PLJ 2024 Quetta (Note) 12
Present: Muhammad Kamran Khan Mulakhail, J.
Syed NADEEM IQBAL and 5 others--Petitioners
versus
NAZIM ZARGHOON TOWN, QUETTA, TOWN MUNICIPAL OFFICER ZARGHOON TOWN, NAEEM CONTRACTOR through T.M.O Zarghoon Town Quetta--Respondent
C.R. No. 22 of 2016, decided on 19.11.2019.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 9, 42 & 54--Constitution of Pakistan, 1973, Arts. 23 & 24--Inherited property--Acquisition of land--Suit for possession, declaration and permanent injunction--Decreed--Appeal--Dismissed--Appeal--Matter was remanded--Report of local commission--Dismissal of suit after post remand proceedings--Wrongly mentioning of site in revenue record by respondents--In alienable right--Challenge to--Property in dispute was in name of petitioners--Local commissioner’s report coupled with revenue record show that property in dispute is in name of petitioners and same has never been used as public latrine--Respondent initially took shelter under revenue entries, whereby site was wrongly mentioned as غیر ممکن بیت الخلاء and thereafter, took a plea on strength of public latrine, used by general public for dumping garbage--Respondent corporation had no right to construct or retain private property of petitioners for any purpose--Both Courts below have failed to observe documentary evidence produced in favour of petitioners and also did not properly appreciate report of local commissioner, rather mainly based their findings on point that public latrine existed on spot--Civil revision allowed.
[Para 8, 12 & 15] A, B, C, F & G
Constitution of Pakistan, 1973--
----Art. 23--Right to acquire, hold and dispose of property--Every citizen shall have right to acquire, hold and dispose of property in any part of Pakistan, subject to Constitution and any reasonable restrictions imposed by law in public interest. [Para 13] D
Constitution of Pakistan, 1973--
----Art. 23--Property--Word “Property” used in Article 23 of Constitution means property in respect of which a right of proprietorship may be asserted--“Property” includes both movable and immovable and every possible interest which may have in property, including abstract and concrete rights--Property which is illegal to hold is not property. [Para 13] E
Mr. Habib-Ullah Nasar, Advocate for Petitioners.
Mr. Hadi Shakeel Ahmed, Advocate for Respondent.
Date of hearing: 17.10.2019.
Judgment
This Civil Revision Petition has been preferred against the judgments & decrees dated 15-06-2013 and 13.11.2015 (“impugned judgments”) respectively passed by the Civil Judge-II. Quetta (“trial Court”), and the Additional District Judge-VI, Quetta (“appellate Court”). Whereby, initially the suit filed by the petitioners/plaintiffs was dismissed and thereafter, an appeal filed thereon, was also dismissed.
2 Brief facts of the case are that the petitioners/plaintiffs filed a suit for “Declaration. Possession. Permanent and Mandatory Injunction” against the respondents/defendants with the averments that the petitioners/plaintiffs inherited a property bearing Khasra No. 207/206, situated in Mohal Mouza Ward No. 50 Tappa Shehr Quetta, Tehsil Quetta from their predecessor-in-interest late Syed Iqbal Shah, which was exclusively owned by them; that they being owners were in possession, when the then Mayor Quetta Municipal Corporation through the Local Government Rural Development Department acquired the land measuring 2030 sq. Ft. for construction of road, and in this regard Mutation No. 49 was effected and from Khasra
No. 335/226 measuring 145 sq.ft. was transferred in favour of the of the Quetta Municipal Corporation, whereas, the land measuring 570 sq.ft. was left. The then Quetta Municipal Corporation constructed a public latrine on the left over 570 sq.ft property of the petitioners/plaintiffs falling in Khasra bearing No. 335/206; that petitioners/plaintiffs time and again approached the administrative of the Municipal Corporation for removing illegal construction of public latrines on the land in dispute, but no heed was paid and request so made was treated with deaf ears. Hence, the referred to civil suit was filed.
3. The respondents/defendants contested the suit on factual as well as on legal grounds by filing a written statements. Out of pleadings of the parties and in view of divergent claims, the following issues were framed:
“1. Whether the instant suit is not maintainable in view of legal objection A&B raised by the defendants No. 1 and 2 in written statement?
2. Whether the plaintiffs are owners of suit property?
3. Whether the defendants No. 1&2 are in illegal possession over the suit property?
4. Whether the plaintiffs are entitled for the relief claimed for?
5. Relief?
In order to prove their respective claims, both the parties produced their evidence. The learned trial Court after evaluating the evidence decreed the suit vide judgment and decree dated 29th September 2008. An appeal preferred against the judgment and decree of the trial Court was dismissed by the learned Additional District Judge-IV Quetta vide judgment and decree dated 12th February 2009. Both the judgments of the Courts below were challenged before this Court, when vide judgment dated 06 June 2012, this Court remanded the case to the trial Court with following direction:
“The case is remanded with the direction that proper issues be framed Further, the trial Court get inspect the site through an appointed Commission, who should be accompanied by a Revenue Officer along with the relevant record, and on receiving the Report of local inspection allow the parties to produce specific documentary evidence in respect of the title of the suit land, and thereafter, decide the case on the basis of the material, and the evidence so collected including the evidence already on record, strictly in accordance with law Further, as it is an old matter, therefore, the case be decided preferably with a period of six months.”
5. After remand of the case, the learned trial Court in compliance of direction of this Court framed a following additional issue:
“Whether there exist (sic) any public latrine on disputed property?
The learned trial Court also appointed a local commissioner, who after inspecting the site, submitted his report, while despite affording several opportunities, the parties neither filed any objection on the local commissioner’s report, nor produced any additional evidence. Thereafter, the learned trial Court vide judgment and decree dated 25th June 2013 dismissed the suit of the petitioners. Feeling aggrieved, the petitioners preferred an appeal, which was also dismissed by the Additional Sessions Judge-VI, Quetta vide judgment and decree dated 13 November 2015. Hence, this revision petition.
5. I have heard the learned counsel for the parties at reasonable length and have also gone through the available record with their able assistance.
Learned counsel for the petitioners stated that the property in dispute is existed in the names of petitioner in the revenue record, but the Courts below have failed to appreciate their unimpeachable and unrebutted evidence; that the report of local commissioner also supported the petitioners’ claim that there was no public latrine, rather the same was illegally occupied by the respondents. He submitted that after setting aside the impugned judgment and decree of the Courts below, decree in favour of the petitioners and against the respondents be passed, as prayed for. In support of his contention the learned counsel placed reliance on following citations:
Feroz Din Khan v. Muhammad Latif Khan
(PLD 2012 Supreme Court (AJ&K) 13)
Sub (Retd) Muhammad Ashraf v. District Collector, Jehlum (PLD 2002 Supreme Court 706)
Malik Bashir Ahmed & others v. Federal Government of Pakistan & others
(PLD 2018 Islamabad 68)
Conversely, the learned counsel for the respondents opposed the contentions and stated that the suit property belongs to the Metropolitan Corporation and presently there exists municipal dustbin, thus the petitioners have no right to interfere in the suit property, he while supporting the judgments of Courts below requested for dismissal of the petition.
6. The petitioners have claimed their right over a piece of land measuring 570 Sq Ft bearing Khasra No. 334/206 situated in Mohal Mouza Ward No. 50 Tappa Shahr Tehsil & District Quetta, which was devolved upon them from the legacy of their predecessor-in-interest (father) Syed Iqbal Hussain Shah. However, in the year 1988, the then Mayor Quetta Municipal Corporation acquired a portion of land measuring 2030 Sq. Ft. for construction of road and an amount of compensation was paid to the petitioners, vide letter No. 6-25/74/PLCB) AO-III/7591-92 dated 1988 and vide Mutation No. 49, the land measuring 1886 sq.ft in Khasra No. 332/207 and 145 sqft in Khasra No. 334/206 total measuring 2031 sq.ft was transferred in favour of the Municipal Corporations in khasra No. 334/206, whereas, the remaining 507 Sq.Ft in Khasra No. 335/206 remained in the petitioners possession, but the respondent corporation was intended to construct a public latrines on the said property. The petitioners in order to prove their claim produced PW-1 Zafaruliah, who stated that the property in dispute belongs to the petitioners, whereupon the respondents intended to construct a public latrine, but the petitioners objected the same. PW-2 Muhammad Saleem stated that the property bearing Khasra No. 335/206 is an open plot, where general public used to dump garbage, while earlier a public latrine existed thereon and now the respondents are trying to occupy the same. PW-3 Kaleemullah, a representative of Tehsil Office, Quetta produced the Mutation No. 49 as EX-P/1.
On the other hand the respondents’ representative recorded his statement. He deposed that since 1947/48 a public latrine was constructed, and the property in dispute from very beginning even before partition of sub-continent was in possession of the respondents, which was latter on got allotted by the petitioners without intimation to the respondent, however, the adjacent land belonged to the petitioners, which was acquired by the respondents in lieu of compensation; that when the corporation intended to repair the public latrine, the petitioners obtained a status quo order. He in cross-examination admitted that from the year 1989 the property in dispute existed in the name of the petitioners.
7. Both the parties in order to prove their respective claim relied upon Mutation No. 49 Mouza ward No. 50, Tappa Urban, Tehsil and District Quetta, perusal whereof, reveals that a piece of land measuring 1886 sq.ft was acquired from the Khasra No. 332/207, while another piece of land measuring 145 sq.ft was acquired from Khasra No. 334/206, and the remaining land measuring 568 sq.ft remained in the ownership of the petitioners, total land measuring 2030 sq.ft was acquired by the respondents from the petitioners and out of the said land, 1886 Sq Ft was utilized for constructing the road, while the remaining 145 Sq.Ft was entered in favour of the respondents/ corporation as “غیر ممکن بیت الخلاء” whereas the piece of land measuring 570 sq.ft remained in the name and possession of the petitioners. It appears that the said piece of land was an open plot, therefore, the general public started dumping garbage therein, but the respondents claimed that there existed a public latrine.
8. On remand of the case by this Court, the learned trial Court appointed a local commissioner in order to inspect the site, who on inspection of the site in presence of the parties and their respective counsel, compiled the report, which states as under:
“The undersign did not see any sanitary fitting pipeline or any sort of construction in shape of Latrine. From both corner, which showed that it has ever been used as public latrine, at present time the said suit land is in shape of public dustbin (Municipal dustbin) and Metropolitan has raised boundary wall 2 or 3 months before and daily the municipal truck takes the garbage, from it, and people of the locality is using it as municipal Dustbin/public Dustbin.”
The afore-referred passage of the local commissioner’s report coupled with the revenue record show that the property in dispute is in the name of the petitioners and the same has never been used as public latrine. While on the other hand the respondent through its representative in their cross-examination stated that the property is in possession of the respondent since 1947/48 and a public latrine exists ever-since.
9. It is worthwhile to observe here that the instant suit for declaration, possession, permanent and mandatory injunction was filed by the petitioners against the defunct Zarghoon Town, Quetta on 27th August 2005, whereby, it was mainly contended that an open plot measuring 570 sq.ft, is recorded in their favour in the revenue record, on which the defunct Zarghoon Town was planning to construct a public latrine. The suit was contested and after recording the evidence was decreed vide judgment and decree dated 29th September 2008, while the judgment and the decree of the trial Court was assailed before the appellate Court, which too was dismissed vide judgment and decree dated 12th February 2009 by the Additional District Judge-IV, Quetta. The then Nazim Zarghoon Town assailed the judgments and the decrees of the Courts below before this Court in civil revision petition bearing No. 110 of 2009, which was partly accepted vide judgment and decree dated 04 January 2013 and case was remanded to the trial Court with certain directions, as already mentioned herein above. In the post remand proceedings, the trial Court after receiving the report of the local commissioner, dismissed the suit on two folds namely being barred by time, and having been filed after period of twelve years as envisaged under Article 142 of the Limitation Act, 1908 (“the Act 1908”) and secondly, in the revenue record the said piece of land in dispute was shown as public latrine (غیر ممکن بیت الخلاء). The findings of the trial Court were endorsed by the appellate Court, when vide judgment and decree dated 13 November 2015, the appeal filed by the petitioner was dismissed.
10. It appears that both the Courts below while non-suiting the petitioner mainly rendered the findings for dismissal of the suit, being barred by time, thus, a test of Article 142 & 144 of the Act 1908, was required to be applied on the touchstone of judicial scrutiny. Further, it was required to be scrutinized as to whether the suit was governed by Article 142 or 144 of the Act 1908. In view of a plain reading of the Article 142 of the Act 1908 and in the light of plethora of judgments rendered by the Hon’ble Supreme Court, no cavil is left to hold that the Article 142 will be attracted only if the suit was brought with the averment that the party seeking possession was either dispossessed or discontinued his (their) possession for any reason. Since no such averment in the pleading was raised nor it was averred that the petitioners/plaintiffs were dispossessed or had discontinued their possession, by any act of the respondent/corporation, therefore, Article 142 of the Act 1908 was not applicable in the instant case. While adverting to the other aspect of the case, the provision of Article 144 of the Act 1908 might had applicability in the instant case, if it was pleaded by the petitioner that possession of the respondents was adverse or hostile to their title, but if the suit was not for Possession, based upon dispossession or discontinuation of the possession, but it was prayed for possession on basis of title, for which no limitation is provided in other Article of the Act 1908. Thus, the provision of Article 144 of the Act 1908, would have been applied if the defendant/ respondent proved his (its) adverse possession against the petitioners/plaintiffs for more than twelve years.
11. Needless to add here that after deletion of Article 144 of the Act vide Act No. II of 1995 dated 18th October 1995 (PLD 1996 Central Statute 1296), since new situated was emerged, particularly when the effect of deletion and omission of Article 144 was also required to be seen. Since it was not the petitioners case that they were either dispossessed or their possession was discontinued, therefore, the Article 142 of the Act 1908, was not applicable and after omission of the Article 144 of the Act 1908, in case of suit for possession, based on basis of title, no limitation runs against the lawfully recorded ownership of the property. Reference in this behalf is placed on the judgment rendered in the case of ‘Feroz Din Khan Muhammad Latif Khan, (PLD 2012 Supreme Court (AJ&K) 13), in which the following principle was laid down:--
“The above Articles have been perused and considered by the Courts and the rule of law, laid down in the above referred authorities, is that Article 142 of the Limitation “Act is applicable only if a suit for possession of immovable property is filed on the ground that the party was in possession of land and has been dispossessed or its possession is discontinued, but when a suit for possession of immovable property is filed on the basis of title, then Article 142 is not applicable and Article 144 governs the period of limitation. After the deletion/omission of Article 144, no other Article of the Limitation Act governs the limitation for filing a suit on the basis of title or interest in the property. This brings us to the conclusion that there is no period of limitation for filing a suit for possession of immovable property on the basis of title. A true owner can file a suit for possession of immovable property anytime on the basis of title.
3. For determining whether Article 142 of the Limitation Act is applicable on the suit or not, we have to see the contents of the suit. In the present case the suit was filed by the respondents herein for possession of immovable property bearing survey No. 1204 (old), 55 (new), on the ground that they are owners of the land. The land of defendants is adjacent to their land, who have encroached upon the same. The defence of the defendants is that the defendants have not encroached upon the land but are in possession of their own land. From the perusal of suit, it is evident that the case of plaintiffs, respondents herein, in the trial Court was not one of dispossession or discontinuance of possession. They have filed a suit for possession on the basis of title. The suit is not hit by the mischief of Article 142 of the Limitation Act.”
In another judgment rendered by Hon’ble Apex Court in the case of Muhammad Anwar v. Darul uloom Ghausia Hanfia Mohalla Dhabala, (2007 SCMR 1510). It was observed as under.
“As far as the first contention is concerned, it has no merit because it has never been the case of the appellants in their written statement that the original or the substituted plaintiff had been in possession and was dispossessed. It was a suit based on title to which Article 144 of Limitation Act was applicable and the period of 12 years would start from the date when the possession of defendant becomes adverse to the plaintiff. This was explained by this Court in Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522. There has been consensus of judicial opinion that Article 142 of Limitation Act governs a suit based on possessory title while Article 144 of Limitation Act governs a suit based on proprietary title. It may also be observed that possession for any length of time would not be adverse unless it is open, hostile and notorious to the knowledge of the real owner. A perusal of the written statement, shows that except passing reference of “Qabza Mukhalfana” based on possession for a number of year’s no such plea was raised that this possession amounted to an act of ouster to the knowledge of the real owner. We will also like to observe that disputed property being evacuee vested in the custodian and therefore, the plea of continuous possession was not otherwise sustainable because the plea of adverse possession was not available against the custodian till the property lost the character as evacuee.”
Thus in view of afore-referred judgments, no controversy is left to hold. That the suit was not hit by the law of limitation, particularly after omission of the Article 144 of the Act 1908.
12. Another aspect which caused serious injustice to the petitioners when both the Courts below have observed that the revenue record of piece of land claimed by the petitioner was shown as غیر ممکن بیت الخلاء. Though the respondent corporation had raised plea that public latrine was already existing since 1947/48 and it was corporation’s property, which by means of fraud and misrepresentation was got allotted in favour of the predecessor of the petitioners, but neither any revenie record, nor any documentary evidence was produced to establish this plea. Similarly, it was also pleaded that a piece of land bearing Khasra No. 332/207 measuring 1886 sq.ft and in khasra No. 334/207 measuring 145 sq.ft total whereof measuring 2031 sq.ft was acquired by the respondent corporation for widening of road from the predecessor of the petitioners and said acquisition took place in the year 1988. The question of very significant importance arose here that when there was already a public latrine since 1947, which was already property of the corporation, then what was the reason to acquire the piece of land for widening the road from the petitioners’ predecessor. Thus accumulative effect of above discussion altogether reveals that respondent/corporation initially took the shelter under the revenue entries, whereby the site was wrongly mentioned as غیر ممکن بیت الخلاء and thereafter, took a plea on the strength of public latrine, used to use by the general public for dumping garbage. Once again the question arose that only 2031 sq.ft was acquired in two different Khasra numbers, but according to the revenue record still 10931 sq.ft was lying on the spot and remained recorded in favour of the petitioners, out of which on 10361 sqft they are already in possession and therefore, this suit was brought in respect of 570 sq.ft in Khasra No. 334/206, thus it unequivocally proved that rest of the land was not acquired by the respondent/ corporation.)
13. Under the peculiar circumstances of the case in hand, the Article 23 of the Constitution of Islamic Republic of Pakistan 1973 comes into play, which stipulates “every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest”.
Word “Property” used in Article 23 of the Constitution means the property in respect of which a right of proprietorship may be asserted. “property” includes both movable and immovable and every possible interest which may have in property, including abstract and concrete rights. Property which is illegal to hold is not property. The word “property” should be s given a liberal and wide connotation and should be extended to those well recognized types of interest which have the insignia or characteristics of proprietary right. Property must be capable of being the subject-matter of “acquisition and disposal”. The right for life includes right to livelihood, right to acquire, hold, and dispose of property, and right to acquire suitable accommodation, which could not hand on the fancies of individuals in authority, and includes all those aspects of life which to make man’s life meaningful, complete and worth living. Right to life implies the right to food, water, decent environment, education, medical care and shelter. Fundamental right cannot be watched away or waived off pursuant to any agreement.
The right of an individual is further protected by the provision of Article 24 of the Constitution of Islamic Republic of Pakistan 1973. Which stipulates:
Article-24. Protection of property rights.
(1) No person shall be compulsorily deprived of his property save in accordance with law
(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given
(3) ......
(4) ......
The afore-quoted Articles 23 & 24 of the Constitution 1973, are part of fundamental rights, which being inalienable right cannot be taken away on any pretext without adopting due course of law. Since no such question in respect of the said property has taken place, therefore, it needs no further reiteration that the respondent corporation had no right to construct or retain the private property of the petitioners for any purpose.
14. I have further been benefited from the judgment rendered by the Hon’ble Supreme Court of India in case of ‘Controller Land Acquisition v. Mst. Katiji and others (1987) 56 Tax 130 (SC India). The Hon’ble Mr. Justice Naseem Sikandar, while speaking for the Lahore High Court, Lahore in case of “Tasneem Siddique v. Special Officer Income-Tax and another’ (2003 MLD 1968) also relied upon the afore-referred judgment, which speaks as under:
“(i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late
(ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties
(iii) “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational, common sense and pragmatic manner.
(iv) When substantial, justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(v) There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by restoring to delay. In fact runs a serious risk.
(vi) It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds, but because it is capable of removing injustice and is expected to do so.”
Thus, the afore-quoted principals altogether stipulated that if the citizen brings his right relating to fundamental right, his said case/lis, even if hit by the law of limitation, the delay so observed has to be condoned, in order to rule out any possibility of injustice
15. Both the Courts below have failed to observe the documentary evidence produced in favour of the petitioners and also did not properly appreciate the report of the local commissioner, rather mainly based their findings on the point that the public latrine existed on the spot. Be that as it may, even then the petitioners cannot be non-suited, solely on the ground that petitioners are legally and lawfully owner of the suit property. The respondents assertion that the property belongs to and is in possession of the Metropolitan Corporation since 1947/48 does not stand to any explicit reasons, as neither any documentary proof to this effect was produced nor the legal ownership of the petitioners was rebutted.
In view of above, the instant revision petition is allowed: Consequently, the judgments and decrees dated 15th June 2013 and 13th November 2015 respectively passed by Civil Judge-II Quetta and Additional District Judge-VI, Quetta (both impugned herein) are set aside. The suit filed by petitioners (plaintiffs) is decreed in the following terms:-
a. It is declared that the petitioners are the lawful and recorded owners of a land measuring 570 sq ft bearing Khasra No. 335/206, situated in Mohal and Mouza Ward No. 50. Tappa Urban, Tehsil and District, Quetta.
b. By means of mandatory injunction, the Respondent No. 2. is directed to hand over the possession of land measuring 570 sq ft bearing Khasra No. 335/206, situated in Mohal an Mouza Ward No. 50, Tappa Urban, Tehsil and District, Quetta.
c. By means of perpetual injunction the respondents are restrained from any sort of interference in the property in question.
d. By means of consequential relief, the Tehsildar Quetta is directed to rectify the error in the revenue record by means of correction of the mutation entries and
غیر ممکن بیت الخلاء written therein shall be omitted/deleted.
e. The parties shall bear their own costs.
Office is directed to draw a decree sheet in the above terms.
(Y.A.) Civil revision allowed
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