' On 2-2-1991 the petitioner filed a suit against the respondents. In the plaint, it was stated that he is one of the proprietors in the village and as such a co-sharer in the Shamlat. The suit-land measuring 12 Marlas is part of the Shamlat and had fallen to the share of his father. He has raised soma construction on the land mentioned in para.2 of the plaint and intends to raise construction on the suit-land for which he has collected building material but the respondents are illegally interfering. He sought a declaration that he is in possession of the said 12 Marlas land out of the Shamlat mentioned in the plaint as a co-sharer and the respondents be restrained from interfering with his possession. Now on 24-11-1991 the respondents Nos.1 and 2 filed their written statement.
They admitted the fact that the petitioner is a co-sharer in the Shamlat but asserted that they are also co,owners. They further stated that three marlas out of the suit-land had fallen to their share and they are in possession. The respondents Nos. 3 and 4 filed a written statement on 28-4-1991.
They also admitted the fact that the petitioner is a co-sharer in the Shamlat. They asserted that out of the suit-land they are entitled to 1/2 while the remaining 1/2 is the entitlement of the petitioners and respondents Nos.1 and 2. Following issues were framed by the learned trial Court on 7-1-1992:--
(1) Whether the plaintiff is proprietor in Abadi Deh is in possession of disputed property as a co- sharer as such entitled to the decree of declaration and injunction as prayed for? OPP
(2) Whether the form of present suit is incorrect, if so, to what legal effect? OPD
(3) Whether the plaintiff has got no locus standi to file the present suit? OPD Nos.3 and 4.
(4) Whether the plaintiff has approached to the Court with unclean hands as such not entitled to any relief? OPD Nos.3 and 4.
(5) Whether the description of the suit property is incorrect, if so, to what legal effect? OPD Nos.3 and 4.
(6) Whether the suit of plaintiff is ambiguous as such liable to be dismissed? OPD Nos.3 and 4.
(7) Whether the suit of plaintiff is frivolous, and vexatious and the same has been filed just to harass the defendants as such the defendants are entitled to recover a special costs of Rs.5,000 each? OPD Nos.3 and 4.
(8) Relief.
' Evidence of the parties was recorded. I may note here that on 2-7-1992 the respondents Nos.1 and 2 conceded the suit which was decreed as against them. Now under Issue No.1 the learned trial Court recorded a finding that the petitioner is owner only to the extent of three Marlas along with his brother and mother. Regarding the defendants the finding was that they are not owners of the suit property at all. After, thus, holding the learned trial Court proceeded to state that the petitioner is not entitled to a declaration of ownership of 12 Marlas and answered the issue against the petitioner. Under Issue No.2, it was found that since the defendants are not the owners and the actual owners are not made party to the suit, the suit is not maintainable. Issue No.3 was answered against the respondents Nos.3 and 4. Issue No.4 was answered against the petitioner with the observation that he has raised construction after filing of the suit. Issue No.5 was found in favour of the respondents while Issue No.6 was found in favour of the petitioner. Under Issue No.7, special costs of Rs.2,000 were imposed. The suit was dismissed on 27-11-2000. A first appeal filed by the petitioner was dismissed by a learned A.D.J., Mandi Baha-ud-Din, on 1-6-2002.
2. Learned counsel for the petitioner contends that the respondents Nos.1 and 2 had conceded the suit but it was ultimately dismissed in its entirety. Further contends that both the learned Courts below have failed to read the plaint. According to the learned counsel, his client had not claimed exclusive title to the suit-land and in any case the respondents were found to be not owners of any part of the suit-land by the learned trial Court, which finding was never questioned. No one has turned up for respondents Nos.1, 2 and 4 despite service while respondent No.3, who is also represented by a learned counsel whose name duly listed in the cause list for today has also not turned up. They are accordingly proceeded against ex parte.
3. I have examined the copies of the records, with the assistance of the learned counsel. I have reproduced above the contents of the pleadings of the parties. Now apart from the fact that the respondents Nos.1 and 2 conceded that suit on 2-7-1992, and the learned trial Court, in fact, recorded an order that the suit is decreed as against the said respondents Nos.1 and 2, there is no denial in any of the written statements on record that the petitioner is a proprietor in the village and a co-sharer in the Shamlat and that the suit-land, in fact, forms part of the Shamlat. The findings recorded are that whereas the petitioner is entitled to three Marlas in the suit-land, the respondents are not owners at all. The Local Commissioner had reported that the petitioner had been raising construction on the suit-land. Now this was not possible unless and until the petitioner was to be in possession of the suit-land. Now the petitioner appeared as P.W.1 stating that he is in possession of the land as a co-sharer and in the cross-examination, the said statement was not questioned. The learned A.D.J. Had adopted a strange logic that since the Local Commissioncr -lid not report that he was in possession prior to the Local Commissioner's visit, it shall be presumed that the petitioner was not in possession before the visit of the Local Commissioner. The learned A .D.J. Has thus lost sight of the fact that the learned Local Commissioner was not at all in a position to make a report as to conditions existing before his visit. This was to be determined on the basis of evidence in the suit. Now even one of the defendants who appeared as D.W.1 (particulars not noted) did not deny the fact that the petitioner was in possession.
4. Now I am in agreement with the learned counsel for the petitioner that both the learned Courts below have failed to the plaint and the relief claimed. They presumed that the petitioner is claiming to be the exclusive owner of the suit-land whereas all that he is claiming was that he is in possession as a co-sharer in the Shamlat which fact stood admitted on record.
5. For all that has been discussed above, I do fmd that the impugned judgments fall within the mischief of section 115, C.P.C. The pleadihgs as well as the evidence have been grossly misread by the learned Courts below. This civil revision is accordingly allowed. Both the impugned judgments and decrees of the learned Courts below are set aside and the suit of the petitioner is decreed in terms that he is in possession of the suit-land as a co-sharer in the Shamlat and is entitled to retain the same till such time that, a partition takes place by metes and bounds, on the application or suit as may be filed by any other co-sharer in the Shamlat. No orders as to costs.