JAWWAD S. KHAWAJA, J. --- The District Council (respondent No. 3) has not appeared despite service. It is. Therefore, proceeded against ex-parte.
2. The petitioners/defendants impugn the concurrent decrees of the learned Trial court dated 13.11.1989 and of the learned Appellate Court dated 11.1.1996, whereby a suit filed by the plaintiffs/respondents Nos. 1 to 3 seeking permanent injunction has been decreed.
3. The case of the plaintiffs was that they had become owners of the suit property under Settlement Scheme No. VII. This fact was disputed by the petitioners, who asserted that they had with the concurrence of the residents of the village, transferred the suit property alongwfth other property to the Provincial Health Department through a sale-deed dated 2.9.1984. They also setup the defence that the respondents/plaintiffs had no title in the land and had no locus standi to file the suit.
4. Issues Nos 1 and 2, on which both sides confined their arguments were framed by the learned Trial Court in the following terms:--- "(1) Whether the plaintiff is owner in possession of the suit property as mentioned in para. No. 3 of the plaint? OPP.
(2) Whether the sale of the suit property by defendants Nos. 3 and 4 in favour of the defendants Nos. 1 and 2 by way of registered sale-deed dated 2.9.1984 is against fact, law and as such the registered sale-deed is liable to be cancelled? OPP."
5. In the light of the evidence and the case setup in the plaint, it was for the respondents/plaintiffs to show that they had, become owners of the suit property under Settlement Scheme No. VII. He did not produce evidence to show that the property was evacuee property. Secondly, the respondent/plaintiff, namely Muhammad Iqbal himself appeared as PW-2 and deposed that the suit land was comprised of an open plot on which the respondent had tethered their cattle. This also shows that Settlement Scheme No. VII had no application in this case because the said scheme relates to katcha/pacca evacuee houses and not to open plots. It follows, therefore, that the respondent/plaintiff were unable to prove that the property in dispute was covered by Settlement Scheme No. VII.
6. In addition to the above, it may be noted that only one witness. Namely, Inayatullah (PW-1) was produced by the respondent/plaintiff in support of his case. He deposed that the respondent/plaintiff was in occupation of the suit. Property since 1947. The testimony of PW-1 was recorded on 17.3.1987. The learned Court made a note on file that the witness did not appear to be more than 30 years old. This would mean that the witness was born .Some time around 1957. Even if some margin for error is given as to the observation of the learned Trial Court, it would be evident that PW-1 was not qualified to testify as to facts which took place in 1947. PW-1 is, in any event, very closely related to the respondent/plaintiff. This is a further factor which undermines his testimony, which is otherwise not worthy of credit for the reasons noted above.
7. Learned counsel for the respondent/plaintiff argued that they were entitled to assail the sale- deed dated 2.9.1984. This submission, however,, is misconceived because, first of all, it was for the respondents to prove their title in the suit property in order to show that they had locus standi to challenge the sale-deed. For reasons discussed above, he has not been able-to do so.
8. The learned Courts below have not taken note of the above circumstances and have proceeded on 'erroneous premises based on documents Which have no probative value in proving the title to the suit land asserted by the respondent/plaintiff. The impugned decrees, therefore, are not legally sustainable and are set aside. As a result, the suit of the respondent/plaintiff is dismissed with costs throughout.