' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This Civil Revision Petition has been directed to assail the judgment and decree dated 10-7-2012 passed by the learned Additional District Judge-III, Quetta ("appellate court"), whereby the judgment and decree dated 14-12-2011 passed by the learned Civil Judge, I Quetta ("trial court") was set aside and the suit filed by the respondent No,1/plaintiff was decreed.
2. The necessary facts for disposal of instant petition are that the respondent No,1/plaintiff filed a suit for "Declaration and Permanent Injunction" against the petitioner, the respondent No,2 and the Tehsildar Quetta, whereby the declaration of an exclusive ownership over the property was sought, on basis of his ownership recorded, vide mutation No,14, Khewat and Khatooni No,3/3, bearing Khasra No,108 Qithats, measuring 10 Rod 6 Poles out of total measuring 637 Rod 23 Poles, situated at Mohal Karez Bahauddin, Mouza Nauhsar, Tappa Nauhsar, Tehsil and District Quetta (the "suit property/suit land") with prayer of perpetual injunction against the defendants from illegal encroachment/interference in a peaceful possession of respondent No, 1 /plaintiff over the suit land.
3. Notices to the respondents were effectively served. The respondents Nos.2 and 3 did not opt to contest the suit and were proceeded against ex parte, while the petitioner/defendant No,2 filed his written statement by raising certain legal objections, the facts pleaded were seriously controverted and denied, particularly, the possession of respondent No, 1/plaintiff over the suit land.
4. On divergent pleadings of the parties the learned trial court framed the following issues:-- "(i) Whether the suit of plaintiff is not maintainable in view of preliminary legal objections A &B raised by the defendant in written statement?
(ii) Whether the property is joint property among the shareholders?
(iii) Whether the plaintiff is entitled for the relief claimed for?"
5. The respondent No,1/plaintiff produced four witnesses and got himself examined on oath. In rebuttal, the petitioner/defendant No,2 produced four witnesses and the statement of the attorney was recorded. Upon completion of evidence the learned trial court dismissed the suit vide judgment and decree dated 10-7-2011. The respondent No,1/plaintiff, being aggrieved, assailed the judgment and decree before the District Judge Quetta, which was transmitted to the file of the Additional District Judge-III Quetta whereby the learned appellate court after setting aside the judgment and decree vide judgment dated 10-7-2012 decreed the suit as prayed by the respondent No,1/plaintiff.
6. Mr. Khalil Ahmed Panezai, learned counsel for the petitioner contended that the impugned judgment is based upon misreading and non-reading of evidence. The documentary evidence was brought on record through application filed by the respondent No,1 under Articles 88 and 112 of the Qanun-e-Shahadat Order, 1984 read with Section 151 of the Code of Civil Procedure ("C.P.C.").
The documents related to another case bearing Civil Suit No,136 of 2006 titled as `Abdullah v.
Muhammad Ayub' were produced. He further added that the suit property is jointly owned by the parties and besides the petitioner, there are number of other joint shareholders in joint land in which the suit land falls. He added that no partition by metes and bounds had taken place and without joining each and every shareholder, the suit was not maintainable. The learned counsel contended that the respondent No, 1/plaintiff relied upon a document, in which the petitioner is also co-sharer in the suit property, therefore, without partition between all the shareholders, the declaration could not be granted to the respondent No, 1/plaintiff. He finally urged for setting aside the impugned judgment of the learned appellate court and to restore the judgment and decree passed by the learned trial court.
' Mr. Humayun Tareeen, learned Additional Advocate General, contended that the Tehsildar City, Quetta is impleaded as pro forma respondent, therefore, whatever the court decides and direct the Tehsildar Quetta, shall be bound to obey and implement the orders of the court in letter and spirit.
7. Mr. Shahid Javed, learned counsel for respondent No, 1/plaintiff, contended that the respondent No, 1/plaintiff is a recorded owner of the suit property, where he was running bricks kiln since the year 1992. The question of partition does not arise when every co-sharer is in possession of his respective land. He referred to the report submitted by Naib Tehsildar Saddar Quetta dated 10th July, 2006 in Civil Suit No,136 of 2006, whereby the partition by means of demarcation took place between one Abdullah and the respondent No,1/ plaintiff. He further added that the petitioner had already sold out his land, which is not adjacent to but is near to the suit property being located in the same Mouza. He rebutted the petitioner's claim on the basis of 'Shamilat' land and stated that prior to partition of Shamilat land, the petitioner had already sold out his settled land and at presently the petitioner does not own any land in the area, therefore, question of his share in Shamilat land does not arise. He finally urged that the judgment passed by the learned appellate court is in consonance with the principles of natural justice and does not require interference by this Court.
8. I have heard the learned counsel for the parties and have perused the record. During the careful consideration of petition it revealed that complete record of the trial court was not appended with the memo of petition, therefore, I sent for records of both the courts below and minutely perused the same. The main thrust of the contentions of respective parties revolves around the controversy that, whether the respondent No, 1/plaintiff purchased the suit-land in Khewat No,3 Khatooni No, 3 Khasra No,108 Qitat admeasuring 10 Rod 6 Pols out of total 637 Rods 23 Pols situated in Mahal Karez Bahauddin vide mutation No,15 in the year 1991 from one Saleh Muhammad and possession thereof was also handed over to him. The petitioner had also purchased some property within the precincts of the same Mahal in 1992 from said Saleh Muhammad. The petitioner denied the possession of the respondent No, 1/plaintiff over the suit property and stated that under the garb of mutation entries, the respondent No,1/plaintiff intends to occupy the share of the petitioner/defendant No,2 falling within a Shamilat land.
9. The perusal of record reveals that the petitioner/defendant No,2 filed an application dated 13-5- 2009 on 18-5-2009 before the trial court, which also contains the signatures of respondent No,1/plaintiff, same was captioned as, "application for demarcation of property of both the parties on site along with Tehsildar City and concerned Patwari". Thereafter notice was issued to the Tehsildar/respondent No,3, wherein directions were made for demarcation of the property. The learned .Trial court after twenty consecutive hearings could succeed to procure the report on 20- 10-2009. Thereafter on 23-10-2009 the petitioner/defendant No,2 requested the court that the concerned Revenue authorities may be directed for handing over the possession of the property to him and on his failure to achieve the object, the objections on Tehsildar's report were filed on 27- 10-2009. The arguments were heard on objection on 29-10-2009. Whereafter the learned trial court vide order dated 30-10-2009 rejected the objections and decreed the suit in favour of the respondent No, 1/plaintiff vide order and decree 30-10-2009, to the following effect:-- "Called. Counsel for plaintiff present, while counsel for defendant not present. Case was fixed for order as well as report of Tehsildar, report had already been submitted by concerned Patwari.
' Arguments on report of Tehsildar heard, plaintiff counsel stated that he satisfied [sic] with the report of Tehsildar and property in question has been demarcated according to compromise effected in between the parties and prayed that the suit may be disposed of. While in rebuttal defendant counsel filed objection on report of Tehsildar, wherein contended that he had not been notices by [sic] Tehsildar and report submitted by Tehsildar with malafidely. [sic] ' On the above discussion I perused the available record, which shows that the parties with consent have filed an application for demarcation of property, which was allowed by my learned predecessor, and Tehsildar was directed to demarcate the property in question in between the parties as per compromise, while the concerned Tehsildar after notice of parties and as per direction of this court submitted report and stated that the property in question was demarcated and possession has also handed over to the plaintiff according to law.
' In such circumstances it has come on record that the property in question has been demarcated by concerned patwari and possession of same has been handed over to plaintiff therefore there is no need to proceed the case further, thus the suit filed by plaintiff is disposed of as per report of Tehsildar. Decree sheet be prepared as per report of Tehsildar. File after completion and compilation be consigned to record."
10. The petitioner being aggrieved from the order supra assailed the judgment and decree dated 30-10-2009 before the learned District Judge, Quetta which' was subsequently transmitted to the file of the Additional District Judge, IV Quetta being Civil Appeal No,70 of 2009, whereby the order dated 30-10-2009 was set aside and case was remanded to the trial court with the following observations:-- "I have heard the learned parties' counsel at length and have gone through the record of the trial Court. The record indicated that after the report of patwari concerned, who had demarcated the suit property and thereafter, the learned trial court decreed the suit in favour of private respondents. The learned counsel for appellant 1, agitated that the trial Court passed order without giving any proper opportunity, as appellant side filed objections, while no fair opportunity has been awarded to the appellant to lead the evidence. Record further indicates that the appellant has been kept destitute from leading evidence, therefore, the trial Court has not dealt with the matter in hand. Thus, the appeal filed by appellant is accepted and case is remanded to the trial Court with direction to give fair opportunity to the appellant in the interest of justice as he may be able to lead his evidence. Copy of this order be , sent to trial Court along with record, if any, be returned and file, after completion, be consigned to record."
11. In post remand proceedings, the parties were directed to lead their respective evidence and during the course of trial the petitioner/defendant No,2 submitted an application under Section 144 of the Code of Civil Procedure ("C.P.C.") with prayer that mutation entries carried out in pursuance of order dated 18-5-2009 may be cancelled and previous position i,e, prior to the order dated 18-5- 2009 was sought to be restored. The learned trial court vide order dated 12-4-2011 passed an order with the observation, "that since the decree of the court was set aside by ADJ, IV Quetta on 8-2- 2010 and matter was remanded to this court for,trial and to decide the matter on its own merits after providing fair opportunity to the parties. Since the decree of the court is not in field, which was passed by this court upon the report of the revenue officials, therefore, no action will be taken against them because the application had been filed after remanding the case as the impugned report is not in the field not that would be considered at evidence, at the time of announcement of final judgment if the application is proceeded as prayed for that would amount futile exercise of law, thus, the application filed by defendant is rejected hereby. Matter is adjourned on 16-4-2011 for evidence 16-4-2011."
12. The manner and procedure adopted by the learned, trial court is oblivious to the prevailing law, which shows that the learned trial court has committed a gross illegality while finally deciding the case. The order dated 8-2-2010 passed by the Additional District Judge-IV, Quetta did not set aside the report of Tehsildar but the matter was simply remanded to the trial court for adjudication of /is purely on merits after providing a fair opportunity of leading evidence to the parties, therefore, order of the trial court dated 12-4-2011 was against the principles of administration of justice and the trial court should have considered the report of Tehsildar, which was procured after twenty consecutive hearings and that too, was initiated on application of the petitioner/defendant No,2.
13. The perusal of judgment and decree dated 14-12-2011 passed by the trial court reveals that the whole case was decided in a few lines which are contained in para 8 of the judgment and are reproduced here under:-- "The all P. Ws. Have admitted that the property in question is joint property {{URDU TEXT}} of the local inhabitant, while the plaintiff has filed his plaint only to the extent of defendant. The plaintiff has failed to justify this objection raised by the defendant. The plaintiff should have been impleaded the co-sharer of the disputed landed property in his suit. So legal objection raised by the defendant seems justified, therefore part of this issue is resolved against the plaintiff "
In view of the above discussion it can safely be concluded that the parties were involved in litigation since 23-12-2005 and after six years the learned trial court, when finally decided the case miserably failed to understand the issue in dispute between the parties and the proposition involved in the case. The perusal of impugned judgment passed by the learned appellate court reveals that the learned judge took a heavy pain and had gone through the evidence and on reappraisal passed a well speaking and well reasoned judgment.
14. The controversy related to the issue in dispute is based upon the contention as pleaded by the petitioner/defendant No,2, that though the respondent No,1/plaintiff is the recorded owner but he is neither in possession nor his share can be determined, because of joint nature of the property. The documentary evidence produced by the respondent No, 1/plaintiff is more reliable and elaborates a complete picture of the issue in dispute and the learned appellate court had elaborated and differentiated the suit property and property owned by the petitioner in an expressive manner. Para 13 of the judgment being relevant is reproduced here under:-- "From the above adduced documentary evidence, respondent/ defendant No,2 purchased the land 26 rods 23 poles from Khasra No,54 Qitas of Khewat/ Khatooni No,2/2, 26 rods 18 poles from Khasra No,23 Qitas of Khewat/Khatooni No,4/4 and water rights of 17 hours and 8 minutes from Khewat Khatooni No,5/5, thus this property is also different from that of appellant/ plaintiff. The property of appellant/plaintiff was of Shamilat of Khasra 108 Qitas of Khewat/ Khatooni No,2/2.
14. The averments of respondent/ defendant No,2 [sic] of having the disputed property in his possession, as taken in written statement and through evidence was not proved at all. The property in possession of respondent/defendant No,2 is different one. The disputed property which appellant/ plaintiff has asserted to have purchased is from Shamilat land of Khasra 108 Qitas on the basis of his purchased rights of water from Saleh Muhammad, hence appellant/ plaintiff purchased the land from Shamilat. Though he has also purchased the right of water comprising 17 hours and 8 minutes and on the basis of such right of water the respondent/ defendant No,2 is also entitled to have share in the Shamilat of Khasra 108 Qitas of Mohal as per his share of water but at the same time it shows that respondent/ defendant No,2 is not in possession of the disputed property which is Shamilat whereas he might have possession of his own property purchased through Ex-D/2 as discussed above. Thus the assertions of the respondent/ defendant No,2 prove mala fide and nugatory that he is enjoying the possession of disputed property.
According to respondent/ defendant No,2 's own version the Shamilat property has so far not been partitioned, so how it could be accepted that he himself has possession the Shamilat land without partition."
15. The details discussed by the learned appellate court manifest that the property in possession of respondent No,1/plaintiff is entirely different from one claimed by the petitioner/defendant No,2. The suit property was purchased from 'Shamilat' land inclusive of water rights from one Saleh Muhammad. Though, the petitioner had also purchased the land from the said Saleh Muhammad including its water rights but the same does not fall within the category of 'Shamilat'. Land. The deposition of witnesses and documentary evidence altogether reveal that the plaintiff/respondent No,1 was in possession of suit land from day one when he purchased the same from Saleh Muhammad and was running his bricks kiln, and due to said activity large pits were created by digging mud for preparing the bricks and thereafter on imposition of ban by the District Administration, the bricks kiln business was stopped. However, with the passage of time the outer suburbs of Quetta city have extended to the surrounding mountains and the commercial value of suburb lands have also escalated, therefore, the respondent No,1/plaintiff after filling up the pits, was enjoying his possession, when he was intimidated for dispossession by means of encroachment, resulting into initiation of litigation and leading to filing of the civil suit, out of which the instant petition arises.
16. The litigation between the parties was still sub judice, when a joint application was moved by the petitioner/ defendant No,2 and respondent No,1/ plaintiff on 18th June, 2009 stating therein that:-- "the parties are entered into compromise provided that demarcation between them and other co-sharers took place".
On direction of the learned trial court the Tehsildar Quetta (respondent No,3) submitted a report on 12th October, 2009, in pursuance whereof the demarcation of the suit land was carried out and a Tatima was chalked out in favour of the respondent No,1/plaintiff in respect of the land which was already in his possession i,e, the suit land/property, therefore, the declaration of ownership was rightly sought and accordingly granted by means of impugned judgment of the appellate court.
17. At this juncture it is worthwhile to observe that in written statement filed by the petitioner/defendant it was averted that the petitioner is enjoying the possession of the suit land since the time of his forefathers and he being a legal and lawful owner is in possession of his recorded land. While, the possession of respondent No,1/ plaintiff was not only denied but was suggested in gruesome manner that the plaintiff/respondent No,1 instead of seeking declaration ought to seek partition of his Shamilat land. The stance taken by the petitioner/defendant No,2 was self-destructive, when his witnesses, as well as, his attorney, who is also his son and he deposed that the suit property was purchased by his father/petitioner from one Saleh Muhammad, therefore, he is in possession being a vendee of the suit land.
18. In such view of the fact when the pleading and the evidence of the petitioner/ defendant No,2 were at variance but his plea of possession over the suit-land had also no legs to stand. On the other hand prior to demarcation of Shamilat land respondent No, 1/plaintiff was in possession of his recorded share and was enjoying the possession by means of running a bricks kiln. The contention of respondent No,1/ plaintiff finds further support from these facts as observed herein above and has already been recorded by the learned appellate court. The parties are bound by their pleadings and in no way could be allowed to take departure from the pleadings and adduce the evidence, which does not correspond the pleading and these reasons are held sufficient by the Hon'ble Apex Court for non-suiting the offending party. For rendering this view I am fortified by the dictum laid down by the Hon'ble Apex Court in Shaft Muhammad v Khanzada Gul 2007 SCM R 368.
' Thus, I am of the considered view that the judgment passed by the learned appellate court is according to the principles of appreciation of evidence, and G the same does not warrant any interference by this court, therefore, the petition is hereby dismissed, but with no order as to cost.