' MUHAMMAD SAIR ALI, J.---The petitioners along with respondents Nos.4 and 35 through their suit claimed to be the owners of land measuring 13 Marlas in Khasra No,1518, Khewat No,634, Khatoni No,106 of Kot Daska, alleging that Fayyaz Ahmad i.e, the predecessor in interest of the respondents at S. No,1 and respondents Nos.2 and 3 obtained the said land on rent for their business from the petitioners at the rate of Rs,100 p.m. And that the said respondent illegally started construction to advance their claim of ownership on the said land. Thus suit dated 21-9-1985 for declaration and possession by the petitioners.
2. The contesting respondents in their written statement pleaded not to be in possession of the land in Khasra No,1518 which was wrongly described to be the land in possession of the said respondents who had raised construction thereupon about 20 years before the suit. And that the contesting respondents were not the tenants under the petitioners.
3. Issues were framed and evidence was recorded by the learned trial Judge who dismissed the suit through judgment and Decree dated 31-3-1992. Appeal thereagainst was also dismissed by the learned Additional District Judge, Daska through the impugned judgment and decree dated 1- 2-1995. Hence the present civil revision.
4. Along with this. Civil revision, an application bearing C.M. No,2-C-1995 under Order XLI, rule 27, read with section 151, C.P.C. Was filed by the petitioners seeking permission of the Court to produce additional evidence on the record.
5. The learned counsel for the petitioners contended that on, the sole question herein involved as to the existence of Khasra No,1518, both the learned Courts below misread and non-read the evidence on the record. And that non-reliance of the learned Courts below on the record of rights as prepared under the law and enjoying evidentiary and presumptive value, was unlawful as no objection thereto was made by the respondents in their written statement. And that the presumption of truth attached to the record of rights was not displaced. Further that it was wrong to infer that Khasra No,1518 was not created and the entries of this Khasra in the Revenue Record were invalid and unreliable. Also that the report of the Local Commissioner as appointed to inspect the spot was also ignored by both the learned Courts below who favoured the petitioner and no objections thereto were made by the respondents.
6. Contrarily the learned counsel for the respondent at Sr. No,1 (the L.Rs, of Fayyaz Ahmad Khan) supported the impugned judgments and decreed of the learned subordinate Courts by stating that the petitioners were trying to build a new case through C.M. No,2-C-1995 seeking production of certain documents on the record for the first time after a period of ten years of the filing of the suit.
And that their request for additional evidence was rejected by the learned Additional District Judge in Para-12 of the impugned judgment. Further stated that at the revisional stage, these documents could not be allowed to be produced on record and the petitioners could not raise a plea which was not pleaded before the learned lower Courts. Also that the question of fact as to the creation and the existence of Khasra No,1518 stood duly settled on the basis of evidence, hence power of revision thereagainst was not available. Also that on non-production of the Local Commissioner, his report was not exhibited in evidence and became inadmissible.
7. Respondents Nos.4 to 35 were proceeded against ex parte through order dated 28-11-1995. Even otherwise, these respondents were statedly pro forma respondents having no interest rival to that of the petitioners.
8. Heard.
9. The application for additional evidence to place on record the documents, as also sought to be brought through the additional evidence by C.M. No,2-C-1995, was rejected by the learned Additional District Judge on the ground that the documents in question were not helpful in resolution of the controversy and the petitioners had no case to seek demarcation in the matter in view of the findings recorded as to the existence or nonexistence of Khasra No,1518.
10. This Court is also of the opinion that the documents sought to be produced through C.M. No,2- C-1995 cannot be brought on record as the petitioners had ample opportunity to produce the same during the evidence, had such documents any bearing upon the litigated questions or on adjudication of the issues framed by the learned trial Court. It was after the dismissal of their suit that the petitioners raised a case of further demarcation. Such demarcation and the case not pleaded or canvassed before the learned trial Judge, cannot be allowed to be raised before this Court. In view thereof, C.M. No,2-C-1995 is rejected.
11. The case of the petitioners in their suit and in appeal was that respondents Nos.1 to 3 were inducted as the tenants upon the suit-land measuring 13 Marlas comprising Khasra No,1518. The plea was concurrently rejected by the learned Court below for the reason that the petitioners had not produced any reliable evidence to prove tenancy of respondent No,1 etc. In the present revision petition, the petitioners and their learned counsel made no submissions to question the findings of the learned Courts below in the absence of the tenancy of the respondents. The petitioners thus are deemed to have abandoned and waived their claim of being landlords of the said respondents. The composite pleas in the plaint and advanced before the learned Courts below were that respondents Nos.1 to 3 were inducted as the tenants on the suit-land by the petitioners etc. As the owners landlords wherefor, they were entitled to the recovery of possession from respondents Nos.1 to 3 (Paras 9 and 10 of the plaint). The cause of action was pleaded in Paras-11 and 12 of the plaint to have arisen to the petitioners etc. Against respondents Nqs.1 to 3 upon their denial to stop construction allegedly upon the tenanted land and to vacate the same. Examination of the cause of action pleas show that the principal reason of the suit was the denial by the tenants (respondents Nos.1 to 3) to vacate the property. In the absence of proof of tenancy of respondents Nos.1 to 3 and abandonment of the plea by the petitioners through non-contest in the submission before this Court, the fundamental and essential cause for lis was rendered inexistent. The base for the suit thus disappeared.
12. On the existence or non-existence of Khasra No,1518, none of the arguments of the learned counsel for the petitioners have material. The learned courts below on the basis of due, detailed and analytical appreciation of the evaluation of evidence through concurrent findings of fact decided the grounds as herein raised against the petitioners. Adequate to quote the relevant excerpt from the impugned judgment dated 10-2-1995 of the learned Additional District Judge that:-- ".. .In fact Khasra No,165 was divided into two numbers i.e, 2880/165 total area measuring 2 Kanals, 1 Marla and 2879/165 total area measuring one Kanal and 15 Marlas. The area of 2879/165 measuring one Kanal 15, Marlas was consumed in Ghair Mumkin Sark and it was in the occupation of P.W.D.
These facts are reflected by Exh.D.4. Since the total area of Khasra No,165 was consumed in the said two new Khasra numbers, therefore, the creation of Khasra No,1518 is not proved on the file. I am sure that the creation of Khasra No,1518 in the trick of the Patwari. Moreover, there is yet another attested copy of Mutation No,3261. From its perusal, it appears that Muhammad Waris predecessor-in-interest of the present appellants sold land measuring 15 Marlas from Khata No,67/135 but the mutation was cancelled on 8-1-1973 because Muhammad Waris had already sold his land and he was not owner of other land. Exh.D.7 is an attested copy of said document.
These facts show that in the first place, Muhammad Waris had already got rid of his land and secondly, Khasra No,1518 legally did not exist at the spot.
13. There is nothing on record to convince this Court that the findings of the learned subordinate Courts as to the non creation and non-existence of Khasra No,1518 can be interfered with. It has not been denied that the relevant Khasra No,165 was bifurcated into Khasra No,2880/165 and Khasra No,2879/165 and the later Khasra number measuring 1 Kanal and 15 Marlas was 'Ghair Mumkin' bearing under a road in occupation of P.W.D. Furthermore, there in nothing to distinguish the findings that Khasra No,1518 was created through Partwari's manoeuvring and also that Muhammad Waris (the predecessor in interest of the petitioners) had tried to sell the land beyond his ownership.
14. The learned Courts below also validly declined to rely upon the Local Commissioner's report in the absence of producing the same in evidence through the Local Commissioner. Further that such Local Commissioner's report could not substitute the demarcation competently made by the revenue authorities particularly when the relevant Patwaris appearing as P.W.1 and P.W.2 expressly stated Local Commissioner's demarcation to have been improperly and illegally made.
15. In view of what has been discussed above, this civil revision is dismissed with costs throughout.