Syed MAHBOOB SHAH vs TEHSIL NAZIM, PISHIN and another

' MAHMOOD AKHTAR SHAHID SIDDIQUI, J.---This appeal by leave of the Court is directed against the judgment dated 5-9-2008 passed by a learned Single Judge in Chambers of the Baluchistan High Court, Quetta in Civil Revision No.267 of 2008.

2. The appellant/plaintiff by means of a civil suit, claimed ownership of the land in Khasra Nos.202/200, 194/23 and 189/25 Khewat and Khatooni No.2/5 on the basis of Mutation No.30 attested on 11-1-1984. The dispute in fact relates to a portion of land in Khasra No.25 measuring about 43955 sq. Ft. Which according to the plaintiff was given by his father about 40 years ago to the transporter for parking of Buses, trucks and taxies. The plaintiff claimed ownership of the Bus Adda and the shops constructed on the disputed land.

3. The respondents/defendants contested the suit and pleaded that the disputed land was leased out to the father of the plaintiff for cultivation in the year 1942 and after the cancellation of the lease several shops were constructed and as many as 20 shops had been recently auctioned by the Municipal Committee. The defendant alleged that the transfer of Morose Bazgar rights/ownership rights were the result of manipulation and collusion with the revenue staff.

4. In view of the pleadings of the parties, the learned trial Court framed the following issues:--

(i) Whether the suit is not maintainable in view of preliminary legal objections 'A' to 'C' and 'E' of the written statement of defendants?

(ii) Whether the plaintiff is the owner of the land-in-dispute and defendants have no concern with the same?

(iii) Whether the plaintiff is entitled to the relief claimed for?

(iv) Relief?

5. The fate of this case hinges on the decision of issue No.2. The plaintiff has placed on record copy of mutation No.30 attested on 11-1-1984 on the basis of Notification No.301-8/77-Rev/729-48 dated 18-2-1977 whereby the proprietary 'rights in respect of Khasra Nos.202/200, 194/23 and 189/25 were conferred on Ali Muhammad, the father of appellant/plaintiff and his three brothers, namely, Agha Muhammad, Mir Ahmed and Nazar Muhammad. The defendants have not been able to show that the mutation No.30 was the result of manipulation and collusion with the revenue staff. However, a copy of mutation No.16 has been tendered in evidence which also shows similar alienation made pursuant to an order of the Deputy Commissioner, Pishin. In this Khasra land measuring 3 canals and 35 marls has been shown to be in possession of the Municipal Committee Bus stand. This entry appears to have been made at a subsequent stage in an unauthorized manner.

6. We have heard the learned counsel for the parties and have also gone through the available record. A perusal of the order passed by. Member-II, Board of Revenue, Baluchistan, Quetta is available on the file according to which the appellant was given ownership rights by the government which were incorporated in the Revenue Record through mutation No.30. It has also been observed in the order of the Member Board of Revenue that prior to the attestation of mutation No.16 there was no entry of Bus Adda/stand in the Revenue Record nor was there any order of the competent authority for recording such entries as Bus Adda in khasra No.25. It is yet to be established that the disputed piece of land formed part of Killa No.25. A local commission was also appointed by learned Senior Civil Judge, Pishin who submitted its report on 25-3-2003 but the same was set aside as it did not resolve the dispute regarding demarcation of the land.

7. In view of the above, the learned Courts below have not properly decided issue No.2 touching the real bone of contention between the parties. Accordingly, the findings of the three Courts below on issue Nos.1 and 2 are set aside. Consequently, we accept this appeal, set aside the judgments of the Courts below and remand the case back to the trial Court for, a fresh decision on all the issues after getting the disputed portion of Killa No.25 demarcated by the DCO, Pashing, who in IA collaboration with the Survey Department shall complete demarcation proceedings and submit a report within two months in the Court of Senior Civil Judge, Pishin.

8. In the meanwhile, the plaintiff may also file an application for amendment in the plaint asking for appropriate relief. The observations made herein above shall not influence the trial Court in deciding the matter afresh.

9. For what has been discussed above, this appeal is allowed in the above terms. A copy of this judgment may also be sent to the DCO, Pishin.