2005 PLP 484 (YLR)

Muhammad Ashraf Chaudhary for Appellant. Muhammad Ramzan Dutt for Respondents. Date of hearing: 7th October, 2004. KHAWAJA MUHAMMAD SAEED, ACTG. C.J.,‑‑‑This appeal, with the leave of the Court, has been directed against the judgment and decree passed by the High Court on 26‑12‑2003, whereby while allowing the appeal of respondent, the judgment and decree of the District Judge dated 25‑9‑2003 was set aside and the judgment and decree passed by the Senior Civil Judge, Mirpur on 31‑7‑2002 was restored.

2. The relevant facts precisely stated are that the appellant brought a suit for perpetual injunction in the Court of Senior Civil Judge, Mirpur on 26‑10‑1998 in respect of land measuring 8 Kanals, out of total land measuring 234 Kanals, 2 Marlas, situate in village Dheri Phalli, Tehsil and District Mirpur. In his suit he pleaded that the aforesaid portion of the land is under his possession since long. He has constructed a water tank and boundary walls over the suit land and also dug a well in the same. He also claimed to have planted about 200 trees over it. The respondents were intending to interfere in his possession, therefore, he craved that a decree for perpetual injunction be passed in his favour against the defendants restraining them from trespassing into the aforesaid land. The plaintiff‑appellant, along with the plaint, filed copy of Khasra Girdawari pertaining to year 1997 (Rabbi) wherein his possession was recorded on 8 Kanals of land out of total land measuring 234 A Kanals, 2 Marlas, on the basis of Mutation No.

157. The defendants denied his possession over the suit land and alleged that the entries of Khasra Girdawari are frivolous. They also challenged the jurisdiction of the trial Court and sought dismissal of the suit on the ground that the same was not maintainable in the present form and further that the plaintiff‑appellant has got no cause of action to institute such a suit. In the light of pleadings of the parties seven issues, including the one for relief; were framed by the trial Court. The parties later on led their evidence for and against these issues. At the end of the trial, the Senior Civil Judge, Mirpur vide his judgment and decree dated July 31, 2002, dismissed the suit of the plaintiff‑appellant. The plaintiff‑appellant challenged the legality of the same through an appeal before the District Judge, Mirpur on 1‑8‑2002 who allowed the appeal and set aside the aforesaid judgment and decree of the Senior Civil Judge, Mirpur vide his judgment and decree dated 25‑9‑2003. Muhammad Zaman, the contesting respondent No. 1, filed an appeal against the aforesaid judgment and decree of the District Judge before the High Court on 15‑10‑2003. The learned Judge in the High Court allowed the appeal and set aside the judgment and decree of the District Judge vide judgment under challenge dated 26‑12‑2003.

3. Mr. Muhammad Ashraf Chaudhary, the learned counsel for the appellant, argued that his client was in possession of Khalsa land since long. During his long possession he effected improvements in the suit land by planting trees besides constructing boundary walls and digging a well in the suit land. Therefore, his possession was rightly recorded vide Mutation No.157 in his favour in the relevant Khasra Girdawari. It was further argued by him that his client through an application moved before the District Judge invited the respondents to state on oath that he (plaintiff‑appellant) was not in possession of land. He (plaintiff appellant) had openly given this assurance that if the contesting respondent who is his opponent shall state on oath that the plaintiff was not in possession of suit land, then his appeal be dismissed. The contesting respondent declined to do so which shows that he impliedly admitted the long possession of his client over the suit land. In these circumstances the District Judge rightly passed the favourable judgment and decree in favour of plaintiff appellant which was set aside by the learned Judge in the High Court without any lawful justification. He craved that the judgment under challenge passed by the High Court be set aside and that the judgment and decree passed by the District Judge, Mirpur be restored.

4. Conversely, Mr. Muhammad Ramzan Dutt, the learned counsel for the respondents, argued that the suit was not maintainable. The plaintiff‑appellant had arrayed AJ&K Government in the line of defendants and also claimed a decree for perpetual injunction against the Government without seeking declaration from the competent Court and without including the material fact that how the Government has lost its exclusive ownership rights in the suit land. According to the learned counsel a person having no title in the immovable property cannot claim decree of perpetual injunction against the true owner. Therefore, the suit of the plaintiff‑appellant in the present form was not maintainable. He further argued that admittedly the plaintiff‑appellant had claimed his exclusive possession over the portion of land measuring 8 Kanals out of total land measuring 234 Kanals, 2 Marlas. On account of this reason he was bound to give full description of immovable property to the extent of specific portion of land which he claimed was in his exclusive possession and the same should have been supported by the sketch of the land so that in case of decree passed in his favour, the same could have been conveniently executed, whereas no such description was given by the plaintiff‑appellant in his plaint. The High Court, therefore, keeping in view Order VII, rule 3, C.P.C. was justified to hold that the suit filed by the plaintiff‑appellant in the present form was not maintainable. It was further argued that the plaintiff got the entry recorded in the Revenue Record on the basis of Mutation No.1447 against which an appeal was filed by the contesting respondent before the Commissioner, Mirpur Division who allowed the same and set aside the mutation and entry recorded on the basis of same in the Revenue Record. The plaintiff‑appellant invoked the jurisdiction of the Member Board of Revenue but the learned Member Board of Revenue also maintained the findings recorded by the Commissioner, Mirpur Division. The entry of possession which was relied upon by the learned District Judge was therefore, not in existence. Therefore, the judgment of the District Judge was bad in law which was rightly set aside by the High Court.

5. We have considered the respective arguments of the learned counsel for the parties and with their assistance have gone through the record of the case. The perusal of Khasra Girdawari pertaining to year 1997 (Rabbi) is indicative of the fact that the land measuring 234 Kanals, 2 Marlas, is recorded in Revenue Record as "Ghair Mumkin Kassi". The possession of the plaintiff‑appellant was recorded on the basis of Mutation No. 157 on 8 Kanals of land but even in this vague entry it is not mentioned that on what side of the total land this portion of land is located. It is rightly argued by the learned counsel for the respondents that this mutation was set aside by the Commissioner, Mirpur Division and his decision was maintained by the learned Member Board of Revenue whose order is on the record as Exh.2‑B. No doubt the plaintiff‑appellant had moved an application before the District Judge inviting the contesting respondent, Muhammad Zaman, to state on oath that the well was not dug by him and the gate was not constructed by him and had given his consent that if the statement to this effect is made by respondent on Holy Quran, his appeal may be dismissed but the respondent refused to take oath. However, he stated that a wall was constructed and a well was dug with his permission. It may be stated that the respondent is not the owner of the land. Had he admitted the claim of plaintiff appellant, even then a decree of perpetual injunction could not be granted to him. The parties may have right of easement over the Khalsa land but they have no right to divide it between themselves and claim decree of perpetual injunction against each other in the Civil Courts. It is not the case of the plaintiff‑appellant that the Government had given 8 Kanals of land to him or granted sanction of the disputed land to him and that the respondents were intending to dispossess him from the same. In these circumstances even a consent decree for perpetual injunction could not be granted to the plaintiff‑appellant. The suit was misconceived and there was not sufficient evidence available for grant of perpetual injunction to the plaintiff appellant. The suit of the plaintiff‑appellant was vague and in derogation to the principle of pleadings as postulated in Order VII, rule 3, C.P.C. and the same L was therefore, rightly dismissed by the High Court.

6. In view of above, this appeal being devoid of force stands dismissed with costs. In view of dismissal of appeal, the stay order issued by this Court on 30‑1‑2004 stands withdrawn. H.B.T./128/SC(AJ&K) Appeal dismissed.