2022 PLP 1012 (YLR)

JOHAR ALI, J.

This Civil Revision Petition under section 115, C.P.C. directed against the Judgment/ Decree dated 30-05-2018 passed by the learned District Judge Astore in C.F.A No.04/2018 whereby the learned District Judge Astore has allowed the appeal filed by appellants/plaintiffs and setting aside the judgment/decree passed by the learned trial Court dated 11.12.2017.

2. Brief facts leading to the filing of this revision petition are that the respondents/plaintiffs filed a Civil Suit bearing No. 04/2015 for declaration and recovery of possession as consequential relief and also recovery of Rs.50000/- as mesne profit against respondent/defendant on the ground that respondents/plaintiffs were owner in possession of land measuring 5 Kanal 19 Marla mentioned in the heading/schedule-A of plaint. That in the light of judgment/decree dated 26.5.2009 defendant is entitled to the extent of land measuring 3 Kanal out of landed property under Khewet No. 85, Khata No. 178, Khasra Nos. 520 and 561 situated at Chougham Bala Tehsil Shountar, but defendant is in possession of the entire land which is against law and Sharia. respondents/plaintiffs time and again demanded for the delivery of possession of excess land even through Jirga but defendant did not heed their demand. The present petitioner/defendant entered the appearance and contested the Suit on the divergent pleadings of the parties. Issues were framed and evidence led. Where after the learned trial Court dismissed the Suit vide its judgment/ decree dated 11-12-2017. Being aggrieved the respondents/plaintiffs filed an appeal which was accepted vide Judgment/Decree dated 30-05-2018.

3. Feeling aggrieved from the Judgment/Decree passed by the learned First Appellate Court dated 30-05-2018 the present petition/defendant has filed the instant Civil Revision Petition before this Court with a prayer that:-- "It is therefore, humbly prayed that by accepting this Civil Revision Petition this Honourable Court may kindly graciously be set aside the impugned Judgment/ Decree dated 30-05-2018 passed by District Judge Astore and dismissed the Suit of respondents/ plaintiffs by upholding the Judgment/Decree dated 11.12.2017 passed by the Civil Judge 1st Class Shountar Astore in Civil Suit No. 04/2015 with cost to meet the ends of justice and equity".

4. The learned counsel for the petitioner/defendant submitted that the impugned Judgment/Decree dated 30.05.2018 passed by District Judge Astore is contrary to law, facts of the case file. The learned counsel further submitted that the litigation between the parties initially stated from the filing of Civil Suit No. 01/2008 in which the petitioner/defendant filed a Suit for pre-emption against the respondent No. 1 and two others namely Ibadat Shah son of Amin and Mst. Shahrista daughter of Yar Muhammad resident of Rattu with the plea that the petitioner has preferential right to purchase the land mentioned in Civil Suit No. 01/2008. The parties patched up the matter outside the Court and the Petitioner pay the price of land to the purchaser and also pay the excess amount along with sale price and the Suit was decreed in terms of Compromise Deed and the purchasers namely Ibadat and Mst. Shahrista handed over the possession of said pre-empted land to the petitioner/defendant. The petitioner/ defendant is in possession of pre-empted land, neither the petitioner/defendant has encroached any land from the land of respondents/plaintiffs nor got the possession of pre-empted land from respondents/plaintiffs. The respondents of Civil Suit No. 01/2008 has already handed over the possession of pre-empted land to the purchaser before filing the instant suit, the petitioner got the possession of the same pre-empted land from the purchasers which was in their possession therefore, the impugned Judgment/Decree is not maintainable and liable to be set aside. The learned counsel further submitted that the petitioner/ defendant has mentioned the boundaries of pre-empted land in Civil Suit No.01/2008 and the respondents/plaintiffs had filed their written statement and never objected the boundaries of land mentioned in the previous Suit therefore, the impugned Judgment/Decree dated 30.05.2018 passed by District Judge Astore is against the law and equity as the learned First Appellate Court has completely failed to give judicious thought on the admitted issues and has drawn wrong inference which is lack of judicious thought. He further argued that the impugned Judgment/Decree dated 30-05-2018 passed by District Judge Astore is vague, perverse and fanciful in the eyes of law and equity, the Suit of the plaintiff/respondent and statements are contradictory and ambiguous, the learned 1st Appellate Court has failed to appreciate the same, therefore, the impugned Judgment/Decree is not maintainable and liable to be set aside. The learned counsel for the petitioner/ defendant contended that the impugned Judgment/Decree dated 30-05-2018 passed by District Judge Astore is misconceived of facts and law, the petitioner/defendant has fully proved the case with the support of oral as well as documentary evidence but the learned District Judge Astore did not consider the same and has drawn wrong inference which is lack of judicious thought, hence the impugned Judgment/ Decree is not maintainable and liable to be set aside. The learned counsel for the petitioner/defendant further contended that learned District Judge Astore has failed to comply Order XLI, Rule 31, C.P.C. hence the impugned Judgment Decree of learned District Judge Astore is against the law and legally not maintainable and liable to be set aside. He further submitted that the learned District Judge Astore misunderstood and misconceived the provisions of law and subject matter of parties and have arrived at wrong conclusion and passed the impugned Judgment/Decree. The learned counsel finally contended that the respondents/plaintiffs claim relief in this Suit on the footing of Civil Suit No. 01/2008 but malafidely not arrayed the necessary parties who were parties in Civil Suit No. 01/2008 i.e. Mr. Ibadat and Mst. Shahrista and one Alam was also a necessary party. The respondent/ plaintiff No. 2 is not a necessary party in presence of respondent No. 1 but the learned District Judge Astore miserably failed to give judicious thought in this crucial and important issue and passed the Judgment/Decree on flimsy grounds without arraying necessary parties, the suit of plaintiff is not competent and liable to be dismissed. The learned District Judge Astore failed to understand the controversy involved in the case and passed the impugned Judgment/Decree without considering facts and evidence and material available on record and also failed to exercise jurisdiction to appreciate the evidence available on record as well as pleadings of the parties fairly and properly hence, the impugned Judgment/Decree is not maintainable and liable to be set aside. He lastly prayed that the instant Civil Revision Petition may kindly be allowed.

5. Conversely, the learned counsel for the respondents/plaintiffs contended that petitioner/defendant has filed Suit of pre-emption i.e. Exh.P-3 against respondent / plaintiff No. 1 etc. for recovery of possession of three Kanal land in head note and Para No. 2 of the pre-emption Suit wherein defendant has clearly mentioned land measuring three Kanal only. He further pressed that since Astore is settled area, therefore, mentioning of boundaries of land in suits has not significance rather it is the requirement of law to file suits with their survey/khasra numbers. Learned counsel further argued that although the decision of Jirgah has not been marked as Exhibit due to non-availability of the original one, however defendant in his cross-examination has admitted the decision of Jirgah and he has filed suit for pre-emption on the basis of the decision of Jirgah. He further contended that the Judgment/ Decree of the learned District Judge Astore is well reasoned and in accordance with law, which did not require any interference as the Petitioner has failed to prove his case through reliable and cogent evidence therefore, the instant Revision Petition is legally not maintainable.

6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and also gone through the record with their able assistance.

7. It is an admitted fact that the litigation between the parties initially started when the present petitioner/ defendant has filed a Civil Suit No. 01/2008 for pre-emption against the present plaintiffs/respondents and two others namely Ibadat son of Amin and Mst. Shahrista daughter of Yar Muhammad residents of Rattu with the plea that the present petitioners/ defendants have preferential rights to purchase the land mentioned in Civil Suit No. 01/2008. During the pendency of that very Suit parties have patched up/settled the matter outside the Court and Compromise Decree was passed between the parties vide Judgment/Decree dated 26-05-2009. The head note of pre-emption Civil Suit No. 01/2008 of the petitioner/ defendant, statements of defendant No. 3 through Attorney and Judgment dated 26-05-2009 is reproduced as under:-- The statement of plaintiff No.3 is reproduced as under:-- R/O & AC IN THE COURT OF CIVIL JUDGE FIRST CLASS SUB DIVISION SHOUNTER ASTORE. Civil Suit No. 01/2008 Hajat Khan son of Naheebullah resident of Choogam Tehsil Shounter District Astore (Plaintiff) v. 1-Latif son of Brispot resident of Choogam Shounter. 2- Ibadat son of Amin. 3- Shahrista son of Yar resident of Rattu Shopunter District Astore. (Defendants) SUIT FOR PRE-EMPTION S. No. Dated Order Plaintiff along with counsel present. Defendant in person along with counsel present. Parties have patched up their matter out of the court that plaintiff already paid Rs. 155,000/- (One lac fifty-five thousand) to defendants Nos. 2 and

3. Defendants have no objection if suit be decreed as prayed for in the suit. PWs present but could not be recorded as parties have compromised their suit out of court through PW Shehzada Khan, Syed Shah and Mohammad Yunus. In view of above suit of plaintiff is decreed for statement of the defendants Nos. 2 and 3 record which place on file. File be consigned to record after due completion. Announced 26-05-2009 Sdxx Civil Judge 1st Class Sub-Division Shounter District Astore

8. Record reveals that the petitioner/ defendant has become owner of the Suit land on the basis of the above mentioned Compromise Judgment / Decree dated 26-5-2009 passed by the learned Civil Judge 1st Class Astore in Civil Suit No. 01/2008, Exh-P/3 Judgment/Decree Exh-P/2 statement of Respondent No. 3 through Attorney Exh-P/2 wherein categorically mentioned land measuring three Kanal. Furthermore, it is also an admitted fact that before the institution of the instant Civil Suit parties have constituted a Jirgah to resolve the dispute between the parties outside of the Court, photocopy of Jirgah decision is also annexed with the Suit but due to non-production of the original decision of the Jirgah Memberan the learned trial Court has not exhibited the same. Petitioner/ defendant has admitted this very fact in his cross-examination about the existence of the decision of Jirgah wherein specifically mentioned that land measuring three Kanal was given to Saeed Alam who had handed over the same to Ibadat in lieu of divorce to her daughter Mst. Farzana this very fact has also been admitted by the DW No. 2 namely Mst. Shabistan in her cross-examination that Jirgah has decided to give him three Kanal land. Since the petitioner/defendant is become owner of the land measuring three Kanal out of five Kanal 19 Marlas in Khewet No. 85, Khatta No.178 and Khasras Nos. 520 and 561 on the basis of the above referred Judgment/Decree dated 26-05-2009 therefore, he cannot claim excess land which is given by that very Judgment to him. Documentary evidence adduced by the parties i.e. Khewet No. 85, Khata No/178, Khasra Nos. 520 and 561 situated at Chogham Upper is also shown land measuring five Kanals 19 Marlas therefore, the possession of excess land measuring two Kanals 19 Marlas of the petitioner/defendant is illegally and without lawful authority, respondents/plaintiffs have succeeded to prove their case, on the above mention Khasra Nos. 520, 561, Khewet No.85 and Khata No.178 of the excess land.

9. The judgment/decree passed by the learned First Appellate Court is well reason, and has not committed any material illegality or irregularity to interfere by this Court in its revisionsal jurisdiction.

10. For the foregoing reasons, this Revision Petition is hereby dismissed by upholding the Judgment/ Decree dated 30-5-2018 passed by the learned District Judge Astore. Parties to bear their own cost. File be consigned to record after due completion. SA/30/GB Petition dismissed.