Saeed Anwar vs Khursheed Anwar

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

CR No. 775-P of 2014 with CM 891-P/2014. Date of hearing...09.03.2015

Saeed Anwar & others Vs Khurshid Anwar.

Petitioner(s) by Mr. Hayatullah Khan, Advocate Respondent(s) by Mr. Habib Anwar, Advocate ABDUL LATIF KHAN, J:- This revision petition has been preferred against the impugned judgment and decree dated 03.07.2014, passed by learned Additional District Judge, Lahor, whereby the appeal of petitioners against judgment and decree dated 23.11.2013 passed by trial Court, was dismissed.

Arguments heard record perused.

2.A perusal of record reveals that respondent Khurshid Anwar filed a suit against Muhammad Sher predecessor in interest of present petitioners for declaration to the effect that the property measuring 11 Marlas comprise of Khasra No.3060 situated in Moza Dobyan, Tehsil Lahor, District Swabi is owned by him and the defendant

has no nexus with the property. It was averred that the plaintiff became owner by dint of mutation No.2392 attested on 29.10.2008 and 2696 attested on 27.1.2009. It is also averred in the plaint that the defendant filed a suit No.80/1 regarding suit property against plaintiff & others which was dismissed on 30.4.2010. It is claimed that the defendant has no right to possess the property and sought for ejectment of plaintiff from the suit property as he has forcibly retained the possession of suit property.

Though the plaint reveals that the defendant was tenant at will however it is also find mentioned that he is in adverse possession of the property as he is no more tenants over the suit property despite the fact that in Para 4 it is find mentioned that defendant has been incorporated as tenant at will in the revenue record. The revenue record reveals that in column of ‘Lagaan’ he has been shown in possession without any payment as adverse possessor. Admittedly the defendant has got no right to possess the property in any capacity. The revenue record right from Misle Haqiat upto current Jamabandi produced through PW.1 Patwari Halqa

supports the version of plaintiff. The defendant mainly relies and claim ownership of the property on the basis of long standing possession for more than 100 years which plea is not supported by any documentary or oral evidence as they are recorded as tenant at will alongwith the entry to the effect that they are in adverse possession of the property.

Needless to mention that on the plea of adverse possession no title can be claimed as the same has already been declared as against the injunctions of Islam. They failed to prove their ownership, adverse possession or the status of tenant at will.

3.The plea that plaintiff failed to assess and mention the amount for the purpose of Court fee and jurisdiction of Court and suit is liable to be dismissed on this ground alone, is misplaced, as this objection has been raised for the first time by defendant/petitioner at this revisional stage. A look of written statement reveals that no specific objection has been raised nor the same has been agitated at any stage in trial and even before the Appellate Forum. Petitioner had to take the objection at the earliest possible moment. It is not the case of

deficiency and Court fee which has to be cured rather the plaint reveals that value for the purpose of Court fee has been mentioned as ‘Maaf hai’ whereas value for the purpose of jurisdiction has been mentioned as ‘Adalat Deewani Lahor ‘ which is at the most can be termed as irregularity and on this ground alone the plaintiff cannot be non-suited, even in the terms of provision relating to the assessment and affixation of Court fee, having no penal clause and as such cannot be termed as mandatory rather are directory in nature. Parties should not be penalized for the negligence on the part of his counsel. It was also the duty of the ministerial staff of the Court to look into the matter on the date of institution of suit as to whether documents produced were properly stamped. Court Fee Act, 1870 being a taxing statute should be interpreted in favour of the subject like other fiscal statements as the basic object was to secure revenue for the benefit of State and not to injure the party/litigant on account of technicalities and instead chance should be given likely to make up the deficiency on payment of Court fee.

4.Both the Courts below have passed the impugned orders with reasons. There is no jurisdictional or legal error in the impugned judgments and the Courts below have neither misdirected nor misled the evidence available on file and the findings arrived are entirely in consonance with law and facts of the case, warrants no interference.

For the aforesaid reasons, this petition alongwith CM being devoid of merit are dismissed.

Announced.

JUDGE

“A.Qayum”