CHAKAR KHAN Versus AZAD KHAN

JAMAL KHAN MANDOKHAIL, J .---Briefly stated facts of the case are that the respondents filed a suit for declaration, permanent injunction, consequential relief and possession against the predecessor of the petitioners.

It is alleged that the petitioners are the owners of the property bearing Khasra Nos.513, 515 and 516, situated at Mouza, Sultan Kot, Tehsil and District, Sibi (called hereinafter, the land in dispute). The possession of the property was given to the father of the petitioners for cultivation on the basis of Bazgari. Since the share of the petitioners out of the produce has not been paid to them, therefore, they have filed the present suit for the recovery of the possession.

The suit was contested by the predecessor of the petitioners by way of filing his written statement, wherein, several legal objections regarding maintainability of the suit were raised. One of the legal objections of the petitioners was in 'respect of the jurisdiction of the Civil Court. It is stated that the plaintiffs could have claimed through the Revenue Court, as such, the present suit was not competent. On merits too, the petitioners totally denied the ownership of the respondents and claimed their possession as owners. They have straightaway denied the relationship of the landlord and the tenant between them and the respondents.

During pendency of the suit, the petitioner also filed a suit for the cancellation of the mutation entries in respect of the land in dispute, which were on the name of the respondents.

Both the matters were consolidated and tried. On conclusion of the cases, the Trial Court, vide the judgment and decree dated 31st January, 2009, dismissed the suit of the respondents and decreed the suit of the petitioners. Feeling aggrieved, the respondents preferred an appeal before the Court of the District Judge, Sibi, who reversed both the judgments and decrees. Resultantly, the suit filed by the respondents was decreed and the suit filed by the petitioners was dismissed, hence this petition.

2. The learned counsel for the petitioners stated that the appellate Court has erred in the law by not considering the legal objections raised by the petitioners in respect of the maintainability of the appeal and the suit of the respondents. He contended that single appeal against two judgments and decrees was not competent, but the Appellate Court has wrongly entertained it. It has not properly dilated upon the evidence and material available on record and it, while dismissing the suit of the petitioners by maintaining it as barred by time, has not considered the fact that, the limitation starts from the date of knowledge. The moment the petitioners came to know about the fraudulent mutation entries, they immediately filed a suit, which was very much within time. According to him, the judgment and decree of the appellate Court are not well-reasoned. The learned counsel, at last, submitted that in view of what has been stated, the impugned judgments and decrees passed by the appellate Court are not only without jurisdiction, but are also void, illegal and unlawful.

3. On the other hand, the learned counsel for the respondents submitted that both the suits were consolidated and were decided through a common judgment. Since the entire proceedings were consolidated, therefore, a single appeal was riled against the judgment and decree of the Trial Court. The learned counsel states that in the appeal, the respondents challenged the findings of the Trial Court on both the suits. Since, a common judgment and decree were passed, therefore, the single appeal was competently filed.

He argued that as regards the objection on the maintainability of the suit is concerned, after the denial of the petitioners regarding the relationship of the landlord and the tenant, the only remedy left for the respondents was to file a suit for possession under section 42 of the Specific Relief Act. Moreover, the respondents were recorded as tenants of the Provincial Government. In view of a policy of the Government, the ownership of the land was transferred to the tenants on the basis of which, the respondents became owners of the land. It is sufficient proof of the fact that, the respondents were already in its possession as tenants. Presently, the possession of the petitioners over the land in dispute is illegal, therefore, the respondents are entitled to claim the possession from them:

The learned counsel submitted that on the other hand, the suit of the petitioners was hopelessly barred by time, therefore, it has rightly been decided by the Appellate Court. The petitioners have no right, title or interest into the property in dispute, therefore, the Trial Court, after considering the entire material, has come to a just and proper conclusion.

4. I have heard the learned counsel for the parties and have perused the record. In the first instance, let me dilate upon the objection raised by the petitioner on -the maintainability of the appeal. It is an admitted tact that, initially, both the suits were consolidated by the Trial Court and, finally, these were disposed of through a common judgment and a decree. The respondents have challenged the judgment and decree through a single appeal.

If common question of law and facts are involved in the suits, with a view of avoiding the conflicting findings, it is just and convenient that the suit be disposed of by one and the same Court. In such like cases, normally, the suits are being consolidated in order to avoid the multiplicity of the litigation and the contrary demands. One of the purposes of consolidation is to minimize the unnecessary cost of the litigation. When by an order of the Court, two suits are consolidated, these have no independent existence. As a result of the consolidation, only one judgment and decree could be passed to regulate both the suits.

Admittedly, in present case, both the suits were consolidated by the Trial Court for the reason that these relate to same subject matter on the premises. Out of both the suits, consolidated issues were framed and decided the suits by one and a common judgment and a decree. An appeal is governed by section 96 of the C.P.C. It says that an appeal lies against every decree. In this Section, the word "An" has been used, which means one or single. Thus, from a decree, only one appeal is allowed. The appeal is since a continuation of the suit, therefore, through a single appeal, a consolidated judgment and a decree of the Trial Court would be challanged. Reliance is placed of the case of Allah Bakhsh v. Mst. Sharnshad Zohra and others, reported in 1985 SCMR 959. Relevant portion whereof is reproduced herein-below:--

"As provisions of C.P.C. other than sections 10 and 11 are inapplicable to the proceedings the technical objection of filing of a single appeal against a consolidated judgment when it was manifestly directed against the decision in both, would not stand in the way adjudication in accordance with law.

We do not consider it a fit case for leave to appeal. The petition is dismissed."

The second objection of the petitioner was in respect of the maintainability of the suit on the ground that, the matter relates to the Tenancy Ordinance. It is important to mention here that, in the written statement, the petitioners categorically denied the relationship of the landlord and the tenant. They claimed their ownership in capacity of being in the, possession of the land in question for a considerable long period. Had there been any relationship of the landlord and the tenant, then, of course, a remedy under the Balochistan Tenancy Ordinance could have been filed, but the moment, the title of the respondents is denied, then, the cause of action, within the meaning of section 42 of the Specific Relief Act, accrues to the respondents, therefore, the present suit for the possession was quite competent.

As, far as merits of the case are concerned, it has come on record through the mutation entries that, the respondents were initially recorded as Morushi Bazgar of the Government of Balochistan. After pronouncement of a policy by the Government, all the occupancy tenants were awarded the ownership rights. Taking its advantage, the respondents, being tenants, applied through proper channel for the allotment of the land in question, which was granted to them after fulfillment of all the formalities. The documentary proof is evident of the fact that, right from the beginning, the respondents were in possession of the property in question. Pleadings of the parties show that, presently, the land in dispute is in possession of the petitioners, but they claimed their possession for decades. Perusal of the statements of the witnesses does not support the contention of the petitioners regarding long standing possession. In any case, the possession of the petitioner over the land in dispute is illegal and unlawful. Even otherwise, mere possession over a land for how long it may be, does not entitle a person to become an owner.

It is also a fact that the suit of the petitioners for cancellation of the mutation entries has been dismissed for the reason that they have not been able to show their ownership. Since the petitioners have not been able to prove their entitlement in respect of the land in dispute, on the other hand, the respondents have successfully been able to prove their previous possession and, thereafter, they are justified in claiming the possession of the property from the petitioners.

The Trial Court, while deciding the appeal, has thoroughly and properly considered the evidence and material available on record, which findings do not suffer from any misreading and non-reading of the evidence.

The jurisdiction of this Court under section 115, C.P.C. is limited, which can only be exercised if any violation of law has been committed by the Courts below. The learned counsel for the 'petitioners has failed to point out any infringement of law, any illegality or irregularity in the impugned judgment and decree warranting interferenc e' by this Court.

5. Thus, in view of what has been stated and discussed hereinabove, the petition is hereby dismissed.

6. These are the reasons of my short order dated 3rd December, 2010.

S.A.K./9/Q Revision dismissed.