The present petitioner had filed a suit for declaration and perpetual injunction in the Court of Senior Civil Judge, Multan on 3-9-1971 which was subsequently transferred to the file of Senior Civil Judge, Vehari after a new District was carved out in 1976. The said suit was decreed by the trial Court on 12-3-1981. Muhammad Hasan defendant No. l filed an appeal in the District Court and impleaded defendants Nos.2 and 3 as respondents because they had not joined him. The said appeal was accepted by Additional District Judge, Vehari on 13-10-1981. The judgment and decree passed by the trial Court on 12-3-1981 was set aside and the suit was dismissed. The present petition was filed on 28-10-1981 and was admitted to regular hearing on 22-9-1982.
2. The present petitioner/plaintiff had contended in the plaint that Tharas on the eastern and southern sides of Shop No. 137-G were the appendages of the shop and as a consequential relief prayed for the issuance of perpetual injunction restraining the defendants from getting the same determined as separate shop through demarcation or using the Tharas as shops and also for restraining them perpetually from closing doors of the shop of the plaintiff and interfering in his use of the Tharras in front of the doors of his shop. In the body of the plaint it was contended that Burewala was a colony town and its lay-out was proposed and sanctioned by the Provincial Government and in Block ' G' of the town Plot No. 137 was the site of a shop. The evacuee constructed a shop thereon and after partition Muhammad Ismail was transferred the said shop and he was issued Permanent Transfer Deed. A portion of the shop was in possession of Jan Muhammad which had not been transferred to him till the filing of the suit; the plaintiff, however, purchased the (sic) of the shop transferred to Muhammad Ismail against a consideration of Rs.30,000 according to instructions as contained in Colony Manual every allottee of the commercial plot was obliged to leave open six feet wide site and was to construct a Thara thereon to demonstrate/exhibit his merchandise and the construction was thus to be set back by six feet; the evacuee had constructed the shop in accordance with the instructions/rules framed by the Government after getting the site plan sanctioned from the Municipality of Burewala Town; after partition there being numerous refugees, many of `them occupied portions of a single shop; defendant No.1 had occupied a small portion of the Thara on the south and in the east of the shop and placed a Khokha thereon in connivance with the officials of the Municipal Committee and thus virtually closed the doors of his shop opening towards south and on the request for vacating the Thara, defendant No.1 held out that he had purchased the same from Muhammad Ismail allottee- defendant No,3 and in connivance with defendant No.2 Naib-Tehsildar, Burewala, he had initiated proceedings for demarcation and was out to close the southern door of his shop by getting declared the Thara on the southern side as a shop.
3. The plaintiff on the above assumption further contended that defendant No.3 being the allottee of the shop was also transferred Tharas on the east and southern sides of the same but could not sell out the same to defendant No. l as a shop because Thara was appurtenant to the shop and not a separate property and that the alleged sale was without any lawful title in the property without any authority to dispose of the same separately as a shop nor the Thara could be treated as a shop.
4. The defendants were summoned by the trial Court and defendant No.1 contested the suit and filed his written statement. In his written statement he raised preliminary objections as also contested the facts. He denied the knowledge of any lay-out plan sanctioned by the Government but admitted that plot No. 137-G was reserved as, a commercial site of a shop and that a shop had been constructed by an evacuee but during the settlement in 1962-63 the said shop was trifurcated into 162-G, 163-G and 164-G. Shop No.164-G was transferred to Jan Muhammad whereas two shares of the Shop i.e. 162/G and 163-G were transferred to Muhammad Ismail; he had purchased 2/3rd of Shop 137-G i.e. Shop Nos. 162/G and 163-G from defendant No.3 vide agreement dated 27-8-1968 as against a consideration of Rs.38,000 and subsequently on 9-8-1969 defendant No.3 had authorised defendant No. l to associate some other intending buyers also with him and as a consequence thereof he had entered into an agreement with the plaintiff on 13-12-1969 as against Rs.30,000 for the Shop bearing No. 163-G admeasuring six Sarsahi and thus plaintiff was the owner of six Sarsahi only out of the total shop previously numbered 137/G and that he was the owner of Tharas on the eastern and southern sides of property 162-G and the plaintiff had no concern whatsoever with those Tharas; as the plaintiff had laid out a claim against Tharas he had to make an application for demarcation of the property to the Revenue Officers. The jurisdiction of the Civil Court was also objected to.
5. On the pleadings of the parties following issues were framed:---
(1) Whether the plaintiff purchased the entire shop transferred to Muhammad Ismail, defendant No.3 and the platform (Tharas) on the eastern and southern sides of the shop were a part and parcel of the shop? OPP
(2) Whether the wooden structure raised by defendant No. l lies on these platforms and the defendant No.2 has no right to continue in its possession or construct a Pacca shop over it? OPP.
(3) Whether the disputed shop in possession of defendant No. l was purchased by him from defendant No.3 for a valuable consideration? OPD
(4) If issue No.3 is proved, whether defendant No.3 was not competent to effect a sale of the disputed site in favour of defendant No. 1? OPD
(5) Whether the plaintiff has no locus standi to bring this suit? OPD
(6) Whether the Civil Courts have no jurisdiction to entertain this suit? OPD
(7) Whether the suit is not maintainable in the present form?
(8) Whether Muhammad Ismail Special Attorney of the plaintiff was not competent to institute this suit? OPD
(9) Whether the description of the suit proposed is incorrect. If so, what is the correct description?
OPD
(10) Whether the plaintiff has no cause of action to bring this suit? OPD
(11) Relief.
6. On 22-11-1989 respondent No.2 was proceeded against ex parte. On 20-4-1983 Muhammad Ismail respondent had put in appearance but never appeared thereafter. The Court allowed the petitioner-plaintiff to amend the plaint on 21-1-1991, subject to payment of costs of Rs.500. The costs of Rs.500 was received by the learned counsel for the respondent No.1 but he declined to file amended written statement and relied on the one previously filed in the trial Court.
7. In view of the amendment in the plaint Issue No.7 has become redundant and has been struck out vide order of today, separately passed.
8. After framing the issues the trial Court put the parties to prove their respective case. The plaintiff produced Muhammad Din, Colony Clerk, A.C. Office, Saddar, Multan as P.W.1 who produced copy of letter No. 1982, dated 13-10-1969 Exh. P.1. Ch. Ghulam Muhammad, Overseer, Municipal Committee, Burewala appeared as P.W.2. He produced original site plan of Shop No. 136/G and 137/G. The site plan was sanctioned in the year 1928 on the application of Wadhawar Ram, the owner of the property and he certified that Exh.P/2 was the correct copy of the original site plan. He further stated that Burewala was a Colony Town and its master plan was sanctioned by the Government and according to the said plan sites had been created for construction of buildings according to the instructions of the Government. The disputed property i.e. Plot No. 137-G was commercial and situated in Rail Bazar, Burewala and according to the instructions of the Government the owner of the shop had to leave open six feet on the side of the Bazar as Thara and construction over the Thara was prohibited. Muhammad Hussain Siddiqi defendant No. l had raised a Khokha on 137-G and he was issued a notice for demolition, copy of which was Exh. P.3, Letter Exh. P.1 was also received in their office and was present in his file. During cross-examination the witness stated that he had seen the disputed shop. There was a thara as frontage. He denied the knowledge that Muhammad Hussain defendant had his own shop adjacent to the disputed shop. He stated that notice related to demolition of Khohha placed in front of Shop 137/G. He could not say if the Revenue Department had given some new Khasra number to Shop No.137/G. He however stated that the Revenue Department had not informed the Committee about any such change. The learned counsel for the plaintiff produced original sale-deed EXh.P.I, certified plan of entire Block 'G' of Burewala as Exh.P.5, copy of Field Book Exh. P.6, copy of Jamabandi Exh.P.7, copy of Master Plan Rail Bazar Exh. P.8, copy of Aks Musawai Exh.P.9 and reserved the statement of the plaintiff or his attorney in affirmative and also reserved the right of rebuttal and gave up the summoned witnesses on 10-4-1974.
9. Muhammad Ismail, Special Attorney of the plaintiff appeared as P.W.3. He stated that he had filed the suit as special attorney of plaintiff Haji Sher Muhammad. The previous number of the shop was 137/G and the present number was 163-G. The shop was transferred to Muhammad Ismail son of Ghulam Ghaus defendant No.3 and .Jan Muhammad Bhatti. Plaintiff Sher Muhammad had purchased the shop from the transferee i.e. Defendant No.3 Muhammad Ismail through defendant No.1 against a consideration of Rs.30,000. No portion of the shop was transferred to defendant No. 1.
The shop admeasured 27' x 20' and was situated in the Rail Bazar, Burewala and was the last corner shop in the West of the other shops. There were two Tharas on eastern and southern sides of the shop. Out of the constructed shop 9' x 14' shop was transferred to Jan Muhammad whereas the remaining portion of the shop 12' x 14' was transferred to Mr. Muhammad Ismail defendant No.3. The shop had two doors on the eastern side and two on the southern side. According to the transfer a door on the eastern side fell in the allotment of Jan Muhammad whereas the rest of the doors i.e. a door on the eastern and two doors on the southern side were transferred to Muhammad Ismail aforementioned. The Tharas which were in possession of Hasan Siddiqi defendant No. l were the integral part of the shop, in dispute having no separate/independent entity. The shop allotted to Muhammad Ismail son of Ghulam Ghaus defendant No.3 was never subjected to any change and the ' Tatimas' shown as 162/G, 163/G and 164/G were incorrect and wrongly shown. He admitted in cross-examination that he had signed agreement Exh.D/13 as a marginal witness. He admitted that the plaintiff had filed an application for ejectment regarding Shop 137-G (present No. 163-G) against Rehmat A.I and Muhammad Aslam defendant. He admitted that an area admeasuring 5- 1/2 Sarsahi was transferred to Jan Muhammad by Settlement Authorities and 12 Sarsahi of land was transferred to defendant No.3. Only one P.T.D. Was issued. He admitted that on both sides of the shop there were Tharas of six feet width. He denied the knowledge of registration of two sale- deeds in the name of the plaintiff and defendant No. l on the same day.
10. Defendant No. l appeared as his own witness as D.W.1 and stated that Shop 137-G was an evacuee; 1/3rd has been allotted to Jan Muhammad whereas 2/3rd was transferred to Ch. Muhammad Ismail defendant No.3. During the settlement proceedings (Rev) the said shop was given three numbers i.e. 162/G, 163/G and 164/G. The plaintiff had purchased shop No.164/G admeasuring 6 Sarsahi. He had purchased Shop No.162/G admeasuring six Sarsahi and thereafter he made an application for demarcation on the ground that the site in his possession was less than six Sarsahi and he wanted that his entitlement be made up. As soon as the proceedings in the said application commenced the plaintiff filed the present suit. He denied that there was any door of the plaintiff towards his shop and stated that there was only one door of the shop of the plaintiff which opened towards east and similar was the position of the shop of Jan Muhammad. However his shop had two openings, one in the east and other in the south as his shop was the corner shop.
The plaintiff had given out eastern thara on rent to Rehmat A.I and that he had not closed any door of the shop of the plaintiff who lived in Saudi Arabia. In cross-examination he admitted that Shop 137-G in its original shape had two doors opening towards east and both were in possession of Jan Muhammad and Muhammad Ismail the vendor. The shop had also two doors on the southern side which were also in possession of Muhammad Ismail. The shop of Jan Muhammad and Ismail was partitioned by a wall. He was not in a position to give the details of the P.T.D. In the name of the transferees. He however, admitted that in Burewala Town all the shops had six feet wide Thara in front. He further admitted that Thara was in the municipal land but denied the knowledge if the owner of the shop could raise a construction. He stated that he had purchased thara also alongwith the shop from Muhammad Ismail but it was not so mentioned in the sale deed in his favour. He denied that he had placed any Khokha.
Muhammad Hussain D.W.2 was a draftsman who produced the site plan of 162/G, 163/G and 164/G as Exh.D.l which were prepared by him according to the spot. In cross-examination he admitted that he had prepared the site plan at the instance and pointation of Muhammad Hussain defendant No. 1. The shops were not bearing any number. All the three shops had six feet wide Tiara on the eastern side. He admitted that the built up area of the shop 164-G `was 14' x 9' . Shop No. 163- G had also the same measurement. There was no wall on the Thara. There were two "Mahrabs" showing the existence of two doors in the southern wall of Shop 163-G which were visibly closed by bricks. He admitted that Khokha of defendant No. l was outside the wall with "Mahrab" and was on 6 feet of Thara and the rest of the same was on the drain of Municipality. He admitted that the Thara on the southern side was extending from east to west of the shops.
11. The learned counsel for defendant No. l produced copy of the sale-deed as Exh.D.2, copy of statement of Bashir Ahmad Exh.D.3, copy of plaint Exh.D4, certified copy of statement of Muhammad Ismail Exh.D.5, Naqal Intiqal No.829 Exh.D.6, copy of power of attorney Exh.D.7, copy of Mutation No.619 Exh.D.8 and closed the evidence of defendant on 13-7-1974.
Muhammad Hasan defendant No. l made yet another statement on 28--10-1980 in rebuttal to the statement of P.W.3. He stated that he had executed an agreement Exh.D.13 in favour of Sher Muhammad plaintiff and that his shop was in the measurement of 9' x 20'.In cross-examination he admitted that the shop was transferred in the year 1960 and Thara was six feet wide. He denied that no construction could be made in Thara. He could not give reason as to why the shop of Muhammad Ismail defendant No.3 was given two numbers although no permanent alteration had taken place in the shop though there was a wooden partition. He denied that Shop 137-G was given separate numbers fraudulently. The learned counsel for the defendant produced ' Aks Shajra Sakni'
Exh. D.9, Register Haqdaran-e-Zamin Exh.D.10, copy of Roznamcha Exh.D.11, copy of agreement D.12 and the evidence of the parties was closed.
12. The trial Court after recording the evidence of the parties decided issues Nos. l, 2 and 4 in favour of the plaintiff. Issue No. 3 was also decided in favour of the plaintiff if reference be made to para. 2 at page 12 of the judgment of the trial Court. Issues Nos.5 to 10 were decided against the defendants/respondents and the suit was decreed with no order as to costs.
13. The Appellate Court affirmed the findings of the trial Court on Issues Nos. 5, 6 and 8 to 10 and reversed the findings on Issues Nos. 1 to 4 and 7.
14. Issue No.7 has since been struck out after the amendment of the plaint with the addition of prayer of possession. The findings on Issues Nos.5, 6, 8 to 10 are concurrent and need not be discussed nor the learned counsel for the respondent has, during his arguments, challenged any of those findings.
15. I have heard the learned counsel for the petitioner and defendant No. 1. I have been taken through the pleadings, the oral evidence as well as the documentary evidence placed on record.
16. The learned counsel for the plaintiff objected to the admission in evidence of certain documents produced by defendant No. 1. He submitted that the statement made by a witness in previous proceedings could not be accepted in the present suit unless they were confronted to the said maker if he appeared in the witness-box on oath. He specifically mentioned the statement of Bashir Ahmad who had appeared allegedly in ejectment proceedings titled "Haji Sher Muhammad v. Rehmat A.I etc. " which has been exhibited as Exh. D.3, Exh.D.5 was the certified copy of the statement made by Muhammad Ismail son of Allah Bakhsh as P.W.2 in the ejectment proceedings ibid. The said Muhammad Ismail appeared as D.W.3 in the present suit also. He was not confronted with his previous statement which he made on 6-3-1980 before Rent Controller as required by section 145 of Evidence Act which was in force at the relevant time. He placed reliance on "Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (AIR (33) 1946 Lahore 65) a Full Bench case and "Sikandar Hayat and 4 others v. Master Fazal Karim" (PLD 1971 SC 730) and submitted that Muhammad Ismail son of Allah Bakhsh having appeared as P.W.3 in the present suit, had made a statement. Had he made admission in the previous proceedings the proof of such admission could only be brought on tile by putting such document to the said witness in cross- examination in order to contradict him and that without complying with the procedure laid down in section 145, Evidence Ac., previous admission could not be made use of by the respondent in the present case. The learned counsel appearing on behalf of the respondent has failed to cite any ruling to the contrary nor has produced any law on the point and in view of the aforesaid citation, I rule out of consideration Exh.D.3 Exh.D.4, Exh.D.5, Exh.D.11 and Exh.D.13. A document alleged to be D.13 was put to P.W.3 and he admitted that he was a marginal witness to the same but there is no such document on the file.
17. While taking me through the judgment of the Appellate Court the learned counsel for the petitioner contended that the Appellate Court had neither adverted to the evidence recorded nor had referred the same in his judgment; had overlooked material circumstances and disregarded the material documentary evidence and the same amounted to gross irregularity; finding of the Appellate Court was not supported by the evidence on record and the Appellate Court failed to take into consideration the material evidence relating to the instructions of the Government regarding approval of site plans and raising of constructions thereon by leaving aside six feet as Tharas. Judgment of the Appellate Court did not reveal logical basis for differing from the findings of the trial Court and as such it was for this Court to exercise its jurisdiction in interfering with the findings of the Appellate Court by setting aside the same and restoring the judgment of the trial Court. He made specific reference to "Shah Gul and others v. Mst. Shamim Akhtar and others" (1990 SCM R 110), "Jan Muhammad Khan v. Shah Mir Hussain and others" (1995 SCMR 2029), "Sarfraz Khan v. Federation of Pakistan" (1986 SCM R 1950), "Muhibullah Khan v. Sadiq Khan" (1986 SCM R 270) and "Madan Gopal and 4 others v. Maran Beparai and 3 others "(PLD 1969 SC 617). It was further contended that the trial Court had not while reversing the findings of the trial Court on Issues Nos. l to 4 given reasons thereof nor had specifically mentioned the evidence and law points on which he relied and submitted that the judgment of the Appellate Court on that score infringed the provisions of Order XLI, Rule 31, C.P.C. And submitted that the judgment of the Appellate Court was neither legal nor proper as it gave a clear impression of a sketchy approach. He referred to "Wali Muhammad and 2 others v. Hafiz Karim Bakhsh and 11 others" (1993 CLC 1164), Jam Ghulam Muhammad and others v. Haji Umeda and others" (1994 M LD 2183), "Mst. Nasim Akhtar v. Lahore Development Authority" (1991 CLC Note 300 at p.228) and "Muhammad Ashraf v. Syed Ghulam Murtaza and others" (1993 CLC 185). The learned counsel for respondent submitted however that the Appellate Court, if it be assumed, had passed the impugned judgment in exercise of its jurisdiction and the said jurisdiction conferred on the Court was exercised though wrongly. This Court had no jurisdiction to interfere and the judgment as according to the learned counsel for the respondent could not be set aside merely on that ground or a wrong proposition of law. The learned counsel for the petitioner, in reply thereto has placed reliance on "Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal" (PLD 1987 SC 447). He submitted that it was the right of every individual to be dealt with in accordance with law and that the Appellate Court having gone outside its jurisdiction in exercise thereof this Court had the jurisdiction to interfere as the Appellate Court had the jurisdiction to decide rightly but had no jurisdiction to decide wrongly and as such it was a case of exercise of jurisdiction not vested in the Appellate Court and at the same time was non-exercise of jurisdiction vested in it by law and the High Court had ample jurisdiction under section 115, C.P.C. To interfere.
18. The learned counsel for the respondent submitted that the trial Court had transgressed its jurisdiction and had wrongly placed reliance on EXh.P.1 and had ignored the contents of Exh.D.2, Exh.P.4 and contended that the sale-deed in favour of defendant No. l was registered at No.524 whereas Exh.P.4 though registered on the same day was a subsequently registered document and was to be read subject to the contents of Exh.D.2. He further submitted that Municipal Committee had no jurisdiction to issue notice to defendant No. l for demolition of construction over the side which was purchased by him from a valid transferee. He also submitted that mutation in the name of defendant No. l was attested on 14-5-1970 whereas mutation in the name of the plaintiff was attested on 13-8-1971 and therefore, the sale in favour of defendant No. l of the disputed property had all the preference over the sale in favour of the plaintiff which was subject to sale in his favour.
He also submitted that the settlement was conducted by Revenue Authorities and under section 172 of the West Pakistan Land Revenue Act (Act XVII of 1967) the Civil Court had no jurisdiction to look into the propriety of those orders. He also submitted that the provisions of section 3 of Act XVII of 1967 supra was to be read with section 117 thereof and the Revenue Authorities had the powers to enter upon the question of demarcation of the estate even if the land be situated in a city. He however conceded that Para No.533 of Punjab Colony Manual (revised edition 1933) by F.B. Wace ICS reads "------the shopkeepers were to provide Tharas themselves out of the area sold to them.
The building bye-laws (or the Colonization Officer) under the terms of the sale should insist for six feet Thara being incorporated in. The site plan and built to specified height; the actual building line of the shop will then be set six feet back from the boundary of the Government land. Tharas were not required in front of the residences", but at the same time submitted that these instructions had lost its efficacy due to partition and immigration of innumerable number of refugees. He also placed reliance on Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732.
19. The plaintiff and defendant No.1 have both sale-deeds in their favour executed and registered at the same day and brought on the file as Exh.P4 and Exh.D2 respectively. Notwithstanding the fact that serial number of the deed, Exh.D2 was earlier to the deed Exh.P4, both having been registered the same day could not be considered to have any preference over each other as the executor of both the deeds was same and he was the person who produced both the deeds for registration before the Registration Authority. Which deed was on the top and which was underneath and why so has not been specifically stated and I am not prepared as such to accept the plea of the learned counsel for the respondent that Exh.D2 being a deed with Serial No.524 had any preference over deed bearing No.525. This fact is of no importance. The main point on which the decision of Issue No.1 and Issue No.3 depends was the law in force relating to commercial sites in the Colony Town. It has been asserted by the plaintiff and duly proved on record by him through the statement of P.W.1 and P.W.2 and documents Exhs.Pl, P2, P8 and P9. It is proved by the plaintiff that Burewala was a Colony Town and a Master Plan Exh.P8 was approved by the Government in this behalf according to which instructions as contained in para. No.533 of Colony Manual referred ibid was to be strictly complied with. Exh.P2 the approved site plan was entirely in accordance with those instructions. The plaintiff is further fortified by Exh.Pl whereby the Board of Revenue directed the Commissioners and Deputy Commissioners of the Colony Districts of the Punjab to strictly adhere to the provisions of Tharas and not to allow the raising of any construction on Tharas and it was asserted in Exh.Pl by the Board of Revenue that:--- "I am therefore to add that the Board of Revenue is pleased to order that no structures should be permitted without Tharas in front of shops and in future, such requests should not be entertained."
Defendant No. l had failed to prove the status of the building as in the record of Settlement and Rehabilitation Department. The disputed shop was transferred to Muhammad Ismail defendant No.3. In the absence of such proof I have no reason but to conclude that six feet wide Thara on the eastern and southern side of Shop 137-G was appurtenant to the shop and was compulsorily to be left open by the owner thereof and as such the Thara was to be deemed as an appendage of the portion of the shop transferred to Muhammad Ismail. The Thara be on the eastern side or on the southern side thus is presumed to have been transferred to Muhammad Ismail defendant No. 3 as mentioned supra. Whether Muhammad Ismail could bifurcate the said shop into two and transfer the Thara vide Exh.D2 is another question which has a reply in law itself. The perusal of Exh.D2 shows that 162-G (six Sarsahi) was transferred as a shop by Muhammad Ismail son of Ghulam Ghaus in favour of respondent No. 1. This would mean pushing back the wall constructed as per site plan Exh.P2. This was not imaginable as admittedly the plaintiff was in occupation thereof under sale- deed Exh.P4 and there is no recital in the deed which could show that the plaintiff was to forego the area of which he was put in possession, to the extent of measurement of 3' in width from the constructed portion. This appears to be most unreasonable and not appealable to good conscience.
20. Document Exh. D 1 was a private document and could not be given preference over the master plan Exh.P8 and Site Plan Exh.P2 which are public document. Exh.D9 was the copy of Shajra Sakni issued on 22-11-1974. D11 was the copy of report Roznamcha dated 19-8-1972 which was subsequent to the filing of the suit and no credence could be placed on them.
21. Whether the Revenue Authorities had any jurisdiction to trifurcate the property allotted to Muhammad Ismail defendant No.2 during the settlement proceedings in the year 1962-63 is to be seen in the light of section 3 of Land Revenue Act, 1967. The provisions of said Act were not applicable to town sites i.e. Sites mentioned in the master plan and the citation produced by the learned counsel for the respondent is distinguishable. In the said case it was the demarcation of a plot out of land situated in the urban area. It was neither a village site nor a town site. The Revenue Authorities have, no doubt, jurisdiction of demarcation over the land situated in the urban areas but not over demarcation of town sites nor they have any jurisdiction to interfere or partition such sites. The same was the exclusive domain of the Civil Court and therefore, the objection raised by the learned counsel for the respondent that section 172 of Act, 1967 supra ousted the jurisdiction of the Civil Court and Tahir Hanif's case is of no relevance. The discussion however, leads me to the conclusion that bifurcation of the property allotted to Muhammad Ismail by Revenue Authorities was without lawful authority and interference in the jurisdiction of the Town Planners and was an act of mala fide, as, prima facie, it was against directions and instructions issued under Colony Act, 1912, having the force of law and were void and ineffective. If authorities be required. Muhammad Ashraf v. Dost Muhammad etc. 1981 SCM R 383, Dr. Abdur Rauf and others v. Sh. Muhammad Iqbal and others 1991 SCM R 483 and Abdul Khaliq-Abdul Razaq v. Kishanchand and others PLD 1964 SC 74 be cited.
22. In view of the above discussion I am of the considered view that the Appellate Court exercised its jurisdiction with material irregularity and in an illegal manner, contravened the provisions of Order XLI, Rule 31, C.P.C. And requires interference. Resultantly, Issue No. l is decided in favour of the plaintiff and it is held that he purchased the shop alongwith Thara (appendages) on the eastern and southern sides. Issue No.2 is also decided in favour of the plaintiff. Issues Nos.3 and 4 are correlated and both are decided against defendant No. l as legally there could be no bifurcation of the portion of the Shop 137-G transferred to Muhammad Ismail defendant No.3 and the sale-deed in favour of defendant No. l is declared to be an act without lawful authority. The portion purchased by defendant No.1 under Exh.D2 had no consequence and had not transferred any title to him. The same was an act of fraud played on the plaintiff who purchased the property through defendant No. l from defendant No.3 and Exh.D2 was thus ineffective against the rights of the plaintiff.
23. As a result of the above the revision petition is accepted. The judgment and decree passed by lower Appellate Court on 13-10-1981 is set aside. The judgment and decree passed by the trial Court on 12-3-1981 stands restored with further relief of possession in view of the amendment made in the plaint and possession having been claimed.
24. There shall be no order as to costs.
25. The decree-sheet of the trial Court shall be amended accordingly.