2014 PLP 19 (MLD)

MUHAMMAD NOOR MESKANZAI, J.

Instant revision petition is directed against the judgments and decrees dated 30th June, 2006 and 5th August, 2008 respectively passed by the Civil Judge, Ziarat and Additional District Judge-IV, Quetta, whereby the suit as well as appeal filed by the petitioners were dismissed.

2. Facts relevant for the disposal of instant revision petition are that the petitioners instituted a suit for Declaration and Permanent Injunction, against the respondent in the Court of Civil Judge, Ziarat. It was averred in the plaint that the plaintiffs/petitioners are owners and in possession of the property situated in Mahal Shori, Mouza Sasnik Mana, Tappa Kawas, Tehsil and District, Ziarat. The respondent/defendant intends to construct Delay Action Dam. Though, under the law, the respondent is bound to acquire the land for the purpose of construction of Dam, but without adopting due process of law, the respondent is depriving the petitioners and their tribesmen from their legal and lawful property in question.

3. The suit was contested by the respondent by way of filing written statement, whereby besides raising certain preliminary legal objections, the claim of petitioners was repudiated on merits as well.

4. The learned trial Court, out of the pleadings of parties framed following issues:-- (i) Whether the suit of plaintiff is not maintainable under the preliminary legal objections, raised by defendant in their written statements? (ii) Whether the plaintiff is entitled for the relief claimed? (iii) Relief?

5. Thereafter, the trial Court heard preliminary arguments of both the parties and eventually vide order dated 30th June, 2008 dismissed the suit. The petitioner feeling aggrieved of the order, referred to herein-above, preferred an appeal before the Additional District Judge-IV, Quetta, which too was dismissed, hence instant revision petition.

6. Learned counsel for the petitioners argued that both the impugned judgments/decrees are result of non-reading and mis-reading of the material available on record. Learned counsel stressed that the Courts below wrongly dismissed the suit as well as appeal on the ground of non-joinder and mis-joinder of parties. Learned counsel maintained that the petitioners produced old documents pertaining to revenue record, which prove that the petitioners are owners of the land where the respondent intends to construct the Dam but both the Courts below failed to take into consideration this important document. Learned counsel lastly argued that the trial Court wrongly held that description of the property has not been mentioned. According to learned counsel, the approach of the learned trial Court was not correct, because documentary evidence was produced and if the trial Court was of the view that description of the property was not sufficiently disclosed in that case, under Order VII Rule 3, C.P.C., the trial Court was under legal obligation to have directed the petitioners to provide further particulars. On the other hand, the learned Additional Advocate General strenuously opposed the petition and argued that there are concurrent findings arrived at by two Courts below, which normally cannot be disturbed by this Court. Both the Courts below after taking into consideration the entire material available on record and attending each and every aspect of the case rightly dismissed the suit as well as appeal. In fact, the petitioners have got no landed property in the area where the Dam is being constructed nor for that matter any house, dwelling or any other thing belonging to petitioner does exist there. No illegality or irregularity could be pointed out by the learned counsel for the petitioners in the judgments/decrees impugned.

7. I have considered the arguments advanced by learned counsel for the parties and perused record of the case. Perusal of the record reflects that the plaintiffs/petitioners claim to have landed property situated in Mohjal Shori, Mouza Sasnak Mana, Tappa Kawas, Tehsil and District, Ziarat. It is interesting to note that the revenue record produced by the petitioners make it crystal clear that the property in question vests in Government of Balochistan, because in the column of ownership, the name of Provincial Government has been incorporated as owner. Similarly; certain other applications have been filed with Deputy Commissioner/Collector, Ziarat, alleging therein that the property under dispute has been entered in the name of petitioners/applicants. Nevertheless, so far, neither any allotment has been made in favour of the petitioners nor the petitioners have been recorded as owners of the property. Under such circumstances, the Dam, which is the need of the day and intended to be constructed for the masses of the area and is a matter relating to the larger interest of public, cannot be stopped, merely because the petitioners claim to have some supposed right, which do not exist at all. As far as the non-provision of opportunity to lead evidence is concerned, of course, opportunity was not awarded, and rightly so because an incompetent suit must not survive. The trial Court being conscious of this proposition framed a preliminary legal issue as contemplated by Order XIV Rule 2, C.P.C., and after hearing both the parties, the trial Court rightly concluded that the suit in question is not competent and maintainable. There is no cavil with the legal proposition that the suit/proceedings, if not competent, must be buried at its very inception in order to save the precious public time and relieve the parties from the agony of trial, besides to save them from being subjected to heavy expenses of futile litigation. By holding the view, I am fortified by the dictum laid down in the judgment of apex Court reported in 2002 SCMR Page-338 (S.M Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), wherein it has been held as under:-- "Provisional transfer order does not ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself. The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected." In the light of above discussion, I am confident to hold that the suit filed by the petitioners was not competent and was rightly dismissed by both the lower forums. The petition has no force, which is accordingly dismissed. The parties are left to bear their own costs. AG/80/Bal Revision dismissed.