P L D 2005 Lahore 401 (PLP)

Date of hearing: 16th March, 2005. The brief facts out of which the present revision petition arise are that the respondents filed a suit for permanent injunction against the petitioners in the Court of Civil Judge 1st Class, Gujranwala on 27‑2‑1995. The contents of the plaint reveal that the respondent/plaintiff No.4 was minor and she was being represented by the next friend Alamgir her real brother. According to the averments of the plaint, respondents/plaintiffs were owners of land. measuring 4 Kanals situated in Khewat. No.736/739/883 Khasra No.362 and Khewat No.737/739 Khatuni No.885 Khasra No.351 in village Khokharke, Tehsil and District Gujranwala. The contents of the plaint further show that respondents/plaintiffs are in possession of the property in question by constructing two rooms and a boundary wall where they have got installed an electric meter as well. The petitioners/defendants had no concern with this property. The petitioner/defendant No.2 submitted an application to the Collector Gujranwala, who marked the petition for inquiry to the Assistant Commissioner Gujranwala, who appointed Tehsildar Gujranwala to submit report, who made report in favour of the respondents/plaintiffs vide report dated 9‑7‑1994. The petitioner/ defendant No.2 failed to act upon his designs, he filed suit for permanent injunction in the Civil Court, Gujranwala, which remained pending in the Court as well. An injunction order was also issued by the Civil Court and, the proceedings were conducted and the case was fixed on 27‑2‑1995 for hearing but the petitioner/defendant No.2 with malafide intention without notice to the respondents/plaintiffs withdrew the suit on 26‑2‑1995. The contents of the plaint further reveal that the petitioners/defendants with malafide intention to secure physical possession with the connivance of the Collector Gujranwala by force and to demolish the superstructure whereas the petitioners/defendants have no concern with the property in question but the petitioners/defendants were going to interfere in their peaceful possession b`‑ illegal manner and they were going to demolish the superstructure The respondents; plaintiffs filed written statement, controverted the allegations leveled in the plaint. Out of the pleadings of the parties, the learned Trial Court framed the following issues:‑‑ (1) Whether the plaintiffs have no cause of action to bring this suit? OPD (2) Whether the plaintiffs have no locus standi to bring this suit ?OPD (3) Whether the plaintiffs have not come to the Court with clean hands, if so, its effect ? OPD (4) Whether the suit is false, frivolous and fictitious, if so, its effect? OPD (5) Whether the suit is not maintainable in its present form ? OPD (6) Whether the plaintiffs have not made up the necessary Court‑fee, if so, its effect ? OPD (7) Whether the suit is bad for mis‑joinder and non‑joinder of necessary parties ?OPD (8) Whether the defendants are entitled to special costs a/s 35‑A CPC, if so, its effect ? OPD (9) Whether, the plaintiffs were owners in possession of the disputed property, if so, whether they were entitled to get a decree for permanent injunction as prayed for against the defendants ? ,OPP (10) Relief. The learned Trial Court decreed the suit vide judgment and decree dated 27‑2‑1996. The petitioners/defendants being aggrieved preferred an appeal in the Court of Addl. District Judge, Gujranwala, who dismissed the same vide impugned judgment and decree dated 3‑2‑2000. The petitioners/defendants being aggrieved filed this revision petition.

2. The learned counsel of the petitioners submits that judgments of both the Courts below are result of misreading and non‑reading of the record. He further submits that findings of the Courts below on issue No.9 are based on the report of the local commission, who has submitted his report without notice to the Collector, who is party in the proceedings as is admitted by him in the cross‑examination, therefore, judgments of both the Courts below are result of misreading and non reading of the, record. He further submits that report of the local commission does not reveal that he has given his. report after verifying the revenue record, therefore, report of, the local commission is not in accordance with law. He further submits that land in question has been acquired by the respondents and the petitioners/defendants have filed C.M. No.3/2000 under Order XLI, Rule 17, C.P.C. to allow the petitioners to produce additional evidence based on documents. The learned counsel of the petitioners wants to produce following documentary evidence, which are necessary in the interest of justice to decide the controversy between the parties:‑‑ (1) Certified copy of Notification No.1795‑UDD‑55‑1573 dated 14‑3‑1956. (2) Certified copy of Register Haqdaran/Entry Register for the year 1996. (3) Certified copy of Register Haqdaran for the year 1994‑95 He further urges that the respondents/plaintiffs have received the compensation, therefore, respondents have no lawful authority to base claim over the property in question.

3. The learned counsel for the respondents submits that it was in the knowledge of the petitioners/defendants that the land was acquired by the petitioners under the provisions of 'the Land Acquisition Act, 1894 but the petitioners did not submit these documents and relied by the petitioners /defendants in their written statement as is evident from the contents of the written statement. He further submits that this Court has no jurisdiction to allow the application at this stage while exercising power under section 115 C.P.C. In support of his contention, he relied upon Mst. Jewan Bibi and 2 others v. Inayat Masih (1996 SCMR 1430) and Sh. Muhammad Ikhlas and others v. Muhammad Ismail (PLD 1963 SC 466). He further submits that the petitioners/defendants have not raised any objection against the report of the local commission before the trial Court as well as before the First Appellate Court, therefore, both the Courts below were justified to give findings against the petitioners/defendants on Issue No.9, which is in consonance with Order XXVI, Rule 10, C.P.C. In support of his contention, he relied upon Akbar Ali and others v. Province of Punjab and others (1990 CLC 718) and National Bank of Pakistan, Lahore v. Messrs Ch. Auto and Tools Agency (PLD 2001 Lahore 135). He further submits that respondents/plaintiffs are owners of the property in question as is evident from Ex. P.6 and Ex. P.7 which are at pages 35 and 41 of the file according to which the property in question is in the ownership of the respondents/plaintiffs in .the year 1990/91. He further urges that petitioner No.2 filed a suit for declaration against the respondents/plaintiffs, which was withdrawn by petitioner No.2 subsequently as is evident from Ex.P.10, which is at page

42. He further submits that both the Courts below have given findings of fact against the petitioners/defendants, therefore, revision petition is liable to be dismissed and this, Court has very limited jurisdiction to interfere in the concurrent findings of fact at the time of deciding the revision petition unless and until the petitioners' counsel points out any infirmity or illegality committed by the Courts below or findings of the Courts below are result of misreading and non‑reading of the record, which has not been pointed out by the learned counsel of the petitioners.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. I intend to decide C.M.No.3/2000 first to resolve the controversy between the parties. The Notification dated 05‑10‑1956 reveals that the land situated in Khasra No.362/2 measuring 5‑Kanals 9‑Marlas and land situated in Khasra No.351/2 measuring 5‑Kanals was acquired, compensation was also received by the respondents as is evident from the documents attached by the petitioners through C.M.No.3/2000, which is to the following effect:‑‑ urdu 407 The other documents also show that the land in question is owned by the Satellite Town. In case the documents be read with the pleadings of the parties then these documents are necessary for just decision and case cannot be, decided without perusal of these documents, which are material and necessary, therefore, the application is allowed as per law laid down by the Honourable Supreme Court in Mst. Fazal Jahan's case (PLD 1992 SC 811). It is settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts, as per law laid down by the Honourable Supreme Court in Trustees of Port of Karachi v. Muhammad Saleem (1994 SCMR 2213). The judgments relied by the learned counsel of the respondents are distinguished on facts and law in terms of the dictum laid down by the Honourable Supreme Court in Mst. Fazal Jahan's case supra. It is also admitted fact that both the Courts below, have concurrently decided the case against the petitioners on the basis of the report of the local commission. It is admitted fact that the petitioners have not raised any objection before the trial Court as well as before the First Appellate Court. It is settled principle of law that question of law can be, raised at any stage as per law laid down by the Honourable Supreme Court in Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690). The petitioners have taken a specific stand on the basis of the record before the Courts below that local commission has tendered his report without perusing the revenue record as well as without notice to petitioner No. 1/Collector who was party in the proceedings as is evident from the contents of the plaint, therefore, judgments relied by the counsel of the respondents are distinguished on facts and law as the Courts, below have not considered this aspect of the case at all, therefore, judgments of both the Courts below are based on surmises and conjectures. The Judge must base all his findings on the evidence before him not on mere surmise and conjectures. The dividing line between the conjectures and inference is very thin and often very difficult to draw and, therefore, one should be careful to see that only those facts are discussed which can be found in I the evidence on record as per law laid down by the Karachi High Court in Muhammad Ibrahim's case (1991 MLD 90). It is the duty and obligation of the Presiding Officer to resolve the controversy between the parties after judicial application of mind. This fact alone is sufficient that both the Courts below have decided the case without judicial application of mind, which is not in consonance with the law laid down by the Honourable Supreme Court in the following judgments: ‑‑ Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others (PLD 1970 S.C. 158) Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 S C 173) It is settled principle of law that where the Courts below have decided the controversy between the parties in violation of the parameters G prescribed by the Honourable Supreme Court then it is termed as material irregularity as per law laid down by the Honourable Supreme Court in the following judgments:‑‑ Kanwal Nain's case (PLD 1983 SC 53) Shaukat Nawaz's case (1988 SCMR 851)

6. In view of what has been discussed above, the application as well as the main revision petition are accepted. The judgment and decree I of the First Appellate Court is set aside meaning thereby the appeal of the, petitioners shall be deemed to be pending adjudication before the H First Appellate Court and the case is remanded to the First Appellate Court to decide the case afresh after considering the effect of the documentary evidence after providing opportunity to the respondents/ plaintiffs to the extent of documents. He shall record the evidence of the parties to this extent either himself or send the same to the trial Court for recording the evidence to the extent of the documents and thereafter decide the case himself within one year. Parties are directed to appear before the District Judge concerned on 19‑4‑2005, who is directed either to hear the appeal himself or entrust the same to the Addl. District Judge concerned, who is directed to decide the case afresh in terms of the aforesaid direction without being influenced by the observation of this Court in accordance with law. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be finalized within the prescribed period. In case any of the parties or its counsel fails to cooperate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against the said party. M.H./P‑67/L Case remanded.