Provincial Govt.etc vs Akhtar Hussain etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R. No.491-M/2014.

JUDGMENT

Date of hearing: 10.3.2015.

Date of order: 11.3.2015.

Petitioners: (Provincial Government through Chief Secretary and others) by

Mr. Sabir Shah, A.A.G.

Respondents: (Abdul Hussain and others) by Barrister Dr. Adnan Khan.

HAIDER ALI KHAN, J.- This civil revision under section 115 C.P.C. is directed against the judgment and decree dated 25.9.2014 of the learned District Judge/Zilla Qazi, Shangla, whereby appeal of the petitioners against the judgment and decree dated 16.8.2014 of the learned Civil Judge/Illaqa Qazi, Alpurai, District Shangla, has been dismissed.

Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

2.Brief facts of the case are that a suit was filed by the respondents against the petitioners seeking declaration in respect of the suit property duly mentioned in the heading of plaint. Per averments of the plaint the land comprising Khasra No.466, measuring 16 Kanal 4 Marla, Khasra No.459, measuring 3 Kanal 13 Marla and Khasra No.460, measuring 8 Kanal 14 Marla, situated in Mauza Karora is the ownership of respondents-plaintiffs and is irrigated through ‘Ghair Mumkin Tangy’/water channel bearing Khasra No.446 and the petitioners-defendants have no right whatsoever to enter the same as Barai. Correction in the revenue record was also sought. The suit was contested by the petitioners through submission of their written statement, wherein they denied the averments of plaint. After framing of issues and recording of pro and contra evidence, the trial Court decreed the respondents’ Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

suit vide judgment dated 16.8.2014. Aggrieved of the aforesaid judgment and decree, the petitioners preferred an appeal before the appellate Court and the learned District Judge/Zilla Qazi, Shangla dismissed the appeal vide judgment and decree dated 25.9.2014. Hence, the instant revision petition.

3.I have heard the arguments and gone through record of the case.

4.The very key point raised by the learned A.A.G. in support of the civil revision was that in the first settlement of District Shangla, which was carried out in year 1979-80, the Khasra numbers i.e. 459, 460 and 466 were recorded as Barai and in that regard he relied on P L D Supreme Court 571 ‘Mazloom Hussain V. Abid Hussain and 4 others’ and 1997 S C M R 1840 ‘Nawab Khan and others V. Said Karim Khan and others’.

Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

5.Secondly, the learned A.A.G. argued that despite the plea of limitation taken before the trial Court as well as in the memo of appeal, both the Courts below failed to give definite finding on that issue, therefore, the judgments of both the Courts below are deficient according to Order XLI Rule 31 of the Code of Civil Procedure (Act V of 1908). He placed reliance on 2010 C L C 1246 [Peshawar] ‘Amir Ali Shah V. Sher Azeem and others’, 2006 S C M R 783 ‘Almas Ahmad Fiaz V. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another’ and P L D 1993

[Peshawar] 131 ‘Government of N:W.F.P.

through Secretary Forest Department, Peshawar and 2 others V. Zain Khan’.

6.Thirdly, he stated that the suit is based on malafide as the same was instituted when the Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

petitioner-Government issued notification under section 4 of the Land Acquisition Act.

7.On the other hand, the learned counsel for the respondents supported the impugned judgments and referred to Ex. PW 4/1, which was/is a compromise decision dated 05.5.1966 regarding the distribution of water between the predecessor-in-interest of the respondents who are/were the residents of Mauza Karorra and the residents of Mauza Raniyal; two adjoining areas separated by ‘Ghair Mumkin Tangy’ comprising Khasra No.447 & 448, which works as natural boundary between the two adjoining areas. The learned counsel drew attention of this Court to the said decision and also referred to Jamabandi of both the Mauza wherein the parties to the same compromise/decision were mentioned as Abdul Qahar and Ashbar (predecessors-in-interest of respondents). The DW-2 also states in his cross- Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

examination that he has seen water in the water channel (Ghair Mumkin Lakhtai). It is noteworthy that this water channel forms part of Khasra No.446 wherein the respondents are the owners.

The presence of the water channel has also been confirmed by DW-1 who is Tehsildar of the said revenue circle. Therefore, keeping in view the presence of the water channel, established by the Patwari PW-1 and Tehsildar PW-2 in the property owned by the respondents and the decision dated 05.5.1966, it can safely be said that the nature of land is that of Aabi/irrigated by water channel has opposed to the entries recorded during the first settlement wherein it was mentioned to be Bari.

8.As to the limitation and cause of action the same was rightly accrued to the respondents-plaintiffs when the notification under section 4 of the Land Acquisition Act was issued and status of their land was recorded as Bari.

Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]

9.In view of what has been discussed above, I hold that both the Courts below have correctly appreciated and analysed the evidence, especially the evidence of revenue officials, whereafter concurrently suit of the respondents was decreed. There is no illegality, irregularity, misreading or non-reading of the case evidence, therefore, the instant revision petition, being bereft of any merit, is hereby dismissed.

Announced.

Dt: 11.3.2015. JUDGE

Kifayatullah/PS* [CR No.491/2014 ‘Provincial Govt. V. Akhtar Hussain’]