2008 PLP 1433 (CLC)

MUHAMMAD ALAM KHAN, J.

This revision petition is directed against the concurrent findings of facts recorded by the learned two Courts below vide their 'judgments and decrees dated 10-5-2007 and 11-12-2006 respectively, whereby declaratory suit of the plaintiffs/petitioners against the defendants/respondents was dismissed.

2. Short facts of the case giving rise to this petition in revision are that the plaintiffs/petitioners, Mst. Jamila Begum and four others, in their capacity as the legal representatives of the deceased Umer Din son of Jewana and Muhammad Din son of Umer Din, had instituted a suit for declaration to the effect that they are owners-in-possession of property measuring 119 Kanals, 3 Marlas. detailed in the heading of the plaint, and that the .defendant/respondent No.2, i.e. Central Government, had no concern with it, as the suit property was allotted to them vide Claim No.14293 through Shumara RL-II No.46 after the issuance of Parcha Khatooni and making of entries in the column of "Kiffiyat" of Jamabandi for the year 1965-66, and thus, the defendants/respondents were bound to correct the Revenue Record accordingly. In the plaint, decree for the grant of permanent injunction for restraining the defendant No.2, i.e. the Central Government, to claim ownership of the suit property and to interfere in their possession was also sought. In the alternative, decree for possession was also prayed for.

3. The suit was hotly contested by defendants Nos.1 and 2 who submitted written statement by raising legal and factual objections which gave rise to the framing of as many as eleven issues including the relief. The learned trial Judge after recording evidence pro and contra and hearing the parties in the light thereof dismissed suit of the plaintiffs and appeal filed thereagainst also met the same fate as mentioned above. Hence this revision petition.

4. Learned counsel for the petitioners vociferously argued that the impugned judgments and decrees of both the learned lower Courts are the result of misreading and non-reading of evidence brought on record, as the petitioners have successfully proved through documentary evidence the factum of proper allotment in favour of their predecessors through a valid and verified Claim No.14293. He urged that the learned trial Judge had not discussed the issues framed in the case separately and the joint discussion thereon is in violation of the provisions contained under Order XX, rule 5, C.P.C. His stance was that the subsequent cutting of record was duly established through evidence, but both the Courts below have failed to properly appreciate the evidence on record in this regard and passed the impugned judgments and decrees in a haphazard manner.

5. I have considered the valuable arguments of the learned counsel for the petitioners and thoroughly examined the available record.

6. Perusal of the record makes it crystal clear that there are material contradictions between the testimony of plaintiffs witnesses and documentary evidence brought on record. Since the issues Nos.2, 3 and 5 to 8 were interconnected and interlinked, thus, the collective discussion thereon by the learned trial Court was not illegal as objected to by the learned counsel for the petitioners. When issues are interlinked and the same are discussed separately or jointly will make no difference unless and until prejudice is caused to the parties as held in Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR

806. Therefore, on facts, both the learned lower Courts have rightly dismissed suit of the plaintiffs and no exception could be taken thereto.

7. On legal premises, the suit of the plaintiffs has also rightly been dismissed by both the Courts below, because the Claim No.14293 in favour of the predecessors of the plaintiffs/ petitioners was unsatisfied and had not been confirmed and no proper allotment had been made in favour of the predecessors-in-interest of the petitioners.

8. Perusal of the Revenue Record annexed with the petition, i.e. Jamabandi for the year 1965/1996 of Mouza Baki, Tehsil Kulachi, District D.I. Khan, would show that in the column of ownership, Central Government is entered as owner, while Tayyab son of Dadu is entered as tenant-at-will in the column of cultivation. Similarly, in the Jamabandi for the year 1997/1998 of the same revenue estate, respondent No.2 Central Government, is recorded as owner in the column of ownership, while in the column of cultivation, possession is recorded with Sher Zaman, Rabnawaz, Muhammad Jan and Gulistan sons of Tayyab. So the predecessors-in-interest of the petitioners never remained in possession of the suit-land. Mere reference in the column of remarks of Jamabandi for the year 1965/1966 in the name of Umer Din son of Juna will not confer ownership rights on him, unless there is a proper allotment order duly supported by RL-II. So the claim was, only an unsatisfied claim.

9. There is yet another aspect of the case also that the Evacuee Laws were repealed by the Evacuee Property and Displaced Persons Laws Repeal Act, 1975 (Act No.XIV of 1975), and by virtue of section 3 of the Act (ibid), all the properties available at the time of repeal stood transferred to the Provincial Government, except the properties whether Urban or Rural attached to charitable, religious or Educational trust or Institution, available for disposal. The question involved is whether unsatisfied claim of predecessor-in-interest was pending proceedings for which protection was given under section 2(a) of the Act (ibid) and will be dealt with in accordance with the repealed laws, the answer to this question is in negative as held in the case of Member (S&R/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others PLD 2003 SC

132. The petitioners and their predecessors-in-interest kept mum for sufficiently long time and filed the declaratory suit in the year 1997, that too without first approaching the functionaries created under the repeal Act and the Rules made thereunder.

10. The two Courts below have recorded concurrent findings of fact against the petitioners resorting to the well-established principles of appreciation of evidence which cannot be disturbed by this Court in its revisional jurisdiction under section 115 of the Code of Civil Procedure.

11. Consequently, finding no merit in this revision petition, the same is dismissed in limine along with its Civil Miscellaneous No.120 of 2007, leaving the parties to bear their own costs.

12. However, before parting with this judgment, it is observed that if the petitioners do feel aggrieved from the non-allotment of the land in favour of their predecessors-in-interest, will be well within their rights to approach the Settlement Authorities if so advised in the matter. H.B.T./97/P Petition dismissed.