' MUHAMMAD NOOR MESKANZAI, J.--- Instant revision petition is directed against the judgment and decree dated 21st December, 2006 passed by Majlis-e-Shoora, Kalat Division at Mastung, whereby the appeal filed by respondent, was accepted and the judgment and decree dated 31st July, 2006 passed by learned Qazi Kalat was set aside.
2. Facts relevant for the disposal of this revision petition are that respondent/plaintiff instituted a suit for declaration, permanent injunction and possession against petitioners/defendants. It was averred in the plaint that the plaintiff is the lawful owner and in possession of property bearing Khasra No, 3904 measuring about 33000 Sq.Ft. Situated at Ward Rais Tock/area Chashma, Kalat. In the year 1996, the police department, through petitioner No,3 illegally, unlawfully and without any legal justification encroached upon the landed property of respondent/ plaintiff.
3. The suit was contested by defendants/petitioners by way of filing written statement. After receiving the written statement, the learned Qazi was pleased to dismiss the plaint on the ground of limitation, on filing of appeal, the learned Majlis-e-Shoora vide judgment dated 29th. May, 2001 remanded the case to the trial Court.
4. The learned trial Court out of the pleadings of parties framed the following issues:---{{URDU TEXT}}
5. Thereafter, the parties were directed to adduce evidence in support of their respective claims whereupon the plaintiff/respondent examined four P.Ws. In rebuttal, the defendants/petitioners produced five D. Ws. And got recorded statement through attorney. The learned trial Court after evaluating the evidence and hearing the parties decreed the suit vide judgment/decree dated 3rd November, 2001. Appeal filed by defendants/petitioners before Majlis-e-Shoora was also dismissed, however; a revision petition filed by defendants/petitioners before this Court was accepted vide order dated 25th April, 2005 and the case was remanded back to the trial Court with directions to provide opportunity to the parties for leading evidence and thereafter to decide the case. For the sake of convenience, the order dated 25th April; 2004 passed by this Court is reproduced as under:--- "By consent of parties' counsel, impugned judgment and decrees dated 3rd November, 2001 and 26th November, 2002 passed by Qazi Kalat and Majlis-e-Shoora, Kalat at Mastung, respectively, are set aside. The case is remanded to the trial Court i,e, Qazi Kalat for recording statement of plaintiff and producing record/evidence, if any, and; providing opportunity to the petitioner to lead evidence and produce record, if any and thereafter, matter may be decided finally.
' Consequently, the petition is disposed of in the terms that the impugned judgment and decrees passed by the courts below, are set aside, and the matter is remanded to the trial court to decide the same, in accordance with law."
6. Thereafter, the petitioner No,5 produced two witnesses and representative of petitioner No,5 also recorded his statement. On completion of proceedings, the learned trial Court dismissed the suit vide judgment/decree dated 31st July, 2006. Feeling dissatisfied with the judgment/decree passed by learned Qazi Kalat, respondent preferred an appeal before Majlis-e-Shoora Kalat at Mastung which was accepted vide impugned judgment/decree dated 21st December, 2006, hence instant revision petition.
7. We have heard Mr. Tariq Ali Tahir, Addl: A.-G. For petitioners, whereas, the respondent was represented by Mr. Jaffar Raza Advocate. Learned Counsel for petitioner argued with great vehemence that the learned Majlis-e-Shoora failed to appreciate the facts and circumstances of the case: The plaintiff/respondent badly failed to prove his case by producing cogent and tangible evidence but the learned appellate Court failed to consider this important aspect of the case. He stressed that none of the witness produced by respondent before the trial Court has uttered a single word about the ownership of the respondent, even then, the learned Majlis-e-Shoora set aside the judgment/decree passed by Qazi Kalat. Learned Counsel emphasized that the judgment passed by tke appellate Court is not sustainable in view of fact that petitioners are in possession of the land in question since time of immemorial. The `Sanad' produced by plaintiff before the trial Court is not about the property in dispute but this aspect too escaped notice of learned appellate Court. Learned trial Court after proper appraisal of entire available material rightly concluded that the plaintiff has failed to prove his case. The findings so arrived at were not open to exception.
' On the other hand, the learned Counsel for respondent strenuously opposed the revision petition and argued that there is no misreading or non-reading of evidence by the learned appellate Court nor the petitioners could point out any illegality or irregularity in the judgment/decree impugned.
He further argued that the learned appellate Court after proper appraisal of evidence and taking into consideration the entire documents has passed a well-reasoned and an exhaustive judgment, dilating upon each and every aspect of the case, as such; the judgment/decree are not called for interference. The respondent, in order to prove his claim produced trust worthy, confidence- inspiring and tangible evidence but the learned trial Court while dismissing the suit failed to take into consideration the same and the learned appellate Court has rightly passed the judgment/decree because the respondent had proved his case.
8. I have considered the contentions put forth by the parties' learned counsel and gone through the available record annexed with the petition. It may be observed that pursuant to remand of case by this Court, the trial Court after allowing opportunity to parties dismissed the suit. The learned trial Court while deciding case resolved Issues Nos.1 and 2 in favour of respondent/plaintiff. Since the petitioners did not challenge the findings of trial Court on Issue Nos.1 and 2 by means of cross- objection, therefore, the findings of both the courts qua Issues Nos.1 and 2 are maintained with exception that the findings of appellate Court are not in consonance with the proved facts on the record qua the factum of possession. The findings to the extent of the maintainability of suit and point of limitation are sustained. As far as Issue No,3 is concerned, plaintiff has badly failed to prove this issue. To prove the issue, the plaintiff has produced P.W. Hazoo Bakhsh who has not stated the boundaries correctly, same is the position with the statements of P.W.2 and P.W-3. The appellate Court while resolving Issue No,3 has relied upon the statement of P.Ws.1, 2 and 3. A meaningful perusal of the statements reflects that the appellate Court has misread the evidence particularly the witnesses have not given the correct boundaries, but the appellate Court did not adhere to this aspect of the case. As far as the documentary evidence is concerned, the appellate Court has relied upon `Sanad' with reference to Articles 100 and 101 of Qanun-e-Shahadat Order but the learned appellate Court failed to take into account that neither the said document was tendered in evidence nor exhibited. There is no cavil to the established principle of law that unless a document is tendered in evidence and exhibited, the same cannot be taken into consideration. Besides, there is an inherent defect in the suit. According to para-1 of the plaint, the property is claimed to have been purchased from one Imdad son of Hafiz Shandin, whereas, in his statement before the Court, plaintiff stated that the property was purchased from Khan Sahib. For ready reference the relevant portion of the statement and cross-examination thereto are reproduced:{{URDU TEXT}} In reply to questions. He stated as under:-{{URDU TEXT}}
9. In order to prove the case, the statement of plaintiff must conform and verify the contents of plaint in its totality. Any repugnancy, inconsistency or conflict in the statement and the plaint is sufficient to damage the case and the claim. On this sole ground, the findings of the appellate Court qua issue No, 3 are without any substance, untenable and unsustainable, as such; the same are reversed and the findings recorded by trial Court are maintained.
10. As far as Issue No,4 is concerned, the plaintiff has failed to prove his possession over the property. All the P. Ws. Produced by the respondent/plaintiff have not stated the boundaries correctly, therefore, their statement qua the possession is of no avail.
11. As far as issue No 5 is concerned, since the crucial issues i,e, Issues Nos.3 and 4 have been resolved against the plaintiff/respondent, therefore, the findings of the appellate Court on this issue are also contrary to record. The entries are in favour of Government of Balochistan. Besides, the continuous and uninterrupted possession of Government of Balochistan over the property in question has also been established, as such; the findings on issue No, 5 are reversed and that of the trial Court are hereby maintained. It -can safely be concluded that the appellate Court has committed material irregularity in reversing the decree. The appellate Court has misread the evidence and misapplied the law by considering a document which has not been tendered in evidence nor has been proved.
' In view of what has been discussed herein above, the petition is accepted. Judgment and decree dated 21st December, 2006 passed by Majlis-e-Shoora Kalat Division at Mastung is set aside and judgment and decree dated 31st July, 2006 passed by Qazi Kalat is maintained. Parties shall endure their own costs.