JAWWAD S. KHAWAJA, J.--- The case has been repeatedly called at intervals but none has appeared for the respondents. The process serving agency has reported that respondent No.1 has been served personally while respondent No.2 has been served through his brother. Only respondent No.1 is the contesting party because respondent No.2 had not asserted any claim to the suit property in his written statement. In the circumstances the respondents are proceeded against ex parte.
2. The petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 18-2- 2005 and of the learned Appellate Court, dated 19-4-2005, whereby a declaratory suit filed by the petitioner seeking possession by way of consequential relief has been dismissed.
3. The property in dispute is comprised of land measuring 8 Marlas together with structures thereon. The petitioner/plaintiff claims that he is the owner of the suit property, while Muhammad Aziz (respondent No.1) is an unauthorized occupant. The said Muhammad Aziz respondent/defendant set up the defence that Khawaja Muhammad Riaz (respondent No.2) was the owner of the property, who had executed an agreement to sell (Exh.D.7) dated 3-10-1982 in his favour pursuant to which he was lawfully occupying the disputed property.
4. At this juncture, it is relevant to note that the petitioner had also filed an earlier suit on 11-3-1997 wherein he had sought a simple declaration as to his own title. The petitioner instead of withdrawing the earlier suit chose to press both suits at the same time which were dismissed by the learned trial Court on 18-2-2005. The learned Appellate Court has reversed the finding of the leaned trial Court in the first suit holding that the agreement (Exh.D.7) is invalid and also that Khawaja Muhammad Riaz, who had, in any event, submitted a conceding written statement, had no right, title or interest in the suit property. On this basis, it was held in the first suit that Muhammad Aziz had no right in the suit property.
5. However, the dismissal of the second suit has been upheld by the learned Appellate Court on the technical ground that the second suit was barred under Order II, rule 2, C.P.C. Learned counsel contends that this finding, apart from being hyper technical, could not be sustained in view of the express finding recorded in the first suit by the learned Appellate Court that the agreement (Exh.D.7) was invalid and that Muhammad Aziz respondent/defendant had no right to the property.
In any event, it is argued that the second suit could have been treated as an application seeking amendment of the plaint in the earlier suit. This is particularly so as both suits were consolidated and decided together.
6. The above submissions of learned counsel for the petitioner are well-founded and remain uncontroverted. I find it surprising that when the Appellate Court had itself found that the petitioner/plaintiff was the owner of the suit property and also that respondent No.2, namely, Khawaja Muhammad Riaz had not made any sale in favour of the respondent No.1 Muhammad Aziz, it nevertheless proceeded to dismiss the second suit mentioned above on the ground that it was barred by Order II, rule 2, C.P.C.
7. Learned counsel for the petitioner/plaintiff has rightly pointed out that both suits stood consolidated and, therefore, the prayer in the two suits should have been dealt with consistently. In any event, I also find the argument of .Petitioner's learned counsel convincing that if the second suit was barred by Order II, rule 2, C.P.C., it could, nevertheless, have been treated as an application seeking amendment of the plaint in the earlier suit with the object of incorporating therein the prayer of possession.
8. In the above circumstances, the second suit, for good order's sake and in order to ensure consistency with the provisions of the C.P.C., is treated as an application for amending the plaint in the earlier suit. The alternate relief, prayed for in this petition in the following terms, is allowed:-- "It is alternatively prayed that with respect to the earlier suit filed by the petitioner for declaration and permanent injunction, the prayer of possession may please be considered as added and decree of the learned Additional District Judge, Khushab, accepting the petitioner's appeal may kindly be modified accordingly with additional relief of possession as well."
9. Accordingly the decree of the learned Additional District Judge, Khushab, in the earlier suit, is modified as prayed for. Consequently, the appellate decree in the second suit is set aside.