Ch. Afrasiab Khan, ASC
Mr. Muhammad Munir Piracha, ASC
9.2.2022
For the petitioner:
For the
Date of hearing:
r-t
/
(App el1at
Jur1sdictOfl)
F
R.'
JUSTICEMAZHAR ALAJW KHAN MIANI(JI EL
 JUSTICE SYED MAflooR ALL SffAJ4
QLQj5
dgment dated
the Peshawar
id Bench in
. Appellant
I
others
ram
(On appeal from the
23122013 passed
High Court, Abbott
C. No. 138/06)
Muhammad Iqbaj
Matj ur Rebman
.Respondents
ORDER
2frJ7cft5e1J The appellant, being defendant in
.
questioned the impugned judgment dated 23rd
the Peshawar High Court Abbottabad Bench
y predecessor of the respondents for issuance of
n and PO55Cssion was concurrently decreed by
Eience the present appeal with the leave of this
rch, 2015.
counsel for the parties were heard and record of H
record would reveal that predecessor of the
a suit for permanent injunction and Possession
dispute against the present appellant who
of the suit proper, by constructing a
the main case, I
December, 2013
whereby suit filed
Permanent iniii,
the Courts below,
Court dated 13 th M
2. Learne.
the case was perus(
Perusal of t
respondents had Ill
of the Property i
admittedly was in
C.A. No. 180/15 
2.
house over the same. It is an established fact that the suit house is
situated in Town Committee Nawan Shehar, Abbottabad and the
house over the land/plot was constructed somewhere in 1981 by the• 
P
present appellant for which he properly got an approval of a site plan
and other necessary documents for the purpose. The case of the I
respondents was that the land beneath the house constructed by the
appellant is comprising Khasra No.2222/1 ('Khasra in question'), i
area measuring 02 kanal, situated in "Shamlat 13th Mauza Nawan
Shehar Janubi Tehsil and District Abbottabad' which as per revenue
record, is owned by him, and this very fact was categorically denied
by the appellant by submitting his written statement and alleged that
the same was purchased by him through a registered sale deed
bearing No.90 dated 29th January, 1981 from one Muhammad Yousaf
Khan son of Hidayat Khan and record of the same was also confirmed
by the Clerk Town Committee Nawan Shehar. Besides the above, he
also alleged that the property he purchased is situated in town
committee, Nawan Sheher. It is worth to be mentioned that the suit
filed by the predecessor of the respondents was not for declaration of
his title rather the same was for permanent injunction as stated
above. The facts and circumstances of the case reflect that the
respondents, under the law, were supposed to establish their title
first by filing a suit for declaration along with possession of the
property as a consequential relief as the appellant was admittedly in
Possession of the plot by further establishing the fact that the plot in 
F
Possession of the appellant is situated in khasra in question. Mere a
suit for permanent injunction, in the given circumstances is not
 maintainable and cannot encompass the claim of respondents.
L.A. No. 180/15
3. During the course of trial, the learned Judge deemed it
appropriate to appoint a Local Commission vide its order dated 24th
June, 1993 which is reproduced herein below:-
It is therefore necessary to appoint a local
commission who should visit the spot in presence of
Patwarj Halqa and both the parties. After yointatjon
QL the suit Khasra number by Patwarj Halcia, he
should prepare report about any construction existing
thereon, the nature of material used in the
construction, the period of construction, the persons
in its possession and assess its market value."
The Local Commissioner, in the light of the directions of the trial1
Court, visited the spot along with revenue officials and Altaf Hussain,
Record Clerk, Town Committee Nawan Shehar. As per report of thej
Local Commissioner, the suit house is situated in Khasra in questioni
but record of the case reflects that the said conclusion by the Local'
Commissioner was made on the basis of statement/ version of the!
Patwarj Haiqa accompanying him at the time of spot inspection.!"
Such type of oral version, in absence of proper proof of the fact, can
in no way be considered as a poof required under the West Pakistan I'
Land Revenue Act, 1967. This is the moot question to be resolved, if
it is established that the suit house admittedly owned, possessed and
constructed by the appellant is situated in Khasra in question then
that khasra as per revenue record produced by the Patwrj is part
and parcel of Shamlat Deh which is jointly owned by the persons;: 
1
whose names appear in the proprietary body of the village
(proprietary body of the village is a body of persons who are already I
owners of the agricultural land in the village). The respondents could 
I
lay hand on this khasra number as owner if it is established on the!
record that their names appear in the proprietary body and they
I
C.A. No.JMU/lb
- are/were in physical possession of this khasra number prior to the
purchase of appellant. They would also be obliged to prove their.
dispossession either by the vendor of the appellant or the appellant
himself.. Besides the above, it should also have been established
through cogent and reliable evidence that the property in dispute is
part and parcel of Shamlat Deh. The entire exercise done by the Local:
Commissioner as well as the evidence produced by the respondents,
during trial do not reflect that the suit house is situated in khasra in
question being part of Shamlat land. There is no proper demarcation
of the property comprising Sharrilat Deh and specifically khasra 1
No.2222/1. The revenue record produced by the Patwari Haiqa and 1
Sadar Office Qanungo during the trial, will in no way help out the'7
respondents to establish their case unless the above facts are
established through demarcation on the spot. In absence of such.
evidence, the documents so produced would have no evidentiary!
value. The original mutation of the vendor of the Respondents has
not been produced by PW- 1. Mere reference of the mutation in the:
record of rights, as produced as Ex-PW- 1/3 is not sufficient to;•
establish title of Respondents. The record produced by the Appellant
from the proper lawful custody with his possession at the spot is
sufficient to hold him owner of the house in question. This exercise
could have been done by the revenue officer to define the boundaries
of testate or khasra number under Section 117 of the West Pakistan
Land Revenue Act, 1967 or demarcation of the property in question:
under Rule 67-A of West Pakistan Land Revenue Rules, 1968. Proper
location of a khasra number is not possible without such exercise.
The record of the case would reflect that no such exercise was made
in this case. Besides the above, the nature and status of the property.
has been changed to commercial and residential since long. In such a
A No.180/15 
5
2
situation, a special kind of expertise would be required to locate and
I
demarcate a specific khasra. number.
4. 
We have gone through the judgments rendered by the::
Courts below specially the judgment of the Civil Judge dated 29th
June, 2002 which is totally based on surmises and conjectures and
not on proper appraisal of evidence and the relevant law and the
record. The appellate Court and the High Court have simply.
concurred with the findings of the trial Court and have failed to apply
their judicial mind in the peculiar facts and circumstance of the case.:
We, in view of the above, are left with no option but to allow the
instant appeal by setting aside the judgments and decrees passed by:
the Courts below and suit of the Respondents stands dismissed with
no order as to costs. However, they may seek their lawful remedy, if
any, in view of the above discussion, if so advised.
Bench-
Islamabad,
91h February, 2022
APPROVED FOR REPORTING
/ Y asir Khan/-