2005 PLP 1951 (YLR)

This civil revision petition is directed against the judgment and decree of Majlis-e-Shoora, Turbat dated 29th September, 2001, whereby; after setting aside the judgment and decree of Qazi, Turbat dated 15th June, 2001 the suit of the petitioner was dismissed.

2. Briefly stated, facts of the case are that the plaintiff filed a suit in respect of a house, boundaries whereof have been described in the plaint, on the averments that he has built the said house about 20 years back and is residing therein, but during settlement carried out in the year, 1997 the property was entered in the name of Government vide Khewat and Khatooni Nos.159/163 and Khasra No.404 was allocated to the property in dispute. In the end the plaintiff prayed for correction in mutation entries.

3. The suit was contested by respondents Nos.1 and 2; and following issues were framed out of the pleadings of parties:-- Urdu Para Page 1952

4. The plaintiff produced three witnesses and also got recorded his statement, whereas; defendants also produced three witnesses and statement of their representative was also recorded.

5. The learned Qazi, Turbat on 15th June, 2001 decreed the suit. The defendants/respondents challenged the decree before Majlis-e-Shoora, Turbat by way of filing appeal, which was eventually allowed vide impugned judgment and decree and after setting aside the judgment and decree of Qazi, Turbat the suit of plaintiff was dismissed.

6. I have heard the learned counsel for the petitioner as well as Assistant Advocate-General and have . also gone through the impugned judgment and decree. It is mainly contended by the learned counsel that at the time of settlement proper procedure was not adopted and the entries were carried out in violation of sections 44, 45 and 53 of the Land Revenue Act, 1967. He further contended that the land in dispute was not a plain land (ﺰﻤﻳﻦﺳﻔﻳﺩ), but a house was in existence over it, as such; it could not have been entered in the name of Government. The learned Qazi after appreciating the evidence on record passed a proper and appropriate decree, which was illegally set aside by. the Appellate Court.

7. On the other hand, learned Assistant Advocate-General supported the judgment and decree of Majlis-e-Shoora and contended that the evidence produced by the plaintiff in proof of his possession was contradictory. He also failed to prove his ownership with regard to land beneath.. the house. In fact at the time of carrying out settlement no house existed and it was a plain land, but after settlement the plaintiff occupied the land and illegally constructed house over it.

8. I have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the pleadings and evidence adduced during trial. It would not be out of place to mention here that during trial none of the parties placed on record the disputed mutation entry, however; on the direction of this Court, learned counsel has filed a copy of the same. Perusal of same shows that Khewat /Khatooni Nos.159/163 bearing Khasra No.404 was entered in the name of Provincial Government during the settlement and according to mutation entries Khasra No.404 is measuring about 240970 sq. ft. The plaintiff in his plaint has prayed for correction of mutation bearing Khewat/Khatooni Nos.159/163 Khasra No.404 in his favour, which means he wants to be entered as owner of 240970 sq. ft., whereas he pleaded that he is in possession of a house without giving his measurement. No evidence was produced during trial from which the exact measurement of house in dispute could be ascertained. Similarly the learned Qazi also granted declaration in respect of ownership of the house in dispute, which relief was never sought by the plaintiff. He has only claimed relief in respect of correction of mutation entry which in view of section 172 of the Land Revenue Act, 1967, could not have been granted, as matter pertaining to correction of entries exclusively falls within the jurisdiction of Revenue authorities. The learned Majlis-e-Shoora also erred in law by holding that the plaintiff has sued only in respect of superstructure of house and has not claimed any relief with regard to land beneath it. The prayer clause of the suit indicates that the plaintiff has asked for correction of entries, which naturally includes the land. From the above discussion, I have come to the conclusion that the contents of plaint are vague as it does not contain the measurement of the property for which suit has been filed and the learned Qazi granted declaratory relief without having been asked for which could not have been granted without amendment of plaint. The learned Majlis-e-Shoora also failed to adhere to these important aspects of the case. Therefore, I am inclined to set aside both the judgments/decrees; and remand the case to Qazi, Turbat with the direction to call, the plaintiff to file better statement showing exact measurement of the house in dispute and decide the suit afresh after affording opportunity to both the parties for leading further evidence, and keeping in view the observations made herein above. Parties are left to bear their own costs. H.B.T./66/Quetta Order accordingly.