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Civil Revisions Nos. 792 to 794 of 1982, decided on 28th February, 1983.

‑‑‑ S. 115‑West Pakistan Land Revenue Act (XVII of 1967), S. 52 Khasra Girdawari‑Entries of encroachment not always recorded in Khasra Girdawari so as to make it basis for lawful inference drawn or construed as fact proved on basis thereof that since nothing mentioned in Khasra Girdawari there could not be any encroachment in fact‑Court, held, had to look at other material circumstances of case and evidence to come to conclusion whether factually encroachment had taken place.

--‑‑S. 115‑Revision‑Finding on question of fact‑Interference only when such finding arrived at by ignoring material evidence on record or as result of complete misdirection and missing real issues in controversy‑No sanctity could be attached to such finding whether that be of law or fact.

‑‑S. 115‑Revision‑Encroachment on land‑Courts below adopting :.relaxed attitude and not realising seriousness of allegations and that valuable rights of parties involved which could not be dealt with s. in cursory manner‑Civil Courts, ‑held, duty bound not to get ,. caught up in technicalities and hyper technicalities but try to reach ' truth because all jurisdictions are designed for that purpose‑Proper inquiry not conducted by trial Court by appointing a Commission to know factual position‑Failure of justice taking place‑Case remanded.

M. Sultan Khan for Appellants.

Mian Ata‑ur‑Rahman for Respondents.

Date of hearing : 28th February, 1983.

These are three connected civil revisions directed against the order of learned District Judge, Mianwali (now Bhakkar) and learned Civil Judge, Bhakkar whereby the petitioners' suits for possession were thrown out.

2. Brief facts giving rise to these revision petitions are as follows :‑

Civil Revision No. 792 of 1982

The land in dispute in this revision petition is comprising Khasra No. 1831/3 and 1831/4/2 measuring 2 kanals and 14 marlas and 3 kanals and 11 marlas situate in Dulaywala, Tehsil and District Bhakkar. The suit was filed by the petitioners as plaintiffs alleging that the respondent trespassed over the suit land to the extent of 5 marlas in Khasra No. 1.831/13 and to the extent of 7 marlas in Khasra No. 1831/4/2 by putting out bushes thereon.

Civil Revision No. 793 of 1982

The land in dispute in this revision petition is situated in Khasra No. 1831/3 and 1831/3/1 measuring 2 kanals and 14 marlas. Out of this area, it is alleged that 9 marlas have been encroached upon by the respondents.

Civil Revision No. 794 of 1982

The khasra number in dispute is 1831/7 and 1831/7/1 measuring 1 kanal and 11 marlas out of which 6 marlas are alleged to have been encroached upon by the respondents.

There were thus three civil suits filed by the petitioners in the Court of learned Civil Judge, Bhakkar.

3. Now coming back again to the facts of civil revision No. 792 of 1982, it is to be noted that the civil suit was filed by the present petitioners Tariq Yayba, etc. against Ali Nawaz son of Munshi caste Talee. They based their claim on the strength of allotment of agricultural land allotted to them on 4tb March, 1967. The respondent Ali Nawaz was allotted a building site measuring 1‑1/2 kanals to the year 1969 i.e. two years after the allotment in favour of petitioners. Similarly in case of civil revision No. 793 of 1982 the plaintiffs were the same but the defendant was Nasra son of Nathoo caste Talee. The said Nasra had been allotted a plot measuring 1 kanal and 5 marlas on 2nd April, 1969 under Settle ment Scheme No. VI1. No specification or khasra number of the plot was given nor it was given in the case of Ali Nawaz. In civil revision No. 794 of 1982, the petitioners being the same, the defendant was Abdul Aziz son of Kaloo caste Talee. If said respondent was allotted a house, bearing No. 12/117 on 20th February, 1969. The petitioners had been allotted the land in 1967 as in other cases. Learned counsel for the respondent states that this house was clearly bounded within four walls.

4. All the suits came up for trial before the learned Civil Judge, Bhakkar. The learned trial Court examined Khuda Bukhsh Girdawar as P. W. 2. who bad visited the spot and made report on 28th August, 1977 at the instance of present petitioners. A persual of this report shows that the defendants were not a party to these proceedings. The two Courts below have contented themselves by disbelieving the evidence of said Girdawar on the' ground that the report seems to be bogus and fudge work. The petitioners further placed reliance on Khasra Girdawari with respect to the disputed 'Khasra numbers which showed the petitioners' continuous possession with the complaint and grievance that the area of the petitioners had been encroached upon to the extent mentioned by them in the plaints. This allegation was brushed aside by the two Courts below on a fanciful notion that had there been a factual encroachment, the entry regarding the possession of respondents would have appeared in the Khasra Girdawari. I am not satisfied with this approach of the two Courts below because it is not an inviolable rule that encroachment must and necessarily be recorded in the Khasra Girdawari and this by itself could not be made the basis for the lawful inference drawn or construed as a fact proved on the basis that since nothing has been mentioned in the Khasra Girdawari therefore, there must be no encroachment in fact. The Court had to look at other material circumstances of the case and the evidence to come to the finding whether factually encroachment had taken place.

5. Similarly, the fact that the report of P. W. 2 did not inspire confidence or appears to be fictitious and bogus would not clinch the matter because it was being relied upon in support of the petitioners' case to show the extent of encroachment and not the fact of encroachment. This has been rightly excluded from the considera tion by the two Courts below for the simple reason that respondents were not a party to those demarcation proceedings and thus they were not bound by it. It has been completely ignored by the two Courts below that the plaintiffs' case was that to respect of the area which has been encroached upon by the respondents, they had placed cut bushes on that area but under that pretence had grabed the adjoining property of the petitioners. As against this there was oral evidence led by the defendants in the person of Chotto and Bashir Ahmed.

6. There are also other features of the case which deserve to be noted, but since I am proposing to pass an order of remand, I would not like to discuss on the merits of the case of either party or evidence lest it prejudices, the case of either party. It is no doubt true that finding on questions of fact is normally not interfered with in revision but in cases where the finding of fact has been recorded either by ignoring the material evidence on record or as a result of complete misdirection and missing the real issues in controversy, no such sanctity would attach to that finding whether that be of factor law. 1n the present case, I have been left with the impression that the two Courts below have adopted rather relaxed attitude and not realised the seriousness of the allegations and that valuable rights of two parties were involved and these rights are not to be dealt with in a cursory manner. It is bounden duty of the civil Courts not to get caught up in technicalities or hyper‑technicalities as the case may be, but try to reach the truth because all jurisdictions are designed for that purpose. In a matter of this nature all that was required to be done was to hold a proper inquiry. The Court have appointed a commission who could have submitted his report after associating both the parties and carried out the measurement at the site and worked out the area which was being claimed by the two parties o the basis of transfer under Settlement Scheme No. VII as well as on the basis of allotment made by the Settlement and Rehabilitation authority, the cat would have been out of bag within 10 minutes. There has been failure of justice in this case and that has obliged me to come to the aid of petitioners by setting aside the impugned orders and sending the case back to the learned trial Court.

7. It may, however, be mentioned that in the matter of Abdul Aziz there is a constructed house. Similarly, the measurement in the case of constructed house could be worked out with adjoining area and both the parties be satisfied according to their entitlement.

Since these litigations have been pending for years, I would direct the learned trial Court to conclude these cases within a period of three months.

M. Y. M Petition accepted.

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