IN  THE  HIGH  COURT  OF  SINDH  BENCH  AT  SUKKUR

                C.R.No. 78  of  2021

                                   

Date

               Order with signature of Judge

 

 

Applicant:                                        Zubair Ahmed Kolachi

Through Mr.Abdul Rasheed Kalwar, Advocate.

 

Respondents:                                 Mahesh Kumar and others

Through Mr.Mukesh Kumar G. Karara, Advocate

 

                                                            Mr.Noor Hassan Malik

                                                            Assistant Advocate General Sindh.

 

Date of Hearing     17th April, .2023.

                       

                                        JUDGMENT.

ZULIFQAR AHMED KHAN, J- This  Revision impugns the judgment dated 15.06.2021 rendered in Civil Appeal No.36 of 2019 preferred by the Respondents No.1 to 6 against the judgment and decree passed in F.C.Suit No.25 of 2013.

2.        The dispute between the parties was with regard to an area of land admeasuring 0.38 ghuntas, which was claimed by the applicant/plaintiff out of S.No.137 and it was alleged that it was illegally occupied by the respondents, who were, inter alia, owners of the S.No.166 and 167, which are adjoining properties. Such controversy was also the subject matter of Civil Revision No.53 of 2014 filed by the present applicant challenging earlier judgment and decree where this Court through its order dated 18.09.2017 in the presence of the counsel ordered to measure the disputed land through Survey Superintendent, Khairpur under the supervision of the Additional Registrar of this Court. Contents of inspection report dated 06.10.2017 when such an exercise was completed are reproduced as under:-

“INSPECTION REPORT.

         In compliance  of order dated:18.09.2017 passed by Hon’ble Court in above mentioned Civil Revision, the notices were issued to Applicant, Respondents/Defendants Nos.01 to 06, Survey Superintendent Sukkur and Mukhtiarkar (Revenue), Taluka Ghotki well in time and consequent thereto undersigned reached at the site on 05.10.2017, at 10:30 am, to have the land of the respondents No.01 to 06, as well as, land of applicant measured through Survey Department Khairpur.

        In response to notices Applicant Zubair Ahmed S/o Ali Muhammad Kolachi, Kelash Kumar, Mohandass Attorney of Respondents No.1,2 & 6, Mr.Mushtaque Ali Wassan, Survey Superintendent, Khairpur, Deen Muhammad Channa, Inspector Survey Department Khairpur, Ghulam Abbas, Technical Assistant City Surveys, Mr.Agha insaf Ahmed Pathan, Mukhtiarkar (Revenue) Taluka Ghotki, Mr.Amanullah Mahar, Supervisor, Mr.Ali Gohar Hakro, Tapedar Tapo Ghotki, Mr.Mansoor Qadir City Surveyor, Ghotki, were present at the site while Respondent/defendant No.03 Shewak Ram was not available at the site.

       During measurement of land in question when the team of Survey Department pointed boundaries between Survey No.137 and 166, 167 respondent Kelash Kumar raised objection on credibility of Inspector of City Survey Department Khairpur. However in compliance of directions of Hon’ble Court the measurement of land in question continued such memo (mashirnama) annexure “A” of measurement was prepared at the spot on which the Respondents Kelash Kumar and Mohandas refused to put their signatures.

         As per measurement conducted by the City Survey Department Khairpur 38 Ghuntas of Survey No.137 are in occupation and possession of Survey No.166 and 167, such occupation/possession is marked with Red Colour in the Sketch annexed as annexure “B” which is prepared by Survey Department Khairpur. Whereas further 03 Ghuntas of said Survey No.137 is also in occupation/possession of Survey No.167 on which house of one Zulifaqar Malik is constructed, which is identified and marked with blue colour in the sketch.

       The measurement conducted by the Survey Department Khairpur further revealed that the Government water Course land (Karya) admeasuring two Acres is also under occupation of Survey Nos.165 & 166 which is marked with green color in the Sketch.

      The report of measurement conducted by Survey Department Khairpur alongwith letter of Survey Superintendent Sukkur Division @ Khairpur is annexed as Annexure “C” & “D”.

      In compliance of direction of this Hon’ble Court the certified copies of Record of Rights obtained from concerned Mukhtiarkar consisting upon 11 sheets are attached herewith.

     The report is submitted as desired by the Hon’ble Court.”

.

3.        Alongwith the said report a detailed map was presented which affirmed that the respondents being holders of adjoining S.No.166 & 167 had illegally possessed an area of land admeasuring 0-38 ghuntas from S.No.137. Not only so, the said Report also showed that the respondents have further taken over illegal possession of the watercourse admeasuring 02-00 acres. Seemingly when this Report was brought on record, objections were filed on the said report as reflected from the order dated 20.11.2017. However, somehow without considering the report or objections filed thereon, the said Civil Revision was allowed by setting aside the findings of the Courts below and the matter was remanded back to the trial Court with direction to summon the original records as well as the documents mentioned latter and to record a discussion afresh on merits within 90 days.  It seems that my learned brother who penned down the said judgment was not made aware of the  exercise which was already conducted by this Court in its Revisional jurisdiction by appointing the Additional Registrar. Be that as it may, the matter was again taken-up afresh by the  trial Court and once again the claim of the present applicant was allowed in F.C Suit No.25 of 2013 vide judgment dated 02.05.2019 where the respondents were directed to hand over the vacant peaceful possession of the excessive area from S.No.137 situated in Deh Jamal taluka and District Ghotki to the plaintiff, which as per language of the judgment, the said defendants had illegally encroached upon as well as to remove the construction made thereon.  Said judgment was again appealed by the respondents where through Civil Appeal No.36 of 2019 as mentioned earlier, was allowed with the following observations:-

 

     “So far as the question of demarcation and measurement carried out by the Survey Superintendent Khairpur is concerned it is admitted fact that during the trial on the application  of parties the learned trial Court has directed  the Survey Superintendent Khairpur to carry out demarcation of the S.No.137 and others survey numbers  and in view of the orders of learned trial Court Survey Superintendent Khairpur carried out the demarcation through survey Tapedar Amanullah Shaikh, and he was examined as court witness at Exh:87, but Survey Tapedar  not produced report in his evidence nor same was exhibited, though the same is available on record and it was only seen and verified it by the witness. Now question is that whether a document which is not exhibited in evidence can be considered or not. On this point the learned counsel for the respondent as well as appellants were at same page that the Court can consider the document available on record, though which was not exhibited. In this regard they relied upon the case of Mst.Iqbal Begum and 8 others vs Mohammad Yousaf and 7 others reporte din PLD 2003 Lahore 255. In which it was held by the Honourable Lahore High Court that the documents not produced in evidence, but available on record, such documents could be looked into/considered by Court to meet the ends of justice, particularly when reference to same has been made by a witness and his deposition had not been subjected to cross examination. Therefore in view of above case law I have also considered  the report and examined it and perusal of report of Survey Superintendent it reveals that the measurement was carried out in view of the orders of learned trial Court and as per the report of Survey Superintendent dated    07.01.2013, an area of (01-02) acres of S.No.137 was found under possession of the appellant but report of the Survey Superintendent does not show that whether S.No.137 was converted into residential plots and how many plots were formed out and how many area was reserved for street and which plots out of S.No.137 were occupied by the appellants, therefore, it shows the Survey Superintendent has not conducted a proper demarcation. When it was proved that S.No.137 consist upon residential plots and if any portion was occupied by the appellants then it was the respondent to prove that the which plots were occupied by the appellants and that plots were the sole property of the respondent and it were not sold out to any other person and respondent was required to file suit for possession specifically about the said plots and not for the entire survey number. Therefore, in my humble view the plaintiff/respondent has failed to prove his case, consequently the judgment and decree of learned trial Court suffers from misreading and non-reading of the evidence, hence same are liable to be set aside.

 

       Moreover, it is come on record through the evidence that S.No.136, 137, 423 of Deh Jamal were joint property of respondent Zubair Ahmed and his co-sharers and they converted the same into residential plots with name and title of Shah Faisal colony but respondent in their evidence failed to produce documentary as well as oral evidence to show  that colony which was launched with the name and title of Shah Faisal Colony Ghotki was regularized  and its site plan was also approved/sanctioned by concerned authorities, therefore learned Assistant Commissioner and Deputy Commissioner Ghotki are directed cheked the revenue record and if colony was not regularized learned Assistant Commissioner get reqularize the Colony at the cost of owners/proprietors of the colony and recover all the dues about the regularization of colony from its proprietors and also get reserved  immunity plots if not reserved by the developer/owners/proprietors of colony, and if coly was not regularized then till regularization of colony no further sale certificate be issued in favour of developer/proprietors of colony.

 

     In view of reasons discussed above this point is answered in affirmative.

 

     Moreover, I have great reverence for the case law, relied upon by learned counsel for the respondent, the facts and circumstances of the reported case are quite different and distinguishable from the facts and circumstances of case in hand, hence same are not applicable to the present case.”

 

4.        A perusal of above conclusion reflects that the learned appellate Court whilst having admitted  that the portion of S.No.137 was in possession of the appellants (present respondents), however,  chose to allow the appeal blaming  that the respondents have failed to show as to which blocks were occupied by the appellants. Needless to say, there was no adverse findings given to the report of the Survey Tapedar and even objections to  such survey were overruled.

5.        Counsel for the present applicant having brought above background of the case to Court’s attention stated that while in the first judgment and decree, the claim of the applicant was admitted to the effect that a High Level Survey was conducted through Additional Registrar of this Court, which reflected that the respondents were illegally occupying the applicant’s land as well as a watercourse and once again in the second round when the trial Court specifically framed the issue (being Issue No.3) with regard to the report of the Survey Superintendent, Khairpur answered in affirmative to the extent that the dispute posed by the defendants as to genuineness of the Survey Report was dismissed, but the appellate Court illegally allowed the appeal making it responsibility of the applicant to produce details of the land in the occupation of the respondents in violation to the scheme of the Quanoon-e-Shahadat.

6.        Counsel for the respondents has supported the appellate Courts judgment, however could not satisfy this Court as to when in previous Revision Application (No. S - 63/2014) through orders dated 18.09.2017 an exercise was conducted through Additional Registrar of this Court, why the same was not presented before my learned brother who wrote down the Remand order.  Counsel though replies that previously respondent’s son had filed objections against these findings, but even if this was the case, propriety demanded that such facts should have been brought to the attention of my learned brother.

7.        Learned counsel for the respondents at the last leg of his arguments made an offer that they are again ready if another high level survey is to be conducted, which offer in the circumstances of the case where this Court in Revisional jurisdiction (previously) as well as the trial Court have conducted such an exercise and have reached to the conclusion (supra), what another High Level survey  would reveal in addition? Seemingly the parties are in litigation over the years where time and again surveys have been conducted and it has come to surface that the respondents have not only encroached upon the land of the applicant but the watercourse as well. Also of significance are provisions of the Quanoon-e-Shahadat Order, 1984 Articles 119 and 50 which are vital to be kept in mind, which require that burden to prove a fact lies with that person who wishes the Court to believe in its existence. With regards relevancy of official report, Article 119 of the Quanoon-e-Shahadat Order gives sanctity to such records which are to be taken as relevant fact. Concerned Mukhtarkar and the High Level Survey Report has yielded that the respondents have encroached upon a portion of the  applicant’s land as well as the water course. The Court has been informed that the respondents are already facing NAB proceedings.

8.         While holding myself for passing any adverse order against the illegalities committed by those respondents, and whilst the Government officials would be at liberty to take action against them with regard to the encroachment of the watercourse admeasuring 2- acres as per law, I do not see any merit in the judgment of the appellate Court which is not merely illogical, but as well as appear to  fail on all legal grounds and infested with material illegalities detailed above, I thus allow this Review and set aside the judgment and decree of the Appellate Court while uphold those of the trial Court.

 

                                                                                                                 JUDGE

Akber.