' JAWWAD S. KHAWAJA, J.---The petitioners/defendants impugn the appellant judgment and decree dated 17-9-2001, whereby the decree of the learned trial Court dated 27-5-1997 has been set aside and a declaratory suit filed by plaintiffs/ respondents Nos.1 to 3 seeking possession of a room measuring 8 Sarsahis, has been decreed.
2. Although the record of this case is voluminous, the facts necessary for its disposal are simple.
The predecessor-ininterest of the respondent/plaintiff, namely, Sohna was allotted a property vide PTD (Exh.P.7). This is the document, which is the basis of the declaration of title sought by the respondents/plaintiffs. In the PTD, Sohna (predecessor of the plaintiffs) has been transferred House No,3941 as a non-claimant in possession. The PTD (Exh.P.7) does not mention the metes and bounds of the property transferred nor does it indicate any Khasra number in which the same was comprised or, indeed, the area of the property.
3. Before the present litigation, the respondents/plaintiffs filed an earlier suit wherein they asserted that one room measuring 8 Sarsahis was is the occupation of the petitioners/defendants.
Paragraphs Nos.3 and 7 of the plaint, which is Exh.D.4 on the record, are relevant. It was stated therein that the plaintiffs had voluntarily given the disputed room to the present petitioners free of rent, to enable them to run their business. It was averred in the plaint (Exh.D.4) that the present petitioners were allowed to use the disputed room for a period of six months, whereafter they had agreed to hand it back to the plaintiffs. The prayer in the earlier plaint was for possession of the disputed room.
4. In the plaint filed in the present suit, the plaintiffs have taken a stance, which is 'diametrically opposed to the averments in the earlier plaint. It has been stated in paragraph 6 that since 1947 the Food Department was in occupation of the disputed room, which was being used as a goodown. Thereafter, according to the averments in the plaint, Feroze Din took possession of the disputed room and after his death, the legal heirs of Feroze Din (respondent Nos.4 to 8) sold the property to the present petitioners.
5. The material contradiction between the contents of the earlier plaint (Exh.D.4) and the plaint in the present case clearly shows the falsity of the case set-up by the respondents/plaintiffs. In any event, the fact remains that the respondents/plaintiffs were never in possession of the disputed room. Learned counsel for the respondents/plaintiffs was unable to offer any explanation for the contradictory positions adopted in the two plaints.
6. Furthermore, it is apparent from the record that the present petitioners acquired title and took possession of the disputed room through a sale-deed dated 12-3-1973 (Exh. D . 1) from the legal heirs of Feroze Din. The possession of the petitioners is undisputed. This fact is also sufficient for the purpose of non-suiting the respondents/plaintiffs because their title, as noted above, is confined to that portion alone, which was in the possession of Sohna when the PTD (Exh.P.7) was issued.
7. It was next argued by the learned counsel for the petitioners that the suit filed by the respondents/plaintiffs was patently time-barred. This assertion is well-founded because of the circumstances discussed above, which show, firstly, that even as per contents of the plaint, the respondents/ plaintiffs or their predecessor-in-interest, namely, Sohna were never in possession of the disputed room. It was averred by the respondents that the Food Department was their tenant.
However, no witness from the Food Department had been paying rent to them. No payment of rent by the Food Department has been proved on record.
8. Learned counsel for the respondents/plaintiffs attempted to argue that Feroze Din and become a statutory tenant of Sohna. This assertion, however, apart from being contrary to the contents of the plaint (Exh.D.4), is also unsubstantiated by any statutory notice or other evidence on record.
This plea, as such, cannot be accepted.
9. On the above basis, I am not left in any doubt, firstly, that the suit filed by the respondents was time-barred and, secondly, that the disputed room measuring 8 Sirsahis was not included in the property, which was transferred to Sohna (predecessor-ininterest of the respondents/plaintiffs) through PTD (Exh.P.7).
10. The learned trial Court examined the above aspects of the case while dismissing the suit of the respondents. Unfortunately, the learned appellate Court has misread the record and has not taken note of the material documentary evidence and record, considered above. In the circumstances, the impugned appellate decree dated 17-9-2001 is not legally sustainable and is set aside. As a result, the decree of the learned trial Court dated 27-5-1997 stands restored.
11. The petitioners shall also be entitled to their costs throughout.