' Brief facts in this case are that respondent No.1 filed a suit for possession in respect of land measuring 1 Kanal, 5 Marlas out of 2 Kanals purchased by him through a registered sale-deed, dated 18-10-1986 situated in Hujjra Shah Muqeem Tehsii Depalpur District Okara from one Zahid Shah through agreement Exh.D.1 and sale-deed Exh.D.2 and the possession was delivered on 13-2- 1989. A suit for permanent injunction was filed on 17-11-1986 which was withdrawn on 11-6-1991 and suit for possession was filed on 4-7-1991. It was alleged that the defendant has forcibly taken the possession. The suit was contested and on the pleadings of the parties following issues were formulated:--
(1) Whether plaintiff is owner of disputed land measuring 1 Kanal, 5 Marlas? OPP
(2) Whether plaintiff is entitled to recover possession of disputed land from the defendant? OPP
(3) Whether suit is not maintainable in its present form? OPD
(4) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD
(5) Whether the suit is hit by section 11 of C.P.C.?OPD
(6) Whether suit has been filed with mala fide intention and just to harass the defendant if so, whether the defendants are entitled to special cost under section 35-A of C. P. C .? OPD
(7) Whether suit has not been properly valued for the purpose of court-fee and jurisdiction? OPD
(8) Relief.
' Parties produced their respective evidence and learned trial Court vide its judgment and decree dated 19-1-1994 dismissed the suit while giving the findings against the defendant and appeal was preferred against the impugned judgment and decree passed by learned lower Court which was accepted and the judgment and decree passed by learned lower Court was set aside and the suit was decreed, hence, the instant civil revision.
2. Arguments advanced by learned counsel for the petitioner are that the impugned judgment and decree is based on misreading of evidence. Learned Appellate Court was under duty of law to give issue-wise findings. Both the parties to the suit purchased land from joint khata. The petitioner has purchased land with specific boundaries, therefore, a party who purchased the land from joint khata is entitled to retain the possession till such partition by any other co-sharer but this material fact escaped from the notice of learned Appellate Court. The petitioner has raised substantial construction on the property in dispute and the Court could not ignore this construction without determining the cost of the construction and decree could not be passed under section 51 of Transfer of Property Act. He further argued that in the plaint which is at page 23 of instant civil revision in para.4 the plaintiff has stated that the defendant has forcibly taken possession of the property one year prior to the filing of suit then the plaintiff could have moved under section 9 of the Specific Relief Act within 6 months. The plaintiff while appearing as P.VV.1 has failed to depose that on what date he was dispossessed because he has to prove that he was first in possession then he was dispossessed. Relied on Abdul Jamil v. Hatoon PLD 1969 Karachi 78; Abdul Wahid v.
Yousaf PLD 1971 Karachi 772; Wahab Ullah and others v. Abdul Aziz and others PLD 1968 Dacca 318 and Mst. Jaina and others v. Hassan and others PLD 1963 (W.P.) Karachi 351. Any suit which is filed under section 9 of the Specific Relief Act no appeal is provided. Moreover the party has to describe the date of possession and then forcible dispossession. The petitioner has purchased the land from one Zahid Shah in Khasra No.37/6, Khewat No.854, Khatooni Nos.1634 to 1641, share 20/7088 and that belonged to one Zahid Shah, and he is enjoying the possession. The respondent has purchased their property from the joint holding of 3 brothers from the share of Naeem Shah i.e..40/7088, out of 354 Kanals, 8 Marlas and he has purchased the same in Khewat No.790/748 and Khatooni Nos.1482 to 1494 Jamabandi is Exh.P.1 and Exh.P.2.
3. Arguments advanced by learned counsel for the respondents are that they have purchased the property measuring 2 Kanals i.e. Exh.P.1 dated 15-10-1986, the boundaries are given and the petitioner purchased the property subsequently on 13-9-1989, boundaries are different, Khata are different and he has purchased from Khasra No.37/4 through Exh.D.1 wherein boundaries are mentioned in the script of sale-deed. He had purchased different land. The trial Court decided Issues No.1 and 2 against the plaintiff. No cross-objection was filed on those findings, therefore, those have attained finality. Relied on Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCM R 1862 and Kanwal Nain and 3 others v. Fateh Khan and other PLD 1983 SC 53.
4. On mutual request of the parties, Tehsildar Hujra Shah Muqeem alongwith Revenue Staff was directed by this Court to inspect the disputed property and give a report as to holding of disputed land in possession of both the parties. He has inspected the site and given a report alongwith the map without scale, according to which Muhammad Tufail son of Muhammad Ali caste Kamboh resident of Hujra Shah Muqeem is owner of 2 Kanals in Khewat No.967/920, Khatooni Nos.1725 to 1732 out of total property 354 Kanals 8 Marlas share 40/7088 in Khasra No.37/6, 1 Kanal, 6 Marlas 6 Sarsahis and Noor Muhammad son of Nizam Din and Ahmad Din son of Boota are owner of 1 Kanal of land through Mutation No.6913, dated 19-1-2000 purchased from Zahid Raza resident of Hujra Shah Muqeem in Khewat No.967, Khatooni Nos.1725 to 1732 out of 354 Kanals 8 Marlas share 20/7088 purchased from the joint Khata, Khatoonis, joint Khasra No.37/6 and is in possession of 1 Kanal of land.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly both the parties had not challenged each other's title through Exh.D.1, Exh.D.2. The suit for possession was filed by the respondent that he was owner of the land measuring 2 Kanals through a registered sale-deed and he has constructed a house on 15 Marlas of land and he was in possession of 1 Kanal, 5 Marlas while defendants/respondents forcibly took the possession of the property. It is also admitted that both the parties purchased the land from joint Khata from two brothers and no specific Khasra number has been mentioned in the sale-deed, only boundaries are mentioned on the last page of Exh.D.2.
7. The parties produced their oral as well as documentary evidence. Exh.P.1 is the sale-deed, Exh.P.2 is copy of Jamabandi for the year 1986-87. In this Jamabandi no Khasra number has also been given and this Jamabandi also discloses that share 40/7088 measuring 2 Kanals is taken from entire holding of 354 Kanals, 8 Marlas. Exh.D.1 is the copy of Waseeqa Stamp Paper No.181 dated 2- 8-1979 Iqrarnama in Khasra No.37/6 Abadi Hujjra Shah Muqeem in consideration of Rs.5,000 from one Zahid Raza Shah in favour of Noor Muhammad the defendant/respondent. Exh.D.2 is the agreement to sell, it also shows the boundaries. Exh.D.3 is the copy of map included in the Misal No.695/91 No.73/93 dated 31-7-1991 in suit for possession which was decided on 19-1-1994 also showing the boundaries in suit titled Muhammad Tufail v. Noor Muhammad. Exh.D.4 is the copy of suit Muhammad Tufail v. Anwar and others. In this suit in paragraph No.7 the plaintiff has deposed that cause of action against the defendant has arisen to him 15/20 days when he forcibly attempted to possess the disputed property which was withdrawn with the permission to file another suit Exh.D.5 is the statement of counsel for the plaintiff for permission to withdraw the suit for permanent injunction. Exh. D.6 is the copy of the statement of Sh. Munir Hussain Exh.D.7 is the copy of the order of Civil Judge !Ind Class Depalpur dated 11-6-1991 dismissing the suit as withdrawn. Exh.D.8 is judgment in suit filed by Muhammad Tufail against Noor Muhammad for cancellation of registered sale-deed of 7 Marlas of land in favour of Muhammad Anwar son of Jan Muhammad. Vide Exh.D.8 learned Civil Judge Ist Class, Depalpur in suit for cancellation of - registered sale-deed decided:-- "that since the respondent/plaintiff purchased the land from a joint Khata and they are entitled to get their share from the entire Khata and they are not competent to hold specific piece of land as every co-owner is owner in every inch of land under this dictum the plaintiff got two Kanal land from the entire Khata and boundary mentioned at the last page of Exh.D.2 has no effect over the land in possession of the defendant as they had occupied their piece of land in 1979 and this fact is neither rebutted nor objected nor any evidence is produced on behalf of the plaintiff to prove that he was in physical possession of the suit land and in such circumstances I have left no option except to declare that the plaintiff has a right to get 2 Kanals of land from the entire Khata."
8. From the perusal of the judgment Exh.D-8 it shows that real controversy between the petitioner and the defendant was settled in the aforesaid civil suit which had become final. Report of local commission filed in this Court also supports the observation of learned trial Court in Exh. D . 8 .
9. Under Order XLI, rule 31, C.P.C. The learned Appellate Court had to appreciate the entire oral as well as documentary evidence and take into consideration the existing controversy between the parties in respect of their respective claims. In order to set aside the issue-wise findings of the learned trial Court, the learned Appellate Court was bound to enumerate the point of determination by giving an issue-wise reasoning for the same. Perusal of the judgment passed by the learned Appellate Court shows that it suffers from misreading and non-reading of evidence and outcome of material irregularity.
10. Therefore, keeping the entire evidence record, judgments and decrees passed by the learned trial Court and learned Appellate Court, this revision petition is accepted and the judgment and decree passed by the learned Appellate Court is hereby set aside. No order as to costs.