TARIQ MASOOD Versus S. M. RASHID

1. SAYED ZAHID HUSSAIN, J.--- In the suit for possession instituted by the respondents/plaintiffs, the case of Mst. Saeeda Karim, now deceased; was that land measuring 1-K out of property No.67-G, Model Town, Lahore had been purchased by her from defendants Nos. 2 and 3 i.e. Mahmood Ahmed and Tahir Ahmed which had been illegally and forcibly occupied by the petitioners/defendants and had raised construction there. The suit was contested which gave rise to number of issues. Since the Courts below had devoted their attention to issue No.7, the same is like this: -

2. Urdu Line page 107

3. The learned trial Court, on perusal of the evidence which was produced by the parties, dismissed the suit for his view that the sale-deed which was the basis for the title of the plaintiff gave no description of the property except a recital that "1 kanal of land included in 67-G on the Southern side situated in Model Town, Lahore" was purchased. It was further noted that in such situation, suit for possession was not competent as "the plaintiff had failed to prove that any specific portion has been purchased by him or the same has ever been possessed by him." The trial Court was of the view that the proper remedy for the plaintiff was to seek declaration or partition of the property. The appellate Court, however, did not affirm such a view of the trial Court. Though he appraised the evidence which at the most could be considered enough to the extent of title only that the plaintiff had purchased 1-K land out of property No.67-G yet no safe reliance could be placed to come to any definite conclusion as to where was that 1-K plot. The reliance merely on a recital in the sale-deed in forming the view that the plaintiff had purchased a piece of land measuring 1-K falling in southern side of property No.67-G, Model Town, Lahore was not enough to precisely identifying the suit property. In fact, the identification of lip of land purchased by the plaintiff could not be made with precision nor such a decree could be passed. Since, however, the title and ownership of the plaintiff was not in dispute, a suit for possession without seeking any declaration was maintainable. It may be noted that there was also an allegation that the defendants had encroached upon the property in excess of their entitlement. The Court ignored and overlooked the provisions of High Court Rules and Orders in Chapter 1-M of (Volume-1). In order to resolve the controversy and for making effectual adjudication of the matter, correct and real identification and demarcation of the property in dispute was required. In Nooruddin and 11 others v. Abdul Wahid (2000 SCMR 91) it was observed that "A case, therefore, seemed to have emerged where, travelling beyond the parameters of burden of proof, the original or the appellate Bench, or both of them, should have embarked upon an inquiry of their own to determine the actual extent of the plaintiffs' land and the easementry attachments, if any, belonging to either or both of the parties. This therefore, was a fit case for appointment of a licensed architect or engineer to visit the site and demarcate the plaintiffs' property, together with appurtenances, if any, with the necessary aid and assistance of the city survey staff....". The proper and due course was not followed by either of the Courts below. The approach adopted by both the Courts is, thus, unsustainable in law inasmuch as the trial Court dismissed the suit on an erroneous view of the matter whereas the appellate Court while decreeing the suit proceeded on conjectures, surmises and assumptions as to the situation and identification of the suit property. Both the Courts have, thus, acted with material illegality and irregularity whose judgments are set aside. Remand of the matter to the trial Court for decision of the suit afresh in accordance with law is, thus, the obvious course.

4. As the litigation has remained pending since long, the trial Court will decide the matter within six months. The parties to cause their presence/representation before learned District Judge, Lahore on 28-10-2006 who will entrust the suit to an appropriate Court. The record may be transmitted without loss of time.

5. The revision petition is accordingly accepted in the light of the above, with no order as to costs.

6. F.B./T-35/L Case remanded.