Abdul Rasheed and others (Petitioner) VS Nasrullah Malik and & others (Respondent)

THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P. No. D- 67 of 2009.

Present:

Mr. Justice Arshad Noor Khan &

Mr. Justice Muhammad Ismail Bhutto.

1.For katcha peshi.

For hearing of CMA 146-09.

O R D E R.

Mr.

Paryaram M. Vaswani advocate for petitioners.

Mr.

Kunwar Muhammad Sultan advocate for respondents No.1 to 3.

Mr.

Liaquat Ali Shar, Additional Advocate General.

ARSHAD NOOR KHAN J. By this constitutional petition under article 199 of the Constitution of Islamic Republic of Pakistan, 1973 petitioners have challenged the legality and validity of the order dated 21.11.2008 passed by learned District Judge, Ghotki in civil revision No.11 of 2008 re-Abdul Rasheed and others v. Nasrullah and others, whereby revision application was dismissed and the order passed by learned Senior Civil Judge, Ubauro dated 22.5.2008 on application under S.12(2) CPC filed by the petitioners in suit No.46 of 2001 where by application under S.12(2) CPC was dismissed, has been maintained.

Facts leading to the present petition in brief are that respondent No.1 Nasrullah filed suit for declaration, injunction and removal of encroachment against the respondent No.4, who is real brother of present petitioners. According to respondent Nos.1 to 3, respondent No.4 Abdul Hameed was encroacher and in unlawful possession of the property owned by them and he also dismantled watercourse leading to his land. Respondent No.4 contested the suit and finally suit was decreed by learned Senior Civil Judge, Ubuauro vide judgment and decree dated 17.5.2005. After passing judgment and decree respondent No.4 did not challenged the same and respondent No.1 filed execution application No.6 of 2005 and during the pendency of execution application present petitioners appeared and filed application under S.12(2) CPC claiming therein ownership over the land in dispute and that the decree has been obtained by committing fraud behind their back. The said application was contested by respondent Nos.1 to 3 and learned trial Court after hearing of learned counsel for the parties vide order dated 22.5.2006 dismissed the same. The present petitioners preferred civil revision No.11 of 2008 before learned District Judge, Ghotki, who also after hearing the parties counsel vide exhaustive order dismissed the revision application vide order dated 21.11.2008, hence present petition.

We have heard the learned counsel for the petitioners, learned counsel for the respondents No.1 to 3 and learned Additional Advocate General. Remaining respondents have also been served, but they are called absent.

Learned counsel for the petitioners vehemently contended that both the learned courts below did not consider the plea raised by the petitioners that they are owner of the property in question and the judgment and decree has been passed in their absence which are nullity in the eye of law, as such miscarriage of justice has been caused to them. He, however, did not controvert that the respondent No.4 is real brother of petitioners who contested the suit on merits before the trial Court. According to him, both the orders passed by the Courts below are not sustainable in law and are liable to be set-aside.

Learned counsel for the respondent Nos.1 to 3 vehemently controverted the arguments advanced by learned counsel for the petitioners and has contended that it was not a dispute about ownership of the property for the reason that the respondent No.4 himself was an encroacher over the land and he dismantled the watercourse of the respondent Nos. 1 to 3, illegally, therefore, grievance of the respondent Nos.1 to 3 was only against the respondent No.4, who illegally occupied their property and dismantled the watercourse and present petitioners were neither necessary party nor had any interest nor were encroachers over the land of respondent Nos.1 to 3, therefore, they were neither necessary nor proforma parties to be impleaded in the suit and the present application was filed just to protract the execution proceedings.

Learned AAG for respondent Nos.5 to 7 has contended that the respondent No.4 has illegally dismantled the watercourse No.19-L Ex-Seehar Wah deh Kamoon Shaheed and respondent No.4 was also encroacher, therefore, present petitioners have no interest in the suit property and both the learned lower Courts rightly dismissed their application under S.12(2) CPC.

We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.

A perusal of suit No.46 of 2005 shows that respondent Nos.1 to 3 filed suit for possession and mandatory injunction against respondent No.4 Abdul Hameed praying therein to dismantle the construction of three shops constructed on their land and to reconstruct the watercourse No.19-L Seehar Wah on the same place where it was existing. The suit as filed by the respondent Nos.1 to 3 shows that respondent No.4 illegally and un-authorizedly occupied their property and dismantled the watercourse in question and since respondent No.4 himself had committed violative act which was prejudicial to the interest of their property for which present petitioners have nothing to do and has rightly filed suit against respondent No.4 and respondent No.4 not only contested the suit but has also led evidence before the trial Court and after appraisal of whole evidence learned trial Court discarded the plea taken by the respondent No.4 and decreed the suit. It transpires that no right, title or interest of the present petitioners were involved in the property in suit filed by the respondent Nos.1 to 3 nor the petitioners have stated as to in what manner they have been prejudiced from the judgment and decree passed by the lower courts when they were neither in illegal possession of any portion of land of the respondent Nos.1 to 3 nor dismantled the watercourse of the respondent Nos.1 to 3. Admittedly, respondent No.4 is real brother of the petitioner and according to the statement of learned counsel for the respondent Nos. 1 to 3, respondent No.4 is residing alongwith petitioners in one and same house and it was well within the knowledge of the petitioners that suit was pending adjudication before the civil Court and in case petitioners had any genuine grievance they had opportunity to contest the suit by filing application under Order 1 rule 10 CPC before the trial Court but they did not do so and waited till the matter reached to the stage of execution proceedings and just to save interest of their brother present petitioners have come forward. Both the learned trial court as well as appellate court considered all these aspects of the matter and rightly dismissed application under S.12(2) CPC filed by the petitioners by holding that it is not mandatory and obligatory to frame issues in each and every application and to lead evidence. In the present case we also are of the opinion that since the petitioners had no right, title or interest in the property in question which was solely encroached upon by the respondent No.4 who also dismantled the watercourse of respondent Nos.1 to 3, therefore, present petitioners in any way have not been prejudiced by the judgment and decree passed by the learned Senior Civil Judge, Ubauro.

For the aforesaid reasons and circumstances, we do not find any merit in the present petition, which is here by dismissed in limine alongwith listed application.

JUDGE,

JUDGE,