The instant revision petition has been preferred against judgment and decree, dated 31-12-1996 and 27-3-1997 respectively passed by the learned Qazi Court and learned Majlis-e-Shoora, Sibi Division, Sibi whereby the suit filed by the respondents against the petitioners was decreed and appeal preferred against the decree granted by the Court of Qazi was dismissed by the Majlis-e- Shoora.
2. Against the judgments and decrees of even date separate Revision Petitions Nos. 154 of 1997 and 155 of 1997 has been preferred by the petitioners before this Court against the respondents arising out of the two separate suits filed by the respondents against the petitioners. Three separate suits in respect of three distinct properties were instituted and common evidence was led by the plaintiffs/respondents in these suits, however, separate judgments and decrees were passed by the trial Court and the learned Appellate Court, which are assailed by the petitioners in the abovenoted revision petitions, wherein the parties are represented by the learned Advocate- General and Mr. Mushtaq Lodhi, Advocate, so I propose to dispose of the same by this judgment.
3. Briefly, the stated facts of the case are that the respondents instituted three separate suits on 30-1-1996 against the petitioners in the Court of Qazi Dhadar for declaration, injunction and correction of revenue entries, on the stated averments that (i) lands bearing Khasra No.2, Mouza Sher Muhammad Circle, District Bolan, measuring 2046 Acres; (ii) lands bearing Khasra No.3 Mouza Khanpur Kattan, District Bolan measuring 200 Acres and (i.e) lands bearing Khasras Nos.5, 7, 9, 55/1, 58, 64, 190, 199, 202, 1991, 198 and 175 of Mouza Chateri, District Bolan, measuring 3412 Acres (subject-matter of three separate suits) is the ancestral property of the respondents, which originally belonged to Noori Nasser Khan who by way of Khoon Baha conveyed the abovementioned properties to the forefathers of the respondents and as such are owners with cultivating possession of the suit lands. It was prayed in the suits that the Revenue entries pertaining to the suit lands appearing in the name of Provincial Government be cancelled and directed to be entered in favour of the plaintiffs/respondents; with the further prayer that the plaintiffs be declared as owners of suit properties. 1t may be noted that as per record of the case, the disputed entries of the Revenue Record were carried into effect during the Revenue Settlement of the area in the year 1958-59.
The petitioners filed their written statements and thereby contested the suits on factual and legal grounds; contending therein that the suits were barred by time and deficient court-fees has been paid. The claims in suits were repudiated and mainly it was contended that the plaintiffs are out of possession which exclusively lie with the Deputy Commissioner i.e. (petitioner No.1) in whose favour the suit lands stand duly entered in the Revenue Records since 1958-59.
4. The learned trial Court framed the following issues out of pleadings of the parties in the three suits, separately:-- Issues in respect of suit pertaining to land of Mouza Sher Muhammad:--
5. The respondents/plaintiffs in support of their suits examined two witnesses namely Bashkali and Lai Muhammad, whereas; the respondent No. 10 for himself and as attorney for the other plaintiffs recorded his statement before the trial Court and the petitioners/defendants produced four witnesses in support of their defence namely Haji Mitha Khan, Saddar Qanoongo, Muhammad Ali, Qanoongo, Mohim Khan and Sher D.1 Levies Personnels. The learned Qazi Court finally vide impugned judgments and decrees, dated 31-12-1996 decreed all the three suits in favour of the plaintiffs/respondents. The petitioners being aggrieved of the decrees passed by Qazi Court preferred separate appeals in the Court of Majlis-e-Shoora Sibi Division, Sibi. The learned Appellate Court vide impugned decrees, dated 27-3-1997 dismissed the appeals, hence the impugned decrees have been arrayed in the instant petitions.
6. I have heard the learned Advocate-General for the petitioner and Mr. Mushtaq Lodhi for the respondents/plaintiffs in support of their respective contentions at length. The learned Advocate- General contended that admittedly the disputed entries of the Revenue Record were attested in favour of the Provincial Government pertaining to, the suit lands as owner thereof, whereas; possession of such lands has been shown to be vesting in the Deputy Commissioner since the Revenue Settlement of the area, taken into effect in the year 1958-59 and in this view of the factual matter, the suits had been defectively instituted by not impleading the necessary party i.e. Provincial Government as defendant. The learned Advocate-General strenuously contended that the petitioners were not the proper parties to act or defend on behalf of the Provincial Government and as such, the impugned decrees, as against the true and legal owner of suit properties are nullity in the eyes of law. The learned Advocate-General without prejudice to the above contention argued that the provisions of limitation governing the matter have been misapplied by the Courts below in the light of available evidence and according to the learned Advocate-General the evidence on record has been misread and misconstrued by the Court, by referring to the relevant portions of evidence. He strenuously contended that the evidence on record did not warrant the impugned decrees to have been passed, inasmuch as; the documents of title on which the claim was based have not been proved nor exhibited in evidence by the plaintiffs in accordance with law, yet the trial Court and the Appellate Court wrongly placed reliance on such improved documents.
The learned Advocate-General placed reliance on PLD 1993 SC 147.
Controverting the above contentions, the learned counsel for the respondents/plaintiffs contended that the plea of incompetency of the suits for want of impleading the Provincial Government as defendant was not raised before the Courts below nor taken in the written statements therefore, the same cannot be raised at revisional stage of the proceedings, he however; contended that for such reason the impugned decrees remain unaffected, because the Deputy Commissioner (petitioner No. l) being the Collector of the District and defendant in the suit; was the competent person/authority to protect and defend the interests of the Provincial Government. Further the learned counsel submitted that the concurrent findings of facts were recorded by both the Courts in favour of plaintiff which are not open to any exception, as neither the evidence on record has been misread nor misconstrued and according to the learned counsel the issue pertaining to limitation was properly resolved in view of the evidence. He to support his contentions placed reliance on 1994 SCM R 1778, 1992 SCM R 786, 1994 CLC 835 and 1996 CLC 333.
7. I have considered the contentions put forth on behalf of the parties in the light of the record of the cases, called for from the trial Court, in interest of justice in view of the arguments of the parties' counsel, which have beep perused carefully and the case-law cited by them.
Before dilating upon the other contentions of the parties' counsel it would be expedient and is deemed essential to resolve the contention of the petitioners' counsel, if, the suits filed by the plaintiffs were competently instituted against the petitioners, without impleading the Provincial Government as defendant; though the disputed entries of Revenue Record sought to be cancelled, are appearing in the name of the Provincial Government. It is an admitted feature of these cases that the disputed entries are existing in the name of the Provincial Government in the relevant Revenue Records since 1958-59 when the Revenue Settlement of the area was carried into effect and the Deputy Commissioner i.e. Petitioner No.1 was shown to be in possession of suit lands on behalf of the owner/Provincial Government in the relevant columns of such records. The Provincial Government as per Revenue Record in dispute lost its title to the property in question, without any representation for want of being impleaded as defendant in the suits. In view of the averments contained in the plaints and the suit property existing in the name of the Provincial Government, it was incumbent for the respondents to have had impleaded the recorded owner i.e. Province of Baluchistan as defendant in the suits by keeping in view the requirements of section 79, C.P.C. The claim of the respondents for non--compliance of the provisions of section 79, C.P.C. And so does required under Article 174 of the Constitution of Islamic Republic of Pakistan read with Order XXVII, C.P.C., was not entertainable; the departure to the legal requirements as abovementioned has materially affected the proceedings and the impugned decrees whereas; the concerned party also stands condemned unheard despite being the necessary party to the suits. Following the dictum laid down by the Honourable Supreme Court, reported in PLD 1993 SC 147; the suits instituted by the respondents in view of the reasons abovementioned materially affected the proceedings and consequently the impugned decrees, are not sustainable. In such view of the matter it would not be appropriate to dilate upon the other contentions advanced on behalf of the parties.
For the foregoing reasons, I am inclined to set aside the impugned decrees passed by the Court of Qazi Dhadar and learned Majlis-e-Shoora Sibi, respectively on 31-12-1996 and 27-3-1997, consequently, Revision Petitions Nos. 153 of 1997, 154 of 1997 and 155 of 1997 are partly allowed with no order as to costs and in the interest of justice all the three suits are remanded to the learned Qazi Court, Dhadar with permission to the plaintiffs/respondents to suitably file amended plaints in the trial Court by impleading the Province of Baluchistan as defendant, in accordance with the requirements of law subject to limitation whereupon; the same shall be disposed of in accordance with law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.