A declaratory suit was brought by the petitioner that he was owner in the village and also co- sharer in the Shamlat-Deh and that he had not made any encroachment, as such the orders for demolition of the construction raised by him were illegal. A prohibitory relief of injunction was also sought. The suit was contested, which gave rise to the issues framed by the learned trial Court. In support of his case the petitioner appeared as P.W.1 and examined Muhammad Sharif P.W.2 also.
He produced Jamabandis Exh.P-1 and P-2 whereas respondent No,4 appeared himself as D.W.2 and examined Ghulam Sarwar D.W.1. The suit was dismissed by the learned trial Judge vide judgment dated 10-12-1995 recording finding that the petitioner had no cause of action in the matter (Issue No,1) and that the suit was not hit by the principle of res judicata (Issue No,2). Issue No,4 that whether the suit was frivolous and vexatious, was answered in the negative. It was Issue No,3 which had the importance as to whether the plaintiff was entitled to the decree claimed for.
While deciding this issue, the learned trial Court proceeded on the premises that in proceedings under section 133, Cr.P.C., it was found by the Illaqa Magistrate that the petitioner had encroached upon 3 Marlas of land, which was a public place and that the said order of the Magistrate was maintained by the learned Additional Sessions Judge, Gujrat by dismissing the revision petition filed by the petitioner. The judgment of the trial Court has been maintained by the learned Additional District Judge, Gujrat vide judgment dated 1-6-1998.
2. The judgments have been criticized by the learned counsel for the petitioner that instead of considering the evidence recorded in the instant case, the findings were recorded on the basis of extraneous material, such as the order of the Magistrate and of the learned Additional Sessions Judge, which never formed part of the evidence in the case. According to him, such a disposition of the lis was wholly unwarranted and illegal and that even the learned Appellate Court has merely endorsed the judgment of the trial Court without proper application of the mind. The learned Additional Advocate-General has also been heard, who has endeavored to support the judgments of the Courts below. The learned counsel for respondent No,4 has not entered appearance, throughout the day.
3. There cannot be any cavil that the question of title when involved or crops up, it is the Civil Court, which is to decide the same. Reference in this context may be made to observations appearing in Central Cooperative Bank Ltd., Sargodha v. Ahmad Baldish (PLD 1970 SC 343), Azam Khan and another v. The State and another (1989 PCr.LJ 2286) and Muhammad Shuaib v. Sessions Judge, Swat and others (1994 SCM R 665). In the present case although some proceedings under section 133, Cr.P.C., had been taken by the Magistrate against the petitioner, which ended with the dismissal of the revision petition yet the record and even the judgments of the trial Court and that of the learned Appellate Court do not show that those judgments (of the learned Magistrate and of the learned Additional Sessions Judge) had been produced as evidence in this case by either of the party. The same were not tendered in evidence nor exhibited. The reasoning and findings contained in those judgments could not have been employed or incorporated by the learned trial Judge and made basis for judgment in the civil suit. There can be no two opinions that a Judicial Officer is to decide the matter before him in accordance with the evidence produced in that case.
The determination of the rights of the parties has to be in accordance with the law applicable. Such a course as was adopted in the present case was clearly impermissible in law inasmuch as the findings and the determination of the issues in the civil suit had to be made on the basis and consideration of the evidence duly brought on record in the civil suit. While deciding the essential issue i,e, Issue No,3 the learned trial Judge even did not discuss or take into consideration the copies of the Revenue Record produced before him, such as Exh. P-1 and Exh.P-2. Mere reliance upon findings in an order passed by the Illaqa Magistrate in proceedings under section 133, Cr.P.C., in the context of the dispute and the controversy was not enough to rest the fate of the civil suit thereupon and to dismiss the same for that reason. It may be observed that the approach of the learned trial Judge to the matter was somewhat inconsistent and irreconcilable inasmuch as it was found that the petitioner was owner in the village and the disputed site was claimed by him as a co-owner in the Shamlat Deh, which.Had not yet been partitioned. Be that as it may since the judgments of the two Courts below suffer from apparent illegality and material irregularities the same are unsustainable in law, which proceeded on wholly erroneous premises. By setting aside the same the suit will have to be tried and decided afresh.
' As a result of the above the judgment of the trial Court and that of the learned Appellate Court dated 1-6-1998 is set aside, the suit filed by the petitioner shall be deemed pending before the trial Court, which shall be heard and decided afresh in accordance with law by the learned trial Court.
The parties are directed to cause their appearance before the learned trial Court on 23-9-2002. No order as to costs.