CH. IJAZ AHMAD, J.--- The petitioner has filed this writ petition with the following prayer:- it is prayed that:-
(a) a declaration may be issued to the effect that the order of the third de novo departmental inquiry to the effect that the order dated 9.12.2003 (Annexure-B) issued by respondent No. 1 is against the law, illegal, capracious, mala fide issued due to undue pressure and influence.
(b) The inquiry report dated 5.6.2004 of the respondent No. 2 is based on mala fide, a result of victimization and completely illegal, hence, unlawful and against the norms of justice and fair play, therefore, may be ordered to be set-aside.
(c) It is further prayed that respondent No. 1 may kindly be directed not to remove, terminate, dismiss or otherwise pass any order adversely effecting the petitioner due to the mala fide intentions, victimization and by way of colourful exercise of powers.
(d) Ad-interim injunction may also be allowed to the extent that the respondents may kindly be directed not to pass any final order with regard to the present inquiry proceedings."
2. The learned counsel of the petitioner submits that the competent authority has initiated proceedings against the petitioner under E&D Rules and Inquiry Officer was also appointed by the competent authority and on the recommendation of the inquiry officer, 'the competent authority dropped the proceedings against the petitioner twice. Subsequently, respondent No. 2 has initiated de novo inquiry against the petitioner under the influence of one Naeem Monga. He further submits that respondent No. 2 is close friend of said Naeem Monga, who has enmity with the petitioner and a criminal case is also registered against the said person on the complaint of the petitioner. He further submits that the petitioner has submitted an application before respondent No. 1 that he has no confidence over respondent No. 2 to hold inquiry against the petitioner on the ground that respondent No. 2 has close relations with the said Naeem Monga. He further submits that action of the respondents is not in consonance with mandatory provisions of Punjab E&D Rules, 1975 and Punjab E&D Rules, 1999 specially rule 7. He further submits that the petitioner has submitted an application before respondent No. 1 for transfer of the Inquiry Officer, who did not decide the same.
He further submits that during the pendency of the application, the petitioner approached respondent No. 1. Respondent No. 1 has submitted his recommendations against the petitioner for major penalty and respondent No. 2 has initiated proceedings against the petitioner male fide.
Respondent No. 1 has also issued show-cause notice to the petitioner. The petitioner being aggrieved filed this writ petition.
3. The learned law officer entered appearance on Court's call, he submits that the writ petition is not maintainable.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
5. It is admitted fact that the petitioner is a civil servant and matter pertains to the terms and conditions of service of the petitioner. This Court has no jurisdiction to take the cognizance of the matter in view of the bar contained in Article 212 of the Constitution read with section 4 of the Service Tribunal Act. Article 212 of the Constitution has been interpreted by the Full Bench of Karachi High Court in the year 1981 and held that this Court has no jurisdiction to take the cognizance relying upon dictum laid down by the Honourable Supreme Court in Muhammad Yameen's case"
(PLD 1980 S.C. 22). The Full Bench of this Court has also followed the Full Bench of Karachi High Court and dictum laid down by the Honourable Supreme Court in the aforesaid M. Yameen's case.
Therefore, the Constitutional petition is not maintainable in view of law laid down by the Superior Courts in the following judgments:- "Abdul Bari vs. Government of Pakistan and 2 others" (PLD 1981 Karachi 290).
"M. Muhammad Yameen vs. Islamic Republic of Pakistan." (PLD 1980 S.C. 22).
"Muzaffar Hussain vs. Supdt. Of Police Sialkot". (2002 P.L.C. (C.S) 442).
It is also settled principle of law that the Constitutional petition is not maintainable qua the intermediate stages, as per principle laid down by the Honourable Supreme Court in "Abdul Wahab Khan vs. Government of Pakistan, etc."(PLD 1989 S.C..508): It is also admitted fact as alleged by the petitioner that the competent authority has issued show-cause notice to him in view of the report submitted by respondent No. 2 to respondent No. 1. It is also settled principle of law that the Constitutional petition is not maintainable against the show cause notice charge-sheet In arriving to this conclusion, I am fortified by the law laid down by the following judgments:- "Muhammad Fayyaz's case" (N.L.R. 1994 Service 30), {{BLUR PAGE}} 2005 Noor Muhammad and others V. Muhammad Tufail and others 499 (Mrs. Fakharam-Nisa Khokhar, J)
"National Re-rolling Steel Mill's case (1968 SCMR 317(2).
"Warasat's case" (1969 S.C.M.R. 154). "Mehmood Ali's case" (1984 C.L.C. 142). "Mst. Shagufta Begurn's case (PLD 1989 S.C. 360). "Mir Nabi Bakhsh Khoso's case (2000 SCMR 1017).
In view of what.Has been discussed above, this Constitutional petition has no merit and the same is dismissed.
2006 C.L.R. 499 Lahore] i'Present: MRS. FAKHAR-UN-NISA KHOKHAR, J. aEherr, -oise Noor Muhammad .4 ;;:b: tneepuM Versus r,8r b9icb beeh fieuolrit riSfif?,Iticilsge0 Muhamma--0,Tufail and am:Ofr .1: Civil Revision No. 1402-D of 1997,'deci'd'ed on 1st June, Fr 2004.
(a) Civil Procedure Code (V of 1908)- nws _ ,vv ti ) #TBS (Paras 9,10) #TBE ---S. 115, 0. 41, R. 31---Suit for possession--- Judgment/decree by Trial Court---Reversal of--- Nonreading/misrending of---Appellate Court---Duty of---Effect--- Suit for possession of respondent qua disputed land was dismissed by Trial Court, but such determinAtion was reversed by Appellate Court. Below---Civil revision petition there-against in High Court---Validity---In order to set aside the issue wise finding of Trial Court, Appellate Court was bound to enumerate the point of determination by giving an issue wise reasoning for the same---Impugned judgment of Appellate Court below being suffered from misreading/nonreading of evidence and out come of material irregularity, set-aside---Civil revision .{{BLUR PAGE}}
(b) Civil Procedure Code (V of 1908)--- ---0. 41, R. 31---Appellate Court---Duty of---Appellate Court has to appreciate the entire as well as documentary evidence and take into consideration the existing controversy between the parties in respect of their respective claims.
(Para 9) For the Petitioner: Mian Muhammad Aslam, Advocate. For the RespOndent No. 1: Ch. Saeed Sabir, Advocate. Date of hearing: 1st June, 2004. . JUDGMENT MRS. FAKHAR-UN-NISA KHOKHAR, J.--- Brief facts in this case are that respondent No. 1 filed a suit for possession in respect of land measuring 1 kanal, 5 marlas out of 2 kanals purchased by him through a registered sale-deed "dated 18.10.1986 situated in Hujjra Shah Muqeem Tehsil Depalpur District Okara from one Zahid Shah through agreement Ex.D. 1 and sale deed Ex.D. 2 and the possession was delivered on 13.2.1989. A suit for permanent injunction was filed on 17.11.1986 which was withdrawn on 11.6.1991 and suit for possession was filed on 4 7.1991. It was alleged that the defendant has forcibly taken the possession. The suit was contested and on the pleadings of the parties following issues were formulated:--
(1) Whether plaintiff is owner of disputed and measuring 1 kanal, 5 marlas? OPP
(2) Whether plaintiff is entitled to recover possession of disputed land from the defendant? OPP
(3) Whether suit is not maintainable in its present form? OPD
(4) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD (5)Whether the suit is hit by section 11 of CPC? OPD (6)Whether suit has been filed with male fide intention and just to harass the defendant if so, whether the defendants are entitled to special cost under section 35-A of CPC? OPD (7)Whether suit has not been properly valued for the purpose of Court-fee and jurisdiction? OPD (8)Relief.
Parties produced their respective evidence and learned Trial Court vide its judgment and decree dated 19.1.1994 dismissed the suit while giving the findings against the defendant and appeal was preferred against the impugned judgment and decree passed by learned lower Court which was accepted and the judgment and decree passed by learned lower Court was set aside and the suit was decreed. Hence, the instant civil revision.
(2) Arguments advanced by learned counsel for the petitioner are that the impugned judgment and decree is based on misreading of evidence. Learned Appellate Court was under duty of law to give issue-wise findings. Both the parties to the suit purchased land from joint khata. The petitioner has purchased land with specific boundaries, therefore a party who purchased the land from joint khata is entitled to retain the possession till such partition by any other co-sharer but this material fact escaped from the notice of learned Appellate Court. The petitioner has raised substantial construction on the property in dispute and the Court could not ignore this construction without determining the cost of the construction and decree could not be passed under section 51 of Transfer of Property Act. He further argued that in the plaint which is at page 23 of instant civil revision in para 4 the plaintiff has stated that the defendant has forcibly taken possession of the property one year prior to the filing of suit then the plaintiff could have moved under, section 9 of the Specific Relief Act within 6 months. The plaintiff while appearing as PW. 1 has failed to depose that on what date he was dispossessed because he has to prove that he was first in possession then he was dispossessed. Relied on Abdul Jamil vs. Haroon (PLD 1969 Karachi 78) Abdul Wahid vs. Yousaf (PLD 1971 Karachi 772), Wahab Ullah and others vs. Abdul Aziz and others (PLD 1968 Dacca 318) and Mst. Jaina and others vs. Hassan and others (PLD 1963 (W.P) Karachi 351). Any suit which is filed under section 9 of the Specific Relief Act no appeal is provided. Moreover the party has to describe the date of possession and 'then forcible dispossession. The petitioner has purchased the land from one Zahid Shah in Khasra No. 37/6, Khewat No. 854, khatooni Nos. 1634 to 1641, share 20/7088 and that belonged to one Zahid Shah, and he is enjoying the possession. The respondent has purchased their property from the joint holding of 3 brothers from the share of Naeem Shah i.e. 40/7088 out of 354 kanals, 8 marlas and he hes purchased the same in khewat No. 790/748 and Khatooni Nos. 1482 to,1494 jamabandi is Ex.P. 1 and Ex.P. 2.
3. Argument's advanced by learned counsel for the respondents are that they have purchased the property measuring 2 ''kanals i.e. Ex.P. 1 dated 15.10.1986, the boundaries are given and the petitioner purchased the property subsequently on 13.9.1989, boundaries are different, khata are different and he has purchased from khasra No 37/4 through Ex.D. 1 wherein boundaries are mentioned in the Tril of sale-deed. He had purchased different land. The vial Court decided issues Nos. 1 and 2 against the plaintiff No cross-objection was filed on those findings, therefore, those have attained finality.
Relied on .Muhammad Aslam and 2 others vs. Syed Muhammad Aem Shah and 3 others (1996 SCMR 1862) and Kanwal Nain and 3 others 'vs. Fateh Khan and others (PLD 1983 SC. 53).
4. On mutual request of the parties, Tehsildar HujraShah Muqeem alongwith Revenue Staff was directed by this Court to inspect the, disputed property and give a report as .To holding of disputed land in possession of both the parties. He has inspected the site and given a report alongwith the map without scale, according to which Muhammad Tufail s/o Muhammad Ali caste Kamboo r/o Hujra Shah Muqeem is owner of 2 kanals in khewat No. 967/920 Khatooni Nos. 1725 to 1732 out of total property 354 kanals 8 marlas share 40/7088 in khasra No. 37/6 1 kanal, 6 marlas 6 sarsahis and Noor Muhammad s/o Nizam Din and Ahmad Din s/o Boota are owner of 1 kanal of land through mutation No. 6913 dated 19.1.2000 purchased from Zahid Raza resident of Hujra Shah Muqeem in khewat No. 967, khatooni No. 1725 and is in possession of 1 kanal of land.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly both the parties had not challenged each other title through Ex.D. 1, Ex.D.
2. The suit for possession was filed by the respondent that he was owner of the land measuring 2 kanals through a registered sale-deed and he has constructed a house on 15 marlas of land and he was in possession of 1 kanal, 5 marlas while defendants respondents forcibly took the possession of the property. It is also admitted that both the parties purchased the land from joint khata from two brothers and no specific khasra number has been mentioned in the sale-deed, only boundaries are mentioned on the last page of Ex.D. 2.
7. The parties produced their oral as well as documentary evidence. Ex.P. 1 is the sale-deed, Ex.P. 2 is copy of jamabandi-for the year 1986-87. In this jamabandi no khasra number has also been given and this jamabandi also discloses that share 40/7088 measuring 2 kanals is taken from entire holding of 354 kanals, 8 marlas. Ex.D. 1 is the copy of waseeqa stamp paper No. 181, dated 2.8.1979 lqrarnama in khasra No. 37/6 Abadi Hujjra Shah Muqeem in consideration of Rs. 5000/- from one Zahid Raza Shah in favour of Noor Muhammad the defendant/respondent. Ex.D. 2 is the agreement to sell, it also shows the boundaries. Ex.D. 3 is the copy of map included in the missal No. 695/g1 No: 73/93 dated 31.7.1991 in suit for possession which was decided on 19.1.1994 also showing the boundaries in suit titled Muhammad Tufail vs. Noor Muhammad Ex.D. 4 is the copy of suit Muhammad Tufail vs. Anwar etc. In this suit in paragraph No. 7 the plaintiff has deposed that cause of action against the defendant has arisen to him 15/20 days when he forcibly attempted to possess the disputed property which was withdrawn with the permission to file another suit. Ex.D. 5 is the statement of counsel for the plaintiff for permission to withdraw the suit for permanent injunction. Ex.D. 6 is the copy of the statement of Sh. Munir Hussain. Ex.D. 7 is the copy of the order of Civil Judge IInd Class Depalpur dated 11.6.1991 dismissing the suit filed by Muhammad Tufail against Noor Muhammad for cancellation of registered sale-deed of 7 marlas of land in favour of Muhammad Anwar s/o Jan Muhammad. Vide Ex.D. 8 learned Civil Judge 1st Class Depalpur in suit for cancellation of registered sale-deed decided:-- "that since the respondent/plaintiff purchased the land from a joint khata and they are entitled to get their share from the entire khata and they are not competent to hold specific piece of land as every co-owner is owner in every inch of land under this dictum the plaintiff got two kanals land from the entire khata and boundary mentioned at the last page of Ex.D-2 has no effect over the land in possession of the defendant as they had occupied their piece of land in 1979 and this fact is neither rebutted nor objected no any evidence is produced on behalf of the plaintiff to prove that he was in physical possession of the suit land and in such circumstances I have left no option except to declare that the plaintiff has a right to get 2 kanals of land from the entire khata."
8. From the perusal of the judgment Ex.D-8 it shows that real controversy between the petitioner and the defendant was settled in the aforesaid civil suit which had become final. Report of local commission filed in this Court also supports the observation of learned Trial Court in Ex.D8.
9. Under Order XXXXI, Rule 31, CPC the learned Appellate Court had to appreciate the entire oral as well as documentary evidence and take into consideration the existing controversy between the parties in respect of their respective claims. In order to set aside the issuewise findings of the learned Trial Court, the learned Appellate Court was bound to enumerate the point of determination by giving an issuewise reasoning for the same. Perusal of the judgment passed by the learned Appellate Court shows that it suffers from mis-reading and non-reading of evidence and out come of material irregularity.
10. Therefore, keeping the entire evidence record, judgments and decrees passed by the learned Trial Court and learned Appellate Court, this revision petition is accepted and the judgment and decree passed by the learned Appellate Court is hereby set aside.
No order as to costs.