2007 PLP 430 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioner-defendant (now represented by his L.Rs) impugns the concurrent decrees of the learned trial Court, dated 12-7-2001 and of the learned appellate Court, dated 9-1-2002, whereby a suit filed by respondent No.1 seeking declaration of title to the disputed area measuring 15 marlas has been decreed.

2. The case of the respondent-plaintiff was that the said land was part of graveyard. The petitioner's plea in defence was that his forefathers had been in possession of the land and had constructed their houses thereon. The Court appointed a local commission, namely, Rana Habibullah, who appeared as P.W. and also produced his report as Exh. P-1. In the said report, the existence of the structures raised by the petitioner's family was confirmed and moreover, the revenue record for the period 1911-12 was also produced before the local commission, as noted in his report (Exh.P-I).

3. Learned counsel for the petitioner has rightly argued that it was for the respondent-plaintiff to- prove his case. I have gone through the record, with the assistance of both learned counsel, and note that only Sadiq Hussain appeared as P.W.2 and Ghulam Shabbir as P.W.3. None of these persons is a resident of Saranchak Khadial where the disputed land is situate. Sadiq Hussain belongs to Kot Nainan, while P.W.3 was resident of Aima Syedan. Furthermore, they were not able to produce any documentary evidence to show that the disputed land, which was comprised in Khasra Nos. 187 and 192, was part of a graveyard.

4. In the foregoing circumstances, it is quite clear that the respondent-plaintiff failed to discharge the onus placed on him for proving his assertion that the disputed land was part of a graveyard.

5. In addition to the above, learned counsel for the petitioner argued that the plaintiff, mentioned in the plaint, was Shamlat Taraf Syedan, which was not a legal person and, therefore, the suit was not competent. Moreover, even if the suit were to be treated as a representative action, no order under Order I Rule 8 C.P.C. had been obtained on behalf of the persons on whose behalf' the suit was allegedly filed. This objection could have been ignored if the suit had been filed through a resident of Saranchak Khadial, because in such event, the individual, acting in the name of Shamlat Taraf Syedan, could have been treated as a plaintiff. However, in the present case, Sadiq Hussain, who filed the suit on behalf of Shamlat Taraf Syedan, was himself not a resident of Saranchak Khadial.

6. In the absence of strong proof of the effect that the land in dispute was part of a graveyard and had been encroached upon by the petitioner 8-10 years prior to the filing of the suit, it was not permissible for the Courts below to dislodge the petitioner. In this view of the matter, I find the impugned decrees to be a result of non-reading of evidence and misapplication of the law. The said decrees are, therefore, set aside. As a result, the suit filed by the respondent-plaintiff is dismissed. F.B./M-675???????????????????????????????????????????????????????????????????????????????????????? Petition accepted.