2021 PLP 215 (MLD)

ROZI KHAN BARRECH, J.

This Civil Revision Petition in terms of section 115 of The Code of Civil Procedure (V 1908) (hereinafter referred as (C.P.C.) arises out of judgment dated 13.11.2013 (hereinafter "impugned judgment") passed by Additional District Judge-VI, Quetta (hereinafter "the appellate court"), whereby while accepting the appeal filed by the respondents, the judgment and decree dated 24.12.2019 passed by the learned Senior Civil Judge-III, Quetta ("trial court") in Civil Suit No. 178 of 2009 was set aside.

2. Epitomized facts necessary for adjudication of instant petition are that the petitioners filed a suit for declaration and permanent injunction before the trial court against the respondents with the averment that they are Zamindars by profession having certain properties situated at Mohal Khushkaba Janoobi, Mouza Hanna Tappa Durrani Tehsil and District Quetta, bearing Khasra Nos. 316, 328, 329, 3443, 3444, 2445 and Khewat No. 34/217, wherein they are cultivating crops and also having orchards along with aforementioned land the petitioners/plaintiffs also own 2500 to 3000 Acres unsettled lands which are also in possession of shareholders including the petitioners. The description of the properties is as under: "East. Dam. West. Godown of B&R. North. Garden. South. Kohi Murdar."

3. It is further averted in the plaint that the respondents Nos. 1 and 2 purchased some settled land in the area but they have no concern with unsettled property referred above which exclusively belong to the petitioners tribe i.e. Yasinzai Sulemanzai, but the respondents Nos. 1 and 2 started illegal interference in it, which is in peaceful possession of the petitioners. The petitioners lastly prayed in their plaint as under: "a. Declare that the defendants Nos.1 and 2 have no right to encroach over the unsettled properties belonging to the plaintiffs, described in para No.1 of the plaint. b. To restrain the defendants from interfering or selling the property in question to the other persons. c. The defendants Nos. 1 and 2 further be restrained not to interfere in the peaceful possession of the plaintiffs. d. Any other relief as may be deemed fit and appropriate in the circumstances of the case, with costs of proceedings may also be awarded in favour of the plaintiff in the interest of justice." The respondents resisted the suit being defendants. While submitting their written statement they controverted the assertions contained in the plaint. From the divergent pleadings of the contesting parties following issues were framed. "

1. Whether suit of plaintiff is not maintainable in view of legal objection "E" & "K" of written statement of defendant No.2?

2. Whether the plaintiffs are owner in possession bearing No.2500-3000 Acres of unsettled lands adjacent to properties bearing Khasra No. 316, 328, 325, 3444, 3445, Khewat No.34/217, situated at Mohal Khushkaba Janoobi, Mouza Hanna Tappa Durrani?

3. Whether the suit land owned by Government of Balochistan?

4. Whether the plaintiffs are entitled for the relief claimed for?" After framing issues, parties to the suit produced their respective evidence and on completion of the same the suit of petitioners/plaintiffs was Decreed vide judgment dated 24.12.2009 by the trial court. Being aggrieved from the judgment the respondents filed appeal before Additional District Judge-VI Quetta, and the same was accepted vide judgment dated 13.11.2013, hence this petition.

4. I have heard the learned counsel for the parties and perused the available record with their assistance.

5. The description provided by the petitioner is not only infinite but also spread towards east, west, north and south, which include unsettled properties. The total property claimed by the petitioners is 2500 to 3000 Acre, which was admitted by the petitioners that the properties are unsettled and are in the name of Government of Balochistan. Neither the petitioners nor respondents produced any documentary evidence to prove that they are factual owners of the disputed properties. After perusal of the case title it transpires that the petitioners arrayed the Member Board of Revenue and Tehsildar Sadar Quetta as defendants in their plaint. Both the courts below did not discuss the contentions of the official respondents. It is established from the record that in fact the unsettled property belonged to the Government of Balochistan. The petitioner did not array the Provincial Government through its Secretary as necessary party in the plaint. In absence of the Government either Provincial or Federal as the case may be, suit in respect of unsettled property was not maintainable, as contemplated under Article 174 of the Constitution of Islamic Republic of Pakistan 1973 and section 79 of the C.P.C. Reference in this respect is to be made to the case titled Government of Balochistan, CWPP&H Department and others v. Nawabzada Mir Tariq Khan Magsi and others 2010 SCMR 115, wherein, the Hon'ble Supreme Court of Pakistan has held as under: "A bare perusal of the leave granting order, as reproduced hereinabove, would reveal that it was mainly granted to consider as to whether the suit was instituted properly pursuant to the provisions as enumerated in Article 174 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) and section 79, C.P.C. as admittedly the Government of Balochistan was not impleaded as party through the Secretary concerned. The question which needs determination would be as to whether without impleading the Provincial Government of Balochistan, the suit instituted by the respondents can be considered a validly instituted suit in view of the provisions as enumerated in section 79, C.P.C." At Para 7 of the said judgment the Hon'ble Supreme Court further observed as under: "Due to non-compliance of the mandatory provisions as enumerated in section 79, C.P.C. and Article 174 of the Constitution of Islamic Republic of Pakistan, a suit against the functionary only is not maintainable as has been done in this case. In view of what has been discussed hereinabove, the appeal preferred on behalf of Government of Balochistan is hereby allowed and the judgment dated 21.9.2005 passed by learned Single Judge of the High Court of Balochistan in Chambers is set aside and the suit filed by the respondents being non-maintainable is also dismissed."

6. In the instant case the petitioners and respondents claimed ownership of the unsettled properties which are in the name of Government of Balochistan, but both the sides led no evidence to prove that they are the owners or entitled for the suit properties. In view of the above discussion, I am of the considered opinion that the appellate court has rightly dismissed the suit filed by the petitioners, therefore the petition being devoid of merits is hereby dismissed. SA/166/Bal. Petition dismissed.