2020 PLP 1325 (CLC)

ABDUL HAMEED BALOCH, J.

Through this judgment I intend to dispose of above revision petition filed by the petitioners against the judgment and decree (impugned judgment and decree) dated 20th March, 2015 of Civil Judge, Zhob (trial Court), whereby the suit was dismissed and against the order dated 17th September, 2015, (impugned order), whereby the appeal filed by the petitioner before District Judge, Zhob (appellate court), was also dismissed.

2. The facts of the case were that the petitioners filed a suit for declaration, mandatory and permanent injunction before Civil Judge, Zhob in respect of boundaries of land, description whereof mentioned in para-3 of the plaint (the suit land).

3. The suit was contested by the respondents on legal as well as factual grounds. The respondents/defendants Nos.1 to 7 filed written statement, whereas respondent/defendant No. 10 filed separate written statement. While respondents/defendants Nos.8 to 23 filed their separate written statement.

4. After receiving pleadings of the parties the learned trial court framed 12 issues on 5th December, 2012. Whereafter, the parties to the lis produced their respective evidence.

5. On conclusion of the proceedings the learned trial court heard arguments of the parties and thereafter; vide impugned judgment and decree dismissed the suit of the petitioners/ plaintiffs. Being aggrieved of the impugned judgment and decree the petitioners/ plaintiffs filed appeal before District Judge, Zhob, but the same was also met with the same fate vide impugned order, hence this revision petition.

6. Learned counsel for the petitioners/ plaintiffs contended that the suit land Kasha-bal Tore is ancestral property of petitioners/ plaintiffs. The Assistant Commissioner, Zhob constituted a Jirga in order to resolve the controversy. The Jirga did give their Award in 1951, whereby only pasturing was allowed to respondents as they have no right over the suit land. The respondents/defendants without any right constructed pucca rooms. Although the suit land is unsettled, but it is in possession of petitioners/ plaintiffs since forefathers. Reliance is placed on unreported judgment of this Court dated 5th September, 2018 titled as Rahim Khan and others v. Station Commander and others, passed in Civil Miscellaneous Appeal No. 18 of 2009.

7. The learned counsel for respondents Nos. 1 to 13 stated that the petitioners have no locus standi to file suit. The suit of the petitioners was not maintainable under Section 42 of the Specific Relief Act, without any legal right/character the suit for declaration was not maintainable. The petitioners claimed that the suit land belongs to Khuda-e-Dad Khail Kahol (sub clan of Mandokhail tribe). The suit land is their ancestral property. Neither all the members of their tribe were arrayed as party, nor permission was sought for filing the suit in representative capacity. The concurrent findings of both the courts below carry weight.

8. The respondents Nos. 14 to 19 relied on the arguments of learned counsel for respondents Nos. 1 to

13. Further, stated that the petitioners have no right or locus standi. The requirement of law is that incompetent suit must be buried from inception. The statements of the plaintiffs' witnesses are silent about ownership of the suit land.

9. Learned Assistant Advocate General supported the judgments of courts below, further stated that the suit land is barren and unsettled land which belonged to Government of Balochistan.

10. Heard the learned counsel for the parties and perused the available record. The petitioners filed a plaint stating therein that the suit land is ancestral property of Khuda-e-Dad Khail Kahol (sub clan of Mandokhail tribe). The record transpires that all the members of the referred to sub clan of Mandokhail tribe were not arrayed as party. The law provides that where numerous persons have same interest in a suit land, one or more persons with permission can file a representative suit. It would be appropriate to reproduce Order I Rule 8 Civil Procedure Code (C.P.C.): "Order I, Rule 8, C.P.C. One person may sue or defend on behalf of all in same interest.

(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (2) Any person on whose behalf or for whose benefit a suit is instituted or defended under sub-rule (1) may apply to the Court to be made a party to such suit."

11. The condition mentioned for filing representative suit in above referred Rule is that the persons interested in the suit must be numerous and must have same interest in the suit and secondly permission could be sought from the court. The record transpires that the petitioners' witnesses admitted in their depositions that the petitioners sub clan consist of 45/50 persons. The petitioners did not seek permission from the court for filing representative suit. Order I, Rule 8, C.P.C. deals with representative suit. Where persons are numerous, having common interest in the suit with permission of the court one or more persons may sue or defend on behalf of all to protect interest of interested party. The plaintiffs must mention the names of persons in the list who have interest in the suit. The perusal of record reveals that the petitioners/ plaintiffs neither mentioned the names of interested persons, nor the list attached with the plaint. The concept of referred to Rule is that every person having interest in the suit land must be heard. The procedure is mandatory and could not be ignored. Reliance is placed on Mian Said Hakim v. Abdar Khan, 2017 YLR

107. The relevant portion is reproduced: "

8. The Contents of plaint and record available before the Court are silent about any application moved by the plaintiffs under Order I, Rule 8, C.P.C. with representative suit. It is pertinent to note that the plaintiffs have not applied to the Court for passing an order regarding permission to sue on behalf of the persons, so interested. No public advertisement or personal service has been effected of all the persons through notice shown in the list annexed with the plaint in respect of plaintiffs as well as defendants/respondents. It is mandatory to issue notice and serve the persons mentioned in the list through public advertisement and without specific order to this effect by the Court in a suit filed in the representative capacity, the person would, not be considered as party to suit. The persons mentioned in the list, interested in the suit are presumed have not been served, which is fatal to the case, permission of Court has to be obtained in representative suit, in case of failure, the same cannot be termed as representative suit. The permission has to be applied by the plaintiffs suing on behalf of the others and in the instant case neither any application has been moved nor permission granted by the Court and, as such, format of the suit being not in line with law is fatal to the case. In case of representative suit essential conditions mentioned therein are to be fulfilled, which are persons in the suit must be numerous, they must be interested in the suit, permission of Court under Order I, Rule 8, C.P.C. shall be obtained, and notice must be given to persons whom it is sought to represent and, as such, the suit of plaintiffs could not be termed as representative suit. Wisdom has been drawn from the case of "Raja Ali Shan v. Messrs Essem Hotels Limited and others" (2007 SCMR 741) .."

12. The learned counsel contended that dispute arose between father of petitioners and defendant No.1. The Assistant Commissioner had constituted a Jirga of the notables. The notables passed decision/Award in 1951. The contention of learned counsel has force. The witnesses of the petitioners admitted that settlement of land was conducted in 1968, astonishing why the petitioners did not mutate the referred land in their names: It transpires that the petitioners/ plaintiffs were present at the time of final attestation. The petitioners/ plaintiffs agitated their grievance after more than forty (40) years of settlement. The petitioners/ plaintiffs failed to explain why the suit land was not mutated in their names.

13. The scope of an appeal is wider than a revision. The revisional jurisdiction is supervisory jurisdiction. High Court in exercise of powers under Section 115, C.P.C. can only interfere when courts below have failed to exercise their jurisdiction or exceed their jurisdiction or committed gross material irregularity or illegality. The revisional jurisdiction cannot be exercised to interfere even when the findings are erroneous or wrong. The High Court in exercising revisional jurisdiction cannot disturb concurrent findings arrived at by the courts below in proper exercise of jurisdiction vested in the court upon proper appreciation of evidence on the record. The concurrent findings could only be disturbed by this court if it is found to be perverse, fanciful. Reliance is placed on case law Tabassum Bibi v. Abdul Rashid Khan, 1999 CLC 1216. It was held that: "

13. Be that as it may, section 115, Civil Procedure Code, applies to cases, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous; wrong or perverse, the decision might be either on a question of fact or law, unless the B decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been committed." The referred to unreported judgment relied by the petitioners has no relevancy in the case in hand. In view of the above discussion I found no illegality and material irregularity in the concurrent findings of the courts below, as such the impugned judgment and decree dated 20th March, 2015 of Civil Judge, Zhob and the order dated 17th September, 2015, of District Judge, Zhob are upheld and the petition being devoid of merit stands dismissed with no order as to costs. ZC/166/Bal. Revision dismissed.