I intend to decide Civil Revisions Nos.779 and 1446 of 1997 by one consolidated judgment as both the revision petitions arising out of the same judgment.
2. Brief facts out of which these revision petitions arise are that respondent No,2 Sardar Ahmad 6- 10-1991 filed suit for declaration against respondent No,1 on the ground that the land in question was allotted to the father of respondent No,2 in the year 1960 before the Civil Judge 1st Class Shekikhupura. During the pendency of the suit petitioners Mathela and Shahana filed application under Order 1, rule 10, C.P.0 to be impleaded them in the suit as defendants. The application was accepted by the learned trial Court vide order dated' 15-7-1992. All the defendants filed written statements before the learned trial Court controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the civil Court has of jurisdiction to adjudicate the controversy as alleged in the preliminary Objections Nos.4 and 5 of the written statement filed by the defendants Nos.2 to 9?
OPD.
(3) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction?
OPD.
(4) Whether the entries, made in favour of the plaintiff, are the result of fraud, collusion and in- operative against the rights of the defendants Nos.2 to 9? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the suit is false, frivolous and mala fide and as such the defendants are entitled to the special costs under section 35-A of C.P.C? OPD.
(7) Whether the plaintiff is owner in possession of the property in dispute being legal heir of Shamas-ud-Din? OPP.
(8) Whether the entries in the Revenue Record for the years 1979-80 and 1984-85 are unlawful, illegal and inoperative against the rights of the plaintiff? OPP.
(9) Whether the plaintiff is entitled to the decree as prayed for the grounds as datailed in the plaint? OPP.
(10) Relief.
The learned trial Court decreed the suit vide judgment and decree dated 11-7-1996. The present petitions being aggrieved filed two appeals before the Additional District Judge, Sheikhupura who dismissed the appeals vide impugned judgment and decree dated 29-4-1997. Hence the present revision petitions.
3. Learned counsel for the petitioners submits that respondent No.2 did not place on record certified copy of the R.L.-II which was basic document qua the title of father of respondent No.2. He further submits that suit filed by the respondent No.2 is not maintainable in view of section 42 of the Specific Relief Act as respondent No.2 has to avail the remedies under the provisions of the West Pakistan Land Revenue Act. He further submits that both the Courts below misread record and decided the case without perusing the evidence on record. He further submits that suit of respondent No.2 was not maintainable as the respondent No.2 was not in possession and did not claim possession in his declaratory suit but this fact was not considered by the Courts below. He further submits that this Court has vast power under section 115, C.P.C to disturb the concurrent finding of fact in case the findings of fact are result of misreading or non-reading of the record. In support of his contention he relied upon the following judgment:-- PLD 1960 SC 113 Zafar-ul-Ahsan v. The Republic of Pakistan.
4. Mr. Akhtar Hussain Awan, Additional Advocate-General submits that finding on Issue No.2 is against law and facts and in violation of the mandatory provisions of law applicable to this case.
He further submits that both , the Courts below have illegally and arbitrarily held that the plaintiff/respondent is the owner of suit property. The R.L.II which had been tendered in evidence as Marked-I had not duly been proved in accordance with law. Both the Courts below have not mentioned as to whether R.L.II Marked-I contained allotment of the land in question. Marked-I being torn document does not contain land in dispute and in spite of that both the Courts below have given finding against the petitioner on Issues Nos.7 to 9. He further urges that the admission of respondents Nos.2 to 9 in Revision No.1446 of 1997 does not carry weight and no reliance can be proved of their oral evidence. He further submits that both the Courts below failed to appreciate that the entries contained in register Haqdaran from 1999, 1980 to 1984 were made in discharging the official duty by the revenue staff, therefore, attachment of truthfulness is attached to these documents. Both the Courts below have committed illegality or material irregularity to discard the aforesaid documentary evidence. He further submits that judgments of both the Courts below are based on conjecture and surmised. The impugned judgment has been passed in violation of mandatory provisions of Order 20, C.P.C. He summed up his arguments that respondent/plaintiff is beneficiary of the torn document but this fact was not considered by both the Courts below coupled with the fact that petitioners secured Marked-I with the connivance of the revenue officials and secured land in question.
5. Learned counsel for the respondent No.2 submits that petitioners have concealed the material facts from this Court as the petitioners did not attach the whole evidence alongwith their revision which is their duty by virtue of section 115(2), C.P.C. He further submits that petitioners got the revision petitions admitted on misstatement of facts that respondent No.2 did not produce R.L.-II before the Courts below. He further submits that this fact is belied as is evident from the contents of the judgment of the 1st appellate Court qua findings on Issues Nos.7 to 9. The learned trial Court has specifically mentioned that plaintiff/respondent No.2 produced copy of original R.L.-II which was placed on record as Mark-I which contained Khata No.1155 and land was allotted to Shamash Din son of Mausa. He further submits that petitioners did not press Issues Nos. 1 to 4 before the first appellate Court as is evident from contents of the impugned judgment of the Additional District Judge. He further submits that petitioners did not challenge the finding of the learned trial Court qua the Issues Nos.1 to 4 before this Court in their revision petition. He further submits that petitioners approached this Court with un-clean hands. Therefore, discretion should not be exercised in favour of the petitioners. He further submits that declaratory suit without possession is maintainable. In support of his contention he relied upon the following judgments: 1988 CLC 142 Gul Ahmad Khan and others v. Muhammad Nawaz and others, PLD 1971 SC 762 Ahmad Din v. Muhammad Shafi and others and 1993 CLC 2482 Muhammad Shafi v. LDA etc. He further submits that petitioners challenged the title of the respondent No.2, therefore, respondent No.2 has only remedy to file suit before the Civil Court. In support of his contention he relied upon PLD 1994 SC 336 Waris Khan and others v. Col. Humayun Shah and 41 others. He further submits that petitioners Mathela and Shahana did not implead all the necessary parties in the memorandum of appeal before the first appellate Court. Therefore, appeal filed by the aforesaid private persons was not maintainable whereas the revision petition filed before this Court is also not maintainable.
6. The learned counsel of the respondents further urges that revision petition filed by the Provincial Government is time-barred and the petitioners failed to bring on record sufficient cause for condonation of delay. He further submits that Provincial Government did not pursue the matter deligently and no evidence was produced by the Provincial Government, therefore, revision petition is liable to be dismissed. In support of his contention he relied upon 1994 CLC 873 Messrs Nawab Brothers Ltd. v. Messrs Hand Tools Limited. Respondent/plaintiff had discharged his onus and shifted onus to the petitioners/defendants by producing Marked-I allotment/order alongwith Roznameha Waqiati. The petitioners/defendants failed to discharge their onus and both the Courts below were justified to decide the case against the petitioners. In support of his contention he relied upon 1982 CLC 1120, Ms. Gul Bano and 4 others v. Muhammad Ramzan and another. He further submits that Marked. I was placed on record and both the Courts below were justified to consider the document as the law laid down by the superior Courts. In support of his contention he relied upon (1993 SCM R 1137) Mian Tajammal Hussain v. Life Insurance Corporation of Pakistan.
7. The learned counsel for the petitioners in rebuttal submits that respondent No.2 claimed his right on the basis of R.L.-II that land in question was allotted in the name of his father in the year. 1960 but the entries of R.L.-II were not implemented in the Revenue Record. Therefore, judgments of both the Courts below are result of non-reading of the record.
8. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that petitioners did not press Issues Nos.1 to 4 before the first appellate Court and also did not press the same before this Court in the memorandum of revision petition filed by the petitioners. It is better and appropriate to reproduce the finding of the First. Appellate Court on Issues Nos.7 to 9 to resolve the controversy between the parties: "...He also produced the copy of original R.L.-I1 as Mark-I. The contention of the Provincial Government/defendant No.1 is that the document R.L.-II is old and deteriorated, cannot be made a ground for the refusal of the claim of the respondent/plaintiff as no other evidence in rebuttal of the same was produced by the Province of Punjab. It is also an admitted position that the land in dispute was an evacuee property and was owned by Central Government, as such the transfer of the land in favour of the Provincial Government (Social Reclamation Board), the status of the land in dispute could not be changed as the same stood allotted vide R.L.-II in favour of the father of the plaintiff. The Issues Nos.7, 8 and 9 have rightly been decided by the learned trial Court in favour of the respondent/plaintiff and the same needs no interference."
Both the Courts below have given finding of fact that copy of original R.L-II was produced which shows that the entries as to allotment of the land in question are made in R.L.-II at Serial No.I155 in the name of Shamas-ud-Din, predeessor-in-interest of respondent/ plaintiff on 2-12-1965. The Provincial Government did not lead any evidence before the trial Court. Neither R.L.-II has been challanged before any forum. The learned counsel of the petitioners failed to show any piece of evidence which was mis-read or non-read by the Courts below. It is pertinent to mention here that both the Courts below had given concurrent finding of fact that late Mathela and Shahana petitioners are trespassers. It is settled propOsition of law that trespasser has no vested right, therefore, they have no vested right. In arriving to this conclusion I am fortified by PLD 1982 SC 308 (Anjutnan Araian Bhera v. Abdul Rashid etc.) The Provincial Government did not produce oral as well as documentary evidence whereas the plaintiff/respondent has produced on record original copy of R.L.-II coupled with the certified copy of Roznamcha Waqiati; although R.L.-II was not exhibited in accordance with the provisions of Qanun-e- Shahadat Order, 1984 but both the Courts below were justified to consider original copy of R.L-II as laid down principle by the Hon'ble Supreme Court in Mian Tajammal Hussain v. The State Life Insurance Corporation of Pakistan (supra) 1993 SCM R 1137. It is an established proposition of law that finding on question of fact or law, howsoever, erroneous the same may be recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under section 115, C.P.C.
Unless such findings suffer from jurisdictional defect illegality or material irregularity as per principle laid down by the Privy Council in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras PLD 1949 PC 26 and the relevant observation is reproduced hereunder: "This section empowers the High Court to satisfy itself upon three matters, (i) that order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction, the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some, error or procedure in the course of the trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law."
No jurisdictional defect has of course been pointed out in this case. Similarly no legal infirmity in the impugned judgments has been alleged.
In view of what has been discussed above these revision petitions have no merit and the same are dismissed. It is pertinent to mention here that cases of the Government are decided against the Government as the public functionaries failed to pursue the matters diligently and efficiently.
Consequently public exchequer is looted by the cunning people with the connivance of the subordinate. In this view of the matter let a copy of the judgment be sent to Chief Secretary, Province of the Punjab who is directed to constitute a Committee to probe into the matter who is responsible official/officer who failed to pursue the matter in accordance with law. In case he finds any person guilty then he shall proceed against official/officer under Efficiency and Discipline Rules. He is further directed to direct all the concerned' quarters to issue direction to the officer/official who shall be deputed to defend the cases shall produce documentary and oral evidence and perused the matter carefully to save the public exchequer in accordance with law.
He is further directed to submit report to the Deputy Registrar (J) of this Court. With these observations this revision petition is disposed of.