2020 PLP 37 (CLCN)

ALI BAIG, J.

Through this revision petition filed under section 115, C.P.C. the petitioners have called in question the impugned judgment/decree dated 26-08-2017 passed by learned District Judge Skardu whereby the learned 1st Appellate Court has dismissed civil first appeal of present petitioners by maintaining judgment/decree passed by learned Civil Judge 1st Class, Skardu.

2. Brief facts giving arise to the filing of this civil revision petition are that the present respondent No.1/plaintiff instituted a civil suit for declaration and perpetual injunction against petitioners/defendants Nos.1 to 3 in the learned trial court to the effect that land under khasra No.7086/5306 measuring 5 kanals 11 marlas situated at Mouza Olding Skardu was purchased by plaintiff through sale deed dated 17-04-06 and accordingly the plaintiff/respondent No.1 is owner in possession of the suit land but present petitioners /defendants Nos. 1 to 3 are bent upon to the interfere in the suit land and adamant to take possession of suit land by demolishing boundary wall of the suit land, therefore, the present petitioners/defendants Nos.1 to 3 may permanently be restrained from interfering in the suit land by granting perpetual injunction against them.

3. The present petitioners being defendants Nos.1 to 3 in the suit contested the suit by way of filing of their joint written statement in the trial court wherein they have raised certain legal objections and have also repudiated the averments of the plaint. The respondents/defendants Nos.4 to 11 filed conceded/ admissional written statement and respondent/defendant No.12 has also filed conceded written statement in the trial court.

4. Out of the divergent pleadings of parties the learned trial court framed as many as 12 issues including issue of relief.

5. After framing of issues the learned trial court directed the parties to adduce their evidence as they wished to adduce. According the plaintiff/respondent No.1 produced 06 oral witnesses-besides recording of his statement in the trial court. The respondent No.1/plaintiff has also produced documentary evidence Exh.P/1 to Exh.P/10. The present petitioners/defendants Nos.1 to 3 have also produced 04 oral witnesses besides recording their statement through petitioner/defendant No.1 namely Abdul Rahim. The petitioners/defendants Nos.1 to 3 have also produced some documentary evidence Exh.D/1 to Exh.D/6.

6. On conclusion of trial the learned trial court vide the judgment/decree dated 31/03/2015 has decreed the suit in favour of the present respondent No.1/plaintiff as prayed for. Feeling aggrieved and dissatisfied from the judgment/decree passed by the learned trial court the present petitioners had filed civil first appeal in the court of learned District Judge, Skardu, which was also dismissed by the learned 1st Appellate Court vide the impugned judgment/decree dated 26/08/2017, hence this revision petition.

7. The learned counsel appearing on behalf of the petitioners contended that the impugned judgment/decree passed by learned District Judge, Skardu is contrary to law and facts on the record of the case, as such the impugned judgment/decree passed by the 1st appellate court is not maintainable and liable to be set aside. The learned counsel for the petitioners further argued that the first appellate court has not discussed and recorded findings on the issue No.12, hence the impugned judgment/decree of the learned first appellate court is not sustainable in the eyes of law and liable to be set aside. The learned counsel for the petitioners further argued that in the sale deed Exh.P/1 the mutation number of disputed land has wrongly been mentioned as 4642 whereas correct mutation No. of disputed land is 3642. The learned counsel for the petitioners further contended that the disputed land has not been allotted in favour of father of the respondents/ defendants Nos.4 to 11 by the competent authority and mutation of disputed land has been attested in the name of father of the respondents/defendants Nos.4 to 11 on the basis of order/judgment passed by Wafaqi Muhtasib Islamabad, whereas Wafaqi Muhtasib is not competent to allot Khalisa Sarkar land to any person/individual.

8. On the other hand the learned counsel for the respondents and standing Advocate General controverted the arguments advanced by the learned counsel for the petitioners and supported the impugned judgment/decrees passed by both the learned courts below by contending that the respondent No.1/plaintiff has proved his case by adducing reliable, cogent, orally and documentary evidence in the trial court, therefore, both learned courts below have rightly decreed the suit in favour of the plaintiff/respondent No.1. The learned counsel for the respondents and Standing Advocate General further argued that the disputed land was allotted to the father of the respondents/defendants Nos.4 to 11 by the competent authority and father of the respondents/defendants Nos.4 to 11 has sold out, the disputed land to respondent No.1/plaintiff vide sale deed Exh.P/2 dated 17/04/2006, hence the learned courts below have rightly decreed the suit in favour of the plaintiff/respondent No.1.

9. I have heard the learned counsel for the parties and perused the record with their able assistance.

10. From perusal of record it transpires that initially the respondent No.1/plaintiff had purchased the disputed land from one Wajid Ali son of Iftikhar Ali resident of Olding Skardu in the Year 2000 in consideration of Rs.70000/- and the possession of said disputed land was handed over to the plaintiff/respondent No.1 by the above named seller. Accordingly the respondent No.1/plaintiff constructed boundary wall on the disputed land and developed the barren land. In the meanwhile father of the respondents/defendants Nos.4 to 11 appeared and objected/claimed that the disputed land along with adjacent land has been allotted to him by the Government and the disputed land has been alienated in his name vide mutation No.3642. Accordingly the plaintiff/respondent No.1 and father of the respondents/defendants Nos.4 to 11 got demarcated the disputed land through revenue field staff and found that he disputed land was allotted to the father of the respondents/defendants Nos.4 to 11 namely Khawaja Ameer Jan and mutation No.3642 has been attested in favour- of late Khawaja Ameer Jan. Accordingly the plaintiff/respondent No.1 negotiated with the father of the respondents/defendants Nos.4 to 11 and the father of the respondents/defendants Nos.4 to 11 agreed to sale the disputed land to respondent No.1/plaintiff. Accordingly the father of the respondents/defendants Nos.4 to 11 vide sale deed dated 17-4-2006 Exh-P/2 has sold out the disputed land to the plaintiff/respondent No.1 in consideration of Rs.4,00,000/- in presence of marginal witnesses namely Haji Yahya Khan and Muhammad Ali.

11. Admittedly the disputed land along with some other lands have been allotted to the father of respondents/defendants Nos.4 to 11 as evident from mutation No. 3642 attested on 01/08/1999 Exh.P/1. It is also admitted fact that father of respondents/defendants Nos.4 to 11 has sold out the disputed land to the present respondent No.1/plaintiff vide sale deed Exh.P/2. The marginal witnesses of Exh.P/2 namely Muhammad Ali son of Abdul Karim and Haji Yahya Khan son of Muhammad Qasim have also deposed that the disputed land has been sold out to the respondent No.1/plaintiff by the father of respondents/ defendants Nos.4 to 11 in their statements recorded before the trial court and they have put their signatures on the sale deed Exh.P/2. Moreover, the respondents Nos.4 to 11 vide their conceded/admissional written statement have also admitted that the disputed land has been sold out to the present respondent No.1/plaintiff by father of the respondents/ defendants Nos.4 to

11. The respondent/ defendant No.12 vide conceded/admissional written statement has also admitted that the disputed land was allotted to the father of respondents/defendants Nos.4 to 11 on the basis of judgment of Wafaqi Muhtasib Islamabad, hence the respondent No.1/plaintiff has proved his case/claim by adducing unimpeachable and cogent oral and documentary evidence in the trial court and he is bona fide owner of suit land. The petitioners/defendants Nos.1 to 3 have miserably failed to rebut the claim of respondent No.1/plaintiff as neither the disputed land has been allotted in favour of the petitioners nor any mutation has been attested in their favour by revenue authorities. The learned counsel for the petitioners has not been able to point out any material irregularity or illegality or miss-reading or non-reading of evidence in the impugned judgments/decrees passed by the both courts below.

12. In view of the above discussion this revision petition is being bereft of merit and substance is hereby dismissed. Consequently, the impugned judgment/decree dated 26-8-2017 passed by the learned 1st Appellate Court is maintained. Parties to bear their respective costs. File. ZC/163/GB Petition dismissed.