' MUHAMMAD NOOR MESKANZAI, J.-- By this common judgment, I intend to dispose of Civil Revision Petitions Nos.150 of 2010 and 73 of 2012, as common question of facts and law are involved in both the petitions.
FACTS OF REVISION PETITION NO.150 OF 2010.
2. Facts relevant for the disposal of instant petition are that the respondent No,1, instituted a suit against petitioners and respondents Nos.2 to 5, in the Court of Qazi Lasbela, for declaration and permanent injunction, illegal possession, ejectment from government land and trees. It was averred in the plaint that the land bearing Khasra Nos.118 to 128, measuring 223 acres, 2 Poles, 29 Rods, situated in Mouza Danbi North, Tehsil Uthal, District Lasbela, was allotted to Forest Department by the Provincial Government, vide Notification issued by West Pakistan Governor, in the year 1965, wherein 63360 acres land of Uthal was mentioned. Thereafter on 1st December, 1980 the MBR-II, Balochistan issued Notification No,4-21/47/Rev-9326-30, the land was mutated from the name of Provincial Government to the name of Forest Department. In the month of January the defendants started cutting the trees and illegal construction, hence the suit.
3. The suit was contested by the defendants/petitioners by way of filing written statement, whereby, besides raising certain preliminary legal objections regarding maintainability of the suit, the claim of plaintiff was repudiated on merits as well.
4. The trial Court, out of the pleadings of parties framed following issues:--- {{Urdu Text}}
5. The plaintiff, in order to prove his case besides examining representative also produced one P.W.
Whereas; in rebuttal the petitioner/defendant produced 4 witnesses and got recorded their statements through attorney. The trial Court after hearing the parties and evaluating the evidence decreed the suit. The petitioners feeling aggrieved of the judgment passed by the trial Court preferred an appeal before the Majlis-e-Shoora, Lasbela at Hub which too was dismissed upholding the judgment passed by the trial Court, hence instant revision petition.
6. The learned counsel for the petitioners while justifying his arguments on Civil Revision Petition No,150 of 2010 submitted that the trial Court as well as appellate court omitted to take into account the fact that the petitioners are in possession of 27 acres of the disputed land and their claim was restricted to such extent. It was further stated that continues possession of the petitioners cannot be disturbed on the basis of revenue entries. The petitioners are owners of the property and the same is their ancestral property. The trial Court as well as the appellate Court only by taking into consideration the revenue entries have passed the impugned judgment and decree.
' Learned Additional A.-G. Vehemently opposed the submissions and stated that the property in question being the property of Government of Balochistan was allotted to Forest Department and subsequent thereto mutated in the name of Forest Department. The settlement has been carried out in the year 1965. The Government of Balochistan is admitted owner of the property from the day one. The petitioners have never been in occupation and only started interference; therefore, the respondents filed the suit at the right time. There is no misreading or non-reading of evidence.
7. The perusal of the record reflects that there is no illegality or irregularity in both judgments impugned warranting interference by this Court by way of setting aside the same. The petitioners failed to rebut the claim of respondents/plaintiffs that the land in dispute was not allotted to Forest Department or that the provincial Government was not the owner of the same. Furthermore; there are concurrent findings of facts arrived at by two courts below which normally cannot be disturbed by this court unless it is proved that the same are shocking, ridiculous or artificial. Learned counsel for the petitioners failed to specify any portion of evidence which has been misread, non-read or misappreciated. On the contrary only general type of grounds have been raised by the learned counsel for the petitioners. Perusal of record reveals that both the courts below after proper appraisal of evidence and material available on record passed well-reasoned and exhaustive judgments after attending each and every aspect of the case. I have minutely analyzed the evidence but have not been able to find out any misreading or non-reading of evidence; therefore, the Revision Petition No,150. Of 2010 is hereby dismissed.
FACTS OF CIVIL REVISION PETITION NO.73 OF 2012.
8. Facts relevant for the disposal of instant petition are that the petitioners instituted a suit for declaration, permanent injunction and correction of entries, against the respondents/defendants, in the Court of Qazi Lasbela at Uthal. It was averred in the plaint that the plaintiffs are owners in possession of land falling under Khasra Nos. 123, 122, 121, 120, 119, 118, 128, 127, 126, 125 and 124, situated at Mouza Retaira (wrongly recorded as situated in Mouza Danbi), measuring 26 Acres, Tehsil Uthal District Lasbela. It was further contended in the suit that the land in question was given to, the petitioners' ancestors by Jam of -Lasbela in the year 1916, but the same was illegally, unlawfully and without any legal justification entered in the name of respondents/defendants, hence the suit.
9. The suit was contested by the respondents/defendants, by .Way of filing written statement, whereby, besides raising certain preliminary legal objections regarding maintainability of the suit, the claim of plaintiffs was repudiated on merits as well.
10. The trial Court after obtaining written statement found the suit barred under section 11, C.P.C.
And the suit being incompetent was consigned to record.
11 The petitioners feeling aggrieved of the judgment passed by the trial Court preferred an appeal before the Majlis-e-Shoora, Lasbela at Hub, which too was dismissed upholding the judgment passed by the trial Court, hence instant revision petition.
12. The learned counsel for the petitioners argued that the Courts below illegally, unlawfully and without any justification disposed of the suit as well as appeal filed by the petitioners.. Learned counsel further argued that the judgments impugned herein are result of misinterpretation of law.
Learned counsel emphasized that the trial Court ought to have framed issues and after recording evidence of both the parties should have decided the matter but in a haphazard and slipshod manner suit filed by the petitioners was disposed of.
' On the other hand, the learned Addl: A.-G. Strenuously opposed the petition and argued that there are concurrent findings arrived at by two courts below which normally cannot be interfered with by this Court unless it is proved that the same are ridiculous, shocking and perverse. There is no illegality or irregularity in the judgments impugned nor could the counsel for petitioners point out any misreading or non-reading of material available on record or misapplication of law. The suit was not hit by the principle of res judicata but the courts below wrongly concluded that the suit filed by the petitioners is hit by the principle of res judicata.
13. I have considered the arguments advanced by the parties learned counsel and have gone through the record of the case. The perusal of both the petitions reflects that admittedly the parties are same and the disputed property is also the same. For the sake of convenience revenue entries of both the suits are reproduced hereinbelow:--- Revenue Entries mentioned in Civil Suit No,48 of 2009. {{Urdu Text}} Revenue Entries mentioned in Civil Suit No,5/20II. {{Urdu Text}}
14. The bare perusal of above revenue entries leaves no room for doubt that dispute amongst the parties pertains to the same property and parties are also the same. A decree was drawn in favour of respondents and the appeal filed by the petitioners was also dismissed. The main grievance of the petitioners appeared to be that since suit of petitioners was dismissed at the strength of findings recorded by the trial Court in Civil Suit No,48 of 2009 and the said findings though were upheld by the appellate Court yet were sub judice before this Court. Therefore, the petitioners were non-suited at a premature stage. The submissions apparently though attractive yet intrinsically loose significance, as when the suit was filed by the petitioners the respondents was already having a decree in their favour, so the application of section 11, C.P.C. Fully attracted in the case. The law is settled that an incompetent suit must be buried at its very inception. By holding the view I am fortified by the judgment titled as (S.M. Shafi Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs relevant at page 342), reported in 2002 SCMR Page-338, wherein it has been held as under:--- "Provisional transfer order does not, ipso facto, confer absolute title over the property. Admittedly, this case is not governed by section 9 of the Specific Relief Act. Without clear title the suit for possession could not be filed. The Government gave the land to the Society and the latter surrendered it back to the former. The predecessor-in-interest of the petitioners had no independent right. His right, if-any, was through the Society, and it ceased to exist before it became perfect and enforceable in law. It is the requirement of law that incompetent suit shall be buried at its inception. It is in the interest of the litigating parties and the judicial institution itself.
The parties are saved with their time and unnecessary expenses and the Courts get more time to devote it for the genuine causes. The findings of learned Single Judge and of Division Bench are based upon material available on record and no legal infirmity has been pointed out. Under the circumstances, the plaint was rightly rejected " The respondents succeeded to establish their case and proved by production of un-rebutable documentary evidence. The evidence produced by the petitioners was not confidence inspiring, trustworthy, believable and tangible, therefore, the trial Court rightly decided the same. Moreover, the petitioners in fact do not dispute the entitlement of respondents but confine their claim to the extent of 27 acres out of the allotted property to Forest Department. The claim lacks credibility as the documentary evidence produced by the respondents could not be rebutted by the petitioners. Now as the Revision Petition No,150 of 2010 filed by the petitioners has been dismissed, therefore, except maintaining and upholding the findings of trial Court and appellate Court, there is no way out except to dismiss this petition.
' For the foregoing reasons, I am of the considered opinion that the petitioners failed to prove their claim and the courts below rightly passed the judgments and decrees impugned which are not open to any exception. No case for interference by this Court in the judgments and decrees impugned has been made out. The petitions have no force, which are dismissed leaving the parties to endure their own costs.