' Chaudhry Lehrasip Khan Gondal, Advocate has appeared at the third call while I was dictating this judgment. He states that although initially he had been engaged as counsel by the respondents, they subsequently took away the brief from him. He has only appeared as his name appears in the cause list. He, in the circumstances, has not been able to render assistance to the Court.
2. The petitioners/defendants impugned the concurrent decrees of the learned trial Court, dated 27-9-2000 and of the learned Appellate Court, dated 23-11-2000, whereby a suit for declaration with possession as consequential relief, filed by the respondents/plaintiffs has been decreed.
3. The dispute between the parties relates to land measuring 1 Kanal, 2 Marlas situated in Mauza Miana Gondal, Tehsil Bhalwal. The Khasra number, originally allotted to the suit-land, was 9568/9240 though presently the Khasra number is 137/122/12. The former and present Khasra numbers appear in Exh.D-6.
4. The petitioners/defendants, admittedly, are in possession of the land and have constructed their residences thereon. The Revenue Record placed on file also shows the suit-land to be Ghair Mumkin Makan.
5. The respondents/plaintiffs have explained the possession of the petitioners by averring in their plaint that the petitioners had 8-1/2 years previously taken forcible possession of the suit-land. The defence of the petitioners is that their predecessor-in-interest, namely, Ghulam Muhammad had purchased the land from the predecessor-in-interest of the respondents, namely, Muhammad more than 60 years prior to the filing of the respondents suit.
6. The controversy between the parties is confined to Issues Nos. 1, 2 and 7-A which were framed in the following terms:--- "(1) Whether the plaintiffs are owners of the suit-land? OPP.
(2) 'Whether the defendants have taken over the possession of the suit-land illegally and whether the plaintiffs are entitled to the possession of,the suit property? OPP (7-A) Whether the defendants have purchased the suit property through oral sale 60- years before, if so, its effect? OPD?
7. The documentary evidence on record is comprised of Jamabandis starting from the year 1934-
35. Five Jamabandis, being Exh.D-1 to Exh.D.5 from 1934-35 to 1968-69, show Ghulam Muhammad, predecessor-in-interest of the petitioners, as being owner of the suit-land along with others. In Column No.4, possession of the owners has been recorded. Here it is relevant to note that the land is part of the Shamlat. From these documents, it does appear that Ghulam Muhammad was duly recorded as owner in possession of the suit-land.
8. A change, however, occurred in the Jamabandi for the year 1981-82 (Exh.D.6). In this document, the name of Ghulam Muhammad was omitted. Subsequent Jamabandis also continued with the same omission. There is no mutation, Court order or other document on record to justify the change from the previous Jamabandis (Exhs.D.1 to Exh.D.5) and the subsequent Jamabandi (Exh.D.6).
9. The suit had been filed by the respondents and, therefore, it was for; them to prove their case that they were owners of the suit-land and entitled to possession of the same as prayed for in their plaint. I have considered the record, with the assistance of learned counsel fork the petitioners. As noted above, the initial Jamabandis did show Ghulam Muhammad, predecessor-in-interest of the petitioners, as owner in possession of the suit-land. This fact, coupled with the important circumstance that the petitioners are in possessions of the suit-land, would go to show that the petitioners were, indeed, owners in possession of the land. This is so firstly because a presumption of correctness attaches to the Jamabandi. Secondly, it is to be noted that the change, which has occurred in the Jamabandi for the year 1981-82 (Exh.D.6), is unexplained because, as noted, there is no mutation or other order in support thereof. Thirdly, the plea of the respondents/plaintiffs that the petitioners had forcibly taken possession of the suit-land 8-1/2 years prior to the filing of the suit itself undermines the veracity of the averment in the plaint. It is not reasonable to believe that the respondents would have remained idle if their land, in fact had been forcibly taken over by the petitioners - 8-1/2 years earlier. These circumstances show that the respondents/plaintiffs have not been able to prove their case.
10. The learned Courts below have exercised their jurisdiction illegally and with material irregularity by proceeding on the premise that it was initially for the petitioners/defendants to prove their defence. This is not the purport of the law. The respondents as plaintiffs had to prove their case before the petitioners/defendants could have been called upon to prove their defence. In view of the documentary evidence discussed above, I am not in any doubt that the respondents/plaintiffs had B failed to prove their case on account of their failure to justify the exclusion of the name of Ghulam Muhammad, predecessor-in-interest of the petitioners, froni the Jamabandi (Exh.D.6). On the other hand, the documents Exhs.D.1 to Exh.D.5 coupled with the physical possession of the petitioners was sufficient to discharge the onus of proof placed on the petitioners in respect of the issue No.7-A. The respondents have not produced any Jamabandi preceding Exh.D.1 which could show that the petitioner's predecessor were not shown as owners in possession of the suit-land.
11. The learned trial Court has proceeded on the premise that the person Ghulam Muhammad mentioned in Exh.D.1 to Exh.D.5, was someone other than the predecessor-in-interest of the petitioners. There is no evidence on record to support this conclusion. Furthermore, no other claimant by the name of Ghulam Muhammad has asserted any right in the suit property in the circumstances considering that the petitioners as L.Rs. Of Ghulam Muhammad are in possession of the suit-land, the only conclusion, which could be drawn from the documentary evidence, was that the person Ghulam Muhammad, whose name appears in Exh.D-1 to Exh.D-5, was the predecessor- in-interest of the petitioners and not someone else.
12. The learned Appellate Court has in a very cursory manner, dealt with the above noted issues while upholding the decision of the learned trial Court.
13. In view of the foregoing discussion, I am clear that the learned Courts below have misread the evidence on record and have acted in the exercise of their jurisdiction in a manner which is illegal and has resulted in material irregularity. The impugned judgments and decrees, therefore, are set aside. As a consequence, the suit filed by the resp9ndents/plaintiffs is dismissed.