2011 PLP 1300 (MLD)

CH. MUHAMMAD TARIQ, J.

This single judgment shall dispose of Civil Revision No.379 of 2000 and Civil Revision No.380 of 2000 as both these civil revisions arise out of one and the same judgment and decree dated 20-6-2000 passed by learned Additional District Judge, Rawalpindi Camp at Murree who dismissed the appeals of the petitioners and maintained the judgment and decree dated 17-7-1998 passed by learned trial court.

2. The cause of action as given in the civil revisions is that the petitioners-plaintiffs filed a suit for permanent injunction against Gul Zaman Qureshi etc. restraining them from interfering into the possession of petitioners, damaging the buildings existing on the suit property and from interfering in the construction being raised on the suit-land. The respondents-defendants resisted the suit filed by the petitioners and submitted written statement. The respondents Nos.1 and 4 also filed a suit for declaration, permanent and mandatory injunction against the petitioners. The petitioners resisted the suit filed by respondents Nos.1 and 4 and submitted written statement. Both the suits were consolidated and after framing of issues and recording of oral as well as documentary evidence adduced by the parties, the learned trial court, vide judgment and decree dated 17-7-1998, dismissed the suit of the petitioners for permanent injunction while decreed the suit filed by respondents Nos.l and

4. Feeling dissatisfied, the petitioners filed two separate appeals which were dismissed on 20-6-2000 by the learned Additional District Judge, Rawalpindi through consolidated judgment. Hence these civil revisions.

3. Learned counsel for the petitioners inter alia contends that the impugned judgments and decrees passed by learned lower courts are against the law and facts. Findings of learned trial Court on all the issues are erroneous and untenable in the eye of law. The learned trial court while deciding the matter did not consider various commission's reports who had visited the spot in presence of the parties, measured the suit property and had given report to the effect that respondents Nos.1 to 4 are owner of 7 marla and 138 Sq. Ft. Further contends that in case of conflict between the boundaries and area mentioned in the sale-deed, preference will be given to the boundaries and not to area but this important fact was not taken into consideration by both the learned courts below. Learned counsel for the petitioners avers that allowing amendment in pleadings by learned first appellate court is a nullity in the eye of law, therefore, civil revisions in hand be accepted, the impugned judgments and decrees be set aside and the suit of the petitioners for permanent injunction be decreed while suit filed by respondents Nos.1 to 4 be dismissed with costs throughout.

4. On the contrary, learned counsel for respondents Nos.1 to 4 has controverted these civil revisions with the arguments that the respondents are owners of 10 marlas and 175 Sq.Ft. as mentioned in Exh. D

1. Learned courts below have rightly allowed the amendment in pleadings according to the amended registered sale-deed. Learned counsel further avers that the petitioners have never challenged the sale-deed till today and the petitioners have also not specifically agitated this matter in the instant civil revisions. Order of learned first appellate court allowing amendment in the pleadings is in accordance with law. He further avers that preference will be given to the area mentioned in the sale-deed and not to the boundaries. Admittedly, respondents Nos.1 to 4 are owners of 10 marla-175 Sq.Ft of land and are also in possession of the same. There are concurrent findings of two learned courts below against the petitioners which could not be looked into in the instant civil revisions as the learned counsel for the petitioners has failed to point out any illegality in the impugned judgments, therefore, the civil revisions being without any force are liable to be dismissed.

5. Arguments advanced by learned counsel for the parties have been heard and the record has also been perused.

6. The controversy between the parties pertains to the measurement of suit-land. According to Exh. D1 which is a copy of registered sale-deed executed on 10-1-1979, the area transferred to respondents Nos. 1 to 4 was 10 marlas and 175 Sq.Ft. The same sale-deed provides following metes and bounds of the suit property: Eastern Boundary: 471 Feet Western side: 88 Feet North side: 31 Feet South side: 52 Feet

7. It is evident from Exh. D1 that specific measurements have been provided in Exh. D1 and if we calculate the above said measurements, the area of plot comes to 7 marlas and 138 Sq.Ft. This fact is corroborated with the commission's report submitted by Nadeem Abbas Bhangoo, Tehsildar Murree who was appointed as local commission by the then Civil Judge 1st Class, Murree. The local commission visited the spot in presence of the parties and after measurement of all the sides, the local commission concluded that the area comes to 7 marla-138 Sq. Ft. Prior to said commission's report, another demarcation was conducted by Tehsildar Murree, which is available on original file as "Mark B". Tehsildar, Murree visited the spot and measured all the four boundaries of the suit plot. According to Exh. D1 and reports of local commission, the area of suit plot is 7 marlas 138 Sq.Ft. The said fact is further confirmed from Exh.P1 which is a copy of the plaint of civil suit filed by respondents Gul Zarin and Gul Zaman against one Aurangzeb. It is a suit for possession in which the respondents themselves have mentioned the suit plot with the same boundaries as mentioned hereinabove. Moreover, during proceedings of the suit, on 27-11-1990, the above suit was adjourned for the compromise of the parties and ultimately on 24-2-1991, the suit was dismissed for want of prosecution.

8. The present controversies between the parties are (i) Whether amendment allowed by the learned first appellate court in the pleadings is in accordance with law and (ii) If area mentioned in a sale-deed is distinguishable from the area calculated on the basis of measurement of boundaries, whether area mentioned in sale-deed will override the area calculated on the basis of measurement of boundaries or otherwise. Ordinarily, when a piece of land is sold with definite boundaries, unless it is very clear from the circumstances surroundings the sale that a smaller extent than what is covered by the boundaries was intended to be sold, the rule of interpretation is that boundaries must prevail as against the measurements but this important fact was ignored by both the learned courts below. Reliance is placed on the law laid down by the superior courts in cases filed as, "Subbayya Chakkiliyan v. Manjam Muthia Goundan and another" and "Raghunandan Thakur v. Babu Kishundeo Narain Mahta and others" reported as AIR 1924 Madras 493 and AIR 1926 Patna 257 respectively. So far as amendment of pleadings is concerned, this plea cannot be raised at this stage.

9. As a result of above discussion, both these civil revisions are allowed and the impugned judgments and decrees passed by both the learned courts below are set aside. The civil suit for declaration, permanent and mandatory injunction filed by respondents Gul Zaman etc., is dismissed while the suit filed by the petitioners for permanent injunction is decreed. S.A.K./M-826/L Order accordingly.