2013 CLC 1823 PESHAWAR-HIGH-COURT

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Malik SHER RODIKHEL VS KHALID AMEEN Civil Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders--1 , Civil Procedure Code --Order XXXIX of C.P.C. Temporary Injunctions and Interlocutory Orders--2 , Demarcation of land--Term , Suit for permanent injunction--Term , West Pakistan Land Revenue Act 1967--117 , West Pakistan Land Revenue Rules 1968--RULE , S. 117---West Pakistan Land Revenue Rules, 1968, R.67-A---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for permanent injunction---Demarcation of land---Scope---Plaintiffs filed suit to the effect that defendants be restrained from making construction in the plot in question---Suit was dismissed by the Trial Court but same was decreed by the Appellate Court---Validity---Patwari Halqa admitted that Ghair Mumkin Rasta was in the ownership of the defendants and was being used as path to their house---Plaintiffs were unable to explain as to how the defendants had encroached upon their property and how much property owned by him had been reduced by constructing the disputed path---Plaintiffs had failed to prove any act committed against their interest by constructing path or raising wall on the spot---Witnesses of plaintiffs had supported the stance of the defendants and claim of the plaintiffs was not established---Local Commission was appointed who submitted his report but same was objected to and was cancelled---Plea of the plaintiffs had to be proved through cogent evidence which was lacking in the present case---Neither any demarcation took place prior to the institution of suit nor plaintiffs had taken any steps to such effect---Plaintiffs had not complied with the relevant provisions and had filed the suit which was not the mandate of law---Without ascertaining the boundaries of the encroached land, no suit could be filed for eviction of unauthorized landowner---Appellate Court had not evaluated the evidence in true perspective and had not adhered to the legal provisions applicable in the present case and erred in decreeing the suit---Revision was accepted and impugned judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored.