2015 PLP 1613 (CLC)

WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).

This review petition has been filed against order dated 26-6-2013 passed by this court, whereby revision petition of the present petitioner was dismissed.

2. Arguments heard and record-perused.

3. Learned counsel for the petitioner contended that there was sanctioned path in khasra No.25/16/1 and 28 while Ghair Mumkin Khal in khasra No.25/26 and 27 of Chak No.131/WB, Tehsil Mailsi since year, 1962-63. The said path was being used as approach to the Masjid and for other inhabitants of the area. The respondents demolished the said path by encroaching the said land. The petitioner filed application for removing the encroachment and to restore the path to learned District Collector, Vehari. The said application was accepted and the Tehsildar, Mailsi was directed vide order dated 17-8-2011 to restore the path and remove encroachment made by the respondents. Thereafter, the respondents filed a civil suit and also filed an appeal before learned Additional Commissioner. Later on, the suit was dismissed as withdrawn. However, learned Additional Commissioner accepted appeal of the respondents without any lawful justification. The impugned order is against the law and facts of the case which is liable to be set aside. The said path was being used since long which leads to the Mosque and was also being used and utilized by other inhabitants of the locality, which should not be demolished. But, learned lower court passed the impugned order without consultation of the relevant revenue record. Through the impugned order, a great injustice was inflicted upon the petitioner. On the force of above arguments, acceptance of review petition was prayed for.

4. Learned counsel for the respondents contended that the respondents are owner of land comprising khasra Nos.25/1 to 28 measuring 200-kanals and are in cultivating possession of the same since 1948. It was further argued that neither the path remained in khasra Nos.25/16/1 and 28 nor there was any need for the same. The disputed path was wrongly written in the Register Haqdaran Zamin as the land in question was owned and possessed by the respondents. They neither gave any consent nor received any compensation of the land for establishment of the said path. On coming to know about the retrieval of land for restoration of the disputed path, the respondents filed an appeal before learned Additional Commissioner, which was rightly accepted after hearing contention of the parties and consultation of record. Thereafter, the revision petition of the present petitioners was also dismissed in accordance with law. The instant review petition has been filed against the concurrent orders passed by learned lower courts. The scope of review is very limited which could only be invoked in specific circumstances. The petitioners did not raise any new ground as contention of the petitioners was well taken by this Hon'ble court during proceedings of the revision petition. On the force of above arguments, dismissal of review petition was prayed for.

5. I have considered the arguments of the learned counsel for the parties and perused the record available in the case file including the impugned orders. Brief of the matter is that learned Additional District Collector vide order dated 17-8-2011 directed the Revenue Officer Halqa for restoration of path running through khasra No.25/16/1, 28, measuring 11-marlas, situated in Chak No.131/WB, Tehsil Mailsi, District Vehari. The operative para of the order is as under:

6. Feeling aggrieved by the order, respondents preferred an appeal before learned Additional Commissioner (Revenue), Multan Division, which was accepted vide order dated 6-7-2012. The operative part of the order is reproduced as under:

"I have given due consideration to the arguments advanced by learned counsel for both the parties and perused the record of lower court. I have also examined the record produced by Patwari Halqa. The appellants are owners of land comprising Khasra Nos.25/1 to 28 measuring 200 Kanals and there is no approved path in the revenue record. The Additional District Collector, Vehari has no jurisdiction to restore a path for the interest of an individual from the private land without consent of the land owners. He issued the impugned order dated 17-8-2011 without consulting the revenue record and without any competency on the basis of which the Naib Tehsildar, Mailsi vide order dated 25-8-2011 directed the Girdawar Halqa for the restoration of path and vide order dated 13-9-2011 requested the SHO PS Mitroo for police help. Therefore, the appeal is accepted and the impugned orders dated 17-8-2011, 25-8-2011 and 13-9-2011 being illegal, null and void are set-aside."

7. Feeling aggrieved by the order, the present petitioners filed a revision petition before this court, which was dismissed vide order dated 26-6-2013. The concluding para of the order is as under:

From the above, it is again verified that the impugned land, apparently used as path is in the ownership of respondents. So, it has rightly been held by Additional Commissioner (Revenue), Multan, in his order dated 6-7-2012, that the same cannot be sanctioned as path without the consent of the owners/ respondents. Hence, the revision petition is dismissed and impugned order dated 6-7-2012, of learned Additional Commissioner (Revenue), Multan, is upheld.

8. During arguments, learned counsel for the petitioner relied upon 2007 CLC 693, which reads as under:

"Plaintiff had alleged that defendants were intending to close two ways by erecting iron gates on the road which ways have been in the use of plaintiffs for more than 50 years

Claim of plaintiffs was that defendants had no right to close said two ways under the law of easement, irrespective of ownership of land in question and plaintiffs and other residents of the area concerned were entitled to use said ways

Plaintiffs had filed application for grant of interim relief till final decision of the suit

Validity

Fact that disputed area was being used by plaintiffs and other residents of area as outlet for considerable long time, was recorded in the shape of Gazette Notification and that fact had also been proved by other evidence on record

Balance of convenience was greatly on the side of plaintiffs

Contention of defendants was that application filed by plaintiffs for grant of interim injunction could not be granted because prayer of the suit was the same, was repelled as by that application, plaintiff had sought interim relief

Rights of the parties were to be decided after recording of evidence

Public way and road could not be blocked/restricted

Public way and road could not be blocked / restricted

Application was allowed to the extent that respondent was restrained from blocking passages/road in question and if there was any restriction of installation made by defendant, that would be removed, and that position would be maintained till the disposal of suit."

9. This law is not attracted in circumstances of this case, as the path claimed by the petitioner is not an approved path as mentioned in the operative part of the order dated 6-7-2012, of learned Additional Commissioner (Revenue), Multan. Further the report dated 5-10-2011 submitted by Local Commission before Civil Court in case titled Hashim Ali v. Province of Punjab and others also affirms this factual position.

10. From the arguments of learned counsel for the petitioner, it also appeared that no new ground has been raised in the review petition nor any element of misreading/non-reading of the facts has been indicated. Section 8 of Punjab Board of Revenue Act, 1957 is very clear about such situation, which reads as under:

1. Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.

2. Every application for a review of a decree or order under subsection (1) shall be made within ninety days from the date of that decree or order.

11. Further, the law framed by August Supreme Court of Pakistan as reported in PLD 1997 Supreme Court 865 is very much clear on the issue, which reads as under:

"Review of judgment or order by the Supreme Court

Scope

Principles

Review proceedings cannot partake re-hearing of a decided case

if the Court has taken a conscious and a deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible

Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced

Ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings

Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case."

12. In Circumstances, where no new ground has been taken nor any element of misreading/non-reading of the facts is involved, the review is not competent under the relevant provision of law.

13. In the light of above, review petition is dismissed being devoid of merits and order dated 26-6-2013, passed by this court, is upheld. HBT/19/Rev. Petition dismissed.