This judgment shall also dispose of Review Application No.45/C of 1988 as common questions of law and facts are involved in both of them.
2. Through this application the petitioner seeks review of consolidated order dated 7-12-1988 through which two revision petitions Civil Revision No.610/D of 1988 and Civil Revision No.629/D of 1988 filed by the petitioner Burhan Rasool were dismissed in limine.
3. Imam Bakhsh deceased predecessor-in-interest of respondents was transferred property House No.265. His case was that this property was built on an area of 1 kanal 19 marlas out of which an area measuring 10 marlas was encroached upon by the present petitioner. A suit was filed by Imam Bakhsh deceased for recovery of possession of the said area of 10 marlas. The present petitioner also filed a suit for declaration that he was the owner in possession of the said property in dispute. His claim was that property house No. 262 was transferred to one Abdul Latif son of Karam Din by the Settlement Department from whom he purchased the same in the year 1975, over which he constructed five rooms by spending Rs.30,000.
4. Both the suits were tried together. Learned trial Court after recording evidence decreed the suit filed by Imam Bakhsh whereas the suit filed by the petitioner was dismissed. Two appeals filed by the petitioner against the said judgment and decree of the trial Court were dismissed by the learned lower appellate Court vide judgment dated 30-1-1988. Two revision petitions bearing numbers 610/D of 1988 and 629/D of 1988 were filed in this Court in which record of the learned trial Court was summoned. After the record was received the revision petitions were fixed in motion on 7-12-1988. Learned counsel for the petitioner absented on the said date whereas Mr. Asif Saeed Khan Khosa, Advocate for respondents 3 to 6 was present. The revision petitions were dismissed in limine through order dated 7-12-1988 after hearing learned counsel for respondents 3 to 6. This review application seeks review of the said order.
5. Mr. Asif Saeed Khan Khosa, Advocate, learned counsel for the respondents 3 to 6 raised preliminary objections relying on decision in Ahmed Din v. Mst. Syran Bi etc. 1980 SCM R 959 that since the certified copy of order dated 7-12-1988 which was being sought to be reviewed has not been appended with the review application therefore, it is barred by time as if the same is placed on the record now, the time for filing the review application had already run out. I am afraid the argument is misconceived. In the reported judgment of Supreme Court the facts were different. In that case the petitioner who was seeking the review wanted to exclude time spent for obtaining certified copy of the order under review, without filing the copy of the impugned order with the review application. It was in these circumstances, that it was held, that the review application was barred by time as the certified copy of the order was not placed on the file. In this case the application was moved within limitation and no law has been referred according to which it was mandatory requirement that with the review application certified copy of the order under review must be filed. What has been argued was that under Order 47, rule 3 the provisions of appeal mutatis mutandis have been made applicable therefore provisions of Order 41 Rule 1 C.P.C. Were applicable in strict sense under which copy of the order under review must have been filed. This argument is also without any substance. The word mutatis mutandis does not mean that strict compliance of Order 41, Rule 1 C.P.C. In this respect was intended. The objection is therefore repelled.
6. Mr. Asif Saeed Khan Khosa, Advocate, then argued that the revision petitions were dismissed after appraisal of material brought on the record in evidence therefore review applications are not maintainable through which the petitioner intends to seek re-hearing of the case. He also argued that even if a mistaken or erroneous view has been taken in the order dated 7-12-1988 it is no ground for review of the order. To support this contention he referred to various reported judgments which I need not discuss in detail for reasons to follow. I am of the view that the order dated 7-12-1988 is not a case of mere erroneous or mistaken view but it suffers from an error and mistake apparent on the face of the record.
7. Learned counsel for the petitioner submitted that the order dated 7-12-1988 under review suffers from mistake and error apparent on the record, for it has-been passed on the assumption as if concurrent findings of facts of the two Courts below about allegations of respondents that the petitioner had encroached upon an area of 10 marlas out of Property No.265 was based on evidence whereas there was no evidence on the record to prove the fact.
8. In order to ascertain the correctness of this contention I have examined the certified copies of the document and oral evidence produced by the parties which have been appended with the revision petitions. From the perusal thereof it transpired that the evidence brought on the record by the parties proved only that the area of House No.265 transferred to Imam Bakhsh was 1 kanal 19 marlas whereas the area of I-louse No.262 purchased by the petitioner from its original transferee was nine marlas.
9. The learned trial Court appointed Malik Mumtaz Hussain, Advocate as Local Commissioner to submit his report on disputed question of encroachment, who submitted his, report in which it was stated that no definite opinion could be given as the measurement of two properties could not be made because Patwari who was present at the spot did not have Musawi and Shajra Kusshtwari with him so as to ascertain fixed permanent points from where the measurement could be made.
To the same effect in his statement when he appeared as D.W.
5. In order dated 7-12-1988 with reference to transfer as documents of both the properties issued to both the parties respectively and the report of Local Commissioner it was held that concurrent findings of facts recorded by both the Courts below based on these documents could not have been interfered with by this Court as such the revision petitions were dismissed in limine, in the absence of the learned counsel for the petitioner. On re-examining the case it has been found that neither in the report nor in his statement as D.W.5 the local commissioner had given any definite opinion about encroachment.
The transfer documents and other documents from the Settlement Department it was established that the area of property House No.265 was 1. Kanal 19 marlas and that of House No.262 consisted of nine marlas. There was no cogent evidence that the area in dispute in occupation of petitioner was part of House No.265 which was trespassed by him, and that it was not part of House No.262.
Mere proof of respective areas under both properties was not proof by itself of trespass in House No.265. It appears that the case was not placed before me in all its material bearing when I proceeded to dispose of the revision petitions in limine. It is a clear case of an error and mistake apparent on the face of the record inasmuch as there was no evidence in respect of the conclusion of both the Courts below that there was I encroachment or trespass over the property house No. 265. In this view of the matter, the review applications are allowed. Order dated 7-12-1988 dismissing the revision petitions in limine is hereby set aside. The revision petitions are restored to their original numbers. The parties are left to bear their own costs.
M.Z.S./B-127/L Review allowed.