P L D 2006 Quetta 18 (PLP)

MUHAMMAD NADIR KHAN, J.

The petitioners (hereinafter referred to as plaintiffs) filed the suit for declaration, injunction and correction of revenue record against the respondents (hereinafter referred to as defendants) with following prayer:- "I. that the plaintiffs are descendants and legal heirs of late fathers/fore-fathers of plaintiffs, hence stepped in their shoes, and sought the title of occupancy tenants (buzgars), in respect of lands defined in paragraph Nos. 2 and 3 of the plaint, lying in Mohal and Mouza Khushkaba Daman Sarkari, Circle Saddar, Tehsil Chaman Dsitrict Killa Abdullah; II. that the plaintiffs may be declared as owners (Malik-e-Alla) in column No.3 of Fard-e-Haqiat, as Misl-e-Haqiat, Mohal and Mouza Khushkaba Daman Sarkari, in Khate No.1/25,in place of defendant No.1, the Central Government; III. that to direct the defendant No.2 to correct and incorporate the required entries in capacity of owners under the names of plaintiffs, in revenue record i.e. in Misle-e-Haqiat of Mohal and Mouza Khushkaba Daman Sarkari, Tappa Saddar, Tehsil Chaman, District Kila Abdullah; IV. that to direct the defendants not to interfere and interrupt in the title of plaintiffs, as owners in occupation of both physically at the spot in respect of the whole of land defined and numerated in paragraphs Nos. 2 and 3 of the plaint and in respect of Revenue Record a swell permanently; V. any other relief as deemed fit and proper in the circumstances of the case, may also be awarded. ". In response to the notice issued to the defendants one Rehmatullah Patwari appeared before the trial Court, who after obtaining the copy of plaint and annexures did not turn up on the next date of hearing whereupon the defendants were proceeded ex parte vide order dated 27-4-2002. The plaintiffs in support of their claim filed affidavits of Musa Kalim, Agha Muhammad while the attorney for the plaintiffs Haji Abdul Wahid, Abdul Qayum and Slahuddin filed their joint affidavit. The trial Court on the basis of the averments made in the plaint and the affidavits filed in support of the same passed ex parte decree on 31-5-2002 to the following effect: "Therefore, in view of above mentioned facts, circumstances, affidavits of witnesses, Fard-e-Haqiat, receipts and notification entitled the plaintiffs to be incorporated as owners in column of owners in revenue record. In this regard an ex parte decree be prepared and defendants are directed that the names of plaintiffs be entered/incorporated as owners in the column of owners in revenue record." Subsequently the respondent No. 2 filed application under section 12(2), Cr.P.C. contending that before filing of the suit required notice was not issued to the defendants. Further the Federal Government was sued through defendant No.2, who cannot represent Federal Government. The application was resisted by the plaintiffs, meanwhile execution application was filed by the plaintiffs, the learned Civil Judge Chaman after hearing of the parties dismissed the execution application with following observation:-- The plaintiff being aggrieved by the dismissal of their execution application preferred appeal under section 104 read with section 47, C.P.C. The appeal was also dismissed by means of order dated 23-5-2003. Still being dissatisfied the plaintiffs filed the Revision petition in hand. Mr. Abdul Aziz Kakar, the learned counsel for the petitioners while being unable to point out any defect in both the impugned orders was also unable to state that how Federal Government was sued through District Executive Officer (Revenue) District Killa Abdullah at Chaman, when the Federal Government is the recorded owner of the property in dispute. Ch. Mumtaz Yousaf, the learned Federal counsel supporting the impugned orders submitted that plaintiffs not only filed a defective suit by non-joinder of necessary parties but compliance of section 80 of C.P.C. was also not made, therefore, in such view of the matter the proceedings so drawn from the initial stage cannot sustain and the suit is liable to be dismissed. The submissions made by the learned counsel for the parties considered, record of the case perused. It is the admitted feature of the case that the Federal Government is recorded owner of the property. The plaintiffs filed the suit and following were made defendants: (1) Central Government, through District Executive Officer (Revenue) District Killa Abdullah, at Chaman. (2) District Executive Officer (Revenue) District Killa Abdullah at Chaman. Sections 79 and 80, C.P.C. lay down the procedure in relation to suits by or against the Government. Section 79, C.P.C. states the authority to be named as plaintiff or defendant as the case may be while section 80 deals with the procedural pre-condition to the filing of the suit against the Government or public servant hence both the sections heaving bearing on the case in hand are reproduced as under:

79. Suits by or against the Government.--4 In a suit by or against the 2[Government] the authority to be named as plaintiff or defendant, as the case may be, shall be-- (a) "in the case of a suit by or against the Federal Government, [