JAWWAD S. KHAWAJA,..J--.- The District Council (respondent No. 5) 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 13.11.1981 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 alongwith 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. Issue No. 6, on which both sides confined their arguments, was framed by the learned Trial- Court in the following terms:- "Whether the plaintiffs are owner in possession of the suit land, and said dated 2.9.1984 by the defendants Nos. 3, 4 in favour of defendants Nos. 1 and 2 is illegal, mala fide, void and ineffective as.Against the rights of the plaintiffs? OPD."
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 They, did not produce evidence to show that the property was evacuee property. Secondly, the respondent/plaintiff, namely, Abdul Hameed himself appeared as PW-2 and deposed that the suit land was comprised of an open plot on which. The respondents 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 respondents/plaintiffs were unable to prove that the property in dispute was covered by Settlement Scheme No. VII.
6. 6. . In addition to the above., it may be noted that only one witness, namely, Inayatullah (PW-1), was produced by the respondents/plaintiffs in support of their case. He deposed that the respondents/plaintiffs were 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 C.L.R. the respondents/plaintiffs. 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 .Respondents/plaintiffs 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 stands to challenge the sale-deed. For reasons discussed above, they have 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 respondents/plaintiffs. The impugned decrees, therefore, are not legally sustainable and are set aside. As a result, the suit of the respondents/plaintiffs is dismissed with costs throughout.