1989 PLP 469 (MLD)

Qazi Khurshid Alam for Petitioner. Asif Saeed Khan Khosa for Respondents. Date of hearing: 12th February, 1989. This judgment shall also dispose of Civil Revision No. 629/D of 1988.

2. The facts giving rise to these two revision petitions in brief are as follow.

3. Property house No. 265 having an area of 1 kanal 19 marlas was transferred to Imam Bakhsh deceased predecessor‑in‑interest of respondents and house bearing No. 262 was transferred by the Settlement Department to one Abdul Latif son of Karam Din from whom the petitioner purchased the same in the year 1975. According to the petitioner he constructed five rooms over this property by spending Rs. 30,

000. Imam Bakhsh deceased filed a suit against the petitioner alleging that an area of 10 marlas out of house No. 265 had been trespassed and illegally occupied by the petitioner. The petitioner filed a suit for declaration that he was in possession of house No. 262 purchased by him and Imam Bakhsh was attempting to deprive him of that area. Both the suits were contested by the parties. The learned trial Court after recording evidence came to the conclusion that the area of house No. 265 of Imam Bakhsh was 1 kanal and 19 marlas is against the plea of the petitioner that it was in fact 1 kanal 10 marlas. The learned trial Court through judgment and decree dated 12‑6‑1983 decreed 'the suit of Imam Bakhsh whereas the suit filed by the petitioner was dismissed. Two appeals were filed by the petitioner before the learned lower appellate Court which were dismissed through impugned judgment and decree dated 30‑1‑1988. Both these judgments and decrees have been challenged in these revision petitions by the petitioner.

4. Learned counsel for the petitioner mainly argued that except evidence establishing area under house No. 265 being 1 kanal 19 marlas and under house No. 262 of the petitioner being 9 marlas, there was no evidence that the property in dispute which was alleged to be part of house No. 265 was in fact part of that house and was not a part of house No. 262 owned by the petitioner. According to learned counsel, the two Courts below after having held that area of house No. 265 was 1 kanal 19 marlas and not 1 kanal 10 marlas as pleaded by the petitioner, assumed that the petitioner, had encroached upon an area of 9 marlas of house No. 265 in which there is no independent evidence as such the impugned judgments and decrees are based not only on misreading, misconstruction of evidence but also on no evidence.

5. I have examined the entire documentary and oral evidence produced by the parties. The certified copies of which have been appended with the revision petitions. From Ext. P1 which is copy of survey register for the year 1966, it is apparent that house No. 265 had an area of 1 Kanal 19 Marlas. Ext. P7 is the allotment order passed by D.S.C. in respect of house No. 265 in favour of Imam Bakhsh deceased. All the P.Ws. produced by Imam Bakhsh stated that area of house No. 265 owned by Imam Bakhsh was about two Kanals. The documentary evidence such as Ext. D7 which is copy of allotment order of house No. 262 in favour of Abdul Latif shows that house No. 262 had an area of 9 marlas. There is no concrete evidence that the area now in dispute was part of house No. 265 and encroached upon by the petitioner and that this was not part of his house

262. The learned trial Court m order to ascertain the correct position, appointed Malik Mumtaz Hussain, as local commissioner to submit his report. This local commissioner went at the spot and made a report in which he stated that no definite opinion could be given by him as Patwan who was present at the spot had not brought Mussawi and Shajra Kashatwar in order to find out the fixed permanent points from where the measurement was to be done. His report was produced in evidence as D.W. 5/2 and the site plan prepared by him which was appended with the report was produced as D.W. 5/3. He was also examined as D.W. 5 and deposed that no definite opinion could be given. The two Courts below on the bass that area of house No. 265 was 1 kanal 19 marlas proceeded to pass decree in favour of respondents on the assumption that the area in. dispute was part of that house transferred to Imam Bakhsh deceased and was encroached upon. No steps were taken by the learned trial Court to direct the local commissioner to record definite opinion after measuring the two properties with the help of Patwari who should have been directed to bring Musawai and Shajra Kashatwar in order to find out fixed permanent points from where the measurement could be made. Unless there was evidence showing as to where house No. 262 was situated and the area of house No. 265 was also ascertained, it could not have been possibly held that whether the petitioner had encroached upon any area of house No. 265 or that the area in dispute is portion of it. The judgments and decrees of both the Courts below thus have been passed on misreading and misconstruction of evidence and in fact are based on no evidence regarding alleged encroachment by the petitioner. The Courts below have committed material irregularity and illegality m passing the impugned judgments and decrees. Both the revision petitions succeed. The impugned judgments and decrees are set aside. Both the suits are remanded to the learned trial Court for disposal afresh. The learned trial Court shall get both the properties demarcated to ascertain their exact location and thereafter it shall decide whether the petitioner had encroached upon any area of house No. 265 and if so to what extent and pass order accordingly. The parties may adduce such further evidence on this point as they like. The parties are left to bear their own costs. H.B.T./B.‑114/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.