G.M Defunt Govt. Transport Service(GTS) Vs Mian Gul Aurangzeb

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Civil Revision No.1124-2004

General Manager G.T.S Vs Miangul Aurangzeb through LRs & others.

JUDGMENT

Date of hearing .......08.12.2016......

Petitioner(s) by Mr. Rafiq Ahmad, Advocate Respondent(s) by M/S Sher Muhammad Khan and Adil Khan Tahirkhaili, Advocates.

MUHAMMAD YOUNIS THAHEEM, J:- This revision petition has been preferred against orders, judgments and decrees of learned two Courts below dated 05.05.2004, by the Civil Judge/Illaqa Qazi, Swat and dated 07.07.2004 of learned Additional District Judge/Izafi Zilla Qazi, Swat for setting aside judgments of both the fora below and dismissal of the suit.

2.According to record CR No.

1124/2004 titled as General Manager G.T.S Vs Miangul Aurangzeb & others was then Ijaz

found missing, therefore order for reconstruction of file was passed by Additional Registrar (Judicial) on 09.09.2011. So, in consequence thereof a new reconstructed file with number CR No.1605/2004 with the titled General Manager G.T.S Vs Miangul Aurangzeb & others was prepared. However during pendency of the petition the original CR No.1124/2004 was traced out and was placed before the Court alongwith reconstructed CR No.1605/2004, so was tagged with the original civil revision petition, therefore this judgment has been passed in original CR No.1124/2004 and the reconstructed CR.1605/2004 be declared as part and parcel of the CR No.1124/2004.

3.The brief but relevant facts of the case are that the predecessor of present respondents No.1/1 to 1/7 Mian Gul Aurangzeb and 2 to 13 instituted civil suit against present petitioner and respondents No.14, 16 & 22 for decree of declaration and Ijaz

permanent injunction to the effect that plaintiffs/respondents No.1 to 13 are owner in possession of “Motorkhana” fully described in the plaint comprised on 2 Kanal 11 Marla at ‘Saido Shareef’ District Swat and defendants/present petitioner and respondents No. 14,16 & 22 (defendants) be restrained not to alienate the property owned by the plaintiffs. Learned trial Court summoned the defendants who submitted their written statement raising variety of factual and legal objections and in the light of divergent pleadings of the parties the learned trial Court framed as many as 12 issues.

4.The parties produced their

respective evidence as they wished and after conclusion of trial the learned trial Court decreed the suit vide impugned judgment dated 05.05.2004 as prayed for.

Feeling dissatisfied from the judgment and decree passed by the learned trial Court, defendant No.3, present petitioner and Ijaz

defendant No.5 Assistant Traffic Manager G.T.S Swat filed regular civil appeal before the learned Court of District Judge/Zilla Qazi, Swat which after hearing was also dismissed by the learned appellate Court vide impugned judgment dated 07.07.2004 and still feeling aggrieved amongst the defendants present petitioner/defendant No.2 filed instant revision petition inter-alia on the grounds mentioned therein.

5.Learned counsel for petitioner while arguing his case submitted that the suit of the plaintiffs/private respondents is barred by law as same property had been declared as Government property after merger of princely state of Swat into Federation of Pakistan vide Notification No.1521 dated 15.09.1972 lying on record as Ex DW1/1 and the present plaintiffs have no nexus with the above said suit property. The Department of Transport, Government of NWFP (now Khyber Pakhtunkhwa) had utilized same as G.T.S Bus stand since Ijaz

1972 up till abolishing of Government Transport Service (G.T.S), so is the ownership of Provincial Government, therefore defendants No.3 to 5 G.TS authorities correctly and lawfully advertised notice for public auction of said suit property in the Daily Urdu Newspaper “Mashriq” placed on record as Ex PW1/8 & Ex PW1/9.

He further added that present private respondents filed application before the Deputy Commissioner, Swat for stopping of auction of the suit property by the defunct G.T.S Authorities which application has been correctly dismissed and that order of Deputy Commissioner was challenged by filing revision petition before the Commissioner Malakand Division which was also dismissed and both the orders of Deputy Commission and Commissioner have not been challenged further before revenue hierarchy so had attained finality, hence the private respondents/plaintiffs are estopped to file the instant suit; moreover Ijaz

the suit filed is time barred. He further argued that property mentioned in the Notification No.1521 at serial No.99 & 100 five Garages and building of Motor workshop were declared Government property vide Martial law Regulation No.122 paragraph No.3 clause-9 of Devolution and Distribution of property (Dir & Swat) Regulation on the recommendation of Dir, Swat Land Disputes Enquiry Commission as State property, so ex-royal family/private respondents have no nexus with the suit property. He lastly argued that both the Courts below have not considered the evidence about the aforesaid facts properly and has passed the impugned judgments and decrees, so same are result of misreading and non-reading of evidence and wrong exercise of jurisdiction, hence are against law and are liable to be set aside resultantly suit is liable to be dismissed.

6.On the other hand learned counsel for respondents supported the judgment of Ijaz

fora below and submitted that same property commonly known as “Motorkhana” ( )موٹرخانہ has been declared as private property of Ex- ruler of Swat vide Notification No.10/16- SOTA-11/72-1523 dated 15.09.1972 placed on record as Ex PW1/6 appearing at serial No.8 of Notification and the predecessor of present respondents filed application/suit for correction of wrong entries appearing in the Notification No.10/16-SOTA-11/72-1521 dated 15.09.1972 Ex DW1/1 showing Motorkhana and Garages as State property (public property) before the learned Dispute Settlement Commission chaired by Justice (Rtd) Qaiser Khan who vide order/judgment dated 31.07.1982 placed on record as Ex PW1/7 deleted the same property at serial No.100 of Ex DW1/1. So, it is established through evidence that the private respondents/plaintiffs are coming owner of suit property while petitioner was licensee of the plaintiffs/private respondents, he further argued that plaintiffs/respondents filed Ijaz

application for stopping of alienation process through intended auction by the G.T.S authorities/defendants which was advertised through Daily “Mashriq” Ex PW1/8 and Ex PW1/9 for the suit property about which their rights were already settled by the Chairman Land Dispute Tribunal Dir, Swat Chitral vide judgment dated 31.07.1982, so filing of the said application for stopping of auction does not operate as estopple against the private respondents/plaintiffs; he added that Deputy Commissioner became partisan, so they were left with no other remedy except to file civil suit before the Civil Court which has got plenary jurisdiction to take cognizance and decide the matter as the petitioner and other Government officials were adamant to auction their owned suit property. He Lastly, argued that their rights to the suit property had been established since long by Notification No.1523 Ex PW1/6 and judgment of Tribunal Ex PW1/7, so the learned two Courts below had adjudged the Ijaz

matter correctly within their competence after appreciating the entire evidence and the law, hence no exception could be taken to the judgments challenged by the present petitioner and requested for dismissal of instant petition.

7.Arguments of both the learned counsel heard and record perused.

8.From the perusal of record it transpired that after merger of princely States of Dir, Swat and Chitral a land dispute Enquiry Commission was constituted under Paragraph 3(a)(b) under Devolution and Distribution of Property (Dir &Swat) Regulation (Martial Law Regulation No.122) to settle that which property was public property during the regime of Miangul Royal Family and which property was personal or private owned property of Sir Abdul Wadud Miangul Shahzada, Badshah Saheb.

9.From the perusal of Notification NoK1521 Ex DW1/6 dated 15.09.1982 Ijaz

properties appearing at S.No.99 & 100, some shops and Motor workshop were entered as state property (public property) and regarding any dispute about wrong entries and confiscation of personal property as discussed above a Land Dispute Tribunal was constituted. The predecessor of present private respondents filed application/suit before the Tribunal for the correction of wrong entries mentioned above appearing at Serial No. 100 & other after hearing by the Chairman Land Dispute Tribunal Justice (Rtd) Qaisar Khan, were corrected/deleted from said Notification NoK1521 Ex DW1/1 vide judgment of said Land Dispute Tribunal dated 31.07.1982 placed on record as Ex PW1/7 and entries in the notification No.1521 dated 15.09.1972 at serial No.8 entered as “Motorkhana” were clarified. So the “Motorkhana” was declared the private/personal ownership of ex-ruler Badshah Saheb of former State of Swat i.e the ownership of plaintiffs/private Ijaz

respondents. The representative of petitioner and respondents No.3 to 5 appeared as DW-1, who during cross examination deposed that old name of suit property is “Motorkhana” and we named it as G.T.S workshop. The relevant portion of cross examination is reproduced below:

جايئداد متداعويہ کا پرانا نام موٹرخانہ تھا۔اور ہم اسے جی ٹی ايس سب ورکشاپ سيدوشريف سے پکارتے ہيں

10.From the record, it reveals that same suit property was taken over by the Provincial Government to utilize it as G.T.S Bus stand and workshop. The private respondent admitted the above said position to the extent that G.T.S authorities were their licensee. So, upon need, they send notice for its vacation but having learnt about its auction, the plaintiffs to stop that auction moved an application to Deputy Commissioner for stopping of alienation through auction and upon refusal of same relief the plaintiffs instituted the instant civil Ijaz

suit in the Civil Court which is competent forum for resolving the dispute over established rights about the suit property.

11.From the perusal of record it further transpires that vide judgment of Land Dispute Tribunal dated 31.07.1982 (Ex PW1/7) passed by justice (Rtd) Qaiser Khan and Notification No.1523 dated 15.09.1972 (Ex PW1/6) the rights to the suit property had been already settled, clarified and established in favour of Miangul ex-royal family and only to restrain G.T.S authority and official respondents for alienating it through auction the aforesaid application was moved, so it’s dismissal does not operate as estoppel or resjudicata against the plaintiffs/private respondents.

12.Moreover, it is settled law that the possession howsoever it adverse is, do not confer any ownership title to the possessee of the property as claim on the basis of adverse possession has been declared against injunctions of Islam by Hon’ble Ijaz

Supreme Court of Pakistan. If need be reference can be made to the judgment of Hon’ble Supreme Court in case titled as “Maqbool Ahmad Vs Fedral Government” cited as 1991 SCMR 2063, so the arguments and the stance of the petitioner as they were using the building as G.T.S Bus stop and workshop since long do not authorized petitioner and official respondents to alienate it through auction so same arguments of petitioner is not tenable under the law. it is settled law that the possession howsoever it adverse is, do not confer any ownership title to the possessee of the property as claim on the basis of adverse possession has been declared against injunctions of Islam by Hon’ble Supreme Court of Pakistan. If need be reference can be made to the judgment of Hon’ble Supreme Court in case titled as “Maqbool Ahmad Vs Fedral Government” cited as 1991 SCMR 2063 wherein at serial No.8, it appears as Motorkhana (۔)موٹرخانہ Ijaz

13.Thus, the learned trial Court has passed the judgment after appreciating the evidence on the record in accordance with law and learned appellate Court had also maintained the judgment of learned trial Court after reappraisal of entire evidence on record well within the domain of its jurisdiction and law. This Court u/s 115 of C.P.C while exercising revisional jurisdiction has only to examine the matter as to whether the jurisdiction vested with the Courts below had been exercised properly or had failed to exercise that vested jurisdiction or had been exercised it illegally but after evaluating the entire evidence on record this Court also reaches to the conclusion that no such illegality, irregularity, misreading and non-reading or wrong appreciation of law has been found in the concurrent findings of the fora below to which no exception could be taken. In this respect reliance is placed on the judgment of Hon’ble Supreme Court of Pakistan in Ijaz

case titled as Mst:Zaitoon Begum vs Nazar Hussain & another'' (2014 SCMR 1469), wherein their Lordships held as under:- '' This Court in the case of Kanwal Nain Vs Fateh Khan (PLD 1983 SC 53) has held that concurrent findings of two Courts below are not opened to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on point of fact and on point of law, both.''

14.Thus in view of above, this petition being bereft of merits is hereby dismissed with costs.

Announced.

JUDGE

Ijaz