' S. ALI HASSAN RIZVI, J.--- Muhammad Idrees plaintiff/respondent had filed a civil suit on 10-6-1998 seeking a declaration that he was owner in possession of house built on 4 Marlas situate in Abadi Mauza Ahla, Tehsil and District Mandi Baha-ud-Din and that the defendants Karam Din, his wife Mst. Aashi, and his two sons Ashfaq Ahmad and Intezar Hussain alias Ahmad Yar, had no right or authority, whatsoever, to interfere with his peaceful possession. As a consequential relief, the defendants were sought to be permanently restrained from casting any clouds on the title of the plaintiff or from interfering with his peaceful possession in any manner, whatsoever. It was averred in para.1 of the plaint that the defendants had two and a quarter years before, taken the afore-said site as Areeat for construction of a Kurh (shed) for tethering the cattle and that a written agreement dated 26-3-1996 was executed between him and defendant No.3, Ashfaq Ahmad.
2. The suit was resisted by the defendants/revision petitioners vide their written statement dated 10-3-1999. It was claimed that they had filed a civil suit which was pending in the Court of Mr. Muhammad Shafiq Butt, then learned Civil Judge, Mandi Baha-ud-Din and that the present was a counterblast. They also pleaded that they were in possession since 1976. As to the afore-mentioned agreement, the execution thereof was denied.
3. During the pendency of the suit, Karam Din, defendant No.1 had died and his legal heirs, which are now the, revision petitioners were substituted vide amended plaint dated 13-11-1998.
4. The learned Civil Judge seized of the suit put the parties on trial on the following issues:--- "Issues:
(1) Whether the plaintiff has not come to the Court with clean hands? OPD
(2) Whether the plaintiff has filed the suit just to harass the defendants, hence the defendants are entitled to special costs Rs.20,000 under section 35-A of C.P.C.? OPD
(3) Whether the plaintiff has no cause of action to file this suit? OPD
(4) Whether the plaintiff is entitled to decree for declaration as prayed for? OPP
(5) Relief.
5. On conclusion of the trial Mr. Mahmood Azam Warraich, learned Civil Judge Mandi Baha-ud-Din, dismissed the suit vide judgment and decree dated 28-1-2000 mainly on the ground that Muhammad Idrees the plaintiff/respondent was not the owner of the suit property.
6. In appeal, the findings recorded by the learned trial Court were reversed and consequently the suit was decreed vide judgment and decree dated 17-12-2004 rendered by Malik Abdul Rasheed, learned Additional District Judge, Mandi Baha-ud-Din.
7. The present revision petition was filed on 15-3-2005 to challenge the appellate judgment and decree dated 17-12-2004.
8. I have heard learned counsel for the parties and gone through the record. Issues Nos.1, 3 and 4 being interdependent, may be taken up together. The plaintiff/respondent Muhammad Idrees appeared as P. W.1 and got exhibited the agreement dated 26-3-1996 as Exh.P.1. He examined Muhammad Latif, Sub-Engineer P.W.2 who as a local commission had testified his report Exh.P.2 and the site-plan Exh.P.3. Further, Abdul Sattar P. W.3 was also examined who testified the aforesaid agreement Exh.P.1. Muhammad Ramzan P.W.4 was also examined who, too, testified the execution of agreement Exh. P.1.
9. On the other hand, Mst. Aashi one of the defendants/revision petitioners appeared as D.W.1.
Ashfaq Ahmad, one of the defendants/ revision petitioners appeared as D.W.2. Muhammad Suleman D.W.3 was examined on their behalf.
10. The afore-mentioned was the entire evidence on record for and against the parties.
11. The case of Muhammad Idrees plaintiff/respondent was mainly based on agreement Exh. P.1.
This agreement showed that Ashfaq Ahmad, defendant/petitioner was first cousin (Tayazad) of Muhammad Idrees plaintiff/respondent and the site in question was taken as Areeat for two years; that the defendants would raise temporary construction; that after 31-3-1998 they would remove the superstructure and hand over the vacant possession to Muhammad Idrees and that if the terms of the agreement were violated, he would have a right to get the site vacated through lawful means. The execution of this agreement was denied in the written statement. However, I find that the denial was not specific and rather evasive. Such an evasive denial when viewed in terms of Order VIII, rules 4 and 5, C.P.C., the relevant assertion made by the other side, would be deemed to have been admitted.
12. It is a settled law that in civil matters when entire evidence is recorded, burden of proof would lose its importance and the Court has to B examine the evidence in its entirety. Mst. Aashi Bibi D.W.1 herself admitted that they had earlier filed a suit with regard to the same site in question and that the same was withdrawn with permission to sue afresh. She further admitted that no fresh suit was ever filed by them. She also admitted that when local commission had visited the spot, Muhammad Idrees plaintiff/respondent was in actual physical possession although with a lump and throat, she added that he had taken possession with the help of police. Ashfaq Ahmad,D.W.2 claimed in his examination-in-chief that the property in question was owned by Government of Pakistan; that his father was in possession and that he had never executed any Iqrarnama. He claimed that the Iqrarnama relied by the plaintiff/ respondent was a fake document. During cross- examination he was confronted with the written statement. He denied having signed the written statement. However, he admitted his signatures on the front and back side of the agreement Exh.P.1. He also admitted that the I.D. Card number shown thereon related to him. Then he tried to take a shift saying that the stamp paper was got written through fraud. He however, failed to state any particular of the so-called fraud. It is evident that he had admitted the execution of the agreement Exh.P.1 dated 26-3-1996. The agreement Exh.P.1 was fully covered under Article 102 of Qanun-e- C Shahadat Order, 1984 and any oral evidence against its terms, would stand excluded from consideration vide Article 103 of the Order (ibid).
13. As per Article 170 of Principles of Mahomedan Law by Dr. M.A. Manan (Pakistan Edition), an Areeat would be resumable at the grantor's option. "Areeat" is investiture with the use of a thing without return. In other words, it signifies simply a licence to use the property of another. In the present case, the Areeat wits. For a limited period from 26-3-1996 to 31-3-1998 whereafter the grant was resumable at the option of the grantor (Muhammad Idrees). The temporary possession of the defendants was nothing more than permissive under the agreement Exh.P.1 executed on 26-3-1996 for a limited period of two years. Muhammad Idrees plaintiff/respondent even if was not an owner of the site in question, had possessory rights and consequently could maintain a suit on the basis of his legal character. As per section 42 of Specific Relief Act, 1877, any person entitled to any legal character, or to any E rights as to any property could maintain a suit for declaration with consequential relief. The term "legal character" has a bit different connotation from "a title to property". It was proved .On record that Muhammad Idrees plaintiff/respondent was in actual physical possession of the property in question before 26-3-1996 when the agreement Exh.P.1 was executed. His possessory rights had conferred on him a legal status, except against the true owner, if any, which is equivalent to legal character as envisaged under section 42 of the Specific Relief Act, 1877. "Stronger is the position of the person who is in possession" is a time-accepted rule. The term "legal character" is familiar to the lawyers. It is, however, difficult to define precisely its connotation within a short compass. The defendants/revision petitioners in this case were bound by the terms of the agreement dated 26-3-1996 Exh. P.1. By denying the execution of the agreement Exh.P.1, in their written statement, the defendants/revision petitioners had cut their size. Its execution was proved during evidence. Section 42 of the Act ibid does not postulate that declaration in respect of right to any property could be sought only by an owner of the same. Hyderabad Municipal Corporation v. Messrs Fateh Jeans Ltd. 1991 M LD 284 may be relied upon.
14. In purview of the evidence and the legal position as discussed above, the plaintiff/respondent could not be dubbed to have come to Court with unclean hands. It could also not be said that he had no valid cause of action. He was, therefore, entitled to the decree for declaration and permanent injunction as prayed for with respect to the property in question. The allegation of the defendants/revision petitioners that Muhammad Idrees had taken forcible possession remained bald leading to no consequence. As a result, I find that the learned Additional District Judge was justified as a superior Court of fact, in reversing the findings recorded by the learned trial Court and had rightly decreed the suit in favour of the plaintiff/respondent vide his judgment/decree dated 17-12-2004.
15. Now a word about Issue No.2. In purview of findings on issues Nos.1, 2 and 4, there was no warrant to say that the plaintiff/respondent had filed the suit to harass the revision petitioners.
There was, therefore, no question of awarding special costs under section 35-A, C.P.C.
16. For my own reasons as recorded above, I uphold the judgment/decree dated 17-12-2004 rendered by the learned Additional District Judge, Mandi Baha-ud-Din, decreeing the suit.
Consequently, the revision petition is dismissed with costs.
17. A copy of this judgment shall be communicated through the District and Sessions Judge concerned to the learned trial Judge as also the learned appellate Judge wherever they are posted.
2010 C C 251 [Quetta] Before Amanullah Khan Yasinzai, CJ GOVERNMENT OF BALOCHISTAN through Deputy Commissioner, District Quetta and another----Petitioners versus Syed ABDUL QADIR ALGILANI and 6 others----Respondents Civil Revision No.257 of 2008, decided on 26th June, 2009.
(a) Balochistan Cancellation of Illegal Allotments of Land Act (V of 1996)--- ----S. 3---Entry of petitioner's name in Revenue Record as "Mauroosi Bazgar" for having developed barren State land by spending huge amount and being in possession thereof for last 40 years--- Cancellation of such entry in view of Notification No.180-14/93/Revenue, dated 6-12-1995 and Balochistan Cancellation of Illegal Allotment of Land Act, 1996 without giving any notice to petitioner or initiating enquiry-Validity-Such entry had not been made in record of rights abruptly- -Ownership rights had not been transferred in petitioner's name---Revenue authorities had entered petitioner's name as "Mauroosi Bazgar" after due process of enquiry and inspection of land---Petitioner was paying usher in respect of such land after turning same into cultivable land without any objection---Such notification and Balochistan Cancellation of Illegal Allotments of Land Act, 1996 were not applicable to petitioner's case---Impugned order, held, was passed without jurisdiction and in violation of principles of natural justice. [pp. 256, 257, 2581 A, B, C, E & G
(b) Civil Procedure Code (V of1908)--- ----S. 115---Concurrent findings of fact arrived at by courts below---Interference in such findings by High Court in exercise of its revisional jurisdiction under S.115, C.P.C.---Scope.
While exercising powers under section 115, C.P.C. The High Court has to satisfy itself that subordinate Courts had jurisdiction to try the case and had exercised the same rightly, and that while exercising jurisdiction, the Court had not acted legally or in breach of any provision of law or with material irregularity, and if the High Court is satisfied that the aforesaid criteria has been met by the Court below, then the High Court shall not interfere, even if it differs with the findings of subordinate Courts on the question of law or facts. [p. 257] D High Court while sitting in revisional jurisdiction will not interfere in the concurrent findings of fact arrived at by the Courts below, unless it is established that the Courts below have passed the judgment without jurisdiction or have committed material illegality, irregularity or impropriety. [p. 257] F N.S. Venkatagiri Ayyunger's case PLD 1949 PC 26 and 2005 SCM R 135 rel. Nasrullan Achakzai, Addl. A.-G. For petitioners. Arshad Ch. For Respondents.
Date of hearing: 15th May, 2009.
' AMANULLAH KHAN YASINZAI, C.J.--- This civil revision under section 115, C.P.C. Is directed against the judgment and decree dated 27-9-2007 and 7-6-2008, passed by learned Senior Civil Judge-II, Quetta and Additional District Judge-IV, Quetta respectively, whereby the suit filed by predecessor- in-interest of respondents and respondents 2 and 4 was decreed and the appeal filed by petitioners was dismissed.
' Concisely, the facts leading to filing of instant petition are that, predecessor-in-interest of respondents and respondents 2 and 4, filed a suit for declaration, consequential relief and permanent injunction, with the averments that, they own agricultural property in Mahal and Mouza Khush Kaba Sariab, Tappa Shadanzai, Tehsil and District Quetta, and adjacent to their lands, there are lands bearing Khata No.80/134 Min bearing Khasra Nos.595 to 706 and 941 and 977 to 1085 (181 Qittas) total measuring 1331 Rods and 0 Pol. The said property was transferred in their name vide Intiqal No.157. The said lands consisted upon small pieces of land adjoining each other and were waste and Barren lands. The predecessor-in-interest of respondents and respondents 2 and 4 came in possession of these lands about 40/50 years back and by spending lacs of Rupees and by endless efforts, they succeeded in developing and converting the lands from barren to cultivable lands. Thereafter the respondents approached the then Deputy Commissioner with the plea that, since they have done "Nautor" and have developed the lands and are also paying "Usher", therefore, the said lands be transferred in their name. The said plea was accepted and on 22-12- 1991, the predecessorin-interest of respondents and respondents 2 and 4 were recorded as "Mauroosi Bazgars" in the record of rights. After the lands were entered in their names, their possession remained undisturbed and in 2000 the predecessor-in-interest of respondents and respondents 2 and 4 came to know that entries in the record of rights have been cancelled from their name and entered in the name of Government .Of Balochistan. On checking the record, it was revealed that the entries were cancelled in view of the Notification, dated 6th December, 1995 and the Balochistan Cancellation of Illegal Allotments of Land Act, 1996 (hereinafter referred to as the Act of 1996). It was stated that after cancellation of mutation, the respondents had been approaching petitioners, but they refused to reverse the mutation, thus, the above .Suit was filed, with the following relief:--- ' It is, therefore, prayed that a decree may kindly be passed in favour of plaintiffs and against defendants in the following terms:---
(a) Declaring that plaintiffs are the lawfully recorded "Mauroosi Bazgars" in possession of lands in dispute.
(b) Declaring that order, dated 12-10-2000 whereby defendant No.2 cancelled the Intiqal Nos.157 and 216 is illegal, void and without lawful authority and of no legal effect.
(c) Declaring that the Notification No.180-14/93-Rev., dated 6-12-1995 has no application on the revenue entries i.e. Itiqal Nos.157 and 216 of lands in dispute in the names of plaintiffs.
(d) By means of consequential relief the revenue entries vide Intiqal Nos.157 and 216 may be directed to be restored.
(e) By means of permanent injunction defendants may be directed to refrain from resuming possession of lands in dispute from plaintiffs.
(f) Costs of proceedings may also be awarded to plaintiffs against defendants.
' The suit was contested by petitioners on legal and factual grounds. It was mainly asserted that, mutation was cancelled in view of the Notification dated 6th December, 1995 and the Act of 1996.
Out of the pleadings of parties, following issues were framed for determination:--- The issues
(1) Whether the suit of plaintiffs is not maintainable in view of P.Os. "1", "3" of W/S?
(2) Whether the Notification No.180-14/93 Rev., dated 6-12-1995, applies to lands in dispute and cancellation of allotment of disputed lands from the name of plaintiffs is legal by means of order, dated 19-12-1995, by defendant No.2?
(3) Whether plaintiffs are in possession of lands in dispute for last 40/50 years, as Mauroosi Bazgars?
(4) Whether plaintiffs are entitled to the(sic)?
(5) Relief.
' The respondents-plaintiffs in support of their plea produced the following witnesses:--- ' P. W. 1 Haji Rozi Khan, P. W. 2 Ghulam Dastagir, P. W.3 Haji Kamal Khan, P.W.4 Ghulam Qadir, P.W.5 Syed Arshad Ali, Attorney, P. W .6 Bashir Ahmed, P. W .7 Abdul Salam, P. W.8 Amir Jan and P.W.9 Muhammad Siddique.
' In rebuttal petitioners-defendants examined D. W.1 Abdullah Jan and D.W.2 Muhammad Siddique, Saddar Qanoongo.
' It may be pointed out that initially the suit was dismissed vide judgment and decree dated 14-4- 2006. Being dissatisfied, the respondents filed an appeal, which came up for hearing before the learned Additional District Judge-IV, Quetta. After hearing arguments, the appeal was partly allowed and case was remanded to trial Court. In the meanwhile the predecessor-in-interest of respondents Pir Zainuddin Agha died, thus the respondents-plaintiffs 1, 3 and 5 to 7 were impleaded in the suit. After remand, the learned Senior Civil Judge-II, Quetta decreed the suit in favour of plaintiffs-respondents vide judgment, dated 27-9-2007. Being aggrieved from the same, the petitioners filed an appeal before the learned District Judge, which was transferred on the file of learned Additional District Judge-IV, Quetta, who vide judgment and decree dated 7-6-2008 dismissed the same. Hence this petition.
' I have heard Mr. Nasrullah Khan Achakzai, learned Additional Advocate-General for the petitioners and Mr. Arshad Chaudhry, learned counsel for the respondents.
' Learned Additional Advocate-General contended that; both the Courts below have erred in decreeing the suit as the case of respondents fell within the four corners of Notification dated 5th December, 1995 and the Act of 1996, therefore, in view of the same, the mutation entries were rightly cancelled by the Revenue Department. Learned Additional Advocate-General vehemently argued that the Courts below have misread and mis-appreciated the evidence on record, and came to a conclusion, which is extraneous to record and further argued that, there are various illegalities and irregularities, on the basis of which the impugned judgment is not sustainable.
' Learned counsel for the respondents, emphatically argued as under: ---
(A) In the first place, the provisions of the Act of 1996 and the Notification, dated 5th December, 1995, were not applicable to the case of respondents, as the land was not allotted to them, but their names were only entered as "Mauroosi Bazgars" in the property in dispute, on the basis of their possession.
(B) The cancellation order, dated 12-10-2006 was passed in violation of the principle of natural justice.
(C) There are concurrent findings of facts arrived at, after proper appreciation of evidence, thus this Court while exercising powers under section 115, C.P.C. Has limited scope to enter into the same, unless there is a jurisdictional defect or the judgments are perverse and based on no evidence.
(D) Substantial justice has been done, therefore, this Court may not exercise powers under section 115, C.P.C., as the respondents had developed the land after spending huge amount of money and time and the same were throughout in their possession, thus, they were entitled to retain the same.
' Coming to the contention of learned Additional Advocate-General regarding cancellation of the land from the name of respondents on the basis of the Notification dated 5th December, 1995 and the provisions of the Act of 1996; it may be observed that, it is the case of respondents, that they were in possession of the land in dispute for last many decades and after spending huge amount, it was developed and turned into a cultivable land. In this regard the statements of P.Ws. Are very important. P.W.7 Abdul Salam, Senior Clerk, Irrigation Department produced documents Exhs.P.41 to 48, indicating therein, the amounts deposited for use of bulldozers and further names of the drivers are also mentioned, who brought the bulldozers to the land and levelled the same. P.W.8 Amir Jan and P.W.9 Muhammad Siddique tendered documents Exhs.P.49 and 50 and 51 to 57 respectively, indicating the payment of "Usher" made by the respondents in respect of the land in dispute.
However, D.W.2, Muhammad Siddique tendered document Exh.D.2 which shows that the land in dispute was recorded in the name of respondents. The statement of said witnesses have not been disputed by the petitioner, which shows that the land in dispute was adjacent to the settled lands of respondents, who developed the same, by "Nautor" and turned it into cultivable land and then applied for recording their names as "Mauroosi Bazgars" thus it was not an abrupt entry in the record of rights and ownership rights were not transferred in the names of respondents, and they were only entered as "Mauroosi Bazgars".- The contention of learned counsel for respondents has substance that the notification and the Act of 1996, were not applicable to the case of respondents.
It would be relevant to refer to section 3 of the Act of 1996, and the operative portion of Notification, which reads as under:--- "Now, therefore, with prior approval of Government of Balochistan and in exercise of powers vested in it, the Board of Revenue, Balochistan hereby directs immediate cancellation of all titles/rights/interests acquired directly or indirectly through the process of settlement work started with effect from Board of Revenue, Balochistan's Notification No.180-14/84-Rev, dated 28-10-1986 and consequently through notification No.180- 14/Rev., dated 9-11-1987. This will, however, have no effect on legitimate titles/rights/interests acquired earlier than 28th October, 1986 in respect of all area under settlement operation after the above date and all valid transactions made by land- owners and their successors in interest in respect of lands validly owned by them. The Revenue Record prepared by settlement staff is transferred to Deputy Commissioner/Collector, Quetta District with immediate effect for necessary entries in the relevant record and resumption of State land in accordance with rights and titles in relevant record before issuance of the above said notification."
' As observed hereinabove the land in dispute was not allotted to respondents, but they were only entered as "Mauroosi Bazgars" after due process of enquiry.
' Coming to the next contention of learned counsel for respondents that, after passing of the Notification and the enactment of the Act of 1996, the land in dispute, which was admittedly in possession of respondents, was deliberately cancelled, without giving any notice or initiating enquiry. In view of the fact that the respondents had developed the land in dispute, installed tube- wells, constructed houses for labour, which fact is indicative from the statements of P.Ws.1 to 3, who stated that the respondents were in possession of the land in dispute, since last 40 years; thus it can safely be held that the cancellation order was passed without jurisdiction and in violation of the principle of natural justice.
' Adverting to the next contention that, since there are concurrent findings of ficts arrived at by the Courts below, thus, this Court while exercising revisional jurisdiction under section 115, C.P.C. Cannot interfere in the findings of fact. It is a settled principle of law that while exercising powers under section 115, C.P.C., the Court has to satisfy itself that, subordinate Courts had jurisdiction to try the case and had exercised the same rightly, and that, while exercising jurisdiction, the Court had not acted legally or in breach of any provision of law or with material irregularity, and if the Court is satisfied that the aforesaid criteria has been met with by the Courts below then the High Court shall not interfere, even if it differs with the findings of subordinate Courts on the question of law or facts. Reference may be made to NS. Venkatagiri Ayyunger's case PLD 1949 PC 26. In my considered opinion, the Courts below have arrived at a conclusion, after proper appreciation of evidence.
' The only ground agitated by the learned Additional Advocate-General was that mutation entries were cancelled in view of the Notification and the Act-of 1996, which contention was rightly repelled by the Courts below, giving cogent reasons for the same, it may be observed that, it is settled principle of law that High Court while sitting in revisional jurisdiction will not interfere in the concurrent findings of facts arrived at by the Courts below, unless it is established that the IF Courts below have passed the judgment without jurisdiction or have committed material illegality, irregularity or impropriety. Reference may be made to 2005 SCM R 135. Since the learned Additional Advocate-General could not point out any illegality or irregularity committed by the Courts below, thus the findings being unexceptionable do not warrant interference.
' It may be observed that in the case in hand, the respondents were in possession of the land in dispute and they have developed the same with the passage of time by spending huge amount and applied for entering their names as "Mauroosi Bazgars" and the Revenue Authorities after inspection of the land and conducting enquiry, after being satisfied, entered their names as "Mauroosi Bazgars" and further, they have been developing the land in question, constructing houses and installing tube-wells, without any objection, thus, the Courts below have done substantial justice, and no interference is called.
' As a result, the petition being devoid of substance is dismissed leaving the parties to bear their own costs