' MUHAMMAD NOOR MESKANZAI, J.---Instant revision petition is directed against the judgments and decrees dated 28th November, 2008 and 28th February, 2009 respectively passed by the Senior Civil Judge Gwadar and Additional District Judge, Gwadar whereby the suit as well as appeal filed by the petitioner were dismissed.
2. Facts relevant for the disposal of instant revision petition are that the petitioner instituted a suit for Declaration and Permanent Injunction Cancellation of Khatooni/Khewet No, 215/215/, Khasra No, 105 in respect of land measuring 8001 sq.Ft against respondents in the Court of Senior Civil Judge, Gwadar. It was averred in the plaint that the plaintiff/petitioner is the owner and in possession of the property in question. On the disputed property the petitioner has laid foundation of a boundary wall and adjacent therewith he has constructed a medical store, measuring 576 sq.Ft about 15 years ago. During the settlement operation Khatooni No, 216/227 Khasra No, 103 has been entered in the name of petitioner but strangely the land measuring 8001 ft, which is the only approach to the .
Medical store of the petitioner, has wrongly been recorded in favour of Provincial Government. It was further averred in the plaint that on complaint of petitioner the settlement officer assured that at the time of final verification the suit-land would be entered in his name. In the month of June, 2005 when petitioner started further construction on disputed land, the respondent No,3 interfered and stopped the, construction work on the plea that the respondent No, 1 is the recorded owner of the land in dispute, hence the suit.
3. The suit was contested by the respondents Nos. 1 and 2 by way of filing written statement whereby besides raising certain preliminary objections the claim of petitioner was repudiated on merits as well.
4. The learned trial Court, out of the pleadings of parties framed following issues:-
(i) Whether the plaintiff is owner of the suit-land?
(ii) Whether the plaintiff is in Possession of the suit-land for last 12 years?
(iii) Whether the claim of the petitioner is time-barred?
(iv) Whether the suit is not maintainable under section 42 of the Specific Relief Act?
(v) Whether the plaintiff is entitled for the relief claimed for?
(vi) Relief?
5. Thereafter, the parties were directed to adduce evidence in support of their respective version.
The plaintiff/ petitioner produced two witnesses and got recorded his attorney's statement; whereas in rebuttal the respondents produced his representative. The learned trial Court after hearing the parties and evaluating the evidence dismissed the suit. The petitioner feeling aggrieved of the judgment/decree passed by the trial Court preferred an appeal before the Additional District Judge, Gwadar which too was dismissed, hence instant revision petition.
6. Despite repeated calls none appeared for" the respondents, as such; I have no other option but to hear the learned counsel for the petitioner and decide the case on its own merits. Learned counsel for the petitioner argued that both the impugned judgments/decrees herein are the result of non-reading and mis reading of evidence available on record. The petitioner proved his claim by producing straightforward, trust worthy and confidence inspiring evidence but both the courts below illegally, unlawfully and without any justification discarded the evidence produced by the petitioner.
Learned counsel stressed that both the courts below wrongly held that the petitioner is not in possession of the land in question. In fact not only the petitioner is in possession of the suit-land but he lias also built a boundary wall and a medical store.
7. I have considered the arguments advanced by learned counsel for the petitioner and perused record of the case. It may be observed that plaintiff/petitioner in order to prove his case produced two witnesses and got recorded his own statement through attorney. The perusal of evidence produced by the plaintiff/ petitioner leaves no room for doubt that the petitioner utterly failed to prove his case. The plaintiff has based his claim on so-called possession of land and illegally has raised a boundary wall and thereby claims to be the owner. Such a claim, is not acceptable much less against the Government. It is pertinent to mention that the mere raising of a boundary wall or construction upon the State property without permission of competent authority does create any title in favour of any person nor confers ownership to such a trespasser. Sometime, this may be with collaboration of revenue staff or administrative officer, but nevertheless the Courts cannot draw a decree in favour of a trespasser because the Courts are not supposed to perpetuate illegalities. As such; on the basis of so called boundary wall or any illegal and unauthorized construction, could be clothed with the right of ownership. P.W.1 who is 34 years old has not stated when the petitioner occupied the land, however; in reply to question No, 2 he answered as under:--
8. Conversely P.W.2 stated that the plaintiff is in possession of property since 10/12 years. Whereas attorney of the plaintiff, who is also father of the plaintiff/ petitioner does himself claim to be the owner of the property nor states that this piece of land was given to the plaintiff/ petitioner by him.
Moreover; this is not the case of the petitioner that he has purchased the property from its legal owner or the same has been gifted to him by a real owner; nor he claims to be a legal and valid allottee of the property. It is interested to note that the father of plaintiff who as his attorney states that the property is in possession of the plaintiff for the last 12 years. The evidence produced by the petitioner is not sufficient to prove the case of the petitioner nor for that matter, the petitioner/plaintiff could be allowed to occupy the State land on the basis of mere so-called possession. There is no cavil to the legal proposition that the possession of a trespasser cannot be justified nor the same entitles a trespasser to get a decree in his favour. By holding the view I am fortified by the judgment reported in 2000 (Ghulam Yasin Butt and 2 others v. Manzoor Hussain and 3 others relevant at pages 920-921), wherein it has been observed as under:-- "A trespasser has no vested right as the principle laid down by the Hon'ble Supreme Court. In PLD 1982 SC 308, It is admitted fact that all the respondents are in the foot print of Muhammad Suleman who had executed agreement with the attorney of the original landowner. As mentioned above agreement, dated 24-2-1962 does not reveal that Muhammad Suleman has taken possession of the property in question. The principle of nominee or assignment does not attract in the present case. I am fortified by the following judgments:
(1) 1990 MLD 2016 (Muhammad Farooq Dosa's case) and
(2) PLD 1990 Lah. 211 (Khurshid Ali's case)."
9. The perusal of record reflects that the trial as well as appellate court by proper application of judicial mind resolved issue Nos. 1 and 2. There is no misreading and non-reading of the evidence available on record nor for that matter the law has been misapplied.
10. As far as issue No, 3 is concerned, in my opinion the Courts below failed to take into consideration that it was the bounden duty of the plaintiff to have stated as to when the revenue entries were carried out. In the plaint it has been claimed that plaintiff was unaware about the entries but P. W.1 has stated that during the course of settlement plaintiff pointed out to the revenue authorities that the property in question belongs to him meaning thereby he was aware of the settlement operation. Moreover; a copy of Mutation bearing No,22 has been placed on record which shows that it was mutated on 7th September, 2001 in favour of petitidner meaning thereby that he was very much in the knowledge of settlement operation on 7th September, 2001. If, the time is reckoned from 9th September, 2001 the suit has been filed in the year 2008, even then, the suit is barred by time. So it is held that the suit is barred by time. Resultantly, with exception to issue No, 3, the findings qua rest of the issues are maintained and upheld.
11. The petitioner has based his claim on an alleged and unauthorized possession, and by raising an illegal boundary wall wishes the court of law to draw a decree in his favour. Neither illegal possession confers any title nor illegal construction creates and bestows ownership to a tresspasser, much less against the Government. Neither illegal occupation can be justified nor the Courts are meant to perpetuate the illegal acts. Such an act, calls for punitive action against the wrong doers and the delinquent officers of Local Administration of concerned area who blind fold their eyes when such illegal and unauthorized construction are carried out. This is not unusual that some times the land grabbers with collaboration of revenue staff or local administration raise construction over the State property and thereby lay a claim, but nevertheless such an illegal act had never been found justified by the Courts of law. The Courts of law being the custodian of public property are not supposed to shut their eyes. By holding the view, I am supported by the dictum laid down in the judgment reported in PLD 2005 SC page 337 (Provincial Government through Collector, Kohat and another v. Shabbir Hussain relevant at page 343), wherein it was held as under:-- "Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squared through mere collusion of some representative of a Government agency."
12. Needless to observe that there are concurrent findings of facts by two courts below which normally cannot be disturbed unless it is proved that the same are result of misreading and non- reading of evidence, Perusal of record reveals that both the courts below after proper appraisal of evidence and attending all aspects of the case passed well reasoned judgments/ decrees.
' For the foregoing reasons, I am of the considefed opinion that the impugned judgments/decrees do not suffer from any illegality, irregularity, perversity or impropriety, hence are not open to any exception. Consequently petition is dismissed. Before parting with the judgment, I feel it inevitable to direct the Registrar of this Court to send the copy of this judgment to Chief Secretary, Balochistan, who is directed to look into such sort of matters and preserve the public property by taking immediate disciplinary action against delinquent officers. The copy of this judgment be also sent to the Commissioner Mekran Division and Deputy Commissioner, Gwadar.
Petitioner dismissed.