PANDOK Versus KHODA IQBAL
AHMED KHAN LASHARI, J .---This Civil Revision Petition under section 115, C.P.C. is directed against the judgments/decrees dated 30-1 1-2001 and 10-4-2002 respectively passed by Qazi, Turbot and Majlis-e-Shoora, Mekran Division, whereby; suit filed by respondents, seeking declaration and permanent injunction of landed property, was decreed and the petitioners' appeal was dismissed.
2. The relevant facts of the ease are that the plaintiffs/respondents filed an amended suit for declaration and permanent injunction on or about 29-8-1997 against the defendants/petitioners in the Court of Qazi, Turbat in respect of landed property situated at Daak Karkidar Mouza Gano Nokbar Kolanch Tehsil Pasni District Gwadar, claiming therein that the ancestors of the respondents purchased the suit-land in the year 1181 Hijri from Sardar Sheikh Umer Khan Gichki against consideration of certain amount. The petitioners, being their tenants, used to pay the Haq-e-Malqana to them and, recently they have not only denied ownership rights of the respondents, but also refused to pay the Haq-e-Malkana. It was prayed in the suit that the petitioners be permanently restrained from interference in the suit property.
The petitioners filed their written statement and contested the suit on legal as, well as on factual grounds. The petitioners claimed that they are owners with possession of the suit property since time immemorial, the suit filed by the respondents was not maintainable and hopelessly barred by time.
The learned trial court, in order to resolve the controversy existing between the parties, framed the following issues:-
The respondents, in order to prove their plea, produced eight witnesses and also placed on record documentary evidence. The petitioners, in rebuttal, adduced four witnesses and thereafter statements of the parties were recorded on oath' through their attorneys.
On completion of proceedings, the learned trial Court on 31-8-1999 decreed the suit in favour of respondents. The petitioners, being aggrieved of the judgment/decree, tiled Civil Appeal No.128 or 1999 before Majlis-e-Shoora, which was dismissed on 16-11-1999. The petitioners approached this Court by filing Civil Revision Petition No.25 of 2000, whereby the impugned judgments/decrees were set aside and matter was remanded to the trial Court with the direction, after providing opportunity of cross-examination to the parties, the documents be brought on record in accordance with law.
On remand, the parties relied on the evidence already produced before the court and only got recorded their statements. The respondents' attorney through his statement tendered the documents. The learned trial Court, after hearing the parties' counsel, vide judgment dated 30-11-2001 decreed the suit, against which appeal No.6 of 2002 was filed and the Majlis-e-Shoora vide judgment/decree dated 10-4-2002, dismissed the appeal, hence this petition.
3. Mr. Muhammad Aslam Chishti, learned counsel for petitioners, contended that the Courts below in excess of jurisdiction, after determination of the status of petitioners as Maurosi Bazgar in suit-land, restrained them from interference in the property. He next contended that in view of Balochistan Tenancy Ordinance, 1978, the Civil Court had no jurisdiction to proceed with the dispute, thus, the judgments and decrees impugned herein were passed without jurisdiction. It was also argued that the findings of the Courts below, in respect of possession of the suit-land, were made in favour of petitioners, but it was held that the respondents were in constructive possession, which findings are contradictory in nature, contrary to the law, procedure and set principle. He lastly argued that in post-remand proceedings, the respondents merely tendered the documents through their attorney, which were illegally accepted and relied upon, resulting into decreeing the suit in their favour.
4. Mr. Basharatullah, learned counsel for respondents, contended that, in fact, the respondents filed suit for possession and, accordingly, prayer was made for injunction, restraining the petitioners from interference. He next contended that since the petitioners denied the respondents' ownership rights, thus, suit was competently filed before the civil Court seeking dispossession of the petitioners. He further argued that the documents were produced and exhibited with consent of the petitioners and they did not raise any objection, thus, at this stage, the documents cannot be questioned to be not proved. He lastly argued that the concurrent findings arrived at by the Courts below are based on correct interpretation of law and proper appreciation of evidence, thus, for want of any illegality or irregularity, the judgments are not open to interference. Learned counsel in support of his arguments referred the judgments-reported in PLD 1968 SC 140+PLD 1969 SC 136+PLD 1983 Quetta 52+1990 SCMR 694+1990 SCMR 441+1999 CLC 200 and 1994 SCMR 291.
5. I have heard the learned parties' counsel and have gone through the record as well as impugned judgments and cited case laws. The case of respondents is that they purchased the suit-property against certain amount vide sale deed and the petitioners, being their Latband Maurosi Bazgars, failed to pay the Haq-e-Malkana, therefore they were compelled to institute the suit for declaration of their ownership rights as well as dispossession of the tenants. It may be noted that photocopies of the documents were brought on record and the learned trial Judge, while accepting these documents, held that the petitioners were provided opportunity of cross-examination, who did not raise objection, thus, documents were admitted to be proved. The presumption of truth of 30 years old document is attached with Article 100 of the Qanun-e-Shahadat Order, 1984. The presumption is not imperative, but it is satisfaction of the Court to assume the contents thereof and signatures appearing thereon were of the particular person or persons. The Article provides that 30 years old document, if produced from the proper custody and was free from any suspicion, Court could presume signature and any part thereof which purported to be in handwriting of the particular person. This principle would equally apply to certified copies of documents of 30 years old, while Article 76 of the Order lays down for production of secondary evidence, mere production of copy of original document would not be enough to entitle party to suit to produce secondary evidence, unless condition laid down in the Article for production of secondary evidence stood satisfied suggesting that the original document was either lost or was not traceable. I may refer the judgments on the point-reported in 1988 CLC 2388 and 1999 CLC 200. The Courts below, considering the evidence, declared that the petitioners arc in possession of the land as tenants to the respondents and ordered for their eviction for non-payment of the dues. While dealing with the contention of learned counsel for respondents that since the documents produced and exhibited were not disputed, therefore, at this stage, the petitioners cannot challenge the sanctity or these documents. The judgments referred on the point are distinguishable on facts and circumstances of the case. As stated above, the petitioners, at the very outset, disputed the sale deed and claimed to be in possession of the property as owners, thus, in the given circumstances, the sale and other documents were to he proved in accordance with law. The point discussed in the above referred judgments by the Hon'ble Supreme Court was that:
"Where the objection to he taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a Court of Appeal and then complain for the first time of the mode of proof. A strictly formal proof might or might not have been forthcoming had it been insisted on at the trial.
Thus, for such reasons the authorities referred to, are not applicable in the instant case.
Though the learned trial Court, after having gone through the pleadings of the parties, framed issues, but no issue was framed regarding maintainability of the suit in view of section 63 of the Balochistan Tenancy Ordinance, 1978. which provides that no Court shall take cognizance of any dispute or matter with respect to which any such application or proceeding might be made or had, while First Group (c) of the above section clearly indicates that application under section 44 or 45 by landlords for possession of land, where the right of occupancy has become extinct, shall be presented to the Revenue Court. Section 64 to the Ordinance further lays down that the following suits shall be instituted be heard and determined by Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any suit might be instituted:
SECOND GROUP
(c) suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right;
(d) suits by a landlord to eject a tenant;
The learned Courts below fell in error before proceeding with the case to consider the relevant law dealing with the dispute. Subsection 3 (i) to section 64 of the Ordinance lays down that:
"When in a suit cognizable by and instituted in a Civil Court it becomes necessary to decide any matter which can under this subsection be heard and determined only by a Revenue Court, Civil Court shall endorse upon the plaint the nature of the Matter for decision and the particulars required by Order VII, rule 10, Civil Procedure Code, and return the plaint for presentation to the Collector."
The contents of the plaint clearly indicate that the respondents filed suit cm the ground that the tenants were not paying them Haq-e-Malkana and sought their eviction from the land on that ground, which exclusively falls within the jurisdiction of Revenue Court constituted under the Balochistan Tenancy Ordinance, 1978.
What has been discussed hereinabove, the Courts below, without considering the legal- proposition of law, illegally proceeded with the case, thus, the judgments/decrees impugned herein are without jurisdiction. High Court, while exercising revisional jurisdiction, .can interfere in the concurrent findings, based on erroneous assumption of facts, patent error of law and arbitrary exercise of powers, thus, I am inclined to set aside the impugned judgments/decrees and direct the Qazi to return the plaint to the respondents for presentation of the same before the Revenue Court having jurisdiction over the matter.
This disposes of Civil Revision Petition No.176 of 2002 with no order as to costs.
H.B.T./3/Quetta Revision allowed.