On 20-2-1983 the petitioners filed a suit against the respondent. It was stated in the plaint that the petitioners are owners of the suit property mentioned in the plaint while the respondent is occupying the same as non-authorized occupant. With these averments a decree for possession and for the recovery of mesne profits was sought. Now the respondent in his written statement took the plea that the land in question bears Khasra No.127/4 and in the recent settlement has been included in the Abadi. He took possession of the plot in the year 1947 and raised construction thereon. He asserted adverse possession. Following issues were framed by the learned trial Court:- -
(1) Whether the plaintiffs have no cause of action or locus standi? OPD
(2) Whether the description of the suit property is wrong, if so, its effect? OPD
(3) Whether the plaintiffs have not come to the Court with clean hands? OPD
(4) Whether the defendant has made improvements over the suit property, If so, with effect and extent? OPD (5)Whether the plaintiffs are estopped by their conduct to bring the instant suit? OPD (6)Whether the defendant is in the continuous possession of the suit property for more than 12 years? If so, to what effect? OPD
(7) Whether the suit is bad due to non-joinder of necessary parties? OPD
(8) Whether the suit is insufficiently valued for the purposes of Court-fee and jurisdiction? If so, the correct valuation? OPD
(9) Whether the plaint in dispute is sub judice? If so, its effect? OPD
(10) Whether this Court has no jurisdiction to try the suit? OPD
(11) Whether the plaintiffs are owners of the suit property and are entitled to decree prayed for? OPP
(12) Relief.
' Evidence of the parties was recorded. Issues Nos.2, 5, 6 and 7 were not pressed. Issues Nos.3, 8, 9 and 10 were decided against the respondent. Issues Nos.1, 4 and 11 were answered against the petitioners. The suit was dismissed vide judgment and decree dated 23-2-1994 by the learned trial Court. A first appeal filed by the petitioners was dismissed by a learned A.D.J., Shakargarh, on 23-9- 1996.
2. Learned counsel for the petitioners contends that the evidence on the record has been misread by the learned Courts below particularly the learned A.D.J. While passing the impugned judgments and decrees and as such they have acted with material irregularity in the exercise of their respective jurisdiction. Learned counsel for the respondent, on the other hand, contends that the petitioners have failed to prove their title and as such the impugned judgments and decrees need not be interfered with..
3. I have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now I have already referred to the pleadings of the parties above. The petitioners had stated that they are the owners of the suit property mentioned in the plaint while the respondent is the unauthorized occupant. The respondent, on the other hand, had denied the said fact and had stated that he is in possession since 1947 as the plot forms part of the village Abadi. One thing is, however, certain that there is no dispute regarding the title of the property which has been mentioned with reference to Khasra No.127/4 in the plaint as well as in the written statement. Now Kh. Abdul Karim, petitioner appeared as P.W.3 and stated that Rana Abdul Majeed had made a gift of the suit property in favour his wife, who had died and the petitioners are her heirs and that the respondent is a non-authorized occupant. Now in his cross-examination, it was suggested to him and he expressed ignorance that Rana Abdul Majeed has sold 13 Marlas out of the suit-land to one Bashir Ahmad Ansari. It was then suggested to him and he denied that when Rana Abdul Majeed gifted the property to his wife it was in possession of the respondent. He denied that the suit property is owned by the respondent. Now the gift deed was produced as Exh.P.3. Now the respondent himself produced a copy of Register Haqdaran Zamin for the year 1946-47. According to this document, Khasra No.127 is recorded to be owned by one Jagdaish. One portion of it measuring 9 Marlas is recorded as in possession of the owner while the other portion measuring 10 Marlas is recorded to be in possession of one Khushi Ram Ghair Dakheelkar on payment of cash rent and the classification is Ghair Mumkan Abadi. Exh. D.5 is the copy of Register Haqdaran Zamin for the year 1963-64. According to this document, by Abdul Majeed son of Barkat Ullah Khasra No.127/4 is recorded to be owned whereas the portion measuring 13 Marlas is in possession of Muhammad Aslam and the other portion measuring 11 Marlas is in the possession of Bashir Ahmad respondent. Both the portions are in Abadi. Similar is the position in Exh. D.6 for the year 196768.
However, in the column of Lagan it is noted {{URDU TEXT}} Exh. P.4 is the copy of Register Khasra Girdawari for the period Kharif, 1968 to Rabi, 1973. The gift deed Exh. P.3 stands incorporatedw.e.f.
Kharif, - 1971 in favour of Mst. Ruoia Akhtar who is the donee recorded in the registered gift deed Exh.P.3 dated 10-5-1971.
4. There is not even a plea that the respondent is a proprietor in the village. Learned counsel has tried to argue that the suit-land forms part of the Abadi Deh and could not have been allotted.
However, the record is otherwise. The land, of course, is under Abadi but is under individual ownership continuously. There is nothing on record that the respondent ever tried to get the land allotted from the Central Government.
5. Now coming to the impugned judgments, the learned trial Court discarded the entire evidence of title on the ground that since the petitioners did not mention in the plaint as to how they acquired ownership, they cannot be allowed to prove the title. I am afraid the said reason is not warranted by any law governing the pleadings. The petitioners have duly pleaded title and as to how they acquired title is a matter of evidence upon denial by the respondent of the same. The learned A.D.J.
Has rather simplified the matter. He says that since the land is in Abadi Deh, the respondent has got the same right as an owner. There is nothing on record to D support the said observation of the learned A.D.J. As noted by me above, a separate record is being maintained for the suit property and is being continuously shown as individual ownership.
6. Having thus examined the records, I do agree with the learned counsel for the petitioners that evidence on record has been misread. This civil revision accordingly is allowed. Both the impugned judgments and decrees of the learned lower Courts are set aside and the suit filed by the petitioners is decreed against the respondents without any orders as to costs.