' MUHAMMAD. JEHANGIR ARSHAD, J.---The facts in brief are that in respect of disputed Khasra No,586 situated within the then municipal limits of Municipal Committee, Khanewal (Chak No,89/10-R, Tehsil Khanewal known as Colony No,2, Khanewal), two suits were filed, one by Abdul Majeed predecessor in interest of the present petitioners against Rashid Ahmad Qamar, etc. Respondents in this Civil Revision seeking possession in respect of Khasra numbers comprising of 506, 616, 583/2, 584 measuring 3 Marlas 6 Sarsai. According to the contents of the plaint Abdul Majeed plaintiff purchased an area measuring 25 Kanala, 19 Marlas including the disputed area from Province of Punjab through registered Sale-deed No,134 dated 19-10-1956 and when in the year 1989 proprietary rights of the said land were being granted the respondents Nos. .3 to .7 forcibly occupied four marlas out of the same by contending that it fell to their share. It was further averred in the plaint that Abdul Majeed plaintiff got site plan sanctioned from Municipal Corporation in the year 1991 and that claim of respondents Nos. 3 to 7 that Abdul Majeed petitioner had trespassed the area falling in Khasra No,586 in his site plan was legally and factually not correct. The said suit was filed on 2-2-1995. Prior to the said suit Rashid Ahmad Qamar, etc. Respondents Nos. 3 to 7 had already filed a suit against Abdul Majeed disputing the sanctioning of the site plan in his favour by the then Municipal. Corporation on 19-5-1991 by alleging that said site plan also included the area from Khasra No,586 which was in fact public pathway and in the garb of sanctioned site plan Abdul Majeed petitioner wanted to include the 'public pathway by trespassing in his construction. As both the parties denied the claims of each other, hence, the learned trial Court in the light of contents of both the plaints and written statements submitted by both the parties in the respective suits, framed the following consolidated issues and directed the parties to lead their evidence:-- ISSUES: (1.) Whether the plaintiffs have no cause of action and locus standi to file the present suit? OPD (2.) Whether the order dated 19-5-1991 passed by the defendant No,2 is illegal, void, without jurisdiction, mala fide, collusive and ineffective upon the rights of the plaintiff? OPP (3.) Whether the document dated 23-7-1989 executed by the defendant No,2 in favour of the defendant No,3 is illegal, void, without jurisdiction, mala fide, collusive upon the right of the plaintiff?
OPP (3-A.) Whether the defendant/petitioner Abdul Majeed is entitled for decree for possession for a piece of land measuring 3 marlas 6 sarsae as described in the head note of the plaint titled "Abdul Majeed v. Province of Punjab, etc.? OPD (3-B.) Whether suit titled "Abdul Majeed v. Province of Punjab, etc." is counterblast of the suit titled "Dr. Rasheed Ahmad Qamar v. Province of Punjab, etc.? OPD (3-C.) Whether the defendant No,3 Abdul Majeed is estopped to bring this suit on account of his words and conduct? OPD (3-D.) Whether suit titled "Abdul Majeed v. Province of Punjab etc. Cannot proceed further in its present form? OPP.
(3-E) Whether this Court lacks jurisdiction to try this suit titled "Abdul Majeed v. Province of Punjab, etc.? OPP.
(4) Relief.
2.Both the parties produced their respective oral as well as documentary evidence and on the conclusion of the trial, the learned trial Court vide consolidated judgment dated 2-4-1996 dismissed both the suits, by holding that both the parties had failed to establish their respective claims. Against the above mentioned judgment of the learned trial Court, two separate appeals were filed, one by Abdul Majeed, predecessor in interest of the petitioners and other by Dr. Abdul Rashid Qamar, etc. Respondents Nos. 3 to 7 in the present Civil Revision. The learned District Judge, Khanewal however, through consolidated judgment dated 18-11-1996 dismissed the appeal filed by Abdul Majeed deceased and maintained the judgment of learned trial Court regarding dismissal of his suit, whereas the appeal filed by Dr. Rashid Ahmad Qamar, etc. Respondents was allowed and their suit was decreed as prayed for, hence, this Civil Revision.
3.It has been argued by Mr. Shamsul Hag Ansari, Advocate for the petitioners that the suit filed by respondents Nos. 3 to 7 was not maintainable as the same was based on negative declaration which was not permissible under the law. Reliance has been placed on the case of Sanat Kumar Mitra v. Hem Chandra Dey and others AIR 1961 Cal. 411, Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Abdur Rehman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah.
113. It is next contended that suit of the respondents was hit by provisions of section 91, C.P.C. As the same was based on the prayer for removal of public nuisance and in terms of section 91, C.P.C.
Such suit could only be instituted either by Advocate-General himself or by two or more persons having obtained consent in writing of the Advocate-General, but in the instant case the suit was filed without obtaining consent in writing of the Advocate-General, hence the suit filed by the respondents was neither maintainable nor could be decreed. In support of his contention learned counsel has placed reliance on the case Ghulam Muhammad and others v. Murad Bakkhsh and another PLD 1969 Lah.
91. The learned counsel further argues that as the order of sanctioning of site plan dated 19-5-1991 by the Municipal Committee was appealable, hence, in the presence of alternate remedy the suit could not have been filed without availing/exhausting the said remedy, as held by the Hon'ble Supreme Court of Pakistan in the case Muhammad Faraz and another v. Abdul Rashid Khan and others 1984 SCM R 724. It is further argued that petitioner purchased the property including the disputed one through registered sale-deed dated 23-7-1989 and without seeking cancellation of the said sale-deed the respondents could not maintain their suit as relief for cancellation was a further relief within the meaning of section 42 of the Specific Relief 'Act. In support of his this contention learned counsel has placed reliance on PLD 1975 SC 624, Syed Mithal Shah v. Khawaja Rafiullah (represented by heirs) and another PLD 1975 Kar.
930.Further argument of the learned counsel is that report of Local Commission Exh.P.12 was neither admissible in evidence nor could be based by the learned Appellate Court for recording its findings, as neither any objection was received on the said report by the learned trial Court nor any specific findings were recorded either by the learned trial Court or by the learned Appellate Court about its genuineness before accepting it as an admissible evidence for the purposes of recording findings on the issues. The learned counsel on this point has placed reliance on Muhammad Saeed Mazhari v. Muhammad Sharif and 10 others 1990 CLC 889. It has been further argued that the very appointment of Halqa Patwari as Local Commission was without jurisdiction as in terms of Land Revenue Rules relating .To demarcation matters the competent authority was only the Revenue Officer who could hold demarcation and whose report was admissible or binding on the Court. The learned counsel for the petitioner further contends that Abdul Majeed had also obtained a decree against Municipal Committee (Exh.P.11) which still stands intact and has not been set aside by any competent Court; therefore, in the presence of the said decree the suit filed by the respondents was barred by Order XXI, Rule 103, C.P.C. Further contended that the learned Appellate Court while passing the impugned order failed to consider the documentary evidence Exh.P.6, Exh.D-1 and Exh.D-9 therefore, the same suffers from misreading as well as non-reading of evidence. It is lastly argued that as the findings of the learned Appellate Court suffer from misreading and non-reading of evidence, therefore, this Court while sitting in revisional jurisdiction should interfere with the same as held by the Hon'ble Supreme Court of Pakistan in Saheb Khan through Legal Heirs v.
Muhammad Pannah PLD 1994 SC 162.
4. On the other hand, learned counsel for the respondents supported the judgment of the learned Appellate Court by terming the same as one based on proper reading of evidence. It has been argued that the order sanctioning the site plan in favour of Abdul Majeed is not available on the record and by not producing the same in evidence Abdul Majeed plaintiff could not place any reliance on the same to persuade the court to hold that site plan was properly sanctioned. It has been further argued that sale-deed in favour of Abdul Majeed is not disputed inasmuch as, the same does not contain the disputed Khasra number i,e, 586. The learned counsel adverted the attention of the Court to the statement of Manzoor Hussain D. W.1 that Abdul Majeed petitioner had raised construction over Khasra No,586 which is part of public road and it is thus contended that Abdul Majeed cannot wriggle out of said statement of his own witness. It is further argued by learned counsel for the respondents that Abdul Majeed has failed to produce any evidence to rebut the report of the Local Commission. Exh.P.12 who visited the spot in the presence of Abdul Majeed petitioner and held demarcation under the direction of the Court and according to the said report Abdul Majeed was found in possession of area measuring 3 Marlas, 3 Sarsai forming part of Khasra No,586 which was "Ghair Mumkin Pukhta Sarrak" running on the spot. Similarly, Abdul Majeed was found having trespassed the public road in site plan Exh.P.13/1, prepared by the Patwari at the time of holding demarcation on 28-9-1992 but Abdul Majeed failed to produce any evidence to rebut said document. Further it is argued that appointment of Patwari as Local Commission could not be challenged by the petitioner on the ground that same was violative of rules framed under the Land Revenue Act because neither the Land Revenue Act nor the Rules framed thereunder were applicable to the present case as in terms of section 3 of the. Land Revenue Act the same is only applicable to agricultural lands whereas, in the present case the disputed property is "Ghair Mumkin Sarrak" which is part of municipal limits and thus the trial. Court was fully competent to appoint any person of its choice as Local Commission to hold demarcation. It is next argued by learned counsel that firstly no plea with regard to bar contained in section 91, C.P.C. Was raised in the pleadings nor any issue to this effect was framed or evidence led and secondly the respondents were claiming nuisance with regard to their personal rights, hence the provisions of section 91, C.P.C. Were not attracted to the present case in terms of subsection (2) of section 91, C.P.C. Therefore, the argument of learned counsel for the petitioner with regard to non- maintainability of the suit being hit by section 91, C.P.C. Cannot be pressed into service. The learned counsel has further contended that there is no force in the contention of learned counsel for the petitioner that without seeking cancellation of the sale-deed in favour of Abdul Majeed the suit of the respondent was not maintainable, because the respondents are neither aggrieved by the sale- deed due to non-inclusion of Khasra No,586 in it nor they were party to the sale-deed, therefore, there was no need for the respondents to have asked for relief of cancellation of sale-deed. It is lastly argued that findings of the learned Appellate Court being findings of fact should not be interfered with by this Court while sitting in revisional jurisdiction, as held by the Superior Court in number of reported judgments with reference to section 115, C.P.C.
5. The above mentioned arguments advanced by learned counsel for both the parties have been considered with reference to the material available on record and also in the light of the judgment relied upon by learned counsel for the petitioner.
6. The question requiring determination in this Civil Revision is the nature of disputed Khasra No,586 i,e, whether it is a public pathway or not and whether the petitioner has any right to raise construction over the same? From the evidence available on record i,e, Exh.P.7 Register Haqdaran Zameen for the year 1988-89, Aks Shajra Exh.P.9, report of the Local Commission Exh.P.13 and site plan appended with the report Exh.P.13/1 no doubt is left about the identity and nature of Khasra No,586 that same is a public pathway. Similarly, the sale-deed in favour of Abdul Majeed deceased petitioner got registered by Municipal Committee, Khanewal on 23-7-1989 does not include the said Khasra number either as a whole or a part thereof. Again the evidence of Manzoor Hussain D.W.1 produced by Abdul Majeed also leave no doubt that said Khasra consists of "Ghair Mumkin Sarrak" and according to the report of Local "Commission prepared by this very witness and placed on record as Exh.P.12 also speaks that said Khasra number was a "Ghair Mumkin Pukhta Sarrak" and Abdul Majeed was occupying 3 Marlas 6 Sarsai out of the said Khasra which is not, part of above mentioned sale-deed in favour of Abdul Majeed deceased petitioner. A copy of Aks Shajra Exh.P.13/1 contains the description of Khasra No,586 as a public pathway, whereas Khasra numbers purchased by Abdul Majeed through sale-deed Exh.P.1 consist of Khara Nos. 506, 583/2, 584 and 616, meaning thereby that Abdul Majeed deceased petitioner could neither claim any portion of Kahara No,586 nor could file suit seeking any relief in respect thereto. However, the contention of learned counsel for the petitioner is that in fact Dr. Rasheed Qamar, etc. Respondents Nos. 3 to 7 who were also owners in the adjacent Khasra No, 503 forcibly occupied portion of Khasra No,506 measuring 3 Marlas 6 Sarsai from the ownership of the petitioner therefore, the petitioner Abdul Majeed rightly filed suit for getting back possession of the same. But this claim of the petitioner is not supported by any evidence at all, rather it is proved from the copy of Aks Shajra Exh.P.13/1 that the area claimed by the petitioner is neither situated in Khasra No,503 nor 506 but within the limits of Khasra No,586 which according to the established facts on record is part of public pathway. May be Dr. Rasheed Qamar, etc. Respondents Nos. 3 to 7 had occupied certain area of the petitioner from Khasra No,506 adjacent to their Khasra No,503 but this occupation on the part of respondents Nos. 3 to 7 did not confer any right or title on Abdul Majeed to trespass into public pathway by raising construction in an unauthorized manner and to seek protection of the Court. In the presence of Exh.P.13/1 and the report of Local Commission Exh.P.12 sanctioning of site plan by the then Municipal Committee even by including the disputed place in the said site plan could neither give rise to any presumption of truthfulness or sanctity to the said site plan nor legalize the unauthorized occupation or claim of the petitioner with regard to place not owned by him but part of a public pathway. Therefore, sanctioning of site plan by the Municipal Committee cannot be considered as a piece of evidence what to talk of challenging the same in the suit as argued by learned counsel for the petitioner. Even otherwise, it is an established principle of law that site plan if got sanctioned by the competent authority either through misrepresentation or in violation of the master plan or for some other like reasons, the same can either have any legal sanctity nor effect the private rights of a person. The learned District Judge, therefore, rightly took notice of the following facts in his judgment:-- "The map was cancelled on 24-3-1991, the applicant has once again applied for the revision/review of the map. In view of the pressing perspective conditions the same may be sanctioned purely provisionally on the risk of the applicant."
' Similarly, the following three grounds attended to by the learned District Judge, are also worth- consideration with regard to the site plan got sanctioned by the petitioner and this Court has no option but to maintain the same:- "(a) The sanction order itself is provisional and does not describe the contingency on which this order will cease to operate. Therefore, the order being paradoxical arid vague is invalid.
(b) The sanction order was passed admittedly under pressure and perspective condition i,e, under some threats and not at all a legally enforceable order.
(c) It has the effect of encroachment on the main road.
' The learned District Judge, therefore, committed no illegality or irregularity in upsetting the findings of the learned trial Court and decreeing the suit of respondents Nos. 3 to 7.
7. Although, despite repeated questions by the Court with regard to merits of the case and illegality allegedly committed by the learned District Judge while passing the impugned judgment, the learned counsel for the petitioner mainly relied on the technical objections mentioned in para. 3 of this judgment, therefore, it appears necessary to answer the legal objections raised by the learned counsel, though prima facie these objections are not sustainable at this stage having not been taken at all either in the plaint or in the written statement filed by the petitioner nor D any issue to this effect was framed' or evidence produced by the petitioner nor any findings recorded by the learned trial Court to this effect, therefore, the same cannot be allowed to be raised at this stage for the first time. Reliance is placed on PLD 2006 SC 318 and Mst. Murad Begum and others v.
Muhammad Rafiq and others PLD 1974 SC 322. I have not been able to reconcile myself with the contention of learned counsel for the petitioner that the suit filed by respondents Nos.3 to 7 was based on negative declaration and thus was not maintainable. A perusal of the plaint filed by respondents Nos. 3 to 7 and available on the file as Annex. D clearly indicates that it was simply a suit challenging the validity of site plan sanctioned by the then Municipal Committee on 19-5-1991 with reference to the sale-deed executed in favour of the Abdul Majeed deceased petitioner and for permanent injunction restraining him from raising any construction over Khasra No,586 abutting to their property situated in Khasra No,503 and also for mandatory injunction for removal of the encroachment over the disputed place and thus there was no defect in the form of the suit, as alleged by learned counsel for the petitioner and the judgments cited by learned counsel for the petitioner on this point have no relevance at all.
8. Similarly, the plea of bar of section 91, C.P.C. Is being raised for the first time before this Court without any issue, evidence or findings, however as respondents Nos. 3 to 7 have based their claim on the provisions of subsection (2) of section 91, C.P.C. Allowing institution of the suit independent of public nuisance, therefore, the objection with regard to bar in terms of section 91, C.P.C. Cannot sustain for the simple reasons that respondents Nos. 3 to 7 had filed suit seeking enforcement of their independent right with regard to raising construction by Abdul Majeed deceased petitioner abutting to the property falling into their ownership within Khasra No,503.Even otherwise, as held by the Hon'ble Supreme Court of Pakistan in Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 an individual can institute a suit for a right in this favour in respect of public nuisance without obtaining sanctioning from the Advocate-General of the Province. Therefore, this bar of section 91, C.P.C. Cannot be pressed into service to non-suit the respondents and the judgment cited by learned counsel for the petitioner is not applicable to the present case.
9.Further the contention of learned counsel for the petitioner that as respondents had got an alternate remedy by way of filing appeal against the order of sanctioning of the site plan, therefore, without availing the said remedy respondents Nos. 3 to 7 could not file suit and the reliance by learned counsel for the petitioner on the case Muhammad Faraz and another v. Abdul Rashid Khan and others 1984 SCM R 724 is inapt for the simple reason that the judgment relied upon refers to invoking constitutional jurisdiction in the presence of alternate remedy under section 53 of the Land Revenue Act but .In the instant case the respondents have merely sought relief restraining the, petitioner from raising construction by encroaching upon the public pathway and entering in the property abutting to their own property. Further, since it has been held above that the very order sanctioning the site plan by the then Municipal Committee after firstly rejecting it was without lawful authority therefore, even there was no necessity of seeking cancellation of the said order by the respondents. This objection of the learned counsel for the petitioner is also overruled.
10. So far as the plea of learned counsel for the petitioner that without seeking cancellation of sale- deed dated 23-7-1989 in favour of Abdul Majeed as a further relief within the meaning of section 42 of the Specific Relief Act and the reliance placed by the learned counsel on Hamida Begum v.
Murad Begum PLD 1975 SC 624 and Syed Mithal Shah v. Khawaja Rafiullah (represented by heirs) and another PLD 1975 Kar. 930 have got no legal sanctity for the reasons that neither the sale-deed in favour of Abdtil Majeed does contain disputed Khasra No,586 nor the respondents were party to the said sale-deed therefore, to say that sale-deed in dispute unless got set aside constitutes an impediment in the way of relief sought by the respondents in their suit rendering the same as defective, is not the correct proposition of law. The very contention of learned counsel for the petitioner is itself nullified by the judgment of Hon'ble Supreme Court relied upon by him I e Mst.
Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624(e) at page 626 holding "if a person is not party to the deed he need not seek its cancellation or H setting aside". This objection of the learned counsel also falls on the grounds for the above reasons.
11. So far as the contention of learned counsel for the petitioner regarding validity/genuineness of demarcation report is concerned, I cannot subscribe to the view of the learned counsel for the simple reason that it is evident from the demarcation report itself Exh.P.12 that demarcation proceedings were conducted by Manzoor Hussian Patwari D.W.1-1 in the presence of Abdul Majeed petitioner who also affixed his thumb-impressions on the same. Still it was open for him to have filed I objections against the said report if he had got any complaint against the same. By not filing any objections against the said report, Abdul Majeed petitioner is presumed to have accepted the same. Again Manzoor Hussian D.W.1 the author of the report was produced by Abdul Majeed deceased petitioner himself as his own witness knowingly that he had conducted the demarcation proceedings and prepared report Exh.P.12 and the site plan Exh.P.13, therefore, the objection of learned counsel for the petitioner with regard to the genuineness of the said report cannot be entertained at this stage.
12. Similarly, there is no force in the contention of learned counsel for the petitioner that as in terms of Rule 67-A of the Land Revenue Rules relating to demarcation of land it is mandatory requirement that only the Revenue Officer can hold demarcation as such appointment of Patwari for holding demarcation was illegal and without lawful authority. I am afraid such objection of the learned counsel for the petitioner has I got any legal force for the simple reasons that Rule 67-A of the Land Revenue Rules refers to demarcation of agricultural land only and not to property other than agricultural land and the same is evident from provisions of section 3 of the Land Revenue Act which expressly excludes the land not assessed to land revenue from the operation of Land Revenue Act, 1967.Further since Commission for holding demarcation was appointed by the Court and not in pursuance of the said Rules, therefore, the Court was fully competent to appoint any person for this purpose and thus the appointment of Manzoor Hussian and demarcation proceedings conducted by him were neither illegal nor without jurisdiction and thus the objection of the learned counsel for the petitioner to this effect is also not valid in the eyes of law.
13. The remaining objections of the learned counsel for the petitioner are too technical to sustain in the presence of un-rebutted evidence regarding the fact that Khasra No,586 forms part of a public pathway and Abdul Majeed trespassed into the same under the excuse that respondents Nos. 3 to 7 had illegally occupied the disputed area owned by him and there is nothing on record that the findings of the learned District Judge dismissing the suit of Abdul Majeed and decreeing the suit of respondents Nos. 3 to 7 are either illegal, erroneous, based on misreading or non-reading of evidence or suffer from jurisdictional defect. This petition, therefore, has no force and is accordingly dismissed, leaving the parties to bear their own costs.