1995 PLP 1069 (SCMR)

(b) Settlement Scheme No. I‑‑‑ ‑‑‑‑Paras. 6 & 7‑‑‑Constitution of Pakistan (1973), Art. 185‑‑‑Dispute relating to identification of evacuee property‑‑‑Plaintiffs suit claiming property in question, to be in his ownership due to allotment was decreed by Courts below‑‑‑Validity‑‑Evidence on record for resolving controversy regarding identity of respective properties which were transferred to the parties was neither legal nor sufficient and convincing and for doing complete justice it was required of parties and Courts below to have made efforts to locate said properties at the spot in the light of established identities and not through oral evidence only but with the help of relevant record and by appointment of Commissioner for determining main issues between the parties‑‑‑Judgments and decrees of Courts below were set aside and case was remanded to Trial Court for affording fresh opportunity to parties to lead their evidence and for decision afresh in accordance with law. Taki Ahmed Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellants. S. Abul Aasim Jafri, Advocate‑on‑Record for Respondent. Date of hearing: 26th June, 1994. FAZAL ILAHI KHAN, J.‑‑‑The plaintiffs/respondent's suit for possession of. Shops Nos. 3/868 and 3/869 situated in the limits of Municipal Committee, Narowal against the appellants decreed in his favour, was maintained in appeal and revision by the learned District Judge and the learned High Court, respectively. Leave to appeal was granted by this Court vide order, dated 26th May, 1992 as follows:‑‑ "Leave to appeal is granted as we find that in physically identifying the disputed portion of the property, evidence has not been legally appraised in the manner acceptable at judicial trial. The two properties are said to belong to two different evacuees in two separate wards of the urban area having no connection whatsoever. But from the material on record it appears that the disputed portion is structurally a part of the same building or adjacent to it. It was a case where in terms of para. 13 of the High Court Rules and Orders, Volume I, Chapter 1‑G, a plan of the property should have been got admitted or local commission appointed for identifying the property. Leave to appeal is granted to reappraise the evidence." Plaintiff in. his suit brought in the Court of Civil Judge, Narowal alleged that he purchased the suit shops numbering 3/868 and 3/869, further described to consist of 3 rooms, Diori and a courtyard measuring 30! x 50! also described by boundaries given therein on Zafarwal Road, in open auction and P.T.O. was issued in his favour on 20th October, 1960. That these shops were in possession of one Banday Hassan and on his vacation were illegally occupied by the appellants. The suit was contested by the appellants' predecessor‑in- interest on the ground that property in dispute factually is a house bearing No.9 which was transferred in his favour by the Settlement Authorities and P.T.O. dated 29‑8‑1960 in this respect has been issued in his favour and he has been in possession of the same since before its transfer. After recording evidence of the parties the learned trial Court decreed the plaintiff's suit which has been maintained in appeal and revision mainly on the statement of one Muhammad Aslam (P.W. 1) Clerk in the Settlement Department and the oral evidence of the other witnesses which was to the effect that the house in question and both the properties are situated in different wards. However, a site plan placed on file from the Municipal Record indicates that the property in possession of the appellants consists of three rooms, a Diori and a courtyard which the plaintiff claimed to be the shops in dispute. These rooms are claimed by the plaintiff to be the property bearing Nos. 3/868 and 3/869 though these are shown in the site plan referred to above as rooms of the house situated on Zafarwal Road. Without going into detailed scrutiny of the evidence on record we have formed our view to remand the case. It is sufficient to state that the evidence on record for resolving the controversy regarding the identity of both these properties having been transferred in favour of the parties is neither legal nor sufficient and convincing. For doing complete justice it was required of the parties to the suit as well as the Courts below to have made efforts to locate those two properties at the spot in the light of established identities not through oral evidence only but with the help of relevant record of the Settlement Department and that of Municipal Committee and by appointment of the Commissioner necessary for the determining of the main issues between the parties. This appeal is, therefore, allowed, the judgments and decrees of the Courts below are set aside and the case is remanded to the trial Court for affording fresh opportunity to the parties to lead their evidence and for decision afresh in the light of observation made above and in the order granting leave to appeal reproduced above. No costs. A.A./M/2192/S ‑ Case remanded.