' SYED SAJJAD HASSAN SHAH, J.---The petitioners-plaintiffs have filed a suit against Abdul Samad Khan and others, seeking the declaration and perpetual injunction on the grounds that they are owners in possession of property comprised in Khasra No, 661 and its present Khasra Nos are 948/661 and 947/661 measuring 7 kanal, 3 marla, the respondents-defendants may be restrained not to claim any right or interest in respect of the suit property, moreso, not to interfere with the possession of the petitioners-plaintiffs.
2. The petitioners-plaintiffs made the averments in their plaint that Khasra No, 748/628 measuring 05 kanal, to the extent of 2/3 share adjacent to Khasra No, 661 is the ownership of respondents- defendants Nos.1 and 2 and they have no legal right to interfere in the suit property. As an alternate relief they have prayed for the recovery of its possession, if it is proved that the respondents- defendants are in occupation of any part of the suit property. The petitioners-plaintiffs further asserted that the petitioners-plaintiffs Nos. 1 to 4 are owners Of an area of 12 marlas, whereas, petitioner-plaintiff No, 5 is owner of 6 marlas in disputed khasra Nos, hence total area is 1 kanal, 18 marlas, over which the petitioner-plaintiff has constructed the shops. It is further averred by the petitioners-plaintiffs that besides, the vacant site, the area over which petitioners-plaintiffs have constructed the shops is quite separate, whereas the property owned by the respondent/defendant situated towards the northern side of suit property bearing Khasra No, 748/628 as referred to above. It is further asserted in the plaint that the suit filed by the petitioners- plaintiffs challenging the vires of notice issued by the Deputy Commissioner to remove the encroachment, during the pendency of said suit the compromise was effected and both the parties amicably settled the matter, that the width of road would be 33 feet from middle-center of the Khasra No,662 towards the northern side to be used for road and would be the public property.
4.The learned counsel for the petitioners-plaintiffs argued that they are apprehending that the respondents- suit was contested by the respondents-defendants Nos. 1 to 3 by filing their written statement. They have not disputed the ownership and possession of the petitioners-plaintiffs over the disputed khasra No, however, it is asserted that they are the owners in possession of Khasra No, 748/628 since, 1974. They have constructed the boundaries over the area so purchased by them; resultantly it was separated by rest of the property, therefore, they are in exclusive possession of the said area and further asserted that they are raising construction over their own portion of land; the petitioners-plaintiffs have no concern with the same. The suit is filed against the respondents- defendants, restraining them from the use of their own property accordance to their own choice.
They have categorically stated that they are re-constructing the boundary wall by using pakka/bricks over the site. Whereupon the boundary wall was already existing. They have no intention to encroach upon the property belonging to the petitioners-plaintiffs. The learned trial Court framed issues in the light of divergent pleas of the parties raised in their pleadings. Both the parties afforded ample opportunity to produce their evidence. After recording of the evidence the learned counsel for the parties heard and the suit of the petitioners-plaintiffs was dismissed.
Feeling aggrieved assailed the judgment and decree passed by the learned trial court by filing the appeal. The learned appellate court also dismissed the same, hence the present petition filed by the petitioners-plaintiffs. Defendants would encroach upon the suit-land. He further contended that previously the suit was filed by the petitioners-plaintiffs against the respondents/ government challenging the vires of the notice, during the pendency of suit, the compromise was effected, pursuance thereto, the area used for the purpose of main road would be 33 feet in width commencing from the center of the mad towards the northern side of the suit property. He further contended that there is ample evidence available on record, but both the learned Courts below have failed to consider the same thus the dismissal of the suit of petitioners-plaintiffs is absolutely against the norms of law and justice. He further argued that the respondents-defendants have encroached upon the portion of suit property and now illegally occupying the same, which is the part and parcel of the Khasra No, 661. He further contended that the case of the petitioners- plaintiffs is fully proved from the Revenue Record produced by the petitioners-plaintiffs. He maintained that the report submitted by the local commission is not in accordance with law and facts obtained on the spot, thus, same is the violation of the relevant law, and liable to be set at naught. He lastly prayed that the judgments and decree of both the Courts below may be set aside and the suit of the petitioners-plaintiffs may be decreed.
5. The' learned counsel for the respondents-defendants supported the impugned judgments and decree and contended that both the learned Courts below after evaluating the evidence available on record arrived at conclusion which is just and proper needs no interference by this court therefore, the revision petition filed by the petitioners-plaintiffs may be dismissed.
6. The arguments of learned counsel for the parties considered and record .Carefully perused.
7. In the above scenario it is essentially required to examine the primary requirement of law, as to whether the petitioners-plaintiffs have the cause. Of action and locus standi, to institute the instant suit in view of their averments made in the plaint. The perusal of plaint shows that the allegations and the grounds narrated therein are insufficient to constitute the cause of action, hence, the petitioners-plaintiffs set the law in motion against 'the respondents-defendants without any legal and just cause, as the petitioners-plaintiffs stated that they are owners and enjoying the possession of the suit property. Had they been out of the possession of the suit property they would have first to resort the demarcation proceedings in order to find out their encroached area in possession of the respondents-defendants, notwithstanding that the petitioner-plaintiff (Abdur Rehman) when examined as P.W.3, categorically stated that the petitioners-plaintiffs and respondents-defendants both have constructed the boundary wall to protect their properties.
Furthermore, that the petitioners-plaintiffs have constructed the wall, after the construction of Southern wall by the respondents-defendants in Khasra No, 628. Moreover, it is also stated that the respondents-defendants have encroached upon the disputed khasra Nos. To the extent of 08 feet and thereafter the petitioners-plaintiffs have also carried out the construction of their respective boundary walls and thereafter filed the instant suit. This statement of the petitioners-plaintiffs indicates that they were fully aware of encroachment of 08 feet of land by the respondents- defendants even then they have not pointed out the 'identification and detail of the property allegedly encroached upon the suit property. Here it is apt to say that the petitioners-plaintiffs have neither applied for the appointment of local commission in order to ascertain the factum of encroachment, if any made by the respondents-defendants, nor, the pointation of above cited 8 feet of land have been mentioned in their plaint to identify the suit property as required under Order VII Rule 3 of C.P.C., failing which, speaks volume about the validity and propriety and genuineness of .The claim preferred by the petitioners-plaintiffs which cannot be over-sighted.
Then claim of ownership and possession respecting the suit property has not been denied by the respondents-defendants. The only question agitated in their plaint by the petitioners-plaintiffs is of the possession which too is claimed as alternate relief. It is further pleaded that during the pendency of the suit the possession has been forcibly taken by the respondents-defendants by show of force. In this regard, there is no evidence brought on record that the respondents- defendants have ever taken any portion of the suit-land by show of force during the period of the pendency of suit. More so, the petitioners-plaintiffs have miserably failed to bring any sort of evidence on record to substantiate their dispossession from any portion of the suit-land. Therefore, the plea of the alternate relief is also not of any avail to the petitioners-plaintiffs which appears to be without any substance and the petitioners-plaintiffs have failed to prove by evidence on record.
8. On legal and factual plane, the case of the petitioners-plaintiffs neither supported by any provision of law nor the learned counsel pointed out any provision of law, which can render the instant suit well in accordance with law.
9. The petitioners-plaintiffs got examined patwari halqa as P.W.1 who has produced extract from jamabandi for the years 1992/93 which is Exh.P.W.1/1. According to this document the petitioners- plaintiffs are recorded as owners in the column prescribed for such purpose, however, besides the petitioners-plaintiffs, there are many other co-owners recorded in the ownership column of same khasra No, The area of the suit khasra measuring 06 kanals and 04 marlas, which is used for the purpose of road, likewise, 03 marlas of land is in possession of one Yahya as tenant, the rest of the suit property is in possession of Mst. Banui Bibi etc., as it is evident from the cultivation column of the Record of Rights that the petitioners-plaintiffs have not been shown in possession of a single inch of the land comprised in disputed khasra Nos. Undoubtedly the petitioners-plaintiffs have failed to prove their possession over the disputed property, therefore, the recovery of possession of unidentified portion of suit-land neither can legally be claimed nor can any decree be passed against the respondents-defendants.
10. It is worth-mentioning that the petitioners-plaintiffs stated that the respondents-defendants are in possession of their own suit khasra Nos. However on behalf of the respondents-defendants Fazal Karim DW-2 was examined who has stated that Khasra No, 748/628 measuring 05 kanals, is purchased in the, year 1974 by carving out the tatima for the construction of house and the site was protected by construction of boundary wall and they are the owners and in possession of the said property. This statement has not been cross-examined on behalf of the petitioners-plaintiffs, which is to be considered as admitted by the other party. It is stated on behalf of the petitioners- plaintiffs that after the construction of the boundary wall by the respondents-defendants they have also constructed the boundary wall around the suit property. {{URDU TEXT}} ' Raising of objection and filing of suit at such belated stage i,e, in year 1996 is not free of doubt, as such the veracity and truthfulness of the claim of the petitioners-plaintiffs has become doubtful.
The above-mentioned circumstances have been supported by the statement of petitioners- plaintiffs, which is reproduced as under:- {{URDU TEXT}} ' Had the version of petitioners-plaintiffs is admitted to be correct that they were fully aware of the encroachment over the suit khasra, they would have approached to the concerned authority for demarcation of the suit property in order to ascertain the detail of their deficit area. In such eventuality the cause of action will accrue to the petitioners-plaintiffs to seek the recovery of possession of encroached area if any. However, the petitioners-plaintiffs admitted that the construction was raised over an Area measuring 8 feet encroached upon by the respondents- defendants in the year 1974, when they have constructed the boundary wall. The silence on their part vividly shows that they were fully aware of illegal act of encroachment, but did not initiate any legal action against the respondents-defendants which indicates that they have acquiesced in the matter. The statement reads as under:- {{URDU TEXT}} ' As earlier stated that the wall constructed by the respondents-defendants in the year 1974 but the petitioners-plaintiffs have filed the suit in the year 1996. Notwithstanding that the suit is hopelessly time-barred and also hit by the principle of estoppel and acquiescence.
11. The accumulative effect of the material relied" upon in their plaint by the petitioners-plaintiffs would be that no cause of action is seem to be emanating from the averment made in the plaint and the material brought on record to establish their claim against the respondents-defendants.
Because the court statement of the petitioners-plaintiffs is' full of contradiction, omission and commission. Moreover as a result of compromise the petitioners-plaintiffs relinquished their rights to the extent of 33 feet from middle/center of the road toward the northern side where Khasra No, 166 is situated, in this arrangement the area belonging to the petitioners-plaintiffs from which they have been parted away its detail has not been provided on record. In this way the determination of encroachment, even otherwise, is impossible unless the entire suit property and surrounding properties have not been demarcated. ' During the course of proceedings the local commission was appointed who has submitted his report. According to his statement the respondents defendants have not encroached over the suit property. He has also pointed out that the petitioners-plaintiffs are owners to the extent of. 01 kanal, 18 marlas in the suit property. After measuring the said area, the possession is handed over to them, the petitioners-plaintiffs have constructed the shops over the said area.
' According to the above stated material the petitioners-plaintiffs are owners in possession in accordance with their entitlement in the suit property.
The suit of the petitioners-plaintiffs is also defective for the reason that neither they have impleaded other co-sharers as party to the suit nor have they been C afforded any opportunity of hearing. Therefore the rights of the co-owners who are not party to the suit left undecided. It was the duty of the petitioners-plaintiffs that before filing suit they have to apply for the demarcation of suit property and as per result of the report of local commission, if any, encroachment is found, as given in encroached map, thereafter they can seek recovery of possession of encroached area. In the present circumstances the petitioners-plaintiffs have no locus standi to file the instant suit.
Therefore, the suit of the petitioners-plaintiffs is not maintainable.
12. Be that as it may, the perusal of the statement of petitioner-plaintiff No,1 who was examined as P.W.3 shows that he did not utter a single fact in his Court statement as per the averments made in their plaint. Thus the narrations made by the petitioners-plaintiffs are not in line with the averments made' in the plaint, however, they have pleaded the allegations beyond the parameter of the plaint, which is derogatory to the established principle of the law. Wherein it has been enunciated that the petitioners-plaintiffs are bound by stance raised in the pleadings, thereafter they cannot deviate from, any variation in pleading and proof is not permissible in law. No evidence can be produced about the fact which has not been so pleaded, and even if the party would have succeeded in producing the evidence, it cannot be looked into while deciding the suit, as it amounts to substituting a complete new plea which had not been pleaded. Reliance placed on; Binyameen and 3 others v. Chaudhry Hakeem and others (1996 SCM R 336). In view of the above it is crystal clear that the petitioners-plaintiffs being in possession of their share in the suit property on which they have constructed the shops, now they have no grievance to file the suit.
13. In view of above, the judgments and decrees passed by learned courts below are not suffering from any material illegality or irregularity much less the jurisdictional error, thus maintained and the instant revision petition being without force is hereby dismissed with costs throughout.