2010 PLP 2759 (YLR)

CH. MUHAMMAD TARIQ, J.

This civil revision has been directed against the judgment and decree dated 2-2-2002 passed by the learned District Judge, Chakwal who dismissed the appeal and maintained the judgment and decree dated 27-6-2000 passed by Mr. Nasrullah Ranjha, Senior Civil Judge, Chakwal.

2. Brief facts of the case are that the petitioners/plaintiffs filed a suit for possession of land measuring 2 Kanals, 2 Marlas fully described in the plaint on the ground that originally the suit property was Evacuee Property which remained in possession of Government Girls High School, Chakwal since 1947 which was later on transferred by the Provincial Government in favour of Government Girls High School, Chakwal on 10-9-1965. Price of land was settled at Rs.200 per Marla which was later on deposited.

3. That after the allotment of suit land to the Government Girls High School, Chakwal, it was not available for further allotment to any body but firstly defendant No,3/respondent No.3 Malik Safdar Hussain illegally occupied the suit land and later on transferred 10 Marlas to respondent No.4 out of 2 Kanals and 2 Marlas.

4. The suit was contested by the defendants/respondents by filing written statement and out of the divergent pleadings of the parties, following issues were framed:- ISSUES (1) Whether the suit property belongs to the plaintiffs under a valid transfer order dated 10-9-1965? OPP (2) Whether the plaintiffs have paid the sale price of the suit property in favour of the department concerned on 28-6-1971? OPP (3) Whether the defendants have encroached upon the suit property as detailed in para. 6 of the plaint, if so, to what extent and effect? OPP (4) Whether this Court lacks jurisdiction to try this suit? OPD. (5) Whether the land measuring 2-Kanals 5-Marlas and 202 squre feet was valid transferred vide PTD 1964 in favour of defendant No.3? OPD 3 (6) Whether the defendants Nos.5 and 6 are respectively the donees of 14 Marlas and 10-Marlas through gift made by the defendant No.3? OPD-5-6. (7) Whether the defendant No.2 is a purchaser of land measuring 5 Marlas vide a registered sale-deed in the year 1979? OPD-2 (8) Whether the plaintiffs have go no cause of action to bring this suit? OPD (9) Whether the suit is not maintainable and barred under Order XXIII, C.P.C. because of withdrawal of earlier suits between the parties dated 6-6-1981 and 6-1-1985 as detailed in para. 4 of the written statement? OPD (10) Whether the defendants Nos.1 and 2 have constructed their houses in a part of the suit property and, therefore, the suit is under valued for the purposes of court-fee and jurisdiction? OPD (11) Whether the suit is mala fide? OPD (12) Whether the defendants Nos. 1 to 5 and 6 are in adverse possession of the suit property and it has matured into the entitlement and complete ownership? OPD (13) Whether the suit is vexatious, frivolous and mala fide and the defendants are entitled to special costs, if so, to what extent? OPD (14) Whether the suit is time-barred? OPD (15) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD (16) Whether a previous suit instituted by the plaintiffs against the defendants and withdrawn on 23-5-1989 makes the suit barred under the law, if so, its effect? OPD (17) Relief.

5. After framing of issues and recording of evidence, vide judgment and decree dated 27-6-2000 the learned trial Curt dismissed the suit. Appeal was filed which was also dismissed on 2-2-2002, hence this civil revision.

6. Learned Law Officer has argued on the basis of oral evidence produced by the parties and has also discussed the documentary evidence Exh.P-1 to Exh.P-4 and contended that respondent No.3 is an illegal occupant.

7. On the other hand, learned counsel for the respondents has vehemently opposed the civil revision and has supported the impugned judgment. Learned counsel for the respondents has relied on Exh.D-1 to Exh.D-6 and also pointed out the relevant portions of oral evidence.

8. Arguments heard. Record perused.

9. The moot point of discussion is Exh.D-6 which is a copy of permanent transfer order issued on 16-2-1962 in favour of respondent No.3 Malik Safdar Hussain. The total area of suit land is 2 Kanals 2 Marlas out of which, vide Exh.D-1, respondent No.3 has already sold a plot of land measuring 10-Marlas in favour of respondent No.5. Exp.D/6 copy of permanent transfer has never been challenged till today by the Government despite the fact that respondent No.3 claims his title on the basis of permanent transfer order issued on 16-2-1962 in his favour which is Exh.P-D1.

10. During the arguments, learned Law Officer on behalf of the petitioners has frankly admitted that the respondents are in possession of suit land where they have raised construction since the decades.

11. It is important to note here that the Government filed a previous suit in respect of the suit property which was later on withdrawn on 4-11-1984 and then on 2-7-1989, the petitioners/plaintiffs filed the instant suit.

12. Admittedly there is a dispute of title. The petitioners/plaintiffs claim the suit land as the property of Provincial Government while respondent No.3 claims his ownership over the suit property on the basis of permanent transfer order, dated 16-2-1962 which has never been challenged till today, so when the title of the petitioners is not perfect, simple suit for possession without seeking the remedy of declaration is not maintainable.

13. Admittedly the respondent No.3 is in possession of suit property since 1962 and the instant suit for possession was filed on 2-7-1989 after expiry of 26 years. The period provided under the Limitation Act for filing suit for possession is 12 years, therefore, the suit of the petitioners is also barred under the Limitation Act.

14. The impugned order was passed on 2-2-2000. The petitioners applied for certified copy of the impugned judgment on 1-4-2002 which was prepared on 9-4-2002 and the petitioner filed the instant civil revision which was returned back on 27-4-2002 to the petitioner to remove the objection. The petitioners were directed to remove objections within three days but the petitioners filed civil revision on 8-6-2002. The period for filing of civil revision under section 115, C.P.C. is 90 days while the instant civil revision has been filed with a delay of 117 days which is also barred by limitation. It is notable that the provisions of section 5 of the Limitation Act are not applicable in the matters of time-barred revision petitions and delay could not be condoned if civil revision is barred by limitation. There are also concurrent findings of facts by both the learned Courts below against the petitioners. In the circumstances, civil revision is devoid of any merit, same is dismissed. S.A.K./P-18/L Revision dismissed.