suit shops. Their conduct, therefore, further supported the petitioners' claim that the shops in question were handed over to the petitioners by way of compensation on acquisition of their land for public purpose. Reference was also made to the respondents' evidence to show that they never exercised their right of ownership over the-suit shops till the notice of ejectment served for the first time on the occupants.

3. We have been led by the learned counsel for the petitioners through the pleadings and evidence of the parties, but failed to convince us that the 2 Courts below in giving their decision in favour of the petitioners have properly appraised the evidence. The case of the petitioner as set up in the plaint is that the property in dispute was Duftari land arid that the Duftari owners effected private partition in which the suit property fell to their share. That the Ex- Ruler of Swat had every power to take possession of Duftari land for- public purpose without payment of any compensation had it was in exercise of such power that land was acquired for public purpose i.e. construction of tubewell which was installed. Petitioners in their evidence also admitted that no document was executed or writing was made regarding their assertion that they were delivered possession of the shops as a gesture of good will and to compensate them. These questions were not dealt with by the Courts below rather the petitioners' assertions were accepted without any cogent evidence on record in support thereof. As the property in suit was acquired by the Ex-Ruler of Swat in the year 1961 for public purpose for construction of tubewell for Municipal Committee, Mingora the property vested in the Government per order dated 15-9-1972 issued in pursuance of Clause (a) of Paragraph 3 of the Devolution (Martial Law Regulation No.122), and on the basis of the recommendation of the Dir-Swat Land Disputes Enquiry Commission. The contention of the learned counsel that the water tank is in the air which belongs to the Municipal Committee and is used for public purposes while the land underneath is still in the ownership of the petitioners is misconceived and is against their own evidence as it is their own case that the land was acquired and on it the water tank was constructed. Haji Usman Ghani has admitted that tubewell was constructed during the State days and that Ex-Ruler Swat was entitled to acquire the land for public purposes. It was also admitted as correct in the cross -examination that "Walee" did not use to pay any compensation for - land so acquired and that after such acquisition the land vested in the State. In view of the above we rind no infirmity in the judgment of the learned High Court in setting aside the concurrent findings of the Courts below which were based on misreading and non-reading of the material evidence. Accordingly lave to appeal in the case is refused. A.A./U-66/S Leave refused.