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Peshawar High Court, Peshawar Judicial Department Judgment

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Peshawar High Court, Peshawar Judicial Department Judgment JUDGMENT SHEET PESHAWAR HIGH COURT, PESHAWAR JUDICIAL DEPARTMENT C.R No.289-P/2016 JUDGMENT Date of hearing…………30.10.2018....…………….. Petitioner: (Provincial Housing Authority through its Director General): By Mr. Amir Javed, Advocate. Respondent: No.1, Wazir Khan, by Mr. Tariq Khan Hoti, Advocate. Respondent No.4, Maqsad Ali, Girdawar Circle, Kohat in person. Respondent No.5, Farid Khan, Patwari Halqa Jarma, Kohat in person. **** QALANDAR ALI KHAN, J.- This civil revision by Provincial Housing Authority through its Director General (petitioner) is directed against judgments/orders/decrees dated 24.02.2016 by Additional District Judge-IV, Kohat, and also that of the Civil Judge-XI, Kohat, dated 06.09.2014, whereby decree of the latter Court dated 06.09.2014 was maintained by the former/appellate Court; and appeal of the petitioner dismissed vide impugned judgment and decree dated 24.02.2016. 2. The background, forming basis of the instant revision petition, briefly stated, is that originally the Provincial Government was recorded as owner; and Deputy Commissioner, Kohat, in Possession of the 2 land measuring 219 Kanal in Khasra No.1/1122/71 of village Jarma, according to the available record of owners from the year 2003/04. A total of 300 Kanal land, including the said land, was transferred from the Provincial Government to the Prime Minister National Housing Scheme Authority, vide Mutation No.1033 attested on 22.12.1999; but re-transferred to the Provincial Government from the Pakistan Housing Authority, Works Division, Kohat, vide Mutation No.1062 attested on 28.07.2000. The entire land measuring 300 Kanal , including the land in question measuring 219 Kanal (Banjar Jadeed) was transferred by the Provincial Government to the Provincial Housing Authority) Kohat i.e. the petitioner, vide Mutation No.1989/1 attested on 17.04.2012. It may be added here that one Mst. Roshana Bibi transferred, by way of sale, an area of 10 Marla out of Khasra No.1121/71 in favour of respondent No.1, Wazir Khan, vide Mutation No. 1571 attested on 07.03.2011. It may also be added here that the Provincial Cabinet in its 32 nd meeting held on 21.03.2011, and communicated to the SMBR, Khyber Pakhtunkhwa, vide letter dated 28.03.2011, made certain decisions with regard to disposal of Jarma State Land in District Kohat, including sale of the State Land to the “sitting tenants”, and the Board of Revenue in letter dated 3 23.04.2011 to the Commissioner Kohat, Division Kohat, declared the record of rights for the year 2008-09, being the last one for Jarma, as the most authentic document, showing detail of owners and tenants. An extract from the record of rights for the year 2008-09 is available, showing the Provincial Government in the column of ownership and the Deputy Commissioner, Kohat, recorded in the column of tenant/possession. 3. Wazir Khan, respondent No.1/plaintiff, lodged suit for declaration against the Provincial Government in the Court of Senior Civil Judge, Kohat, on 20.07.2012, mainly, on the basis of Khasra Girdawri showing him) tenant in one Kanal out of total 219 Kanal in Khasra No.1/1122/71 situated in village Jarma, Kohat, in accordance with notification dated 02.04.2011 on payment of the specified price, and also challenged transfer of the entire land, including one kanal, in favour of the petitioner vide Mutation No.1989, attested on 17.04.2012, in the amended plaint subsequently submitted in the Court of learned Senior Civil Judge, Kohat, on 07.04.2014. The suit of respondent No.1/plaintiff was resisted by the petitioner, and in the written statement on behalf of the petitioner/defendant a number of legal and factual 4 objections were raised, giving rise to the following issues/additional issues. ISSUES. 1. Whether the plaintiff has got cause of action? 2. Whether the Court has got jurisdiction to try the suit? 3. Whether the suit is time barred? 4. Whether the suit is liable to be dismissed/rejected on account of non-joinder of necessary parties? 5. Whether plaintiff has been in possession over the disputed property as Ghair Dakheel Kar and, being so, defendant is bound to mutate the same in favour of plaintiff? Additional Issue. 6. Whether plaintiff is estopped to sue the defendants?) 7. Whether defendant No.1 (Provincial Housing Authority) is the representative of Provincial Government? 8. Whether plaintiff is entitled to the decree as prayed for? Additional issues 9. Whether mutation No.1989 dated 12.04.2014 is illegal and ineffective to the extent of the 01 Kanal disputed property and is liable to cancellation/rectification to the said extent? 10. Relief? 4. After recording evidence of the parties, the trial Court/ Civil Judge-XI, Kohat, rendered judgment/order dated 06.09.2014, whereby decree, as prayed for, was granted in favour of the 5 plaintiff/respondent No.1, which was assailed by the petitioner/defendant through appeal in the Court of District Judge Kohat; but the appeal was also dismissed by the appellate Court/Additional District Judge-IV, Kohat, vide the impugned judgment/order/decree dated 24.02.2016; hence the instant revision petition. 5. Arguments of learned counsel for the parties heard; and record perused. 6. The case of respondent No.1/plaintiff was that land measuring 219 Kanal bearing Khasra No.1/1122/71 in Jarma, Kohat, was the ownership of the Provincial Government, and that he was owner-in- possession of) one Kanal out of the said land measuring 219 Kanal, and further that to the said effect a proper entry was made in his favour as a tenant in the khasra Girdawari. In other words, respondent No.1/plaintiff himself admitted this fact that Provincial Government was owner-in-possession of land measuring 219 Kanal in Khasra No.1/1122/71 and that his name was entered as Ghair Dakhalkar only in the Khasra Girdawari, and not in the earlier record of rights, particularly record of right for the year 2008-2009; which, indeed, was declared as the most authentic document regarding owners and tenants in the record of rights, vide letter of the Board of Revenue dated 6 23.04.2011. Even Khasra Girdawari does not show respondent No.1/plaintiff, in possession of the land in question prior to Rabi, 2011; and according to the Patwari Halqa (PW1) the entry with regard to change in the column of cultivation was made with red ink on 25.05.2011 i.e. after notification dated 02.04.2011, which has been made basis for his claim by respondent No.1/plaintiff. Needless to say that vide the said notification dated 02.04.2011 only the “sitting tenants” were held entitled to purchase the Jarma State land in District Kohat; whereas the available record would show that respondent No.1/plaintiff was not a “sitting tenant” at the time of issuance of notification dated 02.04.2011,) as he was recorded in possession of 01 kanal out of 219 kanal only in Khasra Gerdawari of Rabi , 2011, subsequently on 25.05.2011, according to statement of Abdur Razaq, Patwari Halqa Jarma Kohat (PW-1) . In fact, respondent No.1 entered neighborhood of land of Provincial Government, represented by khasra No.1/1122/71 through purchase of 10 marla land in the adjoining khasra No.1121/71 from one Roshana Bibi vide mutation No.1571 attested on 07.03.2011; and it appears from the sketch (EX.PW2/X-1) that respondent No.1/plaintiff encroached upon the adjacent land of the PHA/petitioner by digging a gutter therein for his 7 house constructed in his 10 marla adjoining land in khasra No.1121/71 and also raising foundation wall thereon. Obviously, respondent No.1/plaintiff would not become a “sitting tenant” on the basis of his subsequent encroachment and some construction, referred to above, on the land of the petitioner/PHA; rather his suit for declaration on the basis of such a claim was an attempt on his part to legalize his illegal act of encroachment on the property of PHA/petitioner; which was condoned and accorded judicial approval by both the Courts below through their impugned judgments. 7. The impugned judgments of both the learned trial Court as) well as the learned Appellate Court also speak volume of their lack of knowledge about the basic legal principle that a party is to succeed on the strength of its own case, and not on the weaknesses in the case of the opposite side; as they entirely based their impugned judgments on the admission of the sole witness of the petitioner/defendant, Abdul Sattar Tracer PHA Mardan (DW-1) about raising of foundation wall by respondent No.1/plaintiff on an area of 01 kanal around 6/7 years ago; which can, at best, be regarded on erroneous admission on his part, as nothing was available on the record, particularly revenue record, in support of this concessional 8 admission by the only witness on behalf of the defendant/petitioner; who was not only a tracer in PHA, Mardan, and deposing about facts obtaining in Kohat; and also examined subject to objection by counsel for respondent No.1/plaintiff that he was not authorized to record statement; and, additionally, he also admitted in his cross examination that he was only appearing in the case on behalf of PHA and had no authority to record statement. Moreover, he was authorized only by the Land Acquisition Collector, PHA, vide authority letter (EX.DW1/1), who was not a party in the suit.
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