The brief facts of the instant civil revision are that the respondent purchased eight Marlas of land in Village Arainwala, Tehsil and District Sheikhupura as 8/173 share of Khewat No.54, Khatooni No.425- --Min, Square No. 14, Killa No.25/2 (8 Kanals and 13 Marlas) from one Mst. Said Bibi widow of Umer Din through registered sale-- deed dated 6-1-1985 for a consideration of Rs.30,000. He also purchased 6/173 share out of the same Khata from the same owner on 10-12-1988 for a consideration of Rs.25,000 through registered sale-deed dated 10-12-1988 and possession was accordingly delivered to him. The respondent filed a suit for possession alongwith perpetual injunction on 9-1-1990 claiming that the petitioner has taken into possession 3 Marlas of his land through encroachment and left the area underneath the high tension 11000 K.V. Wires of WAPDA.
2. This suit was contested and after framing of issues and recording of evidence the learned trial Court decreed the suit vide judgment and decree dated 20-3-1994 and appeal against the same was dismissed by the learned Additional District Judge. Sheikhupura vide judgment and decree dated 13-6-1998. During the proceedings the' plaintiff filed an application for the appointment of a Local Commission which was rejected. An appeal was filed against the judgment and decree dated 29-7-1992 challenging the decision of the case regarding Issues Nos.5 and 7 but the appointment of the Local Commission and the judgment regarding the contempt proceedings were neither challenged nor questioned in that appeal. The appeal was accepted by the learned District Judge, Sheikhupura on 17-11-1992 in which the findings of the learned trial Court regarding Issues Nos.5 and 7 were reversed and the case was remanded to the learned trial Court with a direction that the learned trial Court should appoint Ch. Naseer Ahmad, Advocate who should visit the spot and determine as to how much areas has been encroached upon by the petitioner or .By someone else and to see the area left by the petitioner towards the north of his house is owned by WAPDA or not. The Local Commissioner filed his report which was objected to by the defendant but the objection was overruled by the learned trial Court and against this concurrent finding of fact the instant civil revision has been filed.
3. The learned counsel for the petitioner submits that the judgments and decrees are illegal, void and inoperative as the learned Courts below have failed to take into consideration the most important fact that both the parties, the petitioner as well as the respondent had purchased a share out of a joint Khata measuring 6 Kanals and 8 Marlas respectively meaning thereby that both of them became owners in the Khata and on this score the judgments and decrees passed by both the learned Courts below are not sustainable as these Courts have failed to take into consideration the fact that the petitioner and the respondent purchased shares out of the joint Khata from the same owner with the difference that the petitioner is in possession of the land which he purchased whereas the respondent is not in possession of anything. In these circumstances no co-owner can be permitted to claim joint owner without partition of the joint Khata and that the description in the sale-deed of the respondent is of general in nature showing open spaces of east, north and south of different purchasers. No dimension has been given in this sale-deed in the absence of which it is impossible to ascertain the exact plot purchased by the respondent and the onus was on him to prove that the respondent is owner of the land in posses- ion of the petitioner, that the respondent has failed to establish his title over the disputed property as he has failed to produce the original sale-deed in evidence. Copy of the sale-deed Exh.P.3 is not admissible, that the application of the respondent for the appointment of the Local Commission was dismissed by the learned trial Court on 8-7-1991. He never filed any appeal or revision against the said order. It has thus attained finality. The respondent failed to challenge the same in appeal before the District Judge. The learned District Judge could not have appointed any Local Commission in the case as has been done by him in his judgment dated 17-11-1992 setting aside the judgment passed by the learned lower Court. The respondent also did not challenge the findings of the learned trial Court dated 29-7-1992, therefore, it has attained finality. The learned trial Court was bound by law to decide the objection filed by the petitioner against the second report of the Local Commission. The learned trial Court did not bother to have the reply of the respondent regarding these objections and the second report of the Local Commission is also vague and irrelevant. The learned trial Court also committed irregularity while not allowing the application of the petitioner under Order 41, rule 27, C.P.C. For permission to adduce additional evidence and the learned lower Court has also misread the evidence.
4. The learned counsel for the respondent submits that the objection that without impleading WAPDA as a patty the instant case being without substance cannot be decided as the Local Commission has visited the spot and has given his report that the WAPDA is not owner of the property where the wires of the WAPDA pass and the Local Commission in both of its reports has submitted that the petitioner has encroached, upon three Marlas of land belonging to the plaintiff/respondent and the learned trial Court overruled the objection filed by the petitioner over Local Commission's report and the petitioner did not assail the same. His application under Order 41, rule 27, C.P.C. Was dismissed and he did not file appeal against the said order. The onus was upon the petitioner to show that he was given this land by the vendors. He did not produce in his support any owner from whom he purchased his property. Moreover, the sale of the respondent/plaintiff was earlier to that of the petitioner/defendant and Exh.P.3 is the proof that he has purchased 8 Marlas of land and he has also affixed the map showing the property under ownership possession of the respondent. In the map the plot owned by the petitioner is shown vacant as the petitioner/ defendant purchased the same subsequent to the sale of the respondent/plaintiff. He encroached upon three Marlas of land out of 8 Marlas belonging to the respondent and the civil suit was filed on 9-1-1990. The suit was dismissed on 29-7-1992. The appeal was filed which was accepted on 17-11-1992 and the order of the learned lower Court was set aside and the case was remanded to the learned trial Court, with the direction to appoint a Local Commission namely Ch. Naseer Ahmad, Advocate and the Local Commission was directed twice to inspect the site. The objection was filed and overruled by the learned trial Court and therefore, the decree was passed and oh appeal it was confirmed by the learned Appellate Court.
The concurrent findings of both the learned Courts below cannot be interfered in the civil revision as these are not perverse to the evidence on record.
5. I have heard the learned counsel for the parties and have perused the record.
6. P.W.1 Tariq Mehmood in his examination-in-chief stated that he purchased the property and got possession of the same and any Killas to demarcate his plot. The defendant purchased the property later on and as the wires of 11000 K.V. Passed through his plot, therefore, he got this plot cheap and subsequent to the purchase of the plaintiff he encroached upon three Marlas of land in ownership possession of the plaintiff. He was cross-examined and could not be shattered by the defendant. The plaintiff produced Aftab Ahmad as P.W.2 in his support. He himself appeared as his own witness as P.W.3 and stated that he purchased this plot from Mst. Said Bibi measuring 3 Marlas and he got affixed the Killas in the presence of the owner and defendant purchased 6 Marlas subsequent to his purchase and his plot is towards northern side. He encroached upon three Marlas of land belonging to him and left his three Marlas of his land over which the WAPDA wires were passing and he constructed one room and boundary wall and he is in illegal possession of the property belonging to him, He was cross-examined and nothing substantial came out.
D.W.1 is Muhammad Aslam and D.W.2 is Shafqat and Abdul Hameed defendant appeared as his own witness as D.W.3 and stated that he purchased the land four years before and his plot was towards the northern side of Atta Muhammad. He saw the plaintiff's plot a month before purchasing his plot, at that time there was vegetable growing in his plot. On the northern side of his plot the electric wires are passing and under these wires no construction can be done and he is in possession of the property which he purchased and his plot is 49 feet long and 30 feet were.
However, he showed his ignorance about the purchase of the plot by the plaintiff and the nature of the transaction of sale and also showed his ignorance that the plaintiff has affixed Killa and got possession of the property and refused the suggestion that he is in possession of three Marlas of land owned by the plaintiff. The Local Commissioner filed his report which was objected by the defendant and the objection was overruled. In his report he stated that the defendant has encroached upon the property belonging to the plaintiff/respondent and that he left his three Marlas of land out of the total six Marlas' plot where the WAPDA wires are passing and that he has enquired and summoned WAPDA and WAPDA is not owner of that property. After perusing the record and the impugned judgments which are issue were findings after deciding the factual controversy and that is too, after due appraisal of the evidence, this Court has come to the conclusion that no interference is called for in the revisional jurisdiction as neither the findings of facts arrived at by the learned Courts below are suffering from error of jurisdiction nor they are perverse or against the evidence on record, therefore, the instant civil revision is dismissed being devoid of force.
9. No order as to costs. 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.